Amicus Curiae Brief — Vista Paint Corp. v. United States

FILED.

AUG 10 1996

No. 97-1897

a

PREME COURT, U.S.

InN THE | *

Supreme Court of the United States

OCTOBER TERM, 1997

VISTA PAINT CORPORATION; ef al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE ENVIRONMENTAL,

LEGISLATIVE, AND REGULATORY ADVOCACY

PROGRAM OF THE CALIFORNIA PAINT AND

COATINGS INDUSTRY ALLIANCE

IN SUPPORT OF THE PETITION

WILLIAM M. SMILAND

Counsel of Record

SMILAND & KHACHIGIAN

601 West Fifth Street

Seventh Floor

Los Angeles, CA 90071

(213) 891-1010

Attorneys for Amicus Curiae

WILSON - Eres PrRIntinc Co Inc. - 789-0096 - WasHINGTON. D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................... secnshiaihwiaasctans .

INTEREST OF AMICUS CURIAE .................-........=..

STATEMENT OF THE CASE ..W002222.2..220..22...2ceeceseseneee

SRR TE eaikvcanicinsecietnttieriscnnesctenaesbecaoninhesnins

I.

Il.

ITI.

WHILE THE STATE RULES WERE

ADOPTED AND APPROVED IN VIOLATION

OF STATE LAW, THEY COULD NOT HAVE

BEEN INVALIDATED IN STATE COURT....

A. The Local Rule Amendments Were Adopted

By The Districts Unlawfully, But Were Not

SE WED Godino oe

B. The Local Rule Amendments Were Approved

By ARB Unlawfully, But Were Not Judi-

I

EPA’S APPROVALS OF THE TWO PLAN

REVISIONS WERE NOT CHALLENGEABLE

IN A PETITION FOR REVIEW IN THE

NINTH CIRCUIT BASED ON THE ORIGI-

NAL STATE LAW VIOLATIONS ....00

THE FIRST TIME TO RAISE STATE LAW

INVALIDITY ISSUES WAS AS A DEFENSE

TO AN EPA ENFORCEMENT ACTION...

A. Section 307(b) (2) Does Not Preclude The

AER Sen Nar Ua A PP PL sas a

B. If Interpreted Preclusively, Section 307

(b) (2) Violates The Due Process Clause.

C. The Rule Amendments Were Voidable From

Inception And Neither Approvable Nor En-

SRB RETT Ie eater Cy pea en

URN T UNI i cski tas pdeslieniigneeiisaleitins tea eniniaibentiaidantciiedbciahiaas

Page

ii

10

13

14

15

16

17

a a a

ii

TABLE OF AUTHORITIES

FEDERAL CASES Page

Adamo Wrecking Co. v. US., 484 U.S. 275

SUITED sseniniin iaiilbeneioissaceghia diapcheeheatenbisitiiigia ites lac crsie aia. 11,12

Armstrong v. Manzo, 380 U.S. 545 (1965) —......... 11

Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th

= | RRND Rt eR is ume oe eR IR 12

Harrison v. PPG Industries, Inc., 446 U.S. 578

6 CARRERA ERP Pin Ns RSNA E ROR ate 12

Indiana & Michigan Electric Co. v. EPA, 509 F.2d

gy 8 RR eee ee 14

Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885

As IE iat ieetent sie rec eiaiiaiin ee 14

New Mexico Environmental Improvement Division

v. Thomas, 789 F.2d 825 (10th Cir. 1985)... 16

Sierra Club v. Indiana-Kentucky Electric Corp.,

716 F.2a 114 (7th Cir. 1963) 16

U.S. v. Ford Motor Co., 814 F.2d 1099 (6th Cir.

EDs secisensiihnncsihatendeccobinicenah picsmmpednladta tie tea mea hates alae 16

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ....6, 7, 10,

11

Union Electric Co. v. EPA, 593 F.2d 299 (8th

Rk REARS PR RR eh- UM ie at ne aw Woo te 14

STATE CASES

Alliance of Small Emitters/Metals Industry v.

