Amicus Curiae Brief — Ford Motor Co. v. United States

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| Supreme Court, U.S.

““EFILED

UG 11 1987

No. 86-1892 _

IN THE CLERK

JGSEPH FO SPANIOL JR.

Supreme Court of the United States

OCTOBER TERM, 1987

FORD MOTOR COMPANY,

y Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR 4MICUS CURIAE MOTOR VEHICLE

MANUFACTURERS ASSOCIATION IN SUPPORT OF

PETITIONER FORD MOTOR COMPANY

THEODORE L. GARRETT

(Attorney of Record)

SONYA D. WINNER

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Attorneys for Amicus Motor

vehicle Manufacturers

Association

Of Counsel:

WILLIAM H. CRABTREE

Vice President and General Counsel

Motor Vehicle Manufacturers Association

300 New Center Building

Detroit, Michigan 48202

August 1987 ee

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE MVMaA.......

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A. The Central Role Of The States In

Implementing The Act ....................66.

B. The Consideration Of Technological And

Economic Feasibility Under The Act......

C. The Decision Below And Its Impact.......

REASONS FOR GRANTING THE PETITION ..

I. The Decision Below Creates A Conflict

In The Circuits And Departs From Prior

Decisions Of This Court .....................

II. This Case Presents Major Issues Of

Federalism, Comity, And The

Implementation Of The Clean Air Act...

III. The Decision Below Involves Recurring

Questions Concerning Judicial Review

And Enforcement Under The Clean Air

EE ness hekdoanhnd inc coeenaicavnas takhadannasexe

TABLE OF AUTHORITIES

CASES:

Alabama Power Co. v. Costle, 636 F.2d

5a SE: FD vicsiseanrae

American Cyanamid Co. v. EPA, 810

F268 3 (i CE. BT iiiccdiscecae

Bethlehem Steel Corp. v. Gorsuch, 742

F.2d 1028 (7th Cir. 1984) ................

Brea-Garcia v. I.N.S., 531 F.2d 693 (3d

We. FIP iain ciiccnsccenscaceeckaceuesaeae

Chevron U.S.A. v. NRDC, 467 U.S. 837

PID icc idcisindlccucinnsasaceadannanae

Cumberland Medical Center v. Secretary

of Health and Human Services, 781

F280 S36 (Gt Git. Fai ikssccccatcscsace

Erie R. Co. v. Tompkins, 304 U.S. 64

RID 5 vinsckocnannnaansnbesanecenenee

Florida Power and Light Co. v. Costle,

650 F.2d 579 (Sth Cir. 1981)............

Illinois v. Celotex Corp., 516 F. Supp.

736 (CD. &. MB icici

Sierra Club v. Indiana-Kentucky Electric

Corp., 716 F.2d 1145 (7th Cir, 1983)..

Sierra Club v. Ruckelshaus, 344 F.

Supe. 253 (DIL... URRY csccnicdecasccans

Train v. Natural Resources Defense

Council, 421 U.S. GO CISTS) cciccicincxss

Union Electric Co. v. EPA, 427 U.S. 246

Li, | Pre erererstrrsrs mes. Tee

Page

4,5, 10, 11

>, 6& 1% HH,

13, 14

iii

Page

United States v. Goings, 527 F.2d 183

NY WUE sinksaresicscestsnscesacsceses 13

United States v. Kimbell Foods, Inc.,

I, FES EEDTOD cnn cacascccncccscccsces 13

United States v. National Steel Corp.,

767 F.2d 1176 (6th Cir. 1985)........... 16

Yeager v. Flemming, 282 F.2d 779 (Sth

iat acres cicnwcisxsbedxnetewixs 13

Younger v. Harris, 401 U.S. 37 (1971)... 1}

STATUTES AND REGULATIONS:

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ee es PROD vesscvsccescscncenes

We ee OF PIPED oicccccacsccaaseccccsdss

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6 | ot S| ee

42 U.S.C. §§ 7607(b) and (d) ........

i eo | ae

DNAs HYMN W

—

MISCELLANEOUS:

Bickel, A., The Least Dangerous

Branch (2d Ed. 1986)................ 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1892

FORD MOTOR COMPANY,

y Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR AMICUS CURIAE MOTOR VEHICLE

MANUFACTURERS ASSOCIATION IN SUPPORT OF

PETITIONER FORD MOTOR COMPANY

On behalf of its member companies, the Motor Vehicle

Manufacturers Association (MVMA) submits this brief

amicus curiae in support of Ford Motor Company’s petition

for a writ of certiorari in the above case.’ The decision below

is reprinted in the appendix to the Ford petition.

