Opposition Brief — Ford Motor Co. v. United States

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Supreme Court, U.S.

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G | AUG 11 1987

EPH F. SPANIOL, JR.

No. 86-1892 Fhe

=RK

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

FORD MoTOoR COMPANY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Acting Assistant Attorney General

JACQUES B. GELIN

WILLIAM B. LAZARUS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner is immune from federal en-

forcement of an EPA-approved Clean Air Act State

Implementation Plan (SIP) on account of a state

court’s entry of a consent judgment, negotiated be-

tween petitioner and state authorities, that purports

to vacate the relevant portion of the SIP.

Phin

TABLE OF CONTENTS

Page

a 1 caring ass uenneiiannanhsavindoiacnonsetens 1

a ca agenneanesinpironhnancincinaniins 1

i Si a a NEE Se Ee 2

Argument ....... Do A Act et ee 8

a saeedpcheieasacennansannens 20

TABLE OF AUTHORITIES

Cases:

American Cyanamid Co. v. EPA, 810 F.2d 493

a icniiciceeecticitny sndhsieetdoninatsiwns 11

American Petroleum Institute v. Costle, 665 F.2d

1176 (D.C. Cir.), cert. denied, 455 U.S. 1034

raat cee iatianlahdonsishhinbanibnemesceitennarenines 2

Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C.

ed ia datacnaiebienaitslesnicemscoas 11

Illinois v. Celotex Corp., 516 F. Supp. 716 (C.D.

a cesinonnmimnabanccaonnan 18

Local 93, Int’l Ass’n of Firefighters v. City of

Cleveland, No. 84-1999 (July 2, 1986) ~............. 14

Metropolitan Washington Coalition for Clear Air

v. District of Columbia, 511 F.2d 809 (D.C. Cir.

oc casanw sca snehasianiinincidaass 11

Natural Resources Defense Council, Inc. v. EPA,

oo ae ee chee Gee. BO7a) .«.........-.-.....-065-.:...... 11

Natural Resources Defense Council, Inc. v. EPA,

3 fh Rf) Renee 11

New Mexico Environmental Improvement Division

v. Thomas, 789 F.2d 825 (10th Cir. 1986) ........ 18

Ohio Environmental Council v. United States Dis-

trict Court, 565 F.2d 393 (6th Cir. 1977)........ 11

Sierra Club v. Indiana-Kentucky Electric Corp.,

716 F.2d 1145 (7th Cir. 1983) ....................... 7,16, 17,18

Train Vv. Natural Resources Defense Council, Inc.,

sk Se Lk... | EROS manne mn 8,10, 11, 12,15

(111)

Cases—Continued: Page

Union Electric Co. v. EPA, 427 U.S. 246 (1976)... 8,9,

11, 12

United States v. Wheeling-Pittsburgh Steel Corp.,

3 Bk By Mt oe Ae.) ee nunnnnnNENE 11

Walworth Vv. Harris, 129 U.S. 355 (1889) -...............- 14

Statutes and regulations:

Clean Air Act, 42 U.S.C. (& Supp. III) 7401 et

rARORE NU Re ale, CPt So DEORE RUN ASOT ON Se OTe ON 2

I I isch cacctaenennimintenenisinnpin 15

rs cimarsisnnilindlaomitcnes 2

Be I ila air ccicncenininstnininatiniinn 2

§ 110(a) (2), 42 U.S.C. 7410 (a) (2) -........2.---.- 8,13

§ 110(a) (3), 42 U.S.C. 7410 (a) (8) ............. 6, 9, 10, 12

Bel Cle Sik. Lom 7 | |) ee 9

Da ee ee: SOD victnittscnrinecrincccvtntncninnse 9,12

OI a a asinasiileo 2

§ 1138(a) (2) 42 U.S.C. 7418 (a) (2)....0000 4

eet Se Cle Som |. ||) ere 4

Fa BL | ay CORRE eve eeeaneeeneeeT 8,9, 13

§ 172(b) (3), 42 U.S.C. 7502 (b) (8) ................... 3,9

§ 172(e), 42 U.S.C. 7502 (e) 4

- $307, 42 U.S.C. 7607 —......... ideas 16

40 C.F.R.:

I ie Lt eneatiummenadegmmeticonih 2

I ea 10

I oon g on a ed 4

Mich. Admin. Code 336.1610 (1979) .............. 2, 3, 4, 5, 6, 7,

11, 14, 18, 19

Miscellaneous:

