# Reply Brief — Ford Motor Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 822 ## Text Supreme Court, U.S. FILED AUG 19 198; No. 86-1892 JOSEPH F. SPANIOL, JR GLERK ne Iu the Supreme Court of the United States OCTOBER TERM, 1987 FORD MOTOR COMPANY, PETITIONER UNITED STATES OF AMERICA, RESPONDENT On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit REPLY BRIEF FOR THE PETITIONER DOUGLAS E. CUTLER KATHRYN A. OBERLY NORMAN W. BERNSTEIN Counsel of Record Ford Motor Company Mayer, Brown & Platt 401 Parklane Towers West 2000 Pennsylvania Ave., N.W. One Parklane Boulevard Washington, D.C. 20006 Dearborn, Michigan 48126 (202) 463-2000 (313) 322-4891 WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 TABLE OF AUTHORITIES Cases: Page Sierra Club v. Indiana-Kentucky Electric Corp., ri By, BC By, Ge A. | Seem 1 Train Vv. NRDC, 421 U.S. 60 (1975) ......................2+- 6 Union Electric Co. v. EPA, 427 U.S. 246 (1976)..... 2, 3, 6, 8a United States v. Best, 573 F.2d 1095 (9th Cir. I i aa a a esas 5 United States v. Brown, 608 F.2d 551 (5th Cir. INE AER Ee En ee ona 5 United States v. National Steel Corp., 767 F.2d Be I I ID ss cateinectsatinblethamniieinnnsntininpaniosn 3 Statutes and regulations: Assimilative Crimes Act, 18 U.S.C. § 18 —.............. 5 Clean Air Act of 1970, 42 U.S.C. § 7401 et seq.: i icaemsinnsinehehixna Ana ensesmanses 5 oasis nscisnssnnccniclicdnasidanseecmane 3 ee TD oc eiceccccccascncsercternansiinncensioes 2a RE IIE pi snctseccnoninncacenanstnsacosnsicncnccaenmane 2a Re ee I HOOD osiccetenccaseisanconstcccavnnssnnices 6 Re Ie I ar eticcinevsctxnnececndoncunnnaxastinacnneses 6 Be Fs i I FD iisviicccenccieenincaseneciescincssecescos 6 BD FP TE, TR COD oo avcersscecescncasce..0s-s......22. 2a Miscellaneous: Note, The Federai Assimilative Crimes Act, 70 BT Wik Ny SI CIID na cacccteciccensnssensensanansiescianass 5 REPLY BRIEF FOR THE PETITIONER fhe Brief in Opposition offers no answer to the legal arguments set forth in the Petition, in which we showed that the court of appeals’ decision deprives companies such as Ford of any opportunity, in any court, to obtain a binding determination of the validity of a state SIP and that this inequitable result conflicts with the deci- sions of other circuits. Instead, the Opposition presents a melange of erroneous characterizations of the record (see App. 1, infra, 1la-3a), incorrect assertions about the impact of our position on Clean Air Act enforcement, and unseemly and unsupported suggestions of “collusion” between Ford and Michigan state environmental officials. EPA’s effort to obscure the fundamental issues of fed- eralism and due process presented by the Petition should not be permitted to succeed. 1. The Conflict In The Circuits. EPA is unable to offer any tenable distinction between the decision below and that of the Seventh Circuit in Sierra Club v. Indiana- Kentucky Electric Corp., 716 F.2d 1145 (1983). The Agency therefore is forced merely to parrot the Sixth Circuit’s assertion that Sierra Club should be limited to state SIPs invalidated on state procedural grounds. See Br. in Opp. 16-18. But EPA fails to explain why there is any conceivable logic to the procedural-substantive dis- tinction, nor does it offer any rationale for treating pro- cedural flaws as having greater significance than substan- tive flaws. See Pet. 17-18. There is, of course, no such reason. As we explained in the Petition (at 16-20), the common denominator in Sierra Club and this case is that both SIPs were held by state courts to have been funda- mentally flawed from their inception. It is that fact that places the two decisions in conflict, thereby necessitating an authoritative resolution by this Court. 2. The Deprivation Of Judicial Review. The Brief in Opposition also makes no effort to dispute our contention (Pet. 24-27) that the court of appeals’ decision deprives Ford of any judicial forum in which to obtain a binding resolution of its challenge to the technological and eco- 2 nomic feasibility of the state SIP. Notwithstanding this Court’s decision in Union Electric Co. v. EPA, 427 U.S. 246 (1976), teaching that the state courts are the ex- clusive judicial forum for such challenges, EPA wouid deprive companies such as Ford of any meaningful op- portunity for state court review by telling them that they should be satisfied if, after successfully challenging a state SIP on feasibility grounds, the state court judgment is treated as nothing more than the “ ‘first step in the [SIP] revision process’” (Br. in Opp. 16 (citation omitted) ). And by studiously avoiding the promulgation of its own federal SIP which would be subject to chal- lenge in federal court, EPA has cut off Ford’s only other avenue for judicial review. Thus, EPA simply refuses to come to grips with the basic inequity of its position and the fundamental denial of due process that inevitably results from that position. EPA does not contend that