# Amicus Curiae Brief — Alcan Foil Products Division of Alcan Aluminum Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0908%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 917 ## Text Supreme vourw ~~~ FILED MAR 5 ) No. 89-1104 ; F. SPANIOL, JR ———- _ CLERK IN THE SUPREME COURT OF THE UNITED:SITIEN October Term, 1989 ALCAN FOIL PRODUCTS DIVISION OF ALCAN ALUMINUM CORPORATION - - =- - - Petitioner, versus UNITED STATES OF AMERICA - -_ Respondent. BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, ON BEHALF OF THE CABINET FOR ECONOMIC DEVELOPMENT OF THE COMMONWEALTH OF KENTUCKY, CITY OF LOUISVILLE, KENTUCKY CHAMBER OF COM- MERCE, LOUISVILLE AREA CHAMBER OF COM- MERCE, ASSOCIATED INDUSTRIES OF KENTUCKY, THE AFL-CIO, THE ALUMINUM BRICK AND GLASS WORKERS INTERNATIONAL UNION, LOCAL 130, THE INTERNATIONAL ASSOCIATION OF MACHIN.- ISTS AND AEROSPACE WORKERS, DISTRICT #27, LOCAL 681, AND THE INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL 369, AS AMICI CURIAE DAVID C. BROWN ROY KIMBERLY SNELL STITES & HARBISON 600 West Main Street Louisville, KY 40202 J02) 587-3400 LAURA D. KELLER* STITES & HARBISON 2300 Lexington Financial Center Lexington, KY 40507 (606) 254-2300 Attorneys for Amici Curiae *Counsel of Record WESTERFIELO-BONTE CO.. 619 W. KENTUCKY—*.0. BOX 3251, LOUISVILLE. KY. ba TABLE OF CONTENTS PAGE Interests of the Amici Curiae ...............++.... 2- 4 Reasons for Granting the Writ .............-+.... . 5-10 1. The Alean case dramatically illustrates how EPA’s delay in reviewing a SIP revision, concur- rent with a lawsuit for penalties, deprives the local agency of its role in air quality control ... 5- 6 to The facts of this case forcefully illustrate how EPA’s usurpation of the local regulatory author- ity’s role aggrieves not only the company but its employees, other businesses, and the community as a whole, the very public which Congress in- tended to have a voice through local regulation Ot Se MOREE on ot co cen ons cekwareeeneneeee 6- 9 * + ——~ . There is a direct conflict among the cireuit courts which have addressed the issues of tnis case .. 9-10 NS ee on evuvetweeuwews cboeublevaren 11 il TABLE OF AUTHORITIES ee Cases: PAGE American Cyanamid Co. v. EPA, 810 F. 2d 493 (Sth OME. BOGE) kv esenccstexyeas eee 9, 10 Duquesne Light Co. v. EPA, 698 F. 2d 456 (D.C. CAS, DOO <5 eco ce token san eesa eee 9 freneral Motors Corporation v. United States of Amerwa, No. 89-369, certiorari granted Decem- WOE, BOO 6 sac ncck vent cusnessad eer 6,8, 11 Train v. Natural Resource Defense Council, 421 US. OO (RUEOD oo isc ce cnccectues saan ee 6 Union Electric Co. v. EPA, 427 U.S. 246 (3976) ... 7 United States v. Alcan Foil Products, 889 F. 2d 1512 RIOD. bk aes 60 065 enckas baka eee i) United States v. General Motors Corp., 876 F. 2d poe (Eee Cin. 10GB) oo. conc e cnndceesees a) Regulations: 40 CFR 51.104(d) ...... ie Sea rae eneee poke 5 Other Authorities: Ge FG. Mew, 40746 (1088) . 2. ood cena hacen. 7 Bureau of Economic Analysis, Department of Com- merce, Regional Input-Output Modeling System II for Kentucky (1988) ...................... 8 No. 89-1104 SUPREME COURT OF THE UNITED STATES October Term, 1989 Atcan For Propvcts Drvision oF Atcan ALUMINUM CORPORATION . : Petitioner, v. Unitep States or AMERICA . - Respondent. BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, ON BEHALF OF THE CABINET FOR ECONOMIC DEVELOPMENT OF THE COMMONWEALTH OF KENTUCKY, CITY OF LOUISVILLE, KENTUCKY CHAMBER OF COM- MERCE, LOUISVILLE AREA CHAMBER OF COM. MERCE, ASSOCIATED INDUSTRIES OF KENTUCKY, THE AFL-CIO, THE ALUMINUM BRICK AND GLASS WORKERS INTERNATIONAL UNION, LOCAL 130, THE INTERNATIONAL ASSOCIATION OF MACHIN- ISTS AND AEROSPACE WORKERS, DISTRICT #27, LOCAL 681, AND THE INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, LOCAL 3639, AS AMICI CURIAE Amici Curiae submit this memorandum in support of the Petition for Writ of Certiorari filed by Alcan Foil Prod- ucts Division of Alean Aluminum Corporation (“Alcan”) on January 17, 1990, secking review of the decision and order of the United States Court of Appeals for the Sixth Cireuit in this ease. Attorneys for all of the parties have consented to the filing of this brief.’ 