# Amicus Curiae Brief — Ford Motor Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 822 ## Text | 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....... eT hkl ca apices cuinarevaskcxnssssuncaadsdins 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 10 il 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: eS a | Oe es Te PRRMIOID va ccscecucscacecsess 4,1 ee es PROD vesscvsccescscncenes We ee OF PIPED oicccccacsccaaseccccsdss de | 8 |) 6 | ot S| ee 42 U.S.C. §§ 7607(b) and (d) ........ i eo | ae DNAs HYMN W — N 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. 2 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. 3 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). 4 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). 5 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. 6 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. 7 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 _— _-— 9 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). 10 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. 1] 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. 12 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. i ' aan el 13 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. 14 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 15 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. 16 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. 17 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, 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 Moior 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0295%3A4. Public record. Not legal advice.