Ford or any other source could ever have complied with Rule 610, nor does it con- tend that the State would have promulgated the rule if it had been aware at the outset of its infeasibility. Yet EPA insists on enforcing that rule even after the state court has declared it invalid on feasibility grounds. It is simply no answer to say that Ford’s due process rights are satisfied by allowing it to plead for the imposition of lesser penalties in the case of a state SIP that has been invalid since its inception. EPA’s only proposed “solution” to Ford’s dilemma is to suggest that it should have brought suit to force EPA to conclude its consideration of the proposed SIP revision more promptly. Br. in Opp. 15 n.14. Yet if Ford ever did file such a suit, EPA undoubtedly would say that it is engaged in a “continuing dialogue” with state authori- ties and is acting “expeditiously in light of the important public rights involved.” Ibid. Of course, each day of this seemingly interminable “continuing dialogue” could cost Ford up to $25,000 per vinyl coating line, and that dia- logue, even if ultimately successful, might not avoid penal- ties for alleged violations during the years EPA has been 3 considering the proposed revision. Cf. United States v. National Steel Corp., 767 F.2d 1176, 1182 n.1 (6th Cir. 1985). 3. The State Court Judgment Controls. EPA’s posi- tion also virtually eradicates any meaningful role for the states in the federal-state partnership created by the Clean Air Act. EPA’s entire argument depends on its insistence that the issue in this case is whether proposed SIP revisions must be approved by EPA before they may become effective. But the SIP revision process is wholly irrelevant to the actual question presented: May a fed- eral administrative agency override the decision of a state court adjudicating the validity or invalidity of the adop- tion of a state SIP? As to that issue, which is an inevita- ble consequence of this Court’s decision in Union Electric, EPA simply fails to offer any plausible reason to support the denial of certiorari.’ Although federal law establishes minimum requirements that states must adopt, state SIPs are nevertheless crea- tures of state law. They are promulgated by state legis- latures or state administrative agencies, and they have the force and effect of state statutes and regulations. Not surprisingly, therefore, nothing in either the lan- guage of the Clean Air Act or its legislative history sug- gests that EXPA’s approval of a state SIP does anything more than make it federally enforceable; EPA’s approval does not transform state law into some sort of “born again” federal law, the validity of which must thereafter be decided according to federal law. Indeed, EPA has never contended that its approval of a state SIP trans- mutes that provision into federal substantive law. Against this background, EPA does not explain why it is that state court judgments adjudicating the validity 1 EPA’s reliance (Br. in Opp. 9) on 42 U.S.C. § 7410(i) begs the question. That section, prohibiting modification of SIP require- ments except through the revision process, is relevant only in the case of “applicable” plans, and the “applicability” of the Michigan SIP is the very issue in this case. es be 4 or invalidity of a state law—the state SIP—may be dis- regarded by EPA unless and until EPA decides to “ratify” the state court’s judgment. EPA does not sit as a reviewing court authorized to affirm or reverse the judgments of state courts. Clearly, any such role for a federal administrative agency would work a radical in- trusion on state sovereignty.* Absent a clear indication that Congress actually intended to permit a federal ad- ministrative agency to so interfere with the workings of state legal systems, it is plain that a state court judg- ment declaring a provision of state law to be invalid is wholly authoritative.® 4. The Federal SIP Route Available To EPA. It is EPA’s position, not Ford’s, that would work a radical 2 There are two entirely separate aspects to the state court judg- ment. First, the state court ruled that Rule 610 was void from its inception because it was adopted in the belief that it represented RACT when it fact it never did. Validity under state law is an issue as to which only the state courts may speak. The second, and wholly distinct, aspect of the state court’s judgment was its ratifica- tion of the State’s proposal to submit a SIP revision containing new limits to EPA for federal approval. See Pet. 19 n.5. We do not contend that the new limits are binding on EPA until it ap- proves them. The result is that, if EPA relies on a state SIP (rather than promulgating a federal SIP), there is no federally enforceable SIP in place between the time of a state court adjudica- tion of invalidity and EPA’s approval of a new SIP. But the length of that period of time is entirely within EPA’s control (see Pet. 21; page 