INTEREST OF AMICUS CURIAE MVMA

The Motor Vehicle Manufacturers Association of the

United States, Inc. (MVMA) is a voluntary non-profit asso-

ciation of companies engaged in the manufacture and sale of

1 By letters filed with the Clerk of the Court, both Ford Motor Company

and the United States have consented to the filing of this brief.

motor vehicles in the United States.2 MVMA’s members

assemble more than 98 percent of the cars, trucks and buses

produced in the United States, and operate more than 300

manufacturing facilities. MVMA submits this brief in sup-

port of petitioner Ford Motor Company.

This case poses an issue of vital importance to the

MVMA’s members: may a federal agency enforce State-

promulgated environmental regulations that the State’s own

courts have declared to be invalid ab initio? The regulations

at issue in this case were promulgated by the State of Michi-

gan pursuant to the Clean Air Act, which was intended to

accommodate economic growth with progress in reducing

air pollution. See Chevron U.S.A. v. NRDC, 467 U.S. 837

(1984). The decision below, which upholds an attempt by

the federal Environmental Protection Agency to enforce the

Michigan standards despite their invalidation by the Michi-

gan court, creates a conflict in the circuits and involves

important and recurring issues affecting MVMA members

concerning the effect which federal courts should give to a

State judicial determination under the Clean Air Act.

STATEMENT

In this case, a Michigan state court entered a final

judgment vacating, as of the date of its adoption, a State

emission limitation applicable to Ford. The State court

found that the limitation was originally adopted in the belief

2 The Motor Vehicle Manufacturers Association of the United States,

Inc. is an incorporated not-for-profit trade association which has no parent

companies, subsidiaries or affiliates. Its members are: American Motors

Corporation; Chrysler Corporation; Ford Motor Company; General Motors

Corporation; Honda of America Manufacturing, Inc.; M.A.N. Truck & Bus

Corporation; Navistar International Transportation Corp.; PACCAR Inc.;

Volkswagen of America, Inc.; and Volvo North America Corporation.

that it was achievable through the use of reasonably availa-

ble control technology (RACT), and that in fact the limita-

tion was not and is not achievable using such technology.

There is not a shred of evidence in the record to dispute that

determination. With the adoption procedure having been

found to be fundamentally flawed, the State court deter-

mined that the limitation was void ab initio. The Sixth

Circuit, however, held that the United States may nonethe-

less maintain an enforcement action in federal court under

the Clean Air Act for alleged noncompliance with this State

emission limitation even after it had been vacated by the

state that adopted it.

The decision below raises major issues of national

importance that are likely to recur. The Sixth Circuit’s

decision raises fundamental questions as to the enforcement

of the Clean Air Act, the relationship between EPA and the

States in implementing the Act, as well as practical ques-

tions of great importance to the regulated community.

Before turning to the facts of this case, we briefly describe

the statutory framework and background.

A. The Central Role Of The States In Impiementing

The Act

The Clean Air Act, as adopted in 1970 and revised in

1977, creates an important federal-state partnership. In the

1970 Act, Congress increased federal authority and respon-

sibility for achieving air quality goals. The states were

required to attain federally specified air quality standards

within particular periods of time. The statute expressly pre-

serves an important principle, however:

“Each State shall have the primary responsibility

for assuring air quality within the entire geo-

graphic area comprising such State.... ”

42 U.S.C. § 7407(a).

A central mechanism to implement the Clean Air Act

involves the formulation by each state of a plan for the

implementation, maintenance, and enforcement of the

national air quality standards within each region in the

state. Implementation plans are adopted by the states and

submitted to EPA for review, and within four months EPA

must,either approve or disapprove all or part of the plan.* A

plan validly adopted by a state and approved by EPA is

enforceable by both the federal government and the state.