Ce EN. | eee ane 2

44 Fed. Reg. 8203-8204 (1979) ..........22.2 eee 2

45 Fed. Reg. (1980) :

aie cial ceaiphininincsandeialobaohandsong 3

SREY ee eRe me EIR a Nr a 4

In the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1892

ForRD MOTOR COMPANY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

9a) is reported at 814 F.2d 1099. The ruling of the

district court (Pet. App. 10a-13a) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

18a-19a) was entered on March 27, 1987. The peti-

tion for a writ of certiorari was filed on May 29,

1987. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATEMENT

The Clean Air Act (CAA), 42 U.S.C. (& Supp. IIT)

7401 et seq., establishes a comprehensive federal pro-

gram to protect and enhance the quality of the nation’s

air resources. Section 109 requires the Environ-

mental Protection Agency (EPA) to promulgate na-

tional ambient air quality standards (42 U.S.C. 7409)

and Section 110 then requires each state to adopt and

submit for EPA approval a State Implementation

Plan (SIP) to achieve the federal air quality stand-

ards within the state’s borders (42 U.S.C. 7410). The

SIP will generally contain detailed regulations limit-

ing emissions from air pollution sources, including

timetables for compliance. See ibid. Once the SIP is

approved, both the federal and state governments

may enforce its provisions. See CAA § 113, 42 U.S.C.

7413.

1. In February 1979, EPA promulgated a com-

bined primary and secondary national ambient air

quality standard for ozone. See 44 Fed. Reg. 8202

(1979); 40 C.F.R. 50.9. Shortly thereafter, Michi-

gan promulgated a SIP, known as Rule 610, govern-

ing the release of air pollutants that contribute to

ozone formation. Mich. Admin. Code 336.1610

(1979). Among its provisions, Rule 610 limits emis-

sions of volatile organic compounds from vinyl coat-

1Qzone, a by-product of the photo-chemical oxidation of

volatile organic compounds (such as solvents), is a respiratory

irritant that is linked to various health disorders. 44 Fed.

Reg. 8203-8204 (1979). See generally American Petroleum

Institute Vv. Costle, 665 F.2d 1176 (D.C. Cir.), cert. denied,

455 U.S. 1034 (1981) (upholding EPA’s ozone standard).

ing production lines.? Rule 610’s limitation for each

vinyl coating line is directly applicable to petitioner

Ford Motor Company’s Mount Clemens manufactur-

ing plant, the only vinyl coating facility in the state.

This plant is located in a “nonattainment area”—

an area in which the ozone level already exceeds the

national ambient air quality standard. It is there-

fore subject to additional Clean Air Act require-

ments, including a requirement that the plant use,

at a minimum, “reasonably available control tech-

nology” (RACT) to control its emissions. See CAA

§ 172(b) (3), 42 U.S.C. 7502(b) (3). Rule 610 was

formulated to satisfy that requirement.

Michigan submitted Rule 610 to EPA, and peti-

tioner urged approval, providing technical data in

support of its recommendation. See C.A. App. 86-87

(letter from petitioner to EPA). EPA approved

Rule 610 on May 6, 1980, specifically noting peti-

tioner’s support for the vinyl coating emission limita-

tion. 45 Fed. Reg. 29790, 29799 (1980).* Rule 610,

2 Rule 610 provides in pertinent part (C.A. App. 74) :

(3) It is unlawful for a person to cause or allow the

emission of volatile organic compounds from the coating

of * * * vinyl, * * * from any existing coating line, in

excess of the equivalent emission rates as shown in table

63.

Table 63 states that the allowable emission rate for the coat-

ing of vinyl is 4.5 pounds of volatile organic compounds

(minus water) per gallon as applied.

’ EPA stated (45 Fed. Reg. 29799 (1980) ):

USEPA believes that the technical support submitted by

the State and Ford Motor Company adequately documents

that an emission limitation of 4.5 lbs/gallon represents

which required compliance by December 31, 1982,

thus became part of the federally-enforceable Michi-

gan SIP. See 45 Fed. Reg. 29801-29802 (1980); 40

C.F.R. 52.1172.

On April 19, 1984, EPA determined that petitioner

was operating eight vinyl coating lines at the Mount

Clemens facility in violation of Rule 610 and issued

a Notice of Violation ordering petitioner to comply

(C.A. App. 9-10). Petitioner continued to violate

Rule 610’s requirements. Accordingly, on Septem-

ber 26, 1984, the United States filed this action under

Section 113(b) of the Clean Air Act, 42 U.S.C.