South Coast AQMD, 60 Cal. App. 4th 55 (1997) .. 7

Bozung v. Local Agency Formation Commission,

Se ee Se ee CEE ac ct ee ae 9

Dunn-Edwards Corp. v. Bay Area Air Quality

Management District, 9 Cal. App. 4th 644

IE STITT cis ieescisnssbahicieiseesaacbanadie taaeokiesiesniinhinthinde aiaciRcicibe ces 7,9

Fullerton Joint Union High School District v. State

Board of Education, 82 Cal. 3d 779 (1982) _...... 9

Paul v. Milk Depots, Inc., 62 Cal. 2d 129 (1964)... 9

State Water Resources Control Board v. Office

of Administrative Law, 12 Cal. App. 4th 697

ESTED -<cintaaiccndssmitsatablimaciiisictbansasdamitebdadissaeicbiats i tadeatcieciatel Maedche 9

Western Oil & Gas Assoc. v. ARB, 37 Cal. 3d 502

ITI sssesavtsiaiashachabiaetticheilde tiene tebdegnaclan stighas mai einai abil 7

iii

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES

42 U.S.C.

I ch ath Seiloheuinnn’

ESR SRR ee ene Re OG AoE oe

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STATE STATUTES

Cal. Government Code

SSSI SES ae Re P Ee

ESS a ee ae rear Cee

SEE A RAS LID BE EELS ALAS

© EE eae rane ae eaudeciie

IE RE A LEN en RE to ee

AREAS a ea nS soem

REMC RS iee ease ae ee

Cal. Health & Safety Code

I el oar Ses

EE Ere ante a ER a ae

It

ESR OI ha PRD ea eT Oe

Section 41650(a) .

Section 41652 _.

Cal. Pub. Res. Code § 21000, “es seq.

SECONDARY SOURCES

National Research Council, Rethinking The Ozone

Problem in Urban and Regional Air Pollution

(National Eames Press, Washington, D.C.,

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a aa ae ts

IN THE ;

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1897

VISTA PAINT CORPORATION, et al.,

= Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE ENVIRONMENTAL,

LEGISLATIVE, AND REGULATORY ADVOCACY

PROGRAM OF THE CALIFORNIA PAINT AND

COATINGS INDUSTRY ALLIANCE

IN SUPPORT OF THE PETITION

INTEREST OF AMICUS CURIAE 1

The Environmental, Legislative, and Regulatory Advo-

cacy Program of the California Paint and Coatings In-

dustry Alliance (“EL RAP”) is a trade organization

whose membership is composed of local or regional coat-

1 This brief amicus curiae is being filed with the written consent

of both petitioner and respondent. As required by United States

Supreme Court Rule 37.2, letters evidencing such consent are being

simultaneously filed with the Clerk of the Court. Further, pursuant

to Rule 37.6, amicus curiae states that no counsel for a party au-

thored the brief in whole or in part and no person or entity other

than amicus curiae, its members or its counsel made a monetary

contribution to the preparation or submission of the brief.

nn ee eT

2

ings manufacturers, dealers, contractors, suppliers of raw

materials, equipment, and services to the paint industry,

and organized labor. EL RAP’s approximately 75 mem-

bers make, sell, and use a major share of the paints and

coatings in California.

In the case at bar, the majority of the civil penalty

assessed against Vista Paint Corporation (“Vista”), one

of EL RAP’s. members, was for sales of architectural

coatings containing organic compounds in excess of a

limit imposed initially by local agencies and thereafter

approved by a state and then a federal agency. Although

the effective date of the limit forming the basis of the

federal enforcement action had been subsequently extended

by the local and state agencies, Vista was precluded from

asserting the original invalidity of that limit under state

law as a defense to the federal enforcement action. The

amendment of a local district rule, a variance therefrom,

or the judicial invalidation thereof is not uncommon.

However, EL RAP members have no capacity, as a

practical matter, to monitor, let alone challenge, hundreds

of local, state, and federal actions taken to adopt and

approve the continual stream of rule amendments and

plan revisions affecting their products. Indeed, sustaining

such challenges is often legally impossible. Without the

ability to challenge the validity of the underlying local

and state regulations as a defense to a federal enforce-

ment action, these companies will be effectively precluded

from ever asserting such claims.

Accordingly, EL RAP’s members have a strong interest

in resolving the important question, on which the circuits

are split, of whether Section 307(b)(2) of the Clean Air

Act (“CAA”) may be interpreted to preclude such a

defense and, if so, whether doing so comports with funda-

mental principles of due process.

STATEMENT OF THE CASE

Hundreds of varieties of organic compounds are emitted

from thousands of consumer and commercial products.