It is important to underscore that the Clean Air Act

gives EPA no authority to question the wisdom of a state’s

choices of emission limitations if the plan otherwise satisfies

the requirements of the Act. As this Court emphasized in

Train v. Natural Resources Defense Council, 421 U.S. 60,

79 (1975), “so long as the ultimate effect of a State’s choice

of emission limitations is compliance with the national stan-

dards for ambient air, the State is at liberty to adopt what-

ever mix of emission limitations it deems best suited to its

particular situation.”

B. The Consideration Of Technological And

Economic Feasibility Under The Act

The Clean Air Act amendments of 1970 established a

new beginning in air pollution control. Since the 1970 Act

was passed, the nature of the program has been affected by

3 A state’s implementation plan (“SIP’’) must include emission limita-

tions, schedules for compliance, and such other measures as may be neces-

sary to ensure attainment and maintenance of the national standards.

42 U.S.C. § 7410(a)(2).

4 If a state fails to submit a plan within the time prescribed, or submits a

plan that the Administrator determines not to comply with the requirements

of the Act, the Administrator shall promulgate a plan for that state.

42 U.S.C. § 7410(c). Such an EPA promulgation is subject to notice and

comment requirements as well as judicial review, 42 U.S.C. §§ 7607(b)

and (d).

federal and state judicial decisions, regulations, and legisla-

tive amendments.5 The need to consider technical and eco-

nomic feasibility has been an important factor in these

developments.

Following the initial submission of state plans, litiga-

tion ensued on a variety of issues. One series of cases con-

cerned the availability of variances where prompt

compliance was unduly burdensome or impracticable.

There was a conflict in the circuits on this issue. In Train v.

NRDC, supra, the Supreme Court held that variances could

be treated as revisions to a plan under the Act and freely

approved by EPA so long as national standards would be

attained.

The second major issue to reach the Supreme Court

involved the question as to whether EPA should consider

technological or economic infeasibility in deciding whether

to approve state plans. Once again, there was a conflict

among the circuits on the issue, and the Supreme Court

granted certiorari to provide guidance as to the role of

economic and technological factors. In Union Electric Com-

pany v. EPA, 427 U.S. 246 (1976) this Court resolved the

conflict by holding that EPA has no power to reject a state

implementation plan on the ground that it is technologically

or economically infeasible for particular sources to comply.

The state, if it so wishes, is free to impose more stringent

conditions than the Clean Air Act requires. Thus, the deci-

sion held that a party may not in federal court challenge the

approval of a state plan on grounds of technological or

economic infeasibility. This Court also explained that there

5 See Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972),

affirmed by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S.

541 (1973); Alabama Power Company v. Costle, 636 F.2d 323 (D.C. Cir.

1979); Chevron U.S.A. v. NRDC, supra.

are Other ways in which such claims of infeasibility may be

raised. In particular, the Court noted that a company dissat-

isfied with a state plan “may be able to take its claims of

economic or technological infeasibility to the state courts.”

427 US. at 266-67.

Following the Union Electric decision, the Clean Air

Act amendment of 1977 further underscored the impor-

tance of technological feasibility in achieving the Act’s

objectives. The 1977 amendments to the Act provide that

SIPs must require existing major plants to achieve such

reductions in emissions as may be achieved by application of

“reasonably available control technology” or “RACT.”

42 U.S.C. § 7502(b)(3).° Issues as to technological and

economic feasibility thus continue to be of considerable

legal as well as practical importance in implementing the

Clean Air Act through the SIP process.

C. The Decision Below And Its Impact

This case concerns Ford’s plant in Mount Clemens,

Michigan, which provided 85 percent of Ford’s North

American requirements for vinyl-coated materials. In Octo-

ber 1984, Ford filed suit in State court challenging a State

plan regulation (Michigan Rule 610) applicable to this

plant, contending that the rule was not technologically and

economically feasible.’ The suit prompted further State

administrative proceedings, which concluded—after an

extensive inquiry by the Michigan Department of Natural

Resources and a public hearing before the Michigan Air

6 This case involves existing sources subject to RACT. Major new or

modified sources (not involved here) must also achieve technology-based

emission reductions. See 42 U.S.C. § 7475(a)(4) (“best available control

technology”), and § 7503(2) (“lowest achievable emission rate”), applica-

ble to attainment and nonattainment areas, respectively.