7413(b), seeking injunctive relief and civil penalties

with respect to the eight lines (C.A. App. 5-19).

See 42 U.S.C. 7502(e).* The complaint alleged that

six of the eight lines were operating without any

pollution control equipment and were emitting poi-

lutants at rates in excess of those allowed by Rule

610 (C.A. App. 7, 10-18, 15-17). The complaint fur-

ther alleged that while petitioner had installed con-

trol equipment on the other two lines, emissions from

those lines also exceeded the rates prescribed by Rule

610 (id. at 13-15).°

RACT [reasonably available control technology] for this

vinyl coating plant.

EPA also observed that Michigan’s Rule 610 is not as strin-

gent as limitations recommended by EPA and placed on viny!

coaters in other states (ibid.).

* Petitioner contends that EPA did not notify or consult

with Michigan before filing the enforcement action (Pet. 7,

20 n.6). In fact, EPA sent a copy of the April 19, 1984 Notice

of Violation to the Michigan Department of Natural Re-

sources, pursuant to Section 113(a) (2) of the Clean Air Act,

42 U.S.C. 7413 (a) (2). See C.A. App. 10.

5 Petitioner admits that it has violated Rule 610’s emission

limitations, but claims that its behavior is consistent with the

2. One month later, petitioner filed suit in Michi-

gan state court against the Michigan Department of

Natural Resources, the Michigan Air Pollution Con-

trol Commission, and the Michigan Natural Re-

sources Commission. Petitioner sought to enjoin

those state defendants from enforcing Rule 610 on

the ground, among others, that the emission limits

are technologically and economically infeasible. EPA

was not a party to the action nor was it notified of

the filing of the action.

The Michigan Department of Natural Resources

agreed that Rule 610’s emission limitations should be

revised. In early 1985, the Michigan Air Pollution

Control Commission approved a “Stipulation for

Entry Consent Order and Final Order” (Pet. App.

26a-3la) stating that “the Commission finds that

for [vinyl] coaters 7 and 8 [the lines on which

equipment had been installed], the Vinyl Limit [set

forth in Rule 610] was (and is) not achievable

“goal” of those emission limitions. See Pet. 8 (stating that

“Ford subsequently met or exceeded the goal for reducing

total VOC emissions that formed the basis for the rate limi-

tation in Rule 610” but was “unable to meet the emissions

rate limitation of Rule 610” (emphasis in original) ) ; see also

id. at 7-9, 21 n.7. Indeed, petitioner could hardly contend to

be in compliance: it installed no pollution abatement equip-

ment on six of the lines and claims that Rule 610’s emission

limitations are, in any event, infeasible.

®* The Department’s Air Quality Division prepared a report

stating that Rule 610, when enacted, was believed to constitute

reasonably available control technology (RACT) (Pet. App.

34a). It also stated, ‘Because the proposed Order reflects

limits that are different than those in the currently approved

Michigan SIP, the order must be submitted to EPA as a re-

vision to the SIP. Such ‘site-specific’ SIP revisions * * * must

meet certain criteria in order to be approvable” (id. at 36a).

through the use of reasonably available control tech-

nology” (id. at 27a-28a). The Commission’s order

provided for a phased shutdown of the six uncon-

trolled lines and set a more lenient standard for the

two controlled lines than that provided in Rule 610.

The parties agreed that the order and all necessary

data “shall be transmitted to the U.S. Environmental

Protection Agency for approval as a revision to the

Michigan State Implementation Plan” (Pet. App.

30a). On March 6, 1985, the Michigan Department

of Natural Resources submitted the order to EPA

for approval as a SIP revision pursuant to Section

110(a)(3) of the Clean Air Act, 42 U.S.C. 7410

(a) (3). See C.A. App. 89.

Petitioner and the state defendants then requested

the state court to enter a final judgment and stipula-

tion in accordance with documents submitted by the

parties. The state court granted that request on

March 18, 1985. See Pet. App. 22a-25a. The judg-

ment, which was drafted by petitioner and the state

defendants, states that Rule 610 “is hereby vacated

and modified, with regard to the Ford Motor Com-

pany Mt. Clemens Vinyl Plant, to define reasonably

available control technology, after December 31,

1982, as the emission control program set forth in

the ‘Stipulation for Entry of Consent Order and

Final Order’ of the Michigan Air Pollution Control

Commission” (id. at 23a).