1(‘onsent letters have been filed with the Clerk of the Court. INTERESTS OF THE AMICI CURIAE The amici curiae are a group of associations and agencies representing the interests of business and labor throughout Kentucky. They share a common objective of promoting a balance between a healthful environment and a healthy economy, and believe that both assets can best be promoted through state exercise of primary author- ity for air quality control. The Kentucky Cabinet for Economic Development is the primary state agency responsible for creating and re- taining jobs and investment in Kentucky. Programs ad- ministered by the Cabinet are designed to support and promote economic development within the state primarily through attracting new industries to Kentucky and assist- ing in the development and retention of existing industries. The Louisville Chamber of Commerce represents approxi- mately 2,500 businesses in the Louisville and Jefferson County area, employing over 275,000 Kentuckians. As the largest business association within the community, the Chamber has a long-standing and continuing interest in the economic growth and development of the community. The Kentucky Chamber of Commerce is a broad-based state- wide association of over 3,400 businesses. It promotes business interests through legislative lobbying and spon- sors various programs to develop community leadership, local economic development, and long-range planning for the business community of Kentucky. Associated Indus- tries of Kentucky is a statewide organization of employers throughout Kentucky in all segments of business. It is dedicated to a better business, tax, and labor climate and provides a wide range of services to its members. All of these associations are directly and daily concerned with the application of federal laws and standards through the cooperation of federal, state, and local agencies in such a way that industries may enjoy consistent and balanced regulation of their activities. They recognize that a com- pany ordered by a federal agency to conform to one stand- ard and by a local agency to conform to another may well decide that another region of the country would be a better place to conduct business, The City of Louisville is interested in this litigation not only because it wants to ensure that its business en- tities are fairly dealt with by the Environmental Protec- tion Agency (EPA), but also because the city itself oper- ates an incinerator and wishes to avoid being confronted with the same undesirable choices that face Petitioner Alean. The city maintains that the local government is in a far better position than EPA to balance the rights of the employees, industry, and the general public. The Kentucky AFL-CIO, the International Brotherhood of Electrical Workers, Local Union 369, the International Association of Machinists and Aerospace Workers, District No. 27, Local 681, and the Aluminum, Brick and Glass Workers International Union, Local 130, all represent em- ployees employed by Alcan at its three locations in Louis- ville, Kentucky. These unions wish to emphasize that the number of manufacturing jobs in many communities has dropped dramatically in the last two deeades. In Louis- ville and Jefferson County the number of well paid manu- facturing jobs has fallen from 190,000 in 1974 to under 80,000 currently. The labor unions wish to remind the court that, while EPA procrastinates its review of local regula- tion revisions, their members and their families face the possibility of financial ruin. Many would not be employ- able should Alean be forced to close its plant. 4 All of the above-described parties have a real and direct interest in maximizing local participation in the develop- ment and application of state implementation plans (SIPs) concerning air quality. They maintain that the state, not EP.A, is the primary forum for carrying out the give-and- take rulemaking process of developing an emissions pro- gram which answers the needs of the community, local in- dustry, and the general public. The amici all recognize that such businesses as Alcan contribute significantly to the economic well-being of Nentucky and elsewhere, through employment, related taxes, and other value-added compon- ents, such as secondary employment that services these employees and their families. Jobs and local economy are jeopardized by EP.A’s refusal to issue timely decisions on SIP revisions and by the threat of significant litigation expenses and penalties borne by companies complying with the locally-enforced revisions, validly promulgated under state and local law. They are coneerned that the rule established by the court