3

Different types of organic compounds have greatly differ-

ing degrees of volatility and of reactivity and, hence, the

ability to promote the accumulation of ground level ozone.

Whether, and the extent to which, any organic compound

promotes ozone formation also depends on numerous

environmental factors such as ambient temperature, the

mix of organic compounds, and the ratio thereof to oxides

of nitrogen, the direct precursor of ozone.” The type of

organic compound in solvent-borne paints is typically

mineral spirits, whereas the type in water-borne paints is

typically glycol compounds. App. 48a.

Respondent U.S. Environmental Protection Agency

(“EPA”) recognizes more than 50 separate categories of

architectural coatings. Each has been regulated by more

than a score of local air quality districts and one state

agency established in California to implement clean air

legislation. Thus, literally hundreds of combinations and

permutations of rulemaking are possible.

Here, the District Court assessed, among other things,

a civil penalty of $559,000 against Vista for violations

of the CAA based on sales after September 1, 1985 and

before October 12, 1987 in two local districts of solvent-

borne enamel house paint containing more than 250 grams

per liter (“g/l”) of organic compound.? Although each

of Vista’s penalized sales complied with the limit under the

extended deadline of local and state regulations, EPA

nevertheless subjected Vista to federal enforcement of the

limit in effect under the prior deadline.

The District Court held at the pleading stage that it

lacked jurisdiction over Vista’s affirmative defenses against

EPA and claims against the local and state agencies alleg-

2See National Research Council, Rethinking The Ozone Problem

in Urban and Regional Air Pollution (National Academy Press,

Washington, D.C., 1992)

3 The penalty was $500 per day prior to June 24, 1987 (the day

40 companies, including Vista, received notices of violation) and

$2,500 per day thereafter. App. 38a.

4

ing the initial invalidity of the limit under state law.

App. 89a-93a. The Ninth Circuit affirmed in the first of

two appeals, holding that Vista had “ample opportunity”

to comment on and challenge EPA’s approval thereof

under CAA Section 307. App. 15a, 36a.

EL RAP respectfully submits that, for the reasofis

stated below, this Court should grant certiorari to decide

this important jurisdictional question. There is a conflict

among the circuits as to the proper interpretation of

Section 307, and that split should be resolved. Further-

more, if the preclusive interpretation followed by the

Ninth Circuit is applied, significant due process questions

arise.

LEGAL ARGUMENT

I. WHILE THE STATE RULES WERE ADOPTED

AND APPROVED IN VIOLATION OF STATE LAW.

THEY COULD NOT HAVE BEEN INVALIDATED

IN STATE COURT.

Vista argued during the initial phase of the case that

the limits it was found to have violated originally “had

been promulgated in violation” of state law and were,

therefore, “invalid.” Pet. 6,9. EL RAP invites the Court’s

attention to the facts that (a) the two rule amendments

relating to architectural coatings at issue here were inval-

idly adopted and approved under state law, and (b) it is

virtually certain that no EL RAP member could have

mounted a successful challenge to the validity of such

amendments in state court.

By way of background, the process California has

employed to regulate architectural coatings during the

past two decades is complex. First, local rules are adopted

and amended, and enforced at the local level, by more

than a score of county or regional air districts. Second,

each district follows the so-called “technology-forcing”

approach to such rulemaking. Third, each district has

tended to amend its rule on a frequent basis. Fourth,

every rule amendment adopted by every district is sub-

5

mitted to the California Air Resources Board (“ARB”)

for approval as state law. Fifth, ARB then submits them

to EPA for approval as federal law. As discussed below,

the interaction of these five factors bears significantly on

the issues of concern to EL RAP.

A. The Local Rule Amendments Were Adopted By

The Districts Unlawfully, But Were Not Judicially

Voidable.

South Coast Air Quality Management District (“South

Coast AQMD”) first adopted its Rule 1113 regulating

the organic compound content of architectural coatings

in 1978. App. 49a. Rule 1113 was amended by South

Coast AQMD on a roughly annual basis thereafter. Rule

1113 govers numerous categories of architectural coatings

and prohibits the manufacture, sale or use of each such

category over a certain limit of organic compounds. App.