Next, petitioner filed a motion for summary judg-

ment in the instant action, contending that the fed-

eral government could not enforce Rule 610 because

the state court had invalidated the rule insofar as

it applied to petitioner. The district court orally

granted the motion on August 5, 1985, and entered

a judgment dismissing the government’s claim on

August 14, 1985 (Pet. App. 10a, 14a).’

8. The court of appeals reversed and remanded

the case to the district court to permit the federal en-

forcement action to proceed (Pet. App. la-9a). The

court rejected petitioner’s contention “that the state

court consent judgment is controlling” (id. at 3a) and

precludes a federal enforcement action. It held that

the state court judgment could not preclude federal

enforcement of the federally-approved SIP because the

Clean Air Act requires that “the original emission

limit remains fully enforceable until a revision or

variance is approved by both the State and EPA”’

(id. at 7a).

‘The court distinguished the Seventh Circuit’s deci-

sion in Sierra Club v. Indiana-Kentucky Electric

Corp., 716 F.2d 1145 (1983), on which petitioner

relied. There, the Seventh Circuit invalidated an

Indiana SIP that had not been properly promul-

gated under state procedural law. The court ob-

served that here, Rule 610 had been properly adopted

and only later repudiated by the state “through the

discovery of subsequent technical data” (Pet. App.

6a). The court of appeals further stated that peti-

tioner’s collateral estoppel claim—based on the Michi-

gan state court’s entry of a consent judgment in

which the United States was not a party—“borders

on the frivolous” (ibid.) and that petitioner has no

™The government subsequently filed a motion for recon-

sideration, which the district court denied (Pet. App. 16a).

The district court added that the state court judgment va-

cated Rule 610 for all lines at the Mount Clemens facility, not

just lines 7 and 8, the lines specifically referred to in the

state court judgment (id. at 17a).

viable claim here that any due process right has been

violated (id. at 7a-9a).

ARGUMENT

The Michigan Air Pollution Control Commission,

with petitioner’s support, adopted and submitted for

EPA approval SIP regulations limiting pollutant

emissions from petitioner’s plant. EPA approved

those regulations and has since sued petitioner for

noncompliance. The state agency, at petitioner’s urg-

ing, has now concluded that the emission limitations

are more demanding than it originaliy intended. It

has elected to revise the limitations and has submit-

ted the revisions for EPA approval. The court of

appeals correctly concluded that petitioner remains

subject to a federal action for enforcement of the

existing regulations unless and until EPA approves

the proposed revisions in accordance with statutorily

prescribed procedures. That decision does not con-

flict with any decision of this Court or of any other

court of appeals, and does not merit further review.

1. The 1970 amendments to the Clean Air Act

“place the primary responsibility for formulating

pollution control strategies on the States, but none-

theless subject the States to strict minimum com-

pliance requirements.” Union Electric Co. v. EPA,

427 U.S. 246, 256-257 (1976).° “These requirements

8 See 42 U.S.C. 7410(a) (2), 7502. The 1970 amendments

were designed to “tak[e] a stick to the States” and “sharply

increased federal authority and responsibility in the continu-

ing effort to combat air pollution.” Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60, 64 (1975). As the court

of appeals recognized (Pet. App. 5a), Congress saw a need

for minimum federal standards because relaxed requirements

in one state could adversely affect air quality in other states.

are of a ‘technology-forcing character’” (id. at 257

(citation omitted)) and “are expressly designed to

force regulated sources to develop pollution control

devices that might at the time appear to be eco-

nomically or technologically infeasible” (ibid.). A

state may, of course, impose even stricter limitations

than the Act requires (id. at 265). But if a state

fails to adopt a SIP that meets the Act’s minimum

requirements, EPA may promulgate its own SIP for

that state. CAA §$110(c), 42 U.S.C. 7410(c).°

Congress recognized that under this scheme, states

might wish to change their SIP requirements in light

of changing conditions and enhanced understanding

of the complex science and technology of air pollu-

tion control. See Union Electric Co., 427 U.S. at 266.

Congress therefore provided a SIP revision process,

under Section 110(a)(3) of the Act, that allows al-

teration of previously approved SIP provisions pro-

vided that the revised SIP continues to satisfy the

Act’s minimum requirements (42 U.S.C. 7410(a)

(3)). Congress further specified that except for a

plan revision under Section 110(a) (38) (and certain

other exceptions not relevant here) :

no order, suspension, plan revision, or other ac-

tion modifying any requirement of an applicable

implementation plan may be taken with respect

to any stationary source by the State or by the

Administrator [of EPA].

