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

\~ Supreme Court, U.S.

oe crt ED

MAY 19 1997

No. 96-1563

Lenk —

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.

¢

Petition For Writ Of Certiorari

To The Maine Supreme Judicial Court

4

PETITIONERS’ REPLY TO

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

¢

DANIEL AMORY

DRUMMOND Woopsum &

MacMaAHon

245 Commercial Street

Post Office Box 9781

Portland, ME 04104-5081

(207) 772-1941

May 19, 1997

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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1. Once the Revised SIP was approved by EPA, the

State could not amend the SIP without EPA

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The Revised SIP was part of Maine’s approved

SIP at the time of the repeal...................

Petitioners’ assertion of preemption does not

state a “claim” for purposes of the citizens’ action

provisions of the Clean Air Act................

The ruling below cannot be interpreted as giving

effect, as a matter of contract law, to a repeal that

is void under the doctrine of preemption ......

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TABLE OF AUTHORITIES

Page

CASES

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ....... 5

Chevron, U.S.A., Inc. v. Natural Resources Defense

Coecss, SEF UD. GBF CHIR sos sd encccnnsnnsedewres 3

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 474

CER ROE i508 ses xe adcaveistaeebeagawn sense edueueest 2

Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.

1977), cert. den. 434 U.S. 902 (1977)................ 1

Hodel v. Virginia Surface Mining & Reclam. Ass‘n,

Tan. Se Ue CONES + hc oes cree bd ake aeenes oes 1

McCarthy v. Thomas, 27 F.3d 1363 (9th Cir. 1994)...... 3

Metropolitan Washington Coalition for Clean Air v.

District of Columbia, 511 F.2d 809 (D.C. Cir. 1975) ..... 1

Natural Resources Defense Council v. EPA, 22 F.3d

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STATUTES

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OTHER AUTHORITIES

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Memorandum from John Calcagni, Director, Air

Quality Management Division, E.P.A., to

Regional Air Program Directors, “Processing of

State Implementation (SIP) Submittals,” July 7,

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ARGUMENT

The arguments advanced by Respondents in their

Brief in Opposition do not withstand analysis. Instead,

they are proof positive that Respondents’ position, and

the ruling below, directly conflict with federal law.

i. Once the Revised SIP was approved by EPA, the

State could not amend the SIP without EPA

approval.

Respondents contend that “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.”

Respondents’ Brief in Opposition (“Respondents’ Brief”)

at 12. This argument directly contradicts a long line of

cases in this Court and the federal courts of appeal hold-

ing that states can be bound by plans they submit to

federal agencies to comply with Congressionally manda-

ted programs, even if the federal government could not

absent such submission have required the state to adopt

the implementing legislation. See, e.g., Hodel v. Virginia

Surface Mining & Reclam. Ass'n, 452 U.S. 264, 289 (1981);

Friends of the Earth v. Carey, 552 F.2d 25, 34-39 (2d Cir.

1977), cert. den. 434 U.S. 902 (1977), cited with approval

in Hodel, 452 U.S. at 290 (re: Clean Air Act).

The State’s argument also directly contradicts EPA’s

regulations, which require EPA approval of any plan

revision before it becomes effective. 40 C.F.R. § 51.105; see

Metropolitan Washington Coalition for Clean Air v. District of

Columbia, 511 F.2d 809, 813 (D.C. Cir. 1975) (“If unilateral

state action served to relax its implementation schedule

pending EPA approval, any state could sidestep the cru-

cial limitations on the revision procedure and undermine

the national program of air quality improvement.”)

2. The Revised SIP was part of Maine’s approved SIP

at the time of the repeal.

Respondents argue at length that the Revised SIP

“never became part of Maine’s applicable, approved SIP.”

Respondents’ Brief at 16. Their argument is inconsistent

with the text of the statute, EPA’s interpretation of the

statute, and all fer ral cases that have considered the

effect of conditionally approved SIP’s.

Both Petitioners and Respondents agree that the

Clean Air Act’s definition of “applicable implementation

plan” is of critical significance, since that definition con-

trols the express preemption provisions of 42 U.S.C.

§ 4216. “Applicable implementation plan” is defined in 42

U.S.C. § 7602(q) as “the portion (or portions) of the

implementation plan, or most recent revision thereof,

which has been approved under [42 U.S.C. § 7410]....”

Section 7602(q) does not distinguish between the various

subsections of § 7410, which deal with both full and

partial approvals [§ 7410(k)(3)] and conditional approvals

[§ 7410(k)(4)]; § 7602(q) instead states unequivocally that

a portion of a plan approved under any section of § 7410

becomes part of the “applicable implementation plan.”