5a. One such category is so-called “non-flat” coatings, or

glossy enamels used on windows and doors and in kitchens

and bathrooms. App. 5a. During the early years South

Coast AQMD had experimented with several non-flat lim-

its, including 450 g/1, which required reformulation of only

a few non-flat products, and 250 g/l, which would effec-

tively have outlawed most solvent-borne such products.

In 1981, however, a compromise limit of 380 g/l was

adopted for the near term, which required most non-flats

to be reformulated, but still allowed merchantable prod-

ucts to be made, sold, and used. App. 20a. Since 1981,

amendments to South Coast AQMD Rule 1113 retained

the 380 g/l limit in the near term, but simultaneously

adopted the “technology forcing” limit of 250 g/1 to be-

come effective at a future date. App. 52a, 53a.

Of particular relevance here, on March 16. 1984, South

Coast AQMD adopted its ninth version of Rule 1113,

which prohibited the sale or use of any non-flat coating

exceeding the 380 g/1 limit until September 1, 1985, but

the 250 g/1 limit thereafter. App. Sa.

6

During the late 1970s and early 1980s San Diego Air

Pollution Control District (“San Diego APCD”) followed

the same pattern. San Diego APCD’s 1984 amendment

to its Rule 67.0 was substantially identical to that adopted

by South Coast AQMD. In particular, it also fixed the

380 g/l limit for non-flat coatings until September 1,

1985, but the 250 g/I] limit thereafter. App. Sa.

There are more than 20 other air districts in California

in addition to South Coast AQMD and San Diego APCD.

During the late 1970s and early 1980s many of them were

simultaneously following the same regulatory approach.

They also took actions similar to those taken by South

Coast AQMD and San Diego APCD in early 1984.

After adoption of the two rule amendments in ques-

tion, this pattern continued throughout California. In par-

ticular, districts repeatedly amended their architectectural

coating rules, among other things, to extend the effective

date of the drop in the non-flat limit from 380 g/1 to

250 g/l. Thus, EL RAP members have been affected

by the outcome of roughly 100 different local rulemaking

proceedings during the past 20 years.*

This Court recognizes the role of state law in imple-

menting the CAA. It stated in Union Electric Co. v.

EPA, 427 U.S. 246, 266 (1976) (“Union Electric I’), as

follows: “Perhaps the most important forum for consider-

ation of claims of economic and technologic infeasibility

is before the state agency formulating the implementation

plan.” During most of the major local rulemakings, in-

cluding the two at issue here, EL RAP members did pre-

sent substantial evidence and argument about the economic

and technological infeasibility of the future-effective 250

4As discussed below, each such amendment, in turn, was sub-

jected to two further administrative reviews, one by ARB and

then another by EPA. Accordingly, EL RAP members have had

an interest in approximately 300 rulemaking proceedings during

this period.

7

g/l limit for non-flats. District boards well understood

that that future-effective limit was infeasible, but retained

it as a spur to possible technological development.

As further stated in Union Electric I, “. . . an industry

denied an exemption from the implementation plan, or

denied a subsequent variance, may be able to take its

claims of economic and technological infeasibility to the

state courts. [citations]” 427 U.S. at 266-67. Such legal

claims existed with respect to the future-effective 250 g/l

limit, including the limit contained in South Coast AQMD'’s

and San Diego APCD’s early 1984 rule amendments.

Pet. 6, 9.

For example, in 1984 the California Environmental

Quality Act (“CEQA”), mandated that an agency an-

alyze the adverse environmental impacts of any project.

Cal.Pub.Res. Code § 21000 et seq. Neither South Coast

AQMD nor San Diego APCD prepared a report analyz-

ing the significant adverse environmental impacts of the

non-flat ban scheduled to take effect September 1, 1985.

Accordingly, those technologically infeasible bans of non-

flat paints were voidable under CEQA. Dunn-Edwards

Corp. v. Bay Area Air Quality Management District, 9

Cal. App. 4th 644, 653-58 (1992) (“. . . [T]he new

regulations require lower quality products. As a result,

more product will be used, which will lead to a net

increase in VOC emissions.”).

