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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1264

## Text

Supreme Court, :
FILES

; mS D 199%,
No. 96-1563 H |
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ee a Pa ;

In The

Supreme Court of the United States
October Term, 1996

¢ *

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0516%3A2. Public record. Not legal advice.