below fails to penalize EPA ade- quately for its excessive delays in SIP review and encour- ages EPA to sue companies as a means of pressuring them to conform to unpromulgated EPA policies. EPA is thus encouraged to take similar action with regard to other in- dustries in the future. Amici curiae believe that Alean’s Petition for Certiorari should be granted because the case would offer this court a context in which to review the impact of the EPA’s delay of SIP review, coupled with concurrent enforcement actions, upon these groups, their members, and the Commonwealth of Kentucky as a whole. The amici have previously demon- strated their interest in this case by participating as amici curiae in the court below. REASONS FOR GRANTING THE WRIT This case presents additional aspects of the issues be- fore the Court in General Motors Corporation vy. United States of America, No. 89-369, certiorari granted December 4, 1989. Review of this case in conjunction with the Gen- eral Motors case would aid the Court in its consideration of the various questions involved. 1. The Alcan case dramatically illustrates how EPA’s delay in reviewing a SIP revision, concurrent with a lawsuit for penalties, deprives the local agency of its role in air quality control. Both General Motors and this case concern a central issue of nationwide importance: Whether EPA should be allowed to maintain an enforcement action for civil pen- alties against a company which is in full compliance with current state and local air quality regulations, even though EPA has failed to meet statutorily imposed deadlines for reviewing those regulations for conformity with federal standards. By failing to approve or disapprove the pro- posed SIP, EPA relegated a valid Kentucky regulation to a state of limbo. Regulations promulgated pursuant to the Clean Air Act provide that a SIP revision submitted to the EPA must have already been adopted by the state in final form. 40 CFR 51.104(d). At the tiwie of its submission, SIP revision is effective state law, the law with which the industry must comply in order to avoid a local enforcement action by the primary authority. Yet EPA refused to review the SIP revision and pursued a federal enforcement action against Alean, even though the state air authority emphatically and repeatedly maintained that the Alean facility was in full compliance with its law. A valid state regulation was nullified, not by EPA disapproval, but by EPA inaction. The Alean case would present a fine context in which this Court could examine the propriety of the EP.A’s usurpation of state role in air quality regulation in such a fashion. 2. The facts of this case forcefully illustrate how EPA’s usurpation of the local regulatory authority’s role ag- grieves not only the company but its employees, other businesses, and the community as a whole, the very public which Congress intended to have a voice through local regulation of air quality. Amici believe that this case demonstrates, better than General Motors, that the consequences of allowing EPA to pursue a company for violation of a state implementa- tion plan which EPA has neglected or refused to approve or disapprove, often for a period of years, are felt far be- yond the company boundaries. The consequences to em- plovees and their families, to surrounding providers of services and goods, and to the community economy have not been detailed before this Court and likely will not be in the General Motors case alone. Congress assigned the primary authority for air quality regulation to the states, relegating EPA to a secondary role of oversight to assure that national standards would be maintained. Train v. Natural Resources Defense Coun- cul, 421 U.S. 60, 79 (1975). The state regulatory agency, far more knowledgeable of local conditions and local needs, far more accessible by the general public, and far more eapable of flexibility than a national superagency, is in a better position to apply particular standards to specific operations within its own district than is EPA. As recog- nized by this Court: 7 Perhaps the most important forum for consideration of claims of ecomonic and technological infeasibility is before the state agency formulating the implemen- tation plan. So long as the national standards are met, the state may select whatever mix of control de- vices it desires . . . and industries with particular economic and technological problems