Opposition Brief — SC Testing Technology, Inc. v. Maine Department of Environmental Protection

Supreme Court, :

FILES

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No. 96-1563 H |

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In The

Supreme Court of the United States

October Term, 1996

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SC TESTING TECHNOLOGY, INC., et al.,

Petitioners,

MAINE DEPARTMENT OF ENVIRONMENTAL

PROTECTION, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Maine Supreme Judicial Court

— ¢

RESPONDENTS’ BRIEF IN OPPOSITION

¢-- a

Of Counsel Rospert F. HANSon, Eso.

Counsel of Record

Peter J. DeTroy ; : , Bae te

: NORMAN, HANSON & DeTrRoY

CnHristorpHerR C. TAINTOR Dae Stitees Sicoot

3 ss Street,

Russet B. Pierce, Jr. 5

NorMAN, HANSON & DeTroy ,, pa. mon — 94119.4K

655 Conennts Ghecet Portland, Maine 04112-4600

: gp ' (207) 774-7000

P.O. Box 4600

Portland, Maine 04112-4600

(207) 774-7000

May 9, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Respondents respectfully disagree with Petitioners’

statement of the question presented. In Respondents’

view, the actual questions presented in this case are the

following:

(1) Whether under the Clean Air Act, once a State

has enacted a statute as part of a conditionally approved

revision to a State Implementation Plan, the State is there-

after precluded from repealing or amending the statute in

question;

(2) Whether Petitioners, having failed to invoke the

citizen suit provisions of the Clean Air Act, may seek to

enforce the Clean Air Act in a breach of contract suit; and

(3) Whether the decision below rests upon adequate

and independent state grounds in that the Maine

Supreme Judicial Court ruled that Petitioners had con-

tractually assumed the risk of loss and non-compensation

in the event of statutory repeal, regardless of the conse-

quences of such a repeal under the Clean Air Act.

il

TABLE OF CONTENTS

Page(s)