Similarly, an air district was required to analyze the

economic impacts of any rule amendment. Western Oil

& Gas Assoc. v. ARB, 37 Cal.3d 502, 517, 518, 520,

524 (1984).° Neither South Coast AQMD nor San Diego

APCD assessed the economic impacts of the future-

5 Since 1984 the California Legislature has repeatedly clarified

and enhanced this duty. Cal. Health & Safety Code §§ 40440,

40440.8, 40440.11, 40703, 40728.5, 40922; Alliance of Small Emit-

ters/Metals Industry v. South Coast AQMD, 60 Cal. App. 4th 55, 64

(1997).

effective non-flat ban. Accordingly, the economically in-

feasible 250 g/l limits were unlawful on this ground, as

well.

EL RAP members did not bring state court suits to

challenge South Coast AQMD’s or San Diego APCD’s

future-effective ban of non-flat coatings in the 1984 rule

amendments. It would have been impractical to mount

such challenges and, had they done so, any such claims

of invalidity would have been mooted by subsequent cor-

rective action at the administrative level.

Prior to effectiveness of the scheduled drop on Septem-

ber 1, 1985 of the non-flat limit to 250 g/l, South Coast

AQMD, as had been its consistent pattern in the past,

again amended Rule 1113, this time extending the dead-

line four years to September 1, 1989. App. 20a.

At about the same time, San Diego APCD made the

same correction by, first, amending the rule and, second,

granting the paint industry a class variance, which to-

gether had the effect of extending the then-scheduled ban

on non-flats to August 31, 1987.6 App. 1lla-12a, 20a,

53a.

At all times between March 1984 and mid-1985 it was

entirely reasonable for EL RAP members to refrain from

instituting state court suits against South Coast AQMD,

San Diego APCD, and other districts. Indeed, instituting

multiple protective litigations at that time would have

been highly impracticable. Corrective action at the ad-

ministrative level had always been taken before. Indeed,

corrective actions were again taken in 1985, either in the

form of further rule amendments, or variances.

In any event, even if EL RAP members had instituted

multiple protective lawsuits prior to mid-1985, those suits

6 On August 31, 1987 Vista applied for a further variance. The

hearing board of the San Diego APCD later denied that variance

and on October 12, 1987 Vista relented. App. 1la-12a.

9

would have become moot upon the occurrence of such

corrective actions and could not have been maintained

thereafter. Paul v. Milk Depots, Inc., 62 Cal.2d 129,

133-34 (1964).

B. The Local Rule Amendments Were Approved By

ARB Unlawfully, But Were Not Judicially Void-

able.

ARB is bound to review all district rule amendments

and variances to determine whether they meet the require-

ments of both state and federal law and, if so, approve

them for inclusion in the state plan. Cal. Health & Safety

Code §§ 39602, 41500(b), 41504(a), 41650(a), 41652.

The early 1984 amendments to South Coast AQMD’s

Rule 1113 and San Diego APCD’s Rule 67.0, including

the September 1, 1985 bans of non-flat coatings, were re-

viewed and approved by ARB in 1984.

EL RAP contends that each such ARB approval was

a “project” subject to environmental review under CEQA.

Bozung v. Local Agency Formation Commission, 13

Cal.3d 249, 277-79, 285 (1975); Fullerton Joint Union

High School District v. State Board of Education, 32

Cal.3d 779, 794-97 (1982). ARB did not prepare any

report analyzing the significant adverse environmental im-

pacts of the two approvals at issue. Dunn-Edwards, 9

Cal. App. 4th at 658. Thus, ARB’s approvals of the two

rule amendments in question was unlawful and voidable

under CEQA.

ARB is also bound to analyze the economic impacts

of any regulation. Cal. Government Code §§ 11346.14,

11346.4, 11346.5, 11346.53, 11346.55, 11346.7. EL RAP

contends that each such approval constitutes the adoption

of a “regulation” subject to economic analysis. Jd. at

$$ 11342(b), 11346, 11347.5; State Water Resources

Control Board v. Office of Administrative Law, 12 Cal.

App. 4th 697, 700-03 (1993). ARB did not analyze the

10

economic impacts of either approval at issue. Accord-

ingly, each was voidable on this basis, too.

ARB subsequently approved the districts’ corrective

rule amendments and variances. Once those approvals

occurred, any claims against ARB challenging the prior

approvals would have become moot and could not have

been prosecuted.

II. EPA’S APPROVALS OF THE TWO PLAN REVI-

SIONS WERE NOT CHALLENGEABLE IN A PETI-

TION FOR REVIEW IN THE NINTH CIRCUIT

BASED ON THE ORIGINAL STATE LAW VIOLA-

TIONS.

