Amicus Curiae Brief — Washington v. General Motors Corp.

IN THE

Supreme Court of the United Wats? 2 °°

. ROBERTS” WE }

6

October Term, 1970

No. 45

’ « Original

STATE OF WASHINGTON, et al., ae:

Plaintiffs,

vs.

GENERAL Motors CoRPORATION, et al., :

Defendants.

On Motion for Leave to File Complaint.

Brief for the States of Alabama, et al., as Amici Curiae,

WILLIAM J. BAXLEY,

Attorney General of Alabama, ~.

State Administration Building,

Montgomery, Alabama 36104,

(Names and address of other Attorney General on inside cover)

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

\%

SUBJECT INDEX

Page

a scene cuecnccccnnewmemcenapnevens 2

Mememnnry GL ALQuMenit ............---..ce-.cecessecssccossensonees 5

TIE © eee vcsuvcsensenenewsennvpnetersvoresereneseesstyshenreenecweses 8

I.

Reasons of Practical Wisdom Favor This Court’s

Retention of Its Original Jurisdiction in This

EE LL LEE ESO 10

1. Issues of Federal Law ..........---.------------0-+- 10

2. Matters of National Import ............2-.----: 13

3. Involvement of Other Official Bodies ...... 14

4. Whether There Are Complex Fact Ques-

i ccerteiccensaschencevepnecnteduoconene 18

(1) The Retrofitting Remedy Is, Author-

SES Usdile § 20 .nw-.-}.eccciececess 20

(2) There Is No Mystery as to the Tech-

I a iaciccncetleensnetensecnn 21

Il

This Court Should Assume Jurisdiction in Order

to Provide the Most Expeditious Solution to

I, cA. aaspnemadontaepneeneerensinns 26

i celeenirenconquounvmpeuesoapesiiie 30

ANE I ae PRET ER WTS ~ . SO ONET a !

ii.

TABLE OF AUTHORITIES CITED

Cases : Page

Alabama v. United States, 371 U.S. 37 (1962),

ee 2 ee ee 20

Ames Co. v. Bostitch, Inc., 240 F. Supp. 521

Cipla ecewnscnsveanlevbinaieeebiscnacensete 21

Boys Markets v. Retail Clerks, 398 U.S. 235

i essinpieerntteespineeussecventwonieask 12

Carnaiion Co. v. Pacific Conference, 383 U.S. 213

i eet deenavninecepeoninncmanianect 16

City of Chicago v. General Motors Corporation,

“eH ee ae es eS 16

Georgia v. Pennsylvania R. Co., 324 U.S. 439

a rapentcpewvateeerattenendinctemeeeqeresres 16

International Boxing Club of New York v. United

OO ee 7 TE Gy =! | 20

J. I Case Co. v. Borak, 377 U.S. 426 (1964)

i ieuiciapenninnieiinnciwornondenn’s 16, 17, 20

Louisiana v. United States, 380 U.S. 145 (1965) .. 20

McKeon Construction Co. v. McClatchy News-

papers, 1970 Trade Cas. (1969), 4 73,212 ...... 21

Mine Workers v. Pennington, 381 U.S. 657

STII cccnnnsorscontnctictcensennnessenpeunveveereeosersreeseensoons 12

Multidistrict Private Civil Treble Damage Antitrust

Litigation Involving Motor Vehicle Air Pollution

Control Equipment, In re, 311 F. Supp. 1349

racine owesecrwevaseniensinesevccevenenene a...

Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493

(1971) ..2, 5, 6, 8, 9, 10, 11, 13, 14, 15, 18, 19, 30

Oregon v. Mitchell, 400 U.S. 112 (1970) ............ a

Porter v. Warner Holding Co., 328 U.S. 395

co | a ee 21

Schine Chain Theatres v. United States, 334 USS.

South Carolina v. Katzenbach, 383 U.S. 301

S| enn OER e A Kien ener tae Meter ey ec

United States v. Automobile Manufacturers Ass’n,

307 F. Supp. 617 (1969) aff'd sub nom. City of

New York v. United States, 397 U.S. 248 (1970)

United States v. Automobile Manuf. Ass’n., 307

Fic PGE weekincrccccegncioedeian ments

United States v. Borden Co., 308 U.S. 188 (1939)..

United States v. Crescent Amusement Co., 323 US.

PRR D Secvescuuccnsnansveuhatiusuccmeeeaiedeelececent

United States v. E. I. du Pont de Nemours & Co.,

566 RIS. SIG: CI9G1) veccesecen 14, 20,

United States v. R.C.A., 358. U.S. 334 (1959) ....

United States v. Texas, 143 U.S. 621 (1892) ........