COURS TIIOS PSPC 8 6 ake nda dicnvctonsesices i

TABLE OF ALTERS «5 is ice cc sean siteyess iii

STATUTES AND OTHER PROVISIONS INVOLVED... 1

STATEMGENT OF TERE CARE. «cc invenensicwna ces: 3

REASONS FOR DENYING THE WRIT............. 7

I. THE DECISION BELOW CONFLICTS WITH

NO FEDERAL AUTHORITY, AND ITS COR-

RECTNESS PRESENTS NO QUESTION OF SUF-

FICIENT IMPORTANCE TO JUSTIFY REVIEW

DY COE NE a we nea n sie enekeweaeese> 8

II. REPEAL OF THE MVEIP LAW DID NOT CON-

FLICT WITH FEDERAL LAW OR EPA REGU-

LAREN. 0. ac ivcccigue venue senbeetasueeeaeers 10

A. The Federal-State Partnership Established By

The Clean Air Act Allocates To The State Of

Maine The Responsibility For Deciding How

Best To Achieve The Act’s Objectives ....... 10

B. EPA’s Conditional Approval Of An Imple-

mentation Plan Including The MVEIP Law

Did Not Preclude The Maine Legislature

From Repealing That Law................. 12

Il. PETITIONERS PROCEDURALLY LACKED

STANDING TO CHALLENGE THE REPEAL OF

THE MVEIP LAW IN THIS ACTION ......... 17

Ill. INDEPENDENT AND ADEQUATE STATE

GROUNDS SUPPORT THE JUDGMENT OF

THE MAINE SUPREME JUDICIAL COURT... 20

CMR RAPES 04 cnc cuwacweenaennbdueudensteetsusen 22

ili

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028 (7th

I 11

Black v. Cutter Laboratories, 351 U.S. 292 (1956) ...... 22

Coalition for Clean Air v. United States Environmen-

tal Protection Agency, 971 F.2d 219 (9th Cir. 1992) ....11

Commonwealth of Virginia v. EPA, 108 F.3d 1397

I AE ee coe ee Sg 10, 21, 12

cruttey ©. Maye, 351 US. 777 (1956)... 5. 6c ccc se 22

cus v. Dimon, S69 13S. 458 (1955) .. 2... ccs 22

aes @ meow, 451 US. SP CIG77) «no oc ccc c cs acescucs. 11

Layne & Bowler Corp. v. Western Well Works, 261

I ey ete peed ace tes 9

National Resources Defense Council, Inc. v. Browner,

RF ae TU Cn Be NR hc nc hernias cacaats 11

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955)...... 7,9

Stembridge v. Georgia, 343 U.S. 541 (1952)............ 22

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

en ee oe oe eh eo bkd FS eee hee tt, iz

FEDERAL STATUTES

eee hr rrr Lu i

er eh ipa bs ss cede bak dees 11

ee ny cose oii cawdbee nia 15

ue a haneias 13

oe occ aene 14

iv

TABLE OF AUTHORITIES —- Continued

Page

GA WSK. % FORERGS ok cakeeeess ss reer 1, 11, 14, 15

Se Gls ED he awakens Reesaarcesies tadsueees 1, 16

ee a ee i os 45 oh ke ok eA sed Whee na pees 14

Sa. Gras PP 6 acc vacate cua een vaae ees 14, 19

RE Tin Te FOE oo vo ay heed Ces he Reb ENSEP Paes CaNE i, is

A) i ee re Mee net Pre ere ewer nee 17, 18

ge Oe |, Ree e ey ri yy We rere 2, 18

Oe re Se Py ov iy cen Siia seas caw een nt 19

Sas te PE i's hbo MEAD vos en ewe Rees 19

ee Sees We PSD io os oh ko ck oh ao dee ea aS 19

gee ae eee ee reer er me re eee rere 18

OTHER AUTHORITIES

SO SF. © RA Rae, See BR v6 0 eac de ee eskndeean 2, 16

H.R. Rep. No. 490 (I) 101st Cong., 2nd Sess........... 13

STATUTES AND OTHER PROVISIONS INVOLVED

42 U.S.C. § 7407(a):

Each State shall have primary responsibility for

assuring air quality within the entire geographic

area comprising such State by submitting an

implementation plan for such State which will

specify the manner in which national primary

and secondary ambient air quality standards

will be achieved and maintained within each air

quality control region in such State.

42 U.S.C. § 7602(q):

For purposes of this Act, the term “applicable

implementation plan” means the portion (or

portions) of the implementation plan, or most

recent revision thereof, which has been

approved under [42 U.S.C. § 7410], . . . and

which implements the relevant requirements of

this Act.

42 U.S.C. § 7410(k)(4):

The Administrator [of the EPA] may approve a

plan revision based on a commitment of the

State to adopt specific and enforceable measures

by a date certain, but not later than 1 year after

the date of approval of the plan revision. Any

such conditional approval shall be treated as a

disapproval if the State fails to comply with

such commitment.

42 U.S.C. § 7410(h):

Not later than 5 years after the date of enact-

ment of the Clean Air Act Amendments of

1990 . . . , and every 3 years thereafter, the

Administrator [of the EPA] shall assemble and

publish a comprehensive document for each

State setting forth all requirements of the appli-

cable implementation plan for such State and

shall publish notice in the Federal Register of

the availability of such documents.

40 C.F.R. § 52.1022:

.. . [T]he Administrator [of the EPA] approves

Maine’s plan, as identified in § 52.1020, for the

attainment and maintenance of the national

standards under section 110 of the Clean Air Act

[42 U.S.C. § 7410].

40 C.F.R. § 52.1019 identifies the conditionally

approved plan revision that contained the enhanced vehi-

cle inspection/maintenance (“I/M”) program that was

the subject of Petitioners’ contract.

40 C.F.R. § 52.1020 identifies Maine’s applicable

implementation plan.

42 U.S.C. § 7604(a), (b), and (c) provide in pertinent part:

(a) Except as provided in subsection (b), any

person may commence a civil action on his own

behalf -

(1) against any person (including (i) the United

States, and (ii) any other governmental instru-

mentality or agency to the extent permitted by

the Eleventh Amendment of the Constitution)

who is alleged to have violated . . . or to be in

violation of (A) an emission standard or limita-

tion under this Act or (B) an order issued by the

Administrator or a State with respect to such a

standard or limitation, . . .

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

el

citizenship of the parties, to enforce such an

emission standard or limitation, or such an

order, or to order the Administrator to perform

such act or duty, as the case may be, and to

apply any appropriate civil penalties. . . . The

Asia courts of the United States shall have

jurisdiction to compel . . . agency action unrea-

sonably delayed, .. .

(b) No action may be commenced -

(1) under subsection (a)(1) -

(A) prior to 60 days after the plaintiff has

given notice of the violation (i) to the Adminis-

trator, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator of the

standard, limitation, or order, .. .

(c)

(3) Whenever any action is brought under this

section the plaintiff shall serve a copy of the

complaint on the Attorney General of the United

States and on the Administrator. . . .

+

STATEMENT OF THE CASE

Respondents adopt by reference the statement of the

case presented by the Supreme Judicial Court of Maine.

Petition App. A-1 to A-5. Respondents specifically dis-

agree with the following aspects of Petitioners’ State-

ment.