CAA §110(i), 42 U.S.C. 7410(i). Thus, Congress

stated, in terms that could not be clearer, that a pro-

® Congress, through the 1977 Clean Air Act Amendments,

imposed even stricter minimum requirements by placing RACT

limitations on non-attainment areas. CAA § 172(b) (3), 42

U.S.C. 7502 (b) (3).

posed SIP revision must obtain EPA approval under

Section 110(a) (3) to become effective. EPA has con-

sistently emphasized that requirement in the appli-

cable regulations.*°

This Court has expressly recognized that an EPA-

approved SIP remains in effect pending federal ap-

proval of a state’s proposed revision. See 7'rain v.

Natural Resources Defense Council, Inc., 421 U.S.

60, 92 (1975). The Court has stated (ibid. (foot-

note omitted) ) :

[A] polluter is subject to existing requirements

until such time as he obtains a variance, and

variances are not available under the revision

authority until they have been approved by both

the State and the [Environmental Protection]

Agency. Should either entity determine that

granting the variance would prevent attainment

or maintenance of national air standards, the

polluter is presumably within his rights in seek-

ing judicial review. This litigation, however, is

carried out on the polluter’s time, not the pub-

lic’s, for during its pendency the original regula-

tions remain in effect, and the polluter’s failure

10 EPA’s regulations specifically prohibit the states from

unilaterally revising federally-approved SIP provisions:

The Administrator shall approve any plan, or portion

thereof, or any revision of such plan, or portion thereof,

if he determines that it meets the requirements of the

Act. Revisions of a plan, or any portion thereof, shall

not be considered part of an applicable plan until such

revisions have been approved by the Administrator in

accordance with this part.

40 C.F.R. 51.8. The SIP revision process also is the proper

mechanism by which states may obtain requisite EPA ap-

proval for variances applicable to specific polluters. Train,

421 U.S. at 70, 86-94.

to comply may subject him to a variety of en-

forcement procedures.

The courts of appeals have, in turn, uniformly recog-

nized and applied these principles.”

2. Petitioner argues that these principles should

not apply here because petitioner negotiated a con-

sent judgment with local authorities stating that

Rule 610’s emission limitations are “vacated and

modified” (Pet. App. 23a). This consent judgment,

in petitioner’s view, renders Rule 610’s emission lim-

itations “invalid as of their inception” (Pet. 15).

Petitioner contends that this result must obtain be-

cause the local authorities and petitioner “labored

from the very outset under a mistake of fact” that

the limitations would constitute reasonably available

control technology (id. at 19-20).

Petitioner’s argument is fundamentally inconsist-

ent with the Clean Air Act’s language, EPA’s regu-

lations, and the numerous judicial decisions cited

above. As we have explained, Congress intended that

the Clean Air Act would “ ‘tak[e] a stick to the

States’” (Union Electric Co., 427 U.S. at 249 (quot-

ing Train, 421 U.S. at 64)) by requiring them to

formulate pollution control strategies that “force

11 See, e.g., United States v. Wheeling-Pittsburgh Steel

Corp., 818 F.2d 1077, 1084-1086 (3d Cir. 1987); American

Cyanamid Co. v. EPA, 810 F.2d 493, 495 (5th Cir. 1987) ;

Duquesne Light Co. v. EPA, 698 F.2d 456, 470-471 (D.C. Cir.

1983) ; Ohio Environmental Council v. United States District

Court, 565 F.2d 393, 398 (6th Cir. 1977) ; Metropolitan Wash-

- ington Coalition for Clean Air vy. District -of Columbia, 511

F.2d 809, 812 (D.C. Cir. 1975); Natural Resources Defense

Council, Inc. v. EPA, 507 F.2d 905, 915 (9th Cir. 1974) ;

Natural Resources Defense Council, Inc. v. EPA, 478 F.2d

875, 886 (1st Cir. 1973).

eeenniomineeias

regulated sources to develop pollution control devices

that might at the time appear to be economically or

technologically infeasible’ (427 U.S. at 257). Con-

gress fully understood that the resulting SIP require-

ments would rest on complex scientific and techno-

logical projections and might occasionally reflect mis-

taken assumptions. Congress therefore provided a

revision process and further specified that revisions

shall not be effective “until they have been approved

by both the State and the Agency.” Train, 421 U.S.

at 92 (emphasis added). See CAA § 110(a) (3), 42

U.S.C. 7410(a) (8); CAA §110(i), 42 U.S.C. 7410

(i). Thus the Act, while involving the states in its

implementation, carefully preserves a federal role to

ensure accomplishment of its purposes notwithstand-

ing any possible inclination of state authorities to

give unduly favorable treatment to local industries.