Miscellaneous

Automotive News, 1971 Almanac, issue of April 26,

1971, p. 20, Table: Percentage of Car Makes to

Total U.S. Registrations, 1962-1970 ..................

Automotive News, July 26, 1971, p. 12 ..............

California Department of Agriculture, A Survey and

Assessment of Air Pollution Damage of California

Vegetation in 1970 (June 1971), pp. 24-25 ....

Chrysler Corporation—Progress Report: Technical

Effort Aimed at Compliance with 1975-76 Emis-

sion Standards Established by December 1970

Clean Air Act, April 1, 1971, p. 8 ................

51 Congressional Record (1914), pp. 14214-

Page

110 (39469 .................... sswitaleetpnenonaminitantie 20, 21

28

iv.

Page

Ford Motor Co., Technical Report on Compliance

with the Clean Air Amendments of 1970, Sub-

mission to Environmental Protection Agency,

PE Fy BIT, BD mic Spricrecsinicennccrevrncintemneet ie

General Motors Corporation, Progress Report to

U.S. Environmental Protection Agency, April 2,

SO Oe TO me hai reeninteter cers

House Report 728 on S. 780, 90th Cong., Ist Sess.,

1967 U.S. Code Cong. & Adm. News 1956 ........

House Report No. 728 on S. 780, 90th Cong. Ist

Sess., 1967 U.S. Code Cong. & Adm. News 1956,

quoting S. Rept. No. 192, 89th Cong. .......:........

House Report 899 on S. 306, 89th Cong., Ist Sess.,

1965 U.S. Code Cong. & Adm. News, pp. 3608,

| 5 feces enn

Legislative History of the Air Quality Act of 1967,

1967 U.S. Code Con. & Adm. News, pp. 1941-

(i ——_-"9" "nae

Los Angeles Country Air Pollution Control Dis-

trict, Profile of Air Pollution Control (1971) ~...

Middleton, Air Pollution Control—New Controls in

the Law, 59 Kan. L.J. (1970), pp. 644, 645-

aes eee teceeepevesenchinese

Project Clean Air, pp. 2-7 through 2-10 ................

Rep. of Attorney General’s Comm. to Study Anti-

trust Laws, (1955), pp. ya Sek | SE lees 10,

United States Dept. of Health, Education and Wel-

fare, Public Health Service, The Effects of Air

Pollution (Washington 1967), pp. 5, 6 ..............

University of California Task Force Assessments,

Vol. II, Project Clean Air (1970) ....................

Regulations

Code of Federal Regulations, Title 45, Sec. 85 ..

25

25

16

24

16

28

29

15

V.

Statutes Page

California Health and Safety Code, Sec. 39129 .... 23

RIE FAME Te Ro cacecec seco nsteerce ne 12, 19, 20, 21

8 2) a anes 15

Public Law 86-493, June 1962, p. 9 0.02020... 21

I IE ives ccc ievinsnnncescnessundaveiasnnsseeenpue 15

NE RN AINE cisco cv esteancdansecescesionemieestbesanndinn 15

United States Code, Title 15, Sec. 26 .................. 20

United States Code, Title 28, Sec. 1292(b) ........ 11

United States Code, Title 28, Sec. 1407 ............ 4

United States Code, Title 42, Sec. 1875f-1 ........ 3

Textbooks

Cohen, et al., Carbon Monoxide and Survival from

Myocardial Infraction, Arch. of Environmental

Health, 19:510-517 (October, 1969) ............ 29

Epstein, Potential Carcinogenicity, Mutagenicity,

and Teratogenicity Due to Community Air Pollu-

tants, Project Clean Air, Appendix M ............ 28

Goldsmith, The New Airborne Disease: Community

Air Pollution, California Medical, Vol. 113, No.

eo Be By EE | Pees ERO nOe aE ree 29

Ishikawa, et al., The Emphysema Profile in Two

Mid-Western Cities in North America, Arch. of

Environmental Health, 18:660-666 (1969) ...... 29

Kilburn, Human Cost of Polluted Air, Medical .

Times, Vol. 98, No. 9 (Sept. 1970), p. 161 ........ 29

Lave and Seskin, “Air Pollution and Human

Health,” Science, Vol. 169, No. 3947. (August

Gh we Rly 9 & Wily sly ky Sener 28, 29

Lave and Seskin, Heulth, Education and Welfare

I CB ig TG ID vcs seentnineensverensivers 28

Page

Motley, et al., Effect of Polluted Los Angeles Air

(Smog) on Lung Volume Measurements, Journal

of the American Medical Association. Vol. 171,

No. 13 (Nov. 28, 1959), pp. 1475-1476 ........ 28

Phelps et al., Air Pollution Asthma Among Military

Personnel in Japan, Journal of the American

Medical Association, Vol. 175, No. 11 (March

18, 1961), p. 990 ...... a asec ni 28

Zeidberg, et al., The Nashville Air Pollution Study:

Mortality From Diseases of the Respiratory Sys-

tem in Relation to Air Pollution, Arch. of Envi-

ronmental Health 15:214-224 (Aug. 1967) .... 28

Supreme Court of the United States

October Term, 1970

No. 45

Original

STATE OF WASHINGTON, et al.,

| Plaintiffs,

VS.