Petitioners begin by asserting that “the State of

Maine enacted Chapter 28 of Title 38, M.R.S.A. (the

“MVEIP Law”) in 1992 to comply with the requirements

of the Clean Air Act”, Petition at 4-5, citing as authority

for that proposition the opinion of the Maine Supreme

Judicial Court. The phrasing of this statement suggests

that the Maine Legislature was obligated by the Clean Air

Act to enact the MVEIP law (or a law essentially identical

to the MVEIP law), or at least that it regarded itself as

having such an obligation. That theme recurs throughout

the Petition. Petitioners go on to assert, for example, that

events which occurred in 1994 and 1995 demonstrate that

the Maine Legislature “knowingly violat[ed]” federal law

when it repealed the MVEIP law. Petition at 9, 16. They

even go so far as to allege that the Maine Supreme

Judicial Court recognized the illegality of what the Legis-

lature had done, but deliberately ignored it to “protect

the State’s fisc.” Petition at 14. Respondents disagree both

with the Petitioners’ reading of the Supreme Judicial

Court’s opinion and with the inferences Petitioners

would have this Court draw from the record.

First, the Supreme Judicial Court did not say that the

MVEIP law was enacted to comply with the Clean Air

Act. What it said was that the MVEIP law was “part of a

plan to comply with the federal Clean Air Act.” The

distinction is important. As discussed in more detail

below, the State was required to have a “plan,” but nei-

ther any provision of the Clean Air Act nor any edict of

the Environmental Protection Agency required that the

plan include an emissions testing program of the kind or

scope established under the MVEIP law and the MVEIP

contract. Second, while the Attorney General did advise

the Maine Legislature that repeal or suspension of the

emissions inspection program might subject the State of

Maine to federal sanctions of one sort or another, R. IL,

467, there is no suggestion in his opinion that a repeal of

the MVEIP law would be invalid, or that the EPA could

require the State to keep the program in force.

Petitioners next characterize Section 2404 of the

MVEIP law as having “required the Maine Department of

Environmental Protection (“MDEP”) and the State to pri-

vatize the program through a contract with a private

entity with a term of not less than five years.” Petition at

5. That characterization suggests that the Maine Legisla-

ture statutorily committed the State of Maine to have an

emissions inspection program in force for at least five

years, and that termination of the program within five

years would violate that commitment. In the decision

below, however, the Maine Supreme Judicial Court held

squarely to the contrary. The Court interpreted the statute

as meaning simply that “any contractor selected by the

DEP to administer the program would have to agree to

do so for a minimum period of time sufficient to ensure

program continuity,” and further held that the five-year

provision “in no way guaranteed, nor could it, that the

legislation authorizing the program would not be

repealed by a subsequent legislature.” App. A-9. The

state court’s interpretation of that state statute is

unassailable in the Supreme Court, and it directly refutes

Petitioners’ characterization of Section 2404.

Petitioners omit from their Statement of the Case

much of the factual background of the contract in issue,

and any analysis of the Maine courts’ interpretation of

the contract. The factual background is accurately sum-

marized in the body of the Maine Supreme Judicial Court

decision. Petition App. A-1 to A-5. The legal basis for the

Supreme Judicial Court's conclusion that Petitioners’ con-

tract claim failed was twofold. First, the Court held that

the written contract incorporated the Amended Request

for Proposals, and therefore unambiguously “allocated to

SCI [Petitioners] the risk of legislative repeal of the pro-

gram.” Petition App. A-7. The Court reasoned further, as

an alternative ground for decision, that as a matter of

state common law “when a party enters into a contract

with a state agency, it does so with the understanding

that the Legislature may at some future time take action

that nullifies the subject matter of the contract and, neces-

sarily, the respective performance obligations of the par-

ties.” Id.}

Finally, a word about the procedural progress and

posture of the case is in order. As noted by Petitioners,

the Complaint they filed in the state court asserted that

the repeal of the MVEIP law was “contrary to the require-

ments of the federal Clean Air Act Amendments of 1990,

[and] constituted a violation of federal law.” R.I., 15. In

several counts of their Complaint, Petitioners asked that

the State be “mandatorily enjoin[ed] . . . to reinstate the

MVEIP law and the MVEIP program.” R.I., 20, 21, 22, 23,

25. See also R.I. 25, 26 (asking that the repeal be declared

unconstitutional and that individual Defendants be

1 Petitioners assert that the Supreme Judicial Court based

its decision in part on “state... procurement law.” Petition at 9,

15. In the proceedings below, the term “state procurement law”

was used to describe the statutory and regulatory framework

governing the process by which a contract between an agency of

the State of Maine and a private entity is put to bid, and the

extent to which the terms of such a contract may deviate from

the terms of a request for proposals. Brief of Appellants at 31-33.