7 Appendix to Ford petition at 27a-28a.

Pollution Control Commission—that the regulation was not

achievable through the use of reasonably available control

technology (RACT). Upon review of the administrative rec-

ord, the State court issued a final judgment in March 1985,

finding that Rule 610 did not represent RACT and vacating

the disputed SIP rule as of the date of its adoption.®

Pursuant to 42 U.S.C. § 7413, the United States had

commenced an enforcement action against Ford to enforce

Michigan Rule 610, which action was pending as of the date

of the State court decision. Ford moved for judgment on the

pleadings in U.S. District Court, on the ground that the

State court judgment left Rule 610 unenforceable. The Dis-

trict Court dismissed the complaint, holding that the State

court decision was controlling. On appeal, the Sixth Circuit

reversed, holding that the State judgment did not bar fed-

eral enforcement. The Sixth Circuit treated the State court

decision as if it were only an application to EPA to revise the

SIP, and held that the revision is ineffective until approved

by EPA.9

8 Jd. at 23a. The court ordered Ford to comply with modified emission

limits adopted by the State agency.

Independent of the State court judgment, the Michigan Air Pollution

Control Commission submitted a revised SIP containing new emission lim-

its. This revision has been pending for 2 years. See n.12 below. We agree

that these new limits are not federally enforceable until approved by EPA.

This case concerns the validity of federal enforcement of the prior limita-

tions that have been vacated by the State court.

9 The United States argued in its reply brief in the court below that the

significance of the State court judgment was diminished because the parties

had stipulated for entry of a consent order. However, the State entered into

the stipulation after concluding that all of its own potential witnesses sup-

ported Ford’s position that a mistake had been made in promulgating Rule

610. (See Appendix to Ford petition at 59a-60a). As a result, nothing in the

Sixth Circuit’s decision turned on whether the State court judgment was

rendered after trial or on consent. ‘

The decision of the Sixth Circuit leaves EPA free to

ignore a state court decision holding invalid a plan provision

on the ground that it is not technologically and economically

feasible, and to commence an action in federal district court

to enforce the plan provision. The decision below vitiates an

affected company’s right to judicial review of the technical

and economic feasibility of a Clean Air Act state implemen-

tation plan.

REASONS FOR GRANTING THE PETITION

This Court should grant the petition for certiorari for

three reasons traditionally warranting plenary review. First,

the decision below creates a conflict in the circuits and has

upset settled expectations concerning the effect of state

court review of SIPs. Second, the decision below raises

major constitutional issues of federalism and due process

that can be authoritatively resolved only by this Court.

Third, the decision below raises a problem of nationwide

importance under the Clean Air Act that will continue to

arise in federal courts unless resolved by this Court.

I. The Decision Below Creates A Conflict In

The Circuits And Departs From Prior

Decisions Of This Court

The decision below is in direct conflict with the decision

of the Seventh Circuit in Sierra Club v. Indiana-Kentucky

Electric Corp., 716 F.2d 1145 (7th Cir. 1983). That deci-

sion held that the Clean Air Act “does permit a successful

state court challenge to render an implementation plan pro-

vision unforceable in both federal and state court.” Jd. at

1148. In the Sierra Club case, the state court held invalid

certain SIP provisions on the grounds that they were

adopted without observance of required procedures. The

Seventh Circuit affirmed the dismissal of a suit by the Sierra

_— _-—

Club to enforce these SIP provisions in federal court, hold-

ing that the rulings of state courts must be given effect. The

court also noted that several federal decisions have

encouraged regulated companies to take their SIP chal-

lenges to state courts. Jd. at 1149-51.