In 1984 ARB submitted to EPA various plan revisions,

including the two at issue here, for review and approval

under Sections 110 and 172 of the CAA, as then in

effect. 42 U.S.C. §§ 7410, 7502 (1977), amended 1990.

On July 24, 1985 EPA approved those submissions.

App. 6a.

EL RAP members could not have challenged EPA’s

approvals of the two non-flat bans in a Ninth Circuit

petition for review under Section 307. Neither Section

110 nor 172 authorized EPA to review plan revisions for

technological or economic infeasibility.

As stated by this Court in Union Electric I, “. . . claims

of economic or technological infeasibility may not be con-

sidered by the Administrator in evaluating a state re-

qiurement . . .” 427 U.S. at 265. Thus, as Vista cor-

rectly states, “. . . claims of economic and technological

infeasibility are beyond the EPA’s authority to consider =

in the SIP approval process...” Pet. 11.7

As also held by this Court, it necessarily follows that

“a court of appeals reviewing an approved plan .. .

7™The Ninth Circuit was manifestly incorrect in holding that

Vista had “ample opportunity” to submit comments to EPA about

the infeasibility of the bans. App. 36a.

Oa ee oe

11

cannot set it aside on those gorunds, no matter when they

are raised.” Union Electric I, 427 U.S. at 265-66. Accord-

ingly, an EL RAP member “. . . could not have raised

such challenges involving economic and/or technological

feasibility in a direct challenge to the EPAs adoption of

the California SIP.” Pet. 9.8

Even if the CAA and its interpretation by this Court

were otherwise, any rights EL RAP members might argu-

ably have had to object to, or challenge, EPA’s approvals

would not have been “meaningful.” Armstrong v. Manzo,

380 U.S. 545, 552 (1965). This Court has recognized

just how limited one’s Opportunity is to comment upon

and challenge EPA approvals of plan revisions.

As noted by the court in Adamo Wrecking Co. v. U.S.,

434 U.S. 275, 283 n.2 (1978):

“The severity of the scheme is accentuated by the

fact that persons subject to the Act, including in-

numerable small businesses, may protect themselves

against arbitrary administrative action only by daily

perusal of proposed emission standards in the Fed-

eral Register and by immediate initiation of litigation

in the [appropriate circuit] to protect their interests.”

Justice Powell, in his concurring opinion in Adamo Wreck-

ing, questioned whether this procedure passed muster

under the due process clause, saying: “No notice is

afforded . . . other than publication of the Administrator’s

action in The Federal Register.” Jd. at 289. He further

noted:

“[T]here is no more assurance that notice of pro-

posed standards will come to the attention of the

thousands of persons and entities affected than that

notice of their actual promulgation will. Neither is it

realistic to assume that more than a fraction of these

8 Again, the Ninth Circuit was clearly wrong when it ruled that

Vista had “ample opportunity” to challenge EPA’s approvals. App.

36a.

12

persons and entities could afford to follow or partici-

pate in the Administrator’s hearing.” /d. at 289 n.1.

Justice Powell added:

“The . . . [short time] limitation on judicial review

imposed by the Clean Air Act would afford precari-

ously little time for many affected persons even if

some adequate method of notice were afforded. It

also is totally unrealistic to assume that more than a

fraction of the persons and entities affected by a reg-

ulation—especially small contractors scattered across

the country—would have knowledge of its promul-

gation or familiarity with or access to the Federal

Register.” Jd. at 290.

In Harrison v. PPG Industries, Inc., 446 U.S. 578,

592 n.9 (1980) this Court noted the above due process

issue but said that, since it was not at issue in that case,

it “must . . . await another day.” In another concurring

opinion, Justice Powell repeated his “reservations about

the constitutionality of the notice and review preclusion

provisions of § 307(b). [citation]” Jd. at 594. He wrote:

“. . . [P]ublication in the Federal Register still is unlikely

to provide constitutionally adequate notice that a failure

to seek immediate review will bar affected parties from

challenging the noticed action...” Id.

Vista correctly states that, at the time of EPA review

and approval, “. . . the precise interests of all who might

be affected are hypothetical and unfocused.” Pet. 12. It

further argues:

“The opportunity to challenge a regulation at the

time the EPA adopts a SIP is no opportunity at all,

as most potential targets of that regulation are un-

aware that it may eventually be enforced against

them. Vista, for one, does not (and cannot afford

to) pay a staff of lawyers to comb through the Fed-

eral Register every day to see if any of its interests

might be affected by revisions to a SIP.” Pet. 13.