The Supreme Judicial Court did not address any issues of “state

procurement law,” as so defined.

ordered to “implement the MVEIP program”). That

prayer fo~ relief is conspicuously absent, however, from

the counts of the Complaint seeking damages for breach

of contract. R.I. 17, 19. The trial court judge observed in

his Opinion and Order that Petitioners had indicated in

briefing and in oral argument that the option of seeking

an order reinstating the MVEIP program was “not being

seriously pursued.” Petition App. C-8. And in their sub-

missions to the Maine Supreme Judicial Court, Petitioners

conceded that their suit was “not brought as a ‘citizens

suit’ under § 7604 of the Clean Air Act.” Reply Brief of

Appellants at 31. Thus, it appears that Petitioners have

abandoned any effort to “reinstate” the MVEIP law or the

MVEIP program, or to otherwise enforce an obligation on

the part of the State of Maine to “comply” with federal

law.

REASONS FOR DENYING THE WRIT

There are at least four reasons for denying the writ of

certiorari. Initially, this appears to be a case of first

impression, and there is no reason to suppose that the

circumstances that gave rise to this lawsuit are likely to

recur in Maine or anywhere else. The question presented,

therefore, does not go “beyond the academic or the epi-

sodic,” and does not merit review in this Court. Rice v.

Sioux City Cemetery, 349 U.S. 70, 74 (1955).

Second, the Maine Supreme Judicial Court correctly

decided this case as a matter of contract interpretation

under Maine law. It did not reach the question of “federal

preemption” raised by the Petitioners, because deter-

mination of the question either for or against the Peti-

tioners would not have altered the court’s construction of

the unambiguous contract terms.

Third, Petitioners abandoned their initial prayer for

relief in the form of an order reinstating the MVEIP law,

Maine’s emissions testing program, or the parties’ perfor-

mances under the contract. Since they are not seeking to

force the State of Maine to comply with federal law, they

lack procedural standing to assert any claim predicated

on the Clean Air Act or the regulations promulgated

thereunder.

Fourth, and finally, Petitioners’ substantive conten-

tion that the Maine Legislature’s repeal of the MVEIP law

was preempted by federal law or regulation is incorrect.

The EPA’s “conditional approval” of a Maine state imple-

mentation plan revision (“SIP”), which proposed the pro-

gram in a submission to the EPA as part of the joint

federal/state implementation of particular Clean Air Act

requirements, did not preclude subsequent action by the

Maine Legislature to revise the State’s method of imple-

mentation of Clean Air Act requirements.

I. THE DECISION BELOW CONFLICTS WITH NO

FEDERAL AUTHORITY, AND ITS CORRECTNESS

PRESENTS NO QUESTION OF SUFFICIENT

IMPORTANCE TO JUSTIFY REVIEW BY CER-

TIORARI.

Petitioners have asserted that the decision of the

Maine Supreme Judicial Court “squarely conflicts with

decisions of this Court and Federal Courts of Appeals.”

Petition at 10. They have, however, cited no federal

appellate decision addressing the precise issue they

would have this Court take up, and in fact no such

decision exists. Specifically, no federal appellate court -

and apparently no court at any level - has held that a

state is prohibited from repealing a statute incorporated

in a conditionally-approved State Implementation Plan

(“SIP”).

Furthermore, the question of preemption, as framed

by Petitioners, is not of sufficient importance to justify

this Court’s exercise of its certiorari power. The very fact

that the issue has not arisen before suggests that it does

not go beyond “the academic or the episodic.” Rice v.

Sioux City Cemetery, 349 U.S. 70, 74 (1955). While the issue

may be “important” to the Petitioners, they have not

shown that it is important to the public at large. Layne &

Bowler Corp. v. Western Well Works, 261 U.S. 387, 393

(1923). Respondents respectfully submit that this Court

ought not squander its resources reviewing an issue of

marginal importance, particularly in light of the substan-

tive flaws in the argument presented in support of the

Petition.

10

II. REPEAL OF THE MVEIP LAW DID NOT CON-

FLICT WITH FEDERAL LAW OR EPA REGULA-

TIONS.

A. The Federal-State Partnership Established By

The Clean Air Act Allocates To The State Of

Maine The Responsibility For Deciding How

Best To Achieve The Act’s Objectives.

Petitioners impute to the 117th Maine Legislature,

which repealed the law authorizing the particular vehicle

1/M program created under the MVEIP contract, a corpo-

rate intent to “knowingly” violate the Clean Air Act.

Noticeably absent from Petitioners’ preemption argu-

ment, however, is any citation or reference to a federal

regulation or statute that expressly required the State of

Maine to implement an I/M program of the kind or scope

contemplated by the contract. In fact, neither federal law

nor EPA regulation mandates that the State of Maine

implement the precise enhanced vehicle 1/M program in

issue, and the FPA does not impose a specific program on

any given state. See Commonwealth of Virginia v. EPA, 108

F.3d 1397, 1406-09 (D.C. Cir. 1997).