GENERAL MoTors CORPORATION, et al., |

Defendants.

On Motion for Leave to File Complaint.

Brief for the States of Alabama, et al., as Amici Curiae.

This brief amici curiae is submitted by the States of

Alabama, et al., pursuant to Rule 42(4) of the Rules

of this Court. Amici are 16 states of the United

States and the City of New York, New York. In com-

mon with plaintiffs, amici have complained against de-

fendants seeking affirmative equitable relief from the

injury wrought by the antitrust violations involved in

these cases. |

Although a number of amici first brought their com-

plaints in the district courts, we agree with plaintiffs

here that as matters now stand the controversy should

more appropriately be considered by this Court as an

original matter. If the Court agrees to entertain this

complaint, amici will seek leave to join as plaintiffs

here.

_,

The complaint plaintiffs ask leave to file seeks a

remedy for the fouling of the nation’s air that has re-

sulted from the automobile manufacturers’ conspiracy

to delay research, development and installation of auto

pollution control devices. The principal remedy plain-

tiffs seek in order to undo the massive consequences of

that violation is feasible legally, technically and eco-

nomically. That remedy is to require defendants to in-

stall (“retrofit”) emission control devices on used cars

presently on the road.

Amici agree with plaintiffs that this nationwide liti-

gation presents a rare and urgent situation which calls

for this Court’s exercise of its original jurisdiction. While

the pleadings thus far submitted by the parties pre-

ceded this Court’s decision in Ohio v. Wyandotg Chem-

icals Corp., 401 U.S. 493 (1971), we shall show that the

present circumstances fully satisfy the criteria for the

exercise of original jurisdiction laid down in Wyan-

dotte.

Statement of the Case.

Plaintiffs have presented a full statement of the case.

For present purposes, only a few essential facts need

be highlighted.

Arrayed as plaintiffs, both in this Court and in the

lower courts, are 34 sovereign states, representing the

preponderant portion of the nation’s population and

the geographic areas most seriously affected by the

polluting emissions from defendants’ automobiles.

The defendants—manufacturers of most of the cars

produced in this country—stand charged with antitrust

violations of unprecedented seriousness. Essentially,

plaintiffs and amici allege that defendants engaged in a

—j—

long-standing antitrust conspiracy,’ starting before

1955, to retard and prevent research, development and

installation of effective air pollution control devices on

their automotive products. The effects of this antitrust

violation can now be seen from almost any urban

window, as massive amounts of pollutants emitted from

automobiles not equipped with emission control devices

literally color the nation’s skies.

An appreciation of the matters now before the Court

requires an understanding of the overall history of the

automotive air pollution litigation.

Prior Federal Proceedings. In 1965 the federal gov-

ernment issued a civil investigative demand inquiring

into defendants’ actions on air pollution, and a grand

jury later conducted an extensive investigation. Al-

though no indictment was requested, in early 1969 a

civil complaint was filed by the Antitrust Division

charging defendants with conspiracy to eliminate com-

petition in research, development, manufacture and

installation of motor vehicle air pollution control equip-

ment. The civil case was soon settled by a consent de-

cree that did no more than forbid any future combina-

tion to restrain air pollution control despite the strenu-

ous objections of many major public bodies that such

relief was inadequate. United States v. Automobile

Manufacturers Ass'n, 307 F. Supp. 617 (C.D. Cal.

1969) affd sub nom, City of New York v. United States,

397 U.S. 248 (1970).

1The proffered original complaints also allege common law

conspiracy and nuisance counts in addition to the antitrust vio-

lations. However, the antitrust violation is patently the principal

charge, and is the one which amici contend furnishes the clearest

basis for this Court to accept original jurisdiction. This litigation

stems from: the civil antitrust complaint filed by the federal

government against the automobile manufacturers which was

settled by consent decree. See page 3, infra.

