Memorandum — Kawasaki Motors Corp. v. Train

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-547

KAWASAKI Motors CORPORATION, PETITIONER

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY, AND THE ENVIRONMENTAL PROTECTION

AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner contends that the United States Court of

Appeals for the Ninth Circuit erred in dismissing its

petition for review as untimely.

On November 12, 1973, the Environmental Protection

Agency promulgated the motorcycle regulation contained

in its California Transportation Control Plan.' Under

Section 307(b)(1) of the Clean Air Act, 84 Stat. 1708 (42

U.S.C. 1857h-5(b)(1)), petitions for review of such a regula-

'The regulation appears at 40 C.F.R. 52.243, 38 Fed. Reg. 31245-

31246, and by its terms bans motorcycle operation in specific

areas of the State of California at specific times of the day.”

The ban is to go into effect January 1, 1976, but may be sus-

pended if the Environmental Protection Agency establishes certain

national emission standards on 1976 and later model year motor-

cycles.

(1)

SPRITE 7 et “eo a

2

tion are to be filed within 30 days of promulgation unless

they are “based solely on grounds arising after such

30th day.”? Petitioner did not file its petition for re-

view until April 19, 1974, some 158 days after promul-

gation of the regulation. Respondents moved to dismiss

the petition (Pet. App. C, A4-A7), and petitioners filed

an opposition to dismissal, urging the existence of grounds

arising after the 30-day limitation, and attaching affi-

davits to that effect (Pet. App. D, A8-A25). Before re-

spondents had filed a reply memorandum, the court of

appeals, on August 9, 1974, granted respondents’ motion

to dismiss (Pet. App. E, A26).

1. The dismissal was correct. Section 307(b)(1) of the

Clean Air Act confers jurisdiction upon courts of appeals

to review implementation plans only upon petitions for

review filed within 30 days from the date of promul-

gation of the plan, unless review is sought solely on

grounds arising later. Accordingly, the courts of appeals

have consistently denied untimely petitions for review

(Pet. App. C, A5-A6).

Petitioner sought to avoid the requirement of the stat-

ute by invoking the final clause in Section 307(b)(1),

asserting that the “sole” basis for its petition for review

arose more than 30 days after the California Plan was

promulgated. But petitioner’s affidavits show only that

sometime after promulgation of this regulation it con-

ducted tests indicating that it might not be able to achieve

*Section 307(b\1) of the Clean Air Act provides in pertinent

part:

A petition for review of the Administrator’s action in approving

or promulgating any implementation plan under section 110

or section I11(d) may be filed only in the United States Court

of Appeals for the appropriate circuit. Any such petition shall

be filed within 30 days from the date of such promulgation or

approval, or after such date if such petition is based solely on

grounds arising after such 30th day.

mm eneete *

3

emissions reductions sufficient to satisfy a regulation

lifting the ban on motorcycles (in some areas of Cali-

fornia during specified daylight hours). The petition, which

questioned the California ban as a whole (Pet. App.

A, Al), was not based “solely” on grounds arising after

the statutory 30 days? for contesting such a regulation,

and the court of appeals properly rejected it.

2. Contrary to petitioner’s assertion (Pet. 4), dismissal

of its petition for review did not leave the motorcycle

regulation unchallenged. Other parties made timely

challenges to the regulation.* Moreover, petitioner is free

to participate in the rulemaking for national standards

for motorcycle emissions which, if sufficiently strict,

will lift the California ban, perhaps before it goes into

effect.5

The decision is correct; it conflicts with no decision

of this or any other court, and it presents no reason for

review by this Court.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

JANUARY 1975.

‘The “grounds” petitioner relied upon existed, if at all, before

promulgation of the regulation. To hold that results of belatedly

conducted tests are “grounds arising after” the 30-day period is

to make the time limit meaningless. Such a ruling would eliminate

any incentive to conduct tests promptly, as ‘ection 307(b)(1)

contemplates.

‘The parties are the State of California (No. 73-3305), the City of

San Jose (No. 73-3263) and the California Business Properties Asso-

ciation (No. 73-3250). The numbers in parentheses refer to the peti-

tions filed in the Court of Appeals for the Ninth Circuit.

‘A notice of proposed rulemaking for new motorcycle emission

standards was published on January 17, 1974, in 39 Fed. Reg.

2108.