When EPA reviewed and approved the two plan revi-

sions at issue in late 1984 and early 1985, most EL RAP

13

members were undoubtedly unaware that it was doing or

had done so. App. 48a. Even if they acquired such

knowledge, they would reasonably have believed, as had

always happened in the past, that South Coast AQMD

and San Diego APCD would correct the scheduled but

infeasible non-flat bans by administrative action, that ARB

would approve those corrective actions, and that EPA

would also again do so, as well. Even if any member

had known of EPA’s early 1985 approvals of the two plan

revisions at issue, and deemed it prudent to attempt suit

in the Ninth Circuit out of an abundance of caution, no

member could have afforded the cost of multiple protec-

tive litigations.

In short, Section 307 provided EL RAP members with

no remedy at all for the prior failures of the districts and

ARB to assess technological and economic infeasibility,

as mandated by state law. And, if it had, the remedy

would have been constitutionally insufficient.

Ill. THE FIRST TIME TO RAISE STATE LAW IN-

VALIDITY ISSUES WAS AS A DEFENSE TO AN

EPA ENFORCEMENT ACTION.

As shown above, EL RAP members, including Vista,

could not have invalidated the non-flat bans in question

in either state or federal court. The first opportunity

Vista had to raise these violations was in EPA’s enforce-

ment action.

In 1973 the Sixth Circuit held that claims of state law

invalidity based on technological and economic infeasi-

9 As it turned out, to the great surprise of EL RAP members,

EPA stealthily changed policy. For two years, between mid-1985

and mid-1987 EL RAP members openly sold non-flat coatings

throughout California, believing such sales to be lawful. FPA

shocked the entire industry when it issued notices of violation to

40 companies on June 24, 1987 asserting that all of those sales had

violated federal law. App. 13a, 21a, 48a-50a. EPA ultimately de-

nied approval of South Coast AQMD’s corrective amendment in

1989. App. 20a. It never passed on San Diego APCD’s corrective

actions. App. 20a.

id

bility can be asserted as a defense in a federal enforce-

ment proceeding. Buckeye Power, Inc. v. EPA, 481 F.2d

162, 165, 173 (6th Cir. 1973). Two years later the

Seventh Circuit followed suit. Indiana & Michigan Elec-

tric Co. v. EPA, 509 F.2d 839, 844-45 (7th Cir. 1975).

In Union Electric I, this Court noted Buckeye Power and

Indiana & Michigan Electric, but declined to address the

question. 427 U.S. at 268 n.18. In two cases decided

during the late 1970’s the Eighth Circuit followed that

tule. Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885,

891 (8th Cir. 1977); Union Electric Co. v. EPA, 593

F.2d 299, 304, 306, 307 (8th Cir. 1979).

In the case at bar, however, the Ninth Circuit joined

another circuit in broadly—and, EL RAP contends, erron-

eously—construing Section 307(b)(2) to preclude such

a defense. Thus, there exists a clear conflict of the circuits

on this important point. EL RAP contends that a circuit

conflict exists, this Court should resolve it, and the rule

followed in the Sixth, Seventh and Eighth Circuits is the

correct one for three reasons, discussed below.

A. Section 307(b)(2) Does Not Preclude The Defense.

As shown in Vista’s petition and above, neither Section

110 nor Section 172 of the CAA authorized EPA to

consider technological or economic infeasibility. Accord-

ingly, EPA’s 1985 approval of each non-flat ban in ques-

tion was not “[a]ction” of a type for which “review could

have been obtained” in a Ninth Circuit petition for review

under Section 307(b)(1). Therefore, Vista “could not

have raised such challenges . . . in a direct challenge.”

Pet. 9.

Because Vista could not have filed a circuit court peti-

tion under Section 307(b)(1) claiming that EPA had

violated Sections 110 and 172, an important question

exists, over which the circuits are surely divided, as to

whether Vista was precluded under Section 307(b)(2)

from raising its invalidity defenses in EPA’s later enforce-

15

ment suit. This Court should grant certiorari to decide

this important question, and if granted, apply the correct

Statutory interpretation followed in the Sixth, Seventh,

and Eighth Circuits.