The Clean Air Act contains express language reflect-

ing an intent not to preempt state action regulating air

quality, and allocating to the states primary responsibility

for choosing the methods for achieving and maintaining

national air quality standards:

Each State shall have primary responsibility for

assuring air quality within the entire geographic

area comprising such State by submitting an

implementation plan for such State which will

specify the manner in which national primary

and secondary ambient air quality standards

11

will be achieved and maintained within each air

quality control region in such State.

42 U.S.C. § 7407(a). See Train v. Natural Resources Defense

Council, 421 U.S. 60, 79 (1975).

This section, and Sections 7401-7515 of the Act gener-

ally, establish “a federal-state partnership for the control

of air pollution.” National Resources Defense Council, Inc. v.

Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995); Coalition for

Clean Air v. United States Environmental Protection Agency,

971 F.2d 219, 226 (9th Cir. 1992); Bethlehem Steel Corp. v.

Gorsuch, 742 F.2d 1028, 1036-37 (7th Cir. 1984).

The state proposes, the EPA disposes. The fed-

eral government through the EPA determines

the ends - the standards of air quality - but

Congress has given the states the initiative and

a broad responsibility regarding those means to

achieve those ends . . . The Clean Air Act is an

experiment in federalism, and the EPA may not

run roughshod over the procedural prerogatives

that the Act has reserved to the states,

... especially when, as in this case, the agency is

overriding state policy.

Commonwealth of Virginia, 108 F.3d at 1408 (quoting

Bethlehem Steel Corp., 742 F.2d at 1036-37).

In short, the EPA’s exercise of “approval” power

under 42 U.S.C. § 7410 does not permit the agency “to

require the state to pass legislation or issue regulations

containing control measures of EPA’s choosing.” Id. (cit-

ing EPA v. Brown, 431 U.S. 99, 103 (1977) (per curiam)).

Petitioners’ preemption argument challenges this settled

principle by suggesting that an EPA regulation “condi-

tionally approving” a state program under § 7410(k)(4)

12

binds the state to that chosen course, requiring the state

to enact and maintain state law mandating the particular

program. But, since EPA could not have required the

State of Maine to enact a law like the MVEIP law in the

first instance, it makes no sense to say that its conditional

approval of a plan incorporating that law gave the agency

the power to prohibit the law’s repeal.

The Maine Legislature, having evaluated political

and public policy concerns unique to the State of Maine,

made a considered decision to enact the MVEIP law as

part of the State’s plan to meet national ambient air

quality standards. The Legislature subsequently chose to

abandon the enhanced I/M program as an element of its

plan. In making both decisions, the State of Maine was

fulfilling «he precise role allocated to it under the Clean

Air Act, to be “primarily responsible” for deciding what

means to use to assure air quality “within the entire

geographic area” comprising the state, [42 U.S.C.

§ 7407(a)], and to adopt “whatever mix of emission lim-

itations it deems best suited to its particular situation.”

Commonwealth of Virginia, 108 F.3d at 1408 (quoting Train,

421 U.S. at 79).

B. EPA’s Conditional Approval Of An Implemen-

tation Plan Including The MVEIP Law Did Not

Preclude The Maine Legislature From Repeal-

ing That Law.

In apparent recognition that there is no federal

requirement that Maine implement the enhanced I/M

program that was the subject of the MVEIP contract,

Petitioners suggest that the EPA’s prior conditional

13

approval, on November 3, 1994, of the SIP revision pro-

posing the I/M program was nevertheless still in effect to

require the program as an “applicable” part of the state

implementation plan. The critical premise of the argu-

ment — never directly addressed in the pending petition —

is that a “conditionally approved” revision to an SIP

becomes “binding” on the state if the state chooses not to

continue its implementation. Petitioners’ theory that con-

ditional approval of the I/M program revision to Maine’s

SIP became an “emissions staridard or limitation in effect

under an applicable implementation plan” is fundamen-

tally incorrect.

Of critical significance is the Clean Air Act’s defini-

tion of “applicable implementation plan”:

For purposes of this Act, the term “applicable

implementation plan” means the portion (or

portions) of the implementation plan, or most

recent revision thereof, which has been

approved under [42 U.S.C. § 7410], ... and

which implements the relevant requirements of

this Act.

42 U.S.C. § 7602(q). To understand the basic flaw in

Petitioners’ argument, it is essential to appreciate the

difference, under the current version of the Clean Air Act,

between “approval” of a State Implementation Plan and

“conditional approval” of proposed pian revisions.

As part of the comprehensive 1990 amendments to

the Clean Air Act, Congress revised the section of the Act

outlining requirements for EPA action on SIP submis-

sions, including timetables and the types of action EPA is

authorized to take on each SIP revision. 42 U.S.C.

§ 7410(k); see also, H.R. Rep. No. 490 (I) 101st Cong., 2nd

14

Sess. Section 7410(k)(4) of the Act specifically prescribes

the consequences of “conditional approval”:

The Administrator [of the EPA] may approve a

plan revision based on a commitment of the

State to adopt specific and enforceable measures

by a date certain, but not later than 1 year after

the date of approval of the plan revision. Any

such conditional approval shall be treated as a disap-

proval if the State fails to comply with such commit-

ment.