Petitioner, at bottom, argues for a radical amend-

ment of the Clean Air Act that would undermine the

basic integrity of the SIP program. The Clean Air

Act’s elaborate technology forcing provisions and de-

tailed procedures and timetables for SIP submission

and approval would lose all practical meaning if a

polluter and the state authorities could unilaterally

rescind an EPA-approved SIP by simply agreeing

that they have made a “mistake of fact” (Pet. 19).

Likewise, EPA’s authority to review and approve

proposed SIP revisions would be eviscerated if any

polluter that encountered difficulty in meeting a SIP

requirement could invalidate that requirement by

simply convincing state authorities that the emission

limitation rests upon a “mistaken assumption” (id.

at 19-20). Indeed, Congres created the SIP revision

process for the specific purpose of allowing both EPA

and the state authorities to consider technical re-

assessments of SIP provisions.”

Petitioner’s argument is not only inconsistent with

the Clean Air Act, it is inconsistent with the terms

of the agreement that petitioner concluded with the

state authorities. Petitioner and the state authorities

specifically agreed that the resulting agreement

“shall be transmitted to the U.S. Environmental

Protection Agency for approval as a revision to the

Michigan State Implementation Plan” (Pet. App.

30a). The supporting technical document, prepared

by the Michigan Department of Natural Resources,

likewise stated that the agreement “must be sub-

mitted to EPA as a revision to the SIP” (id. at 36a)

and that the revision “must meet certain criteria in

order to be approvable” (ibid.). Thus, petitioner and

the state authorities fully understood that their

12 Petitioner mistakenly cites Union Electric Co. for the

proposition that “economic and technological infeasibility is

not a proper issue either for EPA or the federal courts” (Pet.

13). Petitioner’s characterization of that decision is plainly

overbroad. The Union Electric Co. decision upheld EPA’s

position that Congress gave the agency no power to reject

a proposed SIP on the ground, proffered by pollution sources,

that the state proposal is so strict as to be economically or

technologically infeasible (427 U.S. at 256). The decision

does not limit EPA’s authority to assure that SIP revisions

meet the “ct’s minimum requirements. EPA may examine

the technical support for Michigan’s newly proposed emis-

sion rates—including the evidence supporting Michigan’s

claim that the present EPA-approved emission rates are in-

feasible—to assure that the proposed emission limitations

meet the Act’s RACT requirements. See CAA § 110(a) (2),

42 U.S.C. 7410(a) (2); see also CAA § 172, 42 U.S.C. 7502.

Indeed, EPA conducted that type of technical assessment

seven years ago when it approved the present RACT-based

emission limitations in the original SIP proceedings. See 45

Fed. Reg. 29799 (1980).

agreement constituted a SIP revision subject to the

Clean Air Act’s revision approved process.

Petitioner suggests (Pet. gam this case is dis-

tinguishable from a standard SIP revision because

petitioner obtained a state court consent judgment

that “vacated” Rule 610’s emission limitations (Pet.

App. 23a). Petitioner itself composed the consent

judgment’s language and simply submitted it for the

court’s approval (see id. at 22a). Against this back-

ground, petitioner’s assertion that the state court

“fdjetermined” (Pet. 15) or “declared” (id. at 17)

that Rule 610 was void ab initio is especially un-

persuasive. There is no reason to believe that the

state court intended to prohibit the federal govern-

ment from enforcing the existing limitations. EPA

was not a party to this suit, the state court did not

purport to rule that it could issue a judgment binding

EPA, and nothing in the judgment or the supporting

documents indicates that the parties expected to

preclude federal enforcement of Rule 616. Quite to

the contrary, the consent judgment was plainly de-

signed to settle a controversy between petitioner and

the state authorities (Pet. App. 23a). The judgment

simply prohibits the state defendants from enforcing

Rule 610’s emission limitations. See Local 93, Int'l

Ass’n of Firefighters v. City of Cleveland, No. 84-1999

(July 2, 1986).