B. If Interpreted Preciusively, Section 307(b)(2) Vio-

lates The Due Process Clause.

If Section 307 were interpreted preclusively, judicial

review would not be meaningful nor, therefore, meet due

process requirements, As Vista correctly states: “. .

[T]he most meaningful time to be heard” is at the en-

forcement stage when a company’s “interests in the valid-

ity of a regulation become concrete.” Pet. 12-13.

If the statutory interpretation of the Ninth Circuit is

correct, the important due process question previously

noted by Justices of this Court should be resolved, and the

particularly stark facts of this case provide an opportune

setting for doing so.

The necessary implication of the ruling challenged in

the instant petition is that EL RAP members should have

been digging deep into their pockets (and, consequently,

court budgets) and instituting 100 protective state court

Suits against local districts every time they adopted a

technologically and economically infeasible future-effective

technology-forcing limit, and 100 more suits every time

ARB approved it. Even if this strategy were affordable

at all, it would have led to nothing but waste, as each of

the 200 state court suits would have been mooted by

subsequent corrective actions voluntarily taken by the

districts and ARB. Thus, the theoretical possibility of

State court suits is not constitutionally meaningful.

Nor would 100 additional petitions for review of EPA’s

approvals in the Ninth Circuit have been meaningful.

Even if EL RAP members were assumed to have known

about the EPA proceedings and approvals and to have

been able to afford to participate in the former and chal-

lenge the latter (both unrealistic assumptions), such suits

would also have been later mooted by EPA’s approval of

16

state corrective actions—except the two corrective actions

taken here. To everyone’s surprise, EPA did not act upon

the South Coast AQMD measure until 1989 and then

disapproved it. EPA never acted on the corrective meas-

ures adopted by San Diego APCD. EL RAP members

had been making and selling non-flats at all times between

mid-1985 and mid-1987. This was with the full knowl-

edge and permission of the districts and ARB and, until

June 24, 1987, by which time a petition for review was

time-barred, the apparent acquiescence of EPA.

In summary, even if judicial review had been avail-

able to challenge the prior state law violations, such

review would not have been meaningful, as required by

the due process clause.

C. The Rule Amendments Were Voidable From Incep-

tion And Neither Approvable Nor Enforceable By

EPA.

EL RAP believes that a related point, not explicitly

advanced by Vista, supports a grant of certiorari. Where

a state court has invalidated a state air pollution control

rule, a plan revision based thereon is not enforceable in

federal court. Sierra Ciub v. Indiana-Kentucky Electric

Corp., 716 F.2d 1145, 1148 (7th Cir. 1983) (“since a

valid [rule] was never submitted, EPA’s adoption of [the

invalid rule] cannot be given effect . . .”).!°

The same rule should apply whether the invalidity of

the state rule is determined before EPA review, or after

it. The timing of the invalidation of the state rule should

not be determinative. If the state agency initially acted in

violation of state law, that basic error at the front end of

10 Accord: New Mezico Environmental Improvement Division v.

Thomas, 789 F.2d 825, 833 (10th Cir. 1986); ef. U.S. v. Ford

Motor Co., 814 F.2d 1099, 1103 (6th Cir. 1987) (holding Sierra

Club to be distinguishable where state regulators change their views

and enter a consent decree purporting to vacate and modify the

plan as of its compliance date).

AAR ait y sos nat Deas a

iinet ik

17

the process should preclude federal enforcement at the

back end. Otherwise, state and federal authorities may

engage in a race, with state courts rushing to rule, or

EPA rushing to prosecute, more rapidly than would other-

wise be the case. And if the timing is irrelevant, as EL

RAP contends, then an appropriate time and place to test

the state law claims—here, the only practical time and

place—is in the federal enforcement action.

If, as shown above, a state rule adopted in violation of

state law is neither approvable nor enforceable by EPA,

then the circuit conflict correctly identified by Vista, and

its resolution by this Court, become even more significant.

CONCLUSION

For these reasons, certiorari should be granted.

Respectfully submitted,

WILLIAM M. SMILAND

Counsel of Record

SMILAND & KHACHIGIAN

601 West Fifth Street

Seventh Floor

Los Angeles, CA 90071

(218) 891-1010

August 10, 1998 Attorneys for Amicus Curiae