42 U.S.C. § 7410(k)(4) (emphasis added). The concepts of

“full” and “partial” approval and “disapproval” are also

defined in Section 7410(k)(3) (“If a portion of the plan

revision meets all the applicable requirements of this Act,

the Administrator may approve the plan revision in part

and disapprove the plan revision in part”). The new

section thus draws a distinction between “partial

approval” and “conditional approval.” That distinction is

critical, because only “approved” plan provisions are

enforceable against the state, either by sanctions levied

against the state by the EPA under Section 7410(m) or by

means of a Section 7604 citizens suit seeking the same

enforcement result.2 The legal effect of “conditional

2 The EPA’s power to commence sanctions upon a finding

of “disapproval” is governed by 42 U.S.C. § 7509(a). Generally,

if the EPA finds that a state has failed to make any required plan

submission to the EPA, or if the EPA “disapproves in whole or in

part a submission” or finds that any requirement of an

approved plan is not being implemented, the state is given

eighteen months to correct the deficiency after notice, and

failure thereafter triggers various sanctions enumerated in the

statute. 42 U.S.C. § 7509(a)-(b). The EPA is also authorized to

“promulgate a federal implementation plan at any time within

ee

15

approval” is, therefore, of critical significance to whether

or not “conditionally approved” portions of a plan sub-

mission become “binding” on a state. Under the 1990

amendments to the Clean Air Act, adding Section

7410(k)(4), the intent of the “conditional approval” defini-

tion was to ensure that a conditionally approved portion

of a plan does not become binding on the state as an

“approved” portion if the plan is not carried out; to the

contrary, Section 7410(k)(4) unambiguously requires that

“any such conditional approval shall be treated as disap-

proval” if the state fails to carry out the plan provision. 42

U.S.C. § 7410(k)(4) (emphasis added).

Repeal of the MVEIP law became effective within one

year of the EPA’s November 3, 1994 conditional approval

of the subject I/M program plan revision, thereby trigger-

ing, for purposes of preemption analysis, the effective

disapproval of the 1/M program submission, under the last

sentence of 42 U.S.C. § 7410(k)(4). The State of Maine

enhanced I/M program submission to the EPA is not part

of the “applicable implementation plan” for the purposes

of the Clean Air Act.3

two years after the EPA finds that a state has failed to make a

required plan submission” or after the EPA has disapproved a

state implementation plan submission “in whole or in part.” 42

U.S.C. § 7410(c). If the state corrects the deficiency and effects

the approval of a plan revision before the Administrator

promulgates the federal implementation plan, then the federal

implementation plan does not go into effect. Id.

3 In the body of the Petition, the Calcagni Memorandum is

mentioned again by Petitioners. The content of the

Memorandum was raised for the first time below in Petitioners’

Reply Brief of Appellants submitted to the Maine Supreme

Judicial Court and included in the back of the brief as a form of

16

Lest there be any question that the EPA’s conditional

approval of this specific 1/M program never became part

of Maine’s applicable, approved SIP, the EPA has listed

explicitly, by regulation, all the parts of Maine’s approved

plan. That designation was made pursuant to Section

7410(h) of the 1990 Amendments to the Clean Air Act,

which requires the EPA to publish in the Federal Register

all the discrete plan provisions that have received actual

approval over the years in order to more readily identify

the overall “applicable implementation plan” for each

state. 42 U.S.C. § 7410(h). The federal “identification” of

Maine’s SIP appears at 40 C.F.R. § 52.1020. See also 40

C.F.R. § 52.1022 (“the Administrator [of the EPA]

approves Maine’s plan, as identified in § 52.1020, for the

atte‘nment and maintenance of the national standards

under section 110 of the Clean Air Act [42 U.S.C.

§ 7410].”) (emphasis added). None of the plan revisions

“addendum.” There is no Maine procedural rule directly on

point governing the submission of “evidence” in this fashion.

The Memorandum was never made a part of the evidentiary

record before the court. The EPA’s official interpretations of any

provisions of the Clean Air Act were not made a part of the

record below. The EPA did not move to intervene in the state

proceedings. In any event, Calcagni emphasizes in the more

pertinent portion of the Memorandum: “There are at least two

ways that the conditional approval may be converted to a

disapproval. First, if the State fails to adopt and submit the

specified measures by the end of one year...” Memorandum

from John Calcagni, Director, Air Quality Management

Division, EPA, to Regional Air Program Directors, “Processing

of State Implementation Plan (SIP) Submittals,” July 7, 1992, at

6-7 (emphasis added). This view would appear to recognize the

“disapproval” triggered by a state’s failure or refusal to carry

out conditionally approved SIP revisions.