The court below attempted to distinguish the Sierra

Club case on the ground that the Seventh Circuit’s decision

involved a SIP found invalid on procedural grounds by a

state court.'° This distinction is not meaningful, since the

reasoning of the Seventh Circuit is not limited to procedural

errors. Instead, the Sierra Club decision focuses on the role

of the state courts in deciding issues as to the validity of

state plans, and the corresponding obligation of federal

courts to give effect to such state court rulings. Moreover,

there is no basis for distinguishing—as the Sixth Circuit

attempted—between procedural and “technical” invalidity

in this context. Quite obviously, a regulation can be invalid

ab initio on both grounds."!

The Sierra Club decision explicitly intended to “align

[the Seventh] Circuit with the holding in Celotex.” 716

F.2d at 1151. The Celotex case involved a SIP provision that

had been held invalid in state court on grounds similar to

those involved here, namely that the state had failed ade-

quately to consider the “technological feasibility and eco-

nomic reasonableness of the regulations.” //linois v. Celotex

Corp., 516 F. Supp. 716 (C.D. Ill. 1981). The District Court

dismissed portions of the complaint which sought to enforce

the invalidated provision, holding that an unusual and

inconsistent scheme would result if the state court ruling

10 Appendix to Ford petition at 6a.

'! See, e.g, Cumberland Medical Center v. Secretary of Health and

Human Services, 781 F.2d 536, 538 (6th Cir. 1986).

were not given effect. Thus the decision below conflicts with

the Seventh Circuit’s decision in the Sierra Club case.

The decision below is also contrary to the suggestion by

this Court in Union Electric, supra, that challenges to the

technological and economic feasibility of SIPs should be

brought in state courts, and may not be raised in a federal

challenge to EPA’s approval of a SIP. If SIP provisions are

federally enforceable despite state court invalidation, state

court review becomes meaningless. '2

II. This Case Presents Major Issues Of Federalism,

Comity, And The Implementation Of The Clean Air

Act

The Clean Air Act is a federal-state partnership, in

which the states have the primary role in establishing emis-

sion limitations. This division of responsibility under the Act

was highlighted by this Court in Train v. NRDC, supra:

“The Agency is plainly charged by the Act with

the responsibility for setting the national ambient

air standards. Just as plainly, however, it is rele-

gated by the Act to a secondary role in the process

of determining and enforcing the specific, source-

by-source emission limitations which are neces-

sary if the national standards it has set are to be

met. .. . The Act gives the Agency no authority

to question the wisdom of a State’s choices of

emission limitations if they are part of a plan

12 The Sixth Circuit asserted that meaning could be given to the state

court decision as the first step in the SIP revision process. Appendix to Ford

petition at 8a. Suffice it to say that the Ford SIP revision has now been

pending for more than 22 years without any final agency action. See n.8

above. Meanwhile, EPA contends that it can continue to enforce the old SIP

‘and collect penalties of up to $25,000 per day of violation during the period

of EPA’s delay. See text at n. 22-24 below.

which satisfies the standards of § 110(a)(2) .. .”

421 USS. at 79.

Consistent with the central role of the states, this Court

in Union Electric suggested that a party aggrieved by a SIP

raise claims of technological or economic infeasibility in

state courts. 427 U.S. at 266-67. Ford brought just such a

State action, and succeeded in obtaining a judgment holding

invalid the applicable State SIP. The result was that the

State regulation in question was void as a matter of State

law. Consistent with the federal-state scheme under the

Clean Air Act, the rule should not be federally enforceable.

The Sixth Circuit’s decision is totally inconsistent with the

primary role of the states under the Act, as well as the

opportunity for judicial review in state courts.

It is a basic constitutional principle that federal courts

should not interfere with the operation of state courts. See

Younger v. Harris, 401 U.S. 37 (1971). The Sixth Circuit’s

refusal to give effect to the final judgment of a state court

raises similarly serious issues of federalism and comity. The

Sixth Circuit was aware that its decision raised “full faith

and credit” issues, but brushed these concerns aside, sug-

gesting that the Clean Air Act somehow overrides these

principles.'* However, it is absurd to think that Congress

would have intended that a Clean Air Act SIP, “the product

of a joint federal and state effort under the same Act, would

be enforceable in the courts of one level of government but

not the other.” Sierra Club v. Indiana-Kentucky, supra, 716

F.2d at 1151.