may seek special treatment in the plan itself. Union Electric Co. v. EPA, 427 U.S. 246, 266 (1976). Con- gress thus recognized that the only workable forum in which local industry and labor such as amici’s members can receive genuine consideration is the state or local agency. Assuming their specific concern can be accommodated with- out violating national air quality standards, revision of the SIP is the appropriate response. If EPA refuses to approve or disapprove the new SIP for years at a time, however, and continues to enforce the old SIP, EPA under- cuts the local agency’s attempts to balance economie and environmental considerations. The federal government thus entirely cuts out of the process the state, the indivia- ual source, and persons such as amici’s members. The Alean case clearly demonstrates how interested parties were left out of the process. Alean worked with the local agency to develop a bubble plan applicable to its facility, following a hearing at which the general public had an opportunity to comment. Unable to obtain a de- cision from EPA from 1982 until 1986 on either of two SIP revisions, the local agency advised Alcan to work out its differences with EPA directly. EPA then met only with Alean. Neither the local authority nor the general public had the opportunity to participate further, except to com- ment on the proposed disapproval eventually published in the Federal Register. 53 Fed. Reg. 40745 (1988). This i) tucky and amici’s members can ill afford such damage to their economy. 3. There is a direct conflict among the circuit courts which have addressed the issues of this case. Four circuit courts have examined issues pertinent to this case. United States v. Alcan Foil Products, 889 F. 2d 1513 (6th Cir. 1989) ; United States v. General Motors Corp., 876 F. 2d 1060 (1st Cir. 1989); American Cyanamid Co. v. EPA,810 F, 2d 493 (Sth Cir. 1987) ; and Duquesne Light Co. v. EPA, 698 F. 2d 456 (D.C. Cir. 1983). The Sixth Circuit attempted to fashion a middle ground which it believed would provide an incentive for EPA to review SIP revi- sions expeditiously but would also protect the general pub- lic. Its solution was to allow EPA to maintain its enforce- ment action even as it held the SIP revision hostage, but to allow the trial court to adjust the penalty by balancing the reasonableness of EPA’s delay against any prejudice to the source, so long as the source can show that it is in compliance with the revised SIP. While the Sixth Circuit's attempt to balance the equities is admirable, it misses the mark. First, the court assumed that the “public” would be best served by allowing EPA to maintain an enforcement action before deciding on the SIP revision. Amici, members of the public, believe that SIP revisions which are plainly unsound from an environmental standpoint can be expeditiously rejected. If the revision is so inoffensive that it takes EPA more than two years of policy development to find a reason to reject it, as hap pened in the Alean matter, little is to be gained by a rush to enforce the old SIP when the source is complying with the new SIP. EPA needs incentive to decide its general 10 policy before attacking an individual facility for violation of what may become policy someday. 7 ‘ — , , ‘ Second. amicl assert that, CVeqTl it i is aWal Ol possibility that penalties will be reduced due to equita considerations, a marginal industrial facility may ratio : too great and ally decide that the gamble is jus costs of litigation may be too much to bear. If the nu dustry chooses to shut down its op rations or to move them, it employees, surrounding providers, and the comn t : a whole pay the price. Other industries face the spect of similar treatment should they attempt to comply revised SIPs duly promu gated under state and local | but not yet approved by EPA. Amici submit tha more objective approach would be to follow the holding of the Fifth Cireuit in American Cyanamid, 510 F. 2d 501. That is, EPA should be prohibited from comm ng enforcement proceedings until it rejects a proposed revisio 11 CONCLUSION a review of this : urt With a greater juences of allowing against a company promulgated SIP revision which i—_ For the reasons ’ +i, + . « that Alcan’s petition for a ' j ‘ ‘he 1] TY Tf | i = ’ LAs 2) 587-3400 | rd K ER" ‘e XK Ha = 220M) | , FE , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0908%3A4. Public record. Not legal advice.