5, infra). In addition, the source remains subject to any applicable state standard, such as the revised emission limits ap- plicable to Ford’s Mount Clemens plant by virtue of the Michigan Air Pollution Control Commission’s February 1, 1985 adoption of the the parties’ Cons#»’* Order. See Pet. App. 26a-32a. 3 Contrary to EPA’s apparent contention (Br. in Opp. 14), our position does not depend upon EPA’s being “bound” by the state court judgment in the collateral estoppel sense, nor does it depend upon the state court’s being aware of the collateral consequences of its judgment. Instead, it turns on the state SIP’s having been declared void from its inception because it never represented RACT. As explained above, there is no justification for permitting EPA to collaterally attack the validity of the state court’s ruling as to that issue. 5 restructuring of the Clean Air Act. Congress explicitly authorized EPA to promulgate a federal SIP as federal substantive law, in accordance with procedures mandated by the Administrative Procedure Act, whenever a state fails in its responsibility to promulgate a valid SIP under state law. 42 U.S.C. § 7410(c). Thus, when Congress wanted to give EPA the power to create federal law (in contradistinction to federally enforceable state law), it knew exactly how to do it.* That EPA has chosen, for whatever reason, not to exercise the express mechanism for the creation of federal law built into the Clean Air Act is no justification for granting it “license to circum- navigate the statutory scheme” (Br. in Opp. 19) by arrogating unto itself the authority to determine the validity or invalidity of state law.* 5. The Irrelevance Of “Technology-Forcing.” There is also no merit to EPA’s contention that acceptance of our position would cause the Clean Air Act’s “elaborate tech- nology forcing provisions * * * [to] lose all practical *A familiar example of Congress’s decision to transform state law into federal substantive law is found in the Assimilative Crimes Act, 18 U.S.C. §13. Prosecutions under that statute are not for the enforcement of state laws, but for the enforcement of federal law assimilating state statutes. See, e.g., United States v. Brown, 608 F.2d 551, 553 (5th Cir. 1980). Importantly, however, federal courts applying such assimilated state law are bound by state courts’ interpretation of their own laws. See, e.g., United States v. Best, 573 F.2d 1095, 1098-1099 (9th Cir. 1978). See also Note, The Federal Assimilative Crimes Act, 70 Harv. L. Rev. 685, 696 (1957) (concluding that “Congress intended to adopt not only the state criminal statutes but also the state courts’ interpretation of those statutes”). 5 There is thus no merit to EPA’s assertion (Br. in Opp. 14 n.13) that “the Clean Air Act’s express provision for a SIP revision process overrides principles of comity.” The fact is that it is Congress that has decided that federal enforcement depends upon the existence of either a valid state SIP or a federal substitute promulgated by EPA. Having elected not to follow the federal route, EPA cannot be heard to argue that the state court judgment should be treated as if it had never been entered. 6 meaning.” Br. in Opp. 12.¢ EPA elsewhere acknowledges that RACT is the applicable standard for Ford’s Mount Clemens plant. Jd. at 13 n.12. Thus, EPA’s emphasis on “technology-forcing” considerations serves only to ob- fuscate the critical and undisputed fact that the State never would have promulgated Rule 610 had it known from the outset that the rule was not achievable “by the application of control technology that is reasonably available considering technological and economic feasi- bility.” 45 Fed. Reg. 59331 (1980) (emphasis added) (footnote omitted) (EPA definition of RACT).’ 6. Nothing Turns On The Issue Of Consent. Despite EPA’s suggestions to the contrary,* it is impossible to ® Indeed, in the context of this case, it is highly misleading for EPA to assert that the Act’s requirements “ ‘are expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible’” (Br. in Opp. 9 (quoting Union Electric Co., 427 U.S. at 257)). EPA’s reliance on the “technology-forcing” nature of the Clean Air Act has absolutely no relevance to this litigation. The technological standard at issue in this case is “RACT’— reasonably available coatrol technology. As we explained in the Petition (at 4, 27), RACT, by definition, is not a techmology- forcing standard. Technology-forcing standards are found in other sections of the Clean Air Act, such as the new source performance standards. See 42 U.S.C. §7475(a)(4) (“best available control technology”); 42 U.S.C. § 7503(2) (“lowest achievable emission rate’). 7 Equally beside the point is EPA’s observation (see Br. in Opp. 19) that nothing in Michigan law would have prevented the State from choosing to impose a standard more stringent than RACT. It is undisputed on this record that the State intended Rule 610 to represent no more and no less than RACT, and this “ourt has made it plain that EPA has no authority to question the wisdom of that choice. Train v. NRDC, 421 U.S. 60, 79 (1975). 