13 Appendix to Ford petition at 7a.

EPA’s position violates the requirements of consistency

or, if you will, neutral principles of law.'* The issue is: “Does

state law control the content and validity of State adopted

SIPs?” The answer must be yes, since EPA cannot deter-

mine that a SIP was properly adopted and approvable in the

first place except by reference to state law.'5 If state law

controls as to the “validity” of a state plan, then an authori-

tative state determination as to “invalidity” is also control-

ling. The fact that a state SIP is federally enforceable

should not, by itself, change the principle that state law

governs the validity of SIPs."6

What the Sixth Circuit failed to appreciate in this case

is that the statutory framework of the Clean Air Act was

meant to create a basic choice of law rule for Clean Air Act

enforcement. The general statutory source of authority for

such enforcement is the federal Clean Air Act itself, but the

specific limitations that provide the basis for detailed regu-

lation are provided by state law. In related contexts, the

14 “The demand of neutrality is that a value and its measure be deter-

mined by a general analysis that gives no weight to accidents of application,

finding a scope that is acceptable whatever interest, group, or person may

assert the claim.”” H. Wechsler, Principles, Politics and Fundamental Law

p. xiii, quoted in A. Bickel, The Least Dangerous Branch, p. 50 (2d Ed.

1986).

1S In order to be approved, a state plan must contain emission limitations

that are promulgated and enforceable under State law. 42 U.S.C.

§ 7410(a)(2)(B), (F); 40 C.F.R. § 51.11. To be approvable, and thus feder-

ally enforceable, a SIP must be enforceable by the state.

16 The government may argue that the EPA approval of a SIP somehow

transmutes it into federal law. There is nothing in the statute or legislative

history to support that argument. In contrast, when Congress intended to

give EPA the power to develop federal SIPs, it did so expressly and clearly

defined the grounds and procedures for EPA action. See n. 4 above. EPA has

not followed these statutory requirements in the present case.

aan el

federal courts have insisted that EPA respect state determi-

nations as to the contents of SIPs.'”7 Moreover, incorporation

of state law into federal statutory enforcement schemes is

not unique to the Clean Air Act.'® Where an incorporation

of state law into a federal statutory scheme exists, issues

arising solely under such state law are not somehow trans-

mitted into questions of federal common law, but are to be

determined by reference to the decisions of the state

courts.‘9 That was the implicit holding of this Court in

Union Electric Co. when it declined to permit an aspect of a

SIP governed by state law to be challenged in federal court

and suggested that the proper channel for review was the

state court. It necessarily follows that federal enforcement

of a SIP must respect state court interpretations of the

validity of state SIP requirements under state law.

17 See Florida Power and Light Co. v. Costle, 650 F.2d 579, 588 (Sth

Cir. 1981) (EPA should defer to a state’s interpretation of its SIP); Bethle-

hem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984) (EPA may

not, under the guise of partial approval of a SIP, change the substance of a

SIP regulation).

18 See, e.g., Brea-Garcia v. I.N.S., 531 F.2d 693 (3d Cir. 1976) (mean-

ing of term “adultery” in deportation statute governed by state law); United

States v. Goings, 527 F.2d 183 (8th Cir.) (federal statute requiring state law

to be applied in prosecutions on Indian reservation); Yeager v. Flemming,

282 F.2d 779 (Sth Cir. 1960) (legality of marriage giving rise to benefits

under the Social Security Act governed by state law); cf. United States v.

Kimbell Foods, Inc., 440 U.S. 715 (1979) (priority of enforcement of fed-

eral lien governed by state law):

19 See Yeager v. Flemming, supra (federal court bound to accept state

court judgment that marriage was void ab initio under state law for pur-

poses of Social Security Act); cf. Erie R. Co. v. Tompkins, 304 U.S. 64

(1938). Similarly, there is nothing in either the language or legislative

history of the Clean Air Act indicating that Congress intended the invalidity

of state SIPs to be determined solely by reference to federal law simply

because EPA has approved the SIPs.