This Court must give effect to the plain language of the

statute, see Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

474, 475 (1992), and that plain meaning requires that a SIP

conditionally approved under § 7410(k)(4) be included in

the “applicable implementation plan” with the same

effect as a SIP fully or partially approved under

§ 7410(k)(3).

Respondents’ position is also in direct contradiction

with the interpretation of EPA, the agency charged with

implementing the Clean Air Act, and all federal courts

that have considered the issue. The Director of EPA’s Air

Quality Management Division issued a memorandum to

Regional Air Program Directors, after adoption of the

1990 Clean Air Act Amendments, stating that condi-

tionally approved SIP’s are enforceable and are part of

the State’s SIP. Memorandum from John Calcagni, Direc-

tor, Air Quality, Management Division, EPA, to Regional

Air Program Directors, “Processing of State Implementa-

tion (SIP) Submittals,” July 7, 1992, quoted in Petitioners’

Petition for Writ of Certiorari at 11, n.10. That administra-

tive interpretation is entitled to “considerable weight-

. and deference,” Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 844 (1984), and

Respondents have shown no reason why EPA’s inter-

pretation should not be given effect.! The federal courts

that have considered the issue also unanimously con-

cluded, both before and after the 1990 Clean Air Act

Amendments, that conditionally approved SIP’s must be

enforceable. McCarthy v. Thomas, 27 F.2d 1363, 1369 (9th

1 Respondents dismiss the Calcagni memorandum because

it was brought to the attention of the Maine Law Court ina reply

brief, and “EPA’s official interpretations of the provisions of the

Clean Air Act were not made a part of the record below.”

Respondents’ Brief at 16, n. 3. EPA’s interpretations are a matter

of law, not fact, and can be cited to the court below and this

Court at any time.

4

Cir. 1994); Natural Resources Defense Council v. EPA, 22

F.3d 1125, 1133-35 (D.C. Cir. 1994).

Respondents’ argument boils down to this: the Clean

Air Act should be interpreted to permit a State to evisce-

rate a portion of its conditionally approved SIP, through

repealing an entire emission testing program included in

its SIP; assert its own repeal as a breach of the conditions

imposed by EPA, in order to nullify the SIP; and thereby

escape from the express preemption provisions of the

Clean Air Act, which would otherwise prohibit the

repeal. Respondents’ Brief at 15. The argument is facially

absurd: the State cannot assert its own deliberate breach

of its commitments under its Revised SIP to avoid the

clear Congressional mandate that the State not adopt

legislation undercutting EPA-approved emissions stan-

dards.

3. Petitioners’ assertion of preemption does not state a

“claim” for purposes of the citizens’ action provi-

sions of the Clean Air Act.

Respondents argue that Petitioners lack standing to

assert preemption, because they did not pursue manda-

tory reinstatement of the emissions testing program and

did not comply with the citizens’ action provisions of the

Clean Air Act, 42 U.S.C. § 7604. Respondents’ Brief at

17-20. To the contrary, by abandoning the request for

reinstatement of the program Petitioners’ avoided any

possible application of § 7604. Petitioners seek damages

under the common law of contracts, not reinstatement of

the emissions testing program.

TORE RT

This Court has repeatedly held that assertion of pre-

emption does not create a federal claim, for jurisdictional

purposes. See, e.g., Caterpillar, Inc. v. Williams, 482 U.S.

386, 393 (1987). Petitioners’ use of preemption to strike

affirmative defenses to a contract action does not gener-

ate a federal claim under § 7604, and is not subject to the

procedural requirements of that section. In any event,

Petitioners’ contract claim is a “right . . . under common

law” which is preserved by the savings clause of

§ 7604(e).

4. The ruling below cannot be interpreted as giving

effect, as a matter of contract law, to a repeal that is

void under the doctrine of preemption.

The total bankruptcy of Respondents’ position is evi-

dent from its final argument, which is that the decision

below allocated the risk of repeal to Petitioners “irrespec-

tive of the validity of the repeal.” Respondents’ Brief at

22. If the repeal is void as a matter of tederal law it does

not exist. Respondents therefore cannot assert the repeal

as a defense, and cannot benefit from it — particularly

where the Maine Legislature enacted the repealer with

undisputed knowledge, on advice of the Maine Attorney

General, that the repeal would violate federal law.

4

CONCLUSION

Each and every argument submitted by Respondents

directly contradicts established federal law. The petition

should be granted.

Respectfully submitted,

Danie Amory, Esa.

Counsel of Record

DRUMMOND Woopsum & MACMAHON

245 Commercial Street

Post Office Box 9781

Portland, ME 04104-5081

(207) 772-1941

May 19, 1997

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