SORTS CT OE RT

17

pertaining to an enhanced vehicle 1/M program in the

State of Maine are identified as part of the approved state

SIP. Thus, the regulations make it clear that the EPA does

not regard the conditionally-approved I/M plan revisions

as part of Maine’s approved “applicable implementation

plan.”

In summary, Petitioners’ preemption argument is

both inconsistent with the Act’s overall structure and

remedial scheme, and unsupported by any provisions of

the Act. Federal law did not and does not require the

State of Maine to have an enhanced I/M program like the

one authorized by the MVEIP law and created by Peti-

tioners’ contract with MDEP. Thus, Petitioners’ claim that

the repeal of the MVEIP law violates the Clean Air Act,

and that it is invalid under the Supremacy Clause is

without merit.

Ill. PETITIONERS PROCEDURALLY LACKED

STANDING TO CHALLENGE THE REPEAL OF

THE MVEIP LAW IN THIS ACTION.

Even if there were any legal basis for Petitioners’

preemption argument, this lawsuit is not an appropriate

vehicle for its assertion. The parties agree that the present

case was not brought as a “citizen suit” under Section

7604 of the Clean Air Act, and that Petitioners never

intended that the case be treated as such. Yet the citizen

suit procedures of Section 7604 are the exclusive means

by which Petitioners would be able to assert a claim that

the emissions inspection laws, once enacted in the State

of Maine, are still enforceable against the Maine DEP and

Bureau of Motor Vehicles.

18

The citizen suit provision of the Clean Air Act pro-

vides an enforcement mechanism by which any interested

person can sue the state for failing to comply with an

approved SIP [state implementation plan] or FIP [federal

implementation plan standing in the place of deficient

portions of an SIP] that is in effect under the Clean Air

Act. Section 7604 vests jurisdiction of such suits in the

federal district courts. 42 U.S.C. § 7604(a). The district

courts are authorized to enforce provisions of an

approved SIP or FIP which is in effect under the Act, or to

order the Administrator of the EPA to “perform such act

or duty, as the case may be.” 42 U.S.C. § 7604(a).

The conclusion that Section 7604 provides the exclu-

sive vehicle for Petitioners’ challenge to the repeal of the

MVEIP law is dictated both by the text of the Clean Air

Act and by an analysis of its enforcement scheme. From

the standpoint of textual analysis, the exclusivity of Sec-

tion 7604 as a vehicle for Petitioners’ attack on Maine law

is apparent from an analysis of what Petitioners call their

“savings clause,” subsection (e). That subsection pro-

vides:

Nothing in this section shall restrict any right

which any person (or class of persons) may have

under any statute or common law to seek

enforcement of any emission standard or limita-

tion or to seek any other relief (including relief

against the Administrator [of the EPA] or a state

agency).

42 U.S.C. § 7604(e) (emphasis added). This subsection

makes it clear that section 7604 could not be asserted as

the basis to procedurally bar Petitioners’ claim against

the state agency for “other relief.” However, Petitioners

asserted no other “statute or common law” basis which

|

19

otherwise entitled them to “seek enforcement of” the

MVEIP law or to obtain “other relief” authorized or made

available by the Clean Air Act. Petitioners simply sought

to enforce the MVEIP law, if at all, on the theory that it is

still an “emission standard or limitation under [the Clean

Air] Act,” 42 U.S.C. § 7604(a)(1), thus bringing their claim

squarely within the citizens suit provisions of Section

7604.

The overall structure of the Clean Air Act, partic-

ularly its enforcement scheme, further belies Petitioners’

position that they ought to have been able to challenge in

this suit the repeal of the MVEIP law. One key aspect of

the citizens suit provision is that in any action brought by

a person against a state or state agency, the EPA is given

notice of the suit, and the right to intervene. 42 U.S.C.

§ 7604(b), (c)(1)(3) (“plaintiff shall serve a copy of the

complaint on the Attorney General of the United States

and on the Administrator [of the EPA]”). The EPA is

included in suits seeking enforcement of approved SIPs

because the key to enforcement, where a state has failed

to implement an approved SIP provision, is the EPA’s

power to sanction the state. See 42 U.S.C. § 7509(a)-(d).

Thus, even if Maine’s MVEIP law had not been effectively

repealed because termination of the emissions testing

program amounted to a violation of the “approved” SIP,

and thus of federal law, the only effect of the Clean Air

Act would be to empower EPA to impose sanctions as the

result of the State’s failure to implement the law. In short,

whether the MVEIP law is required by the Clean Air Act

or not has no bearing on the outcome of this case, espe-

cially under circumstances where Petitioners have aban-

doned any effort to obtain an order mandating

20

enforcement of the MVEIP law or reinstatement of the

parties’ performances under the contract.