Petitioner’s citation of comity principles (Pet. 23-

24) is accordingly misplaced. The court of appeals’

judgment does not interfere with the state court’s

limitation on state enforcement of Rule 610.** Nor is

13TIn any event, the Clean Air Act’s express provision for

a SIP revision process overrides principles of comity. It is,

of course, well established that comity gives way where the

legislature has indicated to its courts the controlling rule.

E.g., Walworth v. Harris, 129 U.S. 355, 366 (1889). Peti-

petitioner correct in contending that the court of ap-

peals’ judgment results in “gross inequities” (id. at

24-26, see also id. at 16, 21). It is not “Kafkaesque”

(id. at 16), “outrageous” (id. at 21) or a “Catch 22”

to require petitioner to comply with existing emission

limitations while EPA reviews the proposed revi-

sions. See Train, 421 U.S. at 92. That is particu-

larly true here, where petitioner itself recommended

that EPA approve the existing regulations and pro-

vided technical support for that recommendation (see

page 3 & note 3, supra). Petitioner’s contention

tioner’s citation of comity principles is, in fact, rather ironic.

Comity is a two-way street; federal and state courts are ex-

pected to accord each other mutual respect. Comity would

therefore caution a state court against entering a judgment

precluding federal enforcement of a federal statute in federal

court—particularly when the state court action involves only

non-federal parties. The state court’s judgment in this case

should not be extrapolated to reach such an untoward result.

14 Petitioner’s contention that “EPA has simply sat on its

hands, acting neither to approve the proposed revision nor

to disapprove it” (Pet. 12) is inaccurate. The Clean Air

Act charges EPA with responsibility “to protect and en-

hance the quality of the Nation’s air resources” (CAA § 101,

42 U.S.C. 7401), and EPA therefore gives careful scru-

tiny to any proposal recommending relaxation of existing

SIP requirements. And, as petitioner knows, EPA has con-

ducted a continuing dialogue with state authorities and peti-

tioner concerning the technical aspects of the proposal here

to ascertain whether it will satisfy the Clean Air Act’s mini-

mum requirements. EPA expects to complete its action on a

proposal to approve or disapprove Michigan’s revision by

November 1987, which will then be reviewed by the Office of

Management and Budget. Thus, EPA is moving expeditiously

in light of the important public rights involved. On the other

hand, petitioner’s own behavior has not been exemplary. Peti-

tioner operated six of its eight vinyl coating lines, with no

that the court of appeals’ decision denies petitioner

due process (Pet. 26-28) is likewise meritless. The

court of appeals did not “deny[] any meaningful

effect to the judgment of the state court” (id. at

26); instead, the court of appeals correctly recog-

nized that the state court judgment “has effected the

first step in the revision process: the proposal of a

revision to EPA by the state” (Pet. App. 8a). Due

process does not require a federal court to treat the

“first step” of a statutory revision process as a con-

clusive invalidation of an existing regulation.”

In short, Michigan’s federally-approved SIP re-

mains in effect—and federally enforceable—unless

and until EPA approves the state’s proposed revision.

The court of appeals correctly rejected petitioner’s

contrary contentions.

3. In contending (Pet. 16-19) that the court of ap-

peals’ decision conflicts with Sierra Club v. Indiana-

Kentucky Electric Corp., 716 F.2d 1145 (1983),

petitioner characterizes Sierra Club as broadly hold-

ing that an SIP is rendered unenforceable when-

ever a litigant successfully challenges the SIP in

state court. The Sierra Club decision is, in fact,

pollution controls whatsoever, for two-and one-half years

beyond the legally-binding compliance deadline (Pet. App.

33a).

15 Petitioner may comment on the EPA’s proposed action

and may seek judicial review if EPA disapproves the revision.

See CAA § 307, 42 U.S.C. 7607. Furthermore, as the court

of appeals noted (Pet. App. 9a), petitioner’s claims of in-

feasibility, if substantiated, may be considered as a mitigating

factor in the imposition of penalfties in the present enforce-

ment action. Petitioner, moreover, has not sought in any

court proceeding to require EPA to conclude more promptly

its consideration of the proposed revision.

a a

much narrower. The court of appeals correctly found

that decision to be “readily distinguishable’ (Pet.

App. 6a n.1) from the case here.