III. The Decision Below Involves Recurring Questions

Concerning Judicial Review And Enforcement Under

The Clean Air Act

In a program as complex as the Clean Air Act, legal

issues have and frequently will arise concerning the validity

of various provisions adopted by the states and approved by

EPA. It is important that all parties involved understand the

means by which such provisions may be subject to judicial

review. The decision below raises a host of problems con-

cerning the implementation of the Clean Air Act. As a

result of the conflict in the circuits on this important issue,

the thousands of industrial facilities throughout this country

that are subject to SIP requirements can have no certainty

as to the legal effect of a successful state court challenge to a

state plan.

This Court held in Union Electric that technological

and economic feasibility issues could not be raised in a

judicial review proceeding in federai court. The Sixth Cir-

cuit’s decision here holds that, as far as federal enforcement

is concerned, there is no judicial review of such issues in

state court either. The result below is that once a state has

promulgated a SIP, errors in its original promulga-

tion—such as the erroneous assumption in this case that the

SIP limitation imposed on Ford was technologically and

economically achievable—are immune from any judicial

review. In such a case there is the most literal denial of due

process: there is no judicial process in which the validity of

such a SIP may be reviewed.

The ultimate result of the conflict created by the deci- |

sion below is total confusion as to the availability of judicial

review of a SIP on technological and economic feasibility

grcunds. Considering that the importance and pervasiveness

of the Clean Air Act’s requirements, the burden of this

’

;

EN A

uncertainty on the courts, EPA, the states, and industry is

truly staggering. Moreover, the “solutions” suggested by

the Sixth Circuit serve to underscore the major impact of

the decision below.

The Sixth Circuit first suggests that “technical

infeasibility coupled with good faith efforts” can be consid-

ered by a federal district court to mitigate the imposition of

monetary penalties in an enforcement action.2° In other

words, after a final determination of the factual issue of

technological infeasibility in state court, a company would

have to relitigate the issue of technological infeasibility in

federal court in the context of mitigation of damages. Fol-

lowing this course would involve a huge waste of federal,

judicial, governmental and private resources in relitigating

the factual issues.2’ Moreover, the only scope of this “‘solu-

tion” is to permit the district court, on a discretionary basis,

to consider the invalidity of the regulation in its decision as

to the amount of penalties to be imposed for violation of the

regulation. Such a result is analogous to telling a criminal

defendant that he may net plead the invalidity of the law-he

is charged with violating in defense to the charges brought

against him, but that once he is convicted he may ask the

court to take the law’s invalidity into consideration in deter-

mining his sentence.

The other “solution,” according to the court below, is to

seek EPA approval of a revised SIP, which when approved

would replace the prior state rules.22 The difficulty with this

20 Appendix to Ford petition at 9a.

21 The Sixth Circuit has shifted to a federal forum issues that should be

resolved in state courts. By contrast, the district court in this case believed

that the case could be summarily resolved upon a showing that the state

court had held the SIP invalid.

22 Appendix to Ford petition at 8a.

suggestion is that the federal government takes the position

that the prior SIP remains enforceable until EPA acts on the

SIP revision. Since the Sixth Circuit has held that EPA may

delay indefinitely in taking action on a SIP revision submit-

ted by a state,?° the uncertain possibility of obtaining a

revised SIP at some time in the future is no comfort to a

company facing immediate federal governmental and citi-

zen suit for penalties and injunctive relief.

In construing the Clean Air Act, federal and state judi-

cial review and enforcement cannot be regarded as indepen-

dent and unrelated instruments of justice. The Sixth

Circuit’s decision fails to appreciate the fundamental need

to assure that the objectives of the Clean Air Act will be

attained through coordinated federal and state actions.

Congress intended that the Act be implemented in a manner

consistent with the primary role of the states. Because the

decision below does not give due regard to the appropriate

function and effect of state court decisions acting within

their sphere of exclusive competence, the mandate of Con-

gress has been thwarted, and fundamental due process of

law has been denied.

—

23 See United States v. National Steel Corp., 767 F.2d 1176, 1182 n.1

(6th Cir. 1985); but see American Cyanamid Co. v. EPA, 810 F.2d 493, 500

(Sth Cir. 1987).

24 This is particularly true in light of the fact that EPA has been notori-

Ously slow to act on SIP revisions. See n.12 above.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,