IV. INDEPENDENT AND ADEQUATE STATE

GROUNDS SUPPORT THE JUDGMENT OF THE

MAINE SUPREME JUDICIAL COURT

The essence of the holding of the Maine Supreme

Judicial Court below was that by the express terms of the

contract between Systems Control and MDEP, Systems

Control bore completely “the risk of legislative repeal of

the [emissions inspection] program.” App. A-7. The prin-

cipal basis for that holding was that the final contract

between the parties incorporated by reference the follow-

ing provision of the Amended Request for Proposals:

Note: In the event the Maine Legislature repeals

all or part of the program, the Department and

the State of Maine shall bear no responsibility to

compensate the Contractor.

App. A-3. The Supreme Judicial Court further reasoned

that an interpretation of the contract as incorporating (by

virtue of its “conflicts” provision) this “risk-of-repeal

note”

gives effect to the unambiguous intention of the

parties, as shown both by the language of the

conflicts clause and the circumstances surround-

ing their agreement, that SCI [Petitioners]

would bear the risk of loss in the event the

Legislature repealed the program.

App. A-7.

21

The Supreme Judicial Court did not analyze, nor

even address, Petitioners’ contention that the Maine Leg-

islature was prohibited by federal law from repealing the

emissions inspection law. In its Petition for Certiorari,

Systems Control characterizes the Supreme Judicial

Court’s treatment of that issue differently in different

places. At one point, Petitioners accuse the Supreme Judi-

cial Court of having simply dodged the issue “to protect

the State’s fisc.” Petition at 14. At another, Petitioners

suggest that the Court may have considered preemption

but decided, sub silentio, that its preemption theory was

either substantively flawed or procedurally unavailable.

Petition at 10. There is, however, a third distinct possi-

bility: The Court may simply have concluded that in light

of its interpretation of the contract, preemption was irrel-

evant.

There is nothing in the contract, as construed by the

Supreme Judicial Court, which would suggest that MDEP

intended to disavow only liability for damages flowing

from a repeal that was consistent with federal law, and

that the agency or the State of Maine intended to bear any

loss flowing from a repeal ultimately held illegal under

the Clean Air Act. The “risk-of-repeal note” is unequivo-

cal and unambiguous, disavowing all “responsibility to

compensate the Contractor” in the event of any repeal.

The Supreme Judicial Court found, moreover, that this

provision was consistent with the parties’ “unambiguous

intention” that MDEP and the State should bear no risk of

loss whatsoever in connection with the repeal. App. A-7.

Wherever it appears that the decision of a state court

“might” have rested on an independent and adequate

nonfederal ground, the Supreme Court lacks jurisdiction

a Ne ae a

22

to review it. Ellis v. Dixon, 349 U.S. 458, 459 (1955);

Stembridge v. Georgia, 343 U.S. 541, 547 (1952). Thus, this

Court has declined to undertake review of state court

decisions when it has not affirmatively appeared from the

record that a decision on a federal question was necessary

to the determination of the case. Durley v. Mayo, 351 US.

277, 281 (1956). See Black v. Cutter Laboratories, 351 U.S.

292, 299-300 (1956). Here, it is apparent that the Supreme

Judicial Court’s decision not only might have, but almost

certainly did, rest on an interpretation of the MVEIP

contract under which MDEP and the State of Maine

would be relieved of any obligation to compensate Peti-

tioners irrespective of the validity of the repeal. Thus,

preemption was irrelevant to the decision below, and

even acceptance by this Court of Petitioners’ preemption

argument would not change the result in the state courts.

Accordingly, the Petition should not be granted.

*

CONCLUSION

This case does not present any of the important pol-

icy issues or federal questions raised in the petition.

Because the Petitioners here expressly and unam-

biguously agreed to assume the whole risk of loss and

non-compensation in the event of subsequent legislative

action nullifying the parties’ obligations under the con-

tract, they are in no position to claim harm by later

raising issues of whether repeal of authorizing legislation

is valid under principles of federal supremacy. At an even

more fundamental level, their position that federal regu-

lation preempted the repeal is incorrect, and does not

raise a substantial question of Clean Air Act preclusion of

iii iii lcaiiiaiiiinidaiaeaiili

23

state legislation. The Petition for Writ of Certiorari should

be denied.

Respectfully submitted,

Of Counsel Rosert F. Hanson, Eso.

Counsel of Record

NorMAN, Hanson & DeTroy

415 Congress Street,

P.O. Box 4600

Portland, Maine 04112-4600

(207) 774-7000

Peter J. DeTroy

CHRISTOPHER C. TAINTOR

Russet B. Pierce, Jr.

NorMAN, HANSON & DeTrRoy

415 Congress Street,

P.O. Box 4600

Portland, Maine 04112-4600

(207) 774-7000

May 9, 1997