8 By repeatedly stressing that the state court’s judgment in- validating Rule 610 was entered on consent, EPA comes perilously close to suggesting that the State of Michigan—including its judi- cial system—violated its obligations to the public. Although it stops just shy of accusing the State and Ford of collusion, EPA repeatedly suggests that states and their courts are not to be Se 7 7 conclude on this record that the state court’s judgment should be given any less controlling effect than would be accorded a judgment that had been fully “litigated.” Far from suggesting any improper “deal” between Ford and the State, the record shows that the reason for the State’s agreement to the consent judgment was to rectify the fundamental flaw inherent in Rule 610 as originally adopted—a flaw that came about because both Ford and Michigan were misled by a defective EPA technical guid- ance document.° The State’s attorney told his client that he had no viable defense to Ford’s state court action because his own witnesses had reached the same conclusion as Ford— i.e., Rule 610 never was achievable through the use of RACT technology. The State’s attorney explained that trusted, lest they succumb to their “possible inclination * * * to give unduly favorable treatment to local industries.” Br. in Opp. 12. See also id. at 11, 14, 18-19. There is also a suggestion (id. at 14) that state court judges may be willing to sign whatever document is placed before them. EPA’s thinly veiled attacks on the integrity of the State are, to say the least, unseemly, and they find not the slightest support in the record of this case. ® Rule 610 was based on EPA’s Control Technology Guidance (CTG) document for vinyl coatings. The Agency’s CTGs were hastily prepared in the period immediately after passage of the 1977 Amendments to the Clean Air Act and without any formal public notice or comment. The vinyl coating CTG assumed that RACT technology would capture 90% of the solvent applied and remove 90% of what was captured, thereby achieving an emission reduction of 81%. Pet. App. 43a. The CTG’s removal efficiency estimate was basically correct, but the capture efficiency estimate was wildly incorrect. Pet. App. 46a- 48a. Actual test data show that capture efficiency of an estimated 60% is optimum for the state-of-the-art control equipment in- stalled by Ford. /d. at 48a. Even under EPA’s standards, there was no other technically and economically feasible alternative for Ford’s facility. Jd. at 49a-50a. Accordingly, the Michigan Air Pollution Control Commission found that, notwithstanding its belief that it was adopting a RACT standard when it first approved Rule 610, the rule was never one that could have been achieved by RACT tech- nology. Jd. at 273-28a, 6la-62a. 8 “all of the people that I would look to as witnesses to de- fend your rule are people who are here recommending to you that the rule be changed.” Pet. App. 60a. EPA’s suggestion that there should nevertheless have been a full trial therefore amounts to a contention that the State should have been required to mount a sham defense in the state court action. Clearly, nothing in this case (and nothing in the Sixth Circuit’s decision) turns on whether the state court acted “after trial’ or ‘on consent.” CONCLUSION There is no avoiding the basic federalism and due process issues raised by the petition. The petition for a writ of certiorari should be granted. Respectfully submitted. DOUGLAS E. CUTLER KATHRYN A. OBERLY NORMAN W. BERNSTEIN Counsel of Record Ford Motor Company Mayer,Brown & Platt 401 Parklane Towers West 2000 Pennsylvania Ave., N.W. One Parklane Bowevard Washington, D.C. 20006 Dearborn, Michigan 48126 , (202) 463-2000 (313) 322-4891 AUGUST 1987 APPENDICES la APPENDIX 1 SUMMARY OF MISLEADING AND UNSUPPORTED ASSERTIONS IN THE GOVERNMENT’S BRIEF (1) EPA repeatedly asserts (Br. in Opp. 5, 14, 15 n.13) that it was not a party to the state court action. EPA avoids mentioning that its counsel conceded at oral argument before the court of appeals that EPA was not a necessary party to the state court action. See App. 2, infra, 4a. (2) EPA places heavy stress on the “technology- forcing” nature of the Clean Air Act’s requirements. See, e.g., Br. in Opp. 9, 12. Those requirements hive nothing to do with the RACT-based standard applicable in this case. See pages 5-6 and note 6, supra. (3) EPA charges Ford with dilatory tactics for op- erating six of the eight viny! coating lines at the Mount Clemens plant without pollution controls beyond the ini- tial deadline for compliance with Rule 610. Br. in Opp. 15-16 n.14. Ford and the State agreed in 1982 on a plan that permitted Ford to achieve compliance with the equivalent of the emission limitation contained in