In Sierra Club, a private organization brought suit

in federal court to enforce an EPA-approved provi-

sion of the Indiana SIP. The federal court recog-

nized that, prior to the citizen suit, an Indiana court

had determined that the Indiana air pollution au-

thorities had failed to comply with state procedural

law when promulgating the SIP. 716 F.2d at 1147.

The court held that the SIP was therefore unenforce-

able, reasoning that EPA approval of the SIP could

not cure the procedural defect (716 F.2d at 1148).

As the court of appeals recognized (Pet. App. 6a),

the Sierra Club decision is plainly limited to its spe-

cial facts. The decision repeatedly emphasizes that

the Indiana SIP was unenforceable because it was

procedurally defective.** Indeed, the Seventh Circuit

stated :

16 Petitioner specifically relies on a single sentence in Sierra

Club for the proposition that the decision bars enforcement

of the SIP in the event of any successful state court challenge

(Pet. 6). The full passage in which that sentence is used

shows, however, that the court was addressing only procedural

challenges:

Our examination of the statute, relevant judicial prece-

dent, and the legislative history reveals that the Act does

permit a successful state court challenge to render an

implementation plan provision unenforceable in both fed-

eral and state court.

Three reasons support this conclusion. First, admin-

istrative action, to be valid, must substantially comply

with applicable procedural rules. Because APC-13 was

not promulgated in accordance with Indiana procedural

law, APC-13 is invalid and may not be enforced. Second,

decisions construing the Act have encouraged litigants to

Once a plan is adopted by the states and it with-

stands any subsequent procedural challenge, then

§ 7607(b) (1) provides that invalidation may

occur only in the federal appellate courts. —

716 F.2d at 1152 (emphasis in original). Thus, the

Sierra Club decision, by its own terms, does not con-

flict with the court of appeals’ decision in the present

case.**

Petitioner concedes that the state court here did

not find Rule 610 procedurally defective; instead,

petitioner characterizes the state court judgment as

confirming that Rule 610 possessed a “fundamental

substantive defect under state law” (Pet. 17 (em-

phasis in original) ). But even that characterization

is overstated. As we have explained, the state court

judgment simply ratified an agreement between peti-

tioner and the state authorities providing that an

pursue their procedural challenges to state implementa-

tion plans in the state courts. For that review to be

meaningful, a state court ruling, like that of the Indiana

Appellate Court, must be given effect. Finally, no prece-

dent exists to support the Sierra Club’s novel suggestion

that an invalid plan should be given effect until a replace-

ment is devised; instead the Act and its Legislative his-

tory foresaw EPA action as the appropriate remedy for

any state level failure.

716 F.2d at 1148 (emphasis in original).

17 Petitioner’s citations to New Mezxico Environmental Im-

provement Division v. Thomas, 789 F.2d 825 (10th Cir. 1986),

and Illinois vy. Celotexr Corp., 516 F. Supp. 716 (C.D. Ill.

1981), are also misplaced. In the former case, the Tenth

Circuit held that EPA could impose sanctions upon a state

for failure to submit a SIP that complied with state law.

In the latter case, the district court, as in Sierra Club, in-

validated a SIP that was improperly promulgated under

state procedural law.

EPA-approved emission limitation, validly promul-

gated under Michigan law, should be revised and sub-

mitted to EPA for approval. Petitioner points to

nothing in Michigan substantive law that forbade the

state pollution control authorities from imposing the

original emission limitations prescribed by Rule 610.

Nor did the state court find that action to have been

ultra vires.

At bottom, petitioner can assert only that the state

authorities, in attempting to satisfy the Clean Air

Act’s minimum requirements, actually imposed some-

what stricter standards"* EPA may or may not

agree with that conclusion, depending on the results

of its own ongoing technical assessment. But what-

ever the outcome of that assessment, there is cer-

tainly no merit to petitioner’s statement that a “SIP

provision promulgated in the mistaken assumption

that it represented RACT means that there never

was a federally-enforceable SIP provision applicable

to Ford’s Mount Clemens plant” (Pet. 19-20). Michi-

gan’s EPA-approved SIP remains in effect until

changed in accordance with the Clean Air Act’s SIP

revision process. Petitioner simply seeks license to

circumnavigate the statutory scheme.

18 Petitioner concedes that Rule 610, when promulgated by

the state at petitioner’s urging, “was believed to be economi-

cally and technically feasible based upon the data then avail-

able” (Pet. 9) and that the state authorities reached a differ-

ent conclusion only “[u]pon reevaluation” (ibid.) by the state

authorities following Ford’s state court suit.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.