Rule 610 through use of a “bubble” concept, whereby state- of-the-art technology would be installed on two of the plant’s eight coating lines (at a cost of $3 million) and major additional reductions would be obtained on the remaining vinyl coating lines by the introduction of the “embossed last” process that reduced the number of coat- ing applications from three to two (at a cost of an addi- tional $3 million). Pet. App. 44a-45a. By these efforts, Ford reduced total VOC emissions from its Mount Clemens plant to a level well below that sought to be achieved by Rule 610 as construed by EPA. See Pet. 8, 21 n.7. EPA continues this action based on violations of the rate of emissions allegedly allowed by Rule 610. Con- trary to EPA’s claim (Br. in Opp. 4-5 n.5), Ford does not concede that it violated Rule 610, because it does not agree that EPA has correctly interpreted the methodol- i | 2a ogy for calculating the emission rates contained in the old rule. See Pet. App. 42a. (4) EPA states (Br. in Opp. 3) that “petitioner urged approval [of Rule 610], providing technical data in support of its recommendation.” See also id. at n.3. Ford was misled by the erroneous analysis contained in EPA’s Control Technology Guidance document for vinyl coatings. See page 7 note 9, supra. (5) EPA observes (Br. in Opp. 4 n.3) that Rule 610 was “not as stringent as limitations recommended by EPA and placed on vinyl coaters in other states.” EPA excused the Chrysler Plastic Products Corporation from installing any VOC emission control devices and, in ap- proving the Ohio SIP, subjected that company to a less stringent standard of 4.8 pounds of VOC per gallon of coating applied. See 48 Fed. Reg. 31202 (1983). EPA also granted Chrysler an extension of compliance dates to August 1, 1987 and December 31, 1987 under the Ohio SIP. Jbid. (6) EPA disputes (Br. in Opp. 4 n.4) Ford’s state- ment (Pet. 7, 20 n.6) that EPA did not notify the State prior to the filing of its enforcement action against Ford. The State’s attorney testified at the hearing before the Michigan Air Pollution Control Commission that the State was not consulted prior to EPA’s commencement of suit against Ford (Pet. App. 6la), and EPA does not contend that it issued notice of the action (required by 42 U.S.C. § 7413(b)) prior to suit. The April 19, 1984 Notice of Violation to which EPA refers (required by 42 U.S.C. § 7413(a) (1)) is not the same thing. (7) EPA contends that the state court judgment was not intended to affect federal enforcement because “‘noth- ing in the judgment or the supporting documents indicates that the parties expected to preclude federal enforcement of Rule 610.” Br. in Opp. 14. The State’s attorney warned the Michigan Air Pollution Control Commission that, by admitting it made a mistake, it could expect “un- 3a friendly reaction” from EPA because the “United States in effect is trying to enforce your rule in federal court” (Pet. App. 60a-6la). That express warning and state- ment of the parties’ intent was included in the supporting documents submitted te the state court. (8) EPA accuses Ford of misciting Union Electric by failing to explain the Agency’s statutory authority to en- sure that state SIPs meet the Clean Air Act’s minimum requirements, iricluding the RACT requirement. Br. in Opp. 13 n.13. Ford explained EPA’s authority in exactly the same terms as does EPA. See Pet. 5 & n.2. (9) EPA states that “[p]etitioner itself composed the consent judgment’s language” (Br. in Opp. 14). Neither the citation proffered by EPA (Pet. App. 22a) nor any- thing else in the record supports EPA’s contention that Ford, rather than Ford and the State jointly, drafted the consent judgment. See Pet. App. 59a-61a. 4a APPENDIX 2 United States v. Ford Motor Co., No. 85-1945 (6th Cir.) Transcript of Oral Argument Before the United States Court of Appeals for the Sixth Circuit December 8, 1986 Before ENGEL, EDWARDS AND JONES, Circuit Judges. JUDGE ENGEL: Mr. Lazarus. MR. LAZARUS: Good morning, Your Honor. May it please the Court, I represent the United States on behalf of the Environmental Protection Agency. * ze * * * JUDGE ENGEL: Could Ford have properly brought this action in the state court had not the instant action already been pending? MR. LAZARUS: Oh, absolutely—Ford could have brought the ac-- Ford could have brought the action if Ford had believed that the Rule 610 was technologically and economically infeasible. Ford could have brought that action long prior to the federal action. JUDGE ENGEL: So, so then it has a substantive right to make that kind of challenge—the kind that it did in the-—in the state court. MR. LAZARUS: That’s correct. JUDGE ENGEL: Would EPA have been a necessary party to that proceeding? * MR. LAZARUS: No. EPA would not have been a necessary party to the proceeding. a ee oe ee ee oe 6) eee ee - _S - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A3. Public record. Not legal advice.