LAPEER PEI RIE TT ONEOIPE RE ER SENT LOIN RTT WH Na OND

oa om

“Private” Actions in the District Courts. Most of the

objecting public bodies then instituted their own anti-

trust actions seeking the relief that had been omitted

from the federal consent decree. In substance, those

cases seek two kinds of relief: (1) an injunction requir-

ing the defendants to “retrofit” used cars with the anti-

‘pollution devices that would have been installed as

original equipment but for the conspiracy, and (2)

damages for injuries to interests represented by the

plaintiffs that have already occurred from air pollu-

tion caused by the conspiracy. On April 6, 1970, the

actions filed by these public bodies in district courts

throughout the Nation were consolidated under 28

U.S.C. §1407 for pretrial proceedings in the Central

District of California; they are henceforth referred to

as the “Docket 31” litigation (using the docket number

assigned them by the Judicial Panel on Multidistrict

Litigation).’ |

In the almost two years since the first public body

complaints were filed in the district courts, the Docket

31 litigation has made little progress:

Defendants moved to dismiss the Docket 31 cases

on the grounds, inter alia, that plaintiffs lacked stand-

ing and were seeking relief which could not be granted.

On September 4, 1970 the district court denied defend-

ants’ motion to dismiss but thereafter certified its de-

2In re Multidistrict Private Civil Treble Damage Antitrust

Litgation Involving Motor Vehicle Air Pollution Control Equip-

ment, 311 F. Supp. 1349 (JPML 1970). Since the original juris-

diction complaints were filed, seventeen states which had not

previously filed in the district court have done so in order to

protect themselves from the bar of the statute of limitations. In-

cluded among these recently filing states are 16 who had previ-

ously filed in this Court and who then filed in the district court

on a “standby basis” in the event this Court declined to accept

original jurisdiction.

- “4

on

cision denying defendants’ motion. as appropriate for

appellate review under 28 U.S.C. § 1292(b). Permis-

sion to appeal was granted by the court of appeals on

February 17, 1971. Defendants’ briefs were filed on

July 26, 1971.

On January 26, 1971 the district court released to

the plaintiffs most of the documents gathered in the

federal grand jury investigation. M.D.L. Docket 31

Pretrial Order No. 3. These had previously been im-

pounded by the district court for the use of “treble

damage claimants or others” when the consent decree

was approved. 307 F. Supp. at 620. The Docket

31 plaintiffs have been reviewing this voluminous evi-

dence since then. (Some of the Docket 31 cases were

withheld from certification to the court of appeals, so

that proceedings could go forward in the district court

during the interlocutory appeal.)

Ultimately, when the pending appeals, further pre-

trial procedures, and any other interlocutory appeals

that may arise are completed, the Docket 31 cases will

be returned to the 23 districts where they began, for

trial on the merits, subsequent determination of ap-

propriate remedies, appeal to the respective courts of

appeal and, inevitably, review by this Court.

In this setting amici urge this Court to assume orig-

inal jurisdiction of the controversy.

Summary of Argument.

When the principles outlined in this Court’s decision

last Term in Ohio v. Wyandotte, 401 U.S. 493 (1971),

are applied to the circumstances of the present case, it

becomes clear that this is a case where both the policies

of Article II] and “reasons of practical wisdom” call

or ae

for the retention of original jurisdiction. This is not,

like Wyandotte, a single State’s suit of local concern

based on local law that could be brought in the plain-

tiff’s own courts. Rather, it is a case where numerous

states seek relief under the federal antitrust laws—

as to which this Court has a special role—for a problem

of urgent nationwide concern. This litigation cannot

feasibly be handled in separate suits in federal courts

in each of the plaintiff States, and moreover, Article

III contemplates that a State unable to sue in its own

State courts should not be required to look elsewhere

than this Court for judicial relief.

None of the practical considerations considered in

Wyandotte favors a declination here of the jurisdiction

that this Court should presumptively exercise:

(1) This case raises fundamental questions of

federal antitrust law, relating to the offense

charged, plaintiffs’ standing to sue and the power

of a court of equity—which we show to be indis-

putable—to provide the relief plaintiffs seek.

Plaintiffs seek principally to undo future effects

of the violation alleged by requiring defendants to

install i.c., “retrofit,” antipollution devices in ex-

isting automobiles. These are questions that must

be resolved in this Court sooner or later, wherever

the cases are tried.

(2) The problem is plainly of nationwide im-

port.

(3) The retrofit remedy central to this litigation

is unavailable in any nonjudicial forum. The limited

federal administrative regulation of automotive air

pollution covers only post-1968 new cars and even

those incompletely, and state regulation is inappro-

priate and inadequate for coping with the national

icant

problem created by defendants’ efforts to impede

the fight against air pollution.

(4) As our brief exposition of air pollution

technology shows, that technology is not the mys-

tery defendants claim it to be and pollution-control

devices are readily available for retrofit in the

present state of the art; thus, the factual and

remedial elements of this case are not unmanage-

able for this Court assisted by a Special Master.

The enormity and urgency of the nationwide health

and economic problem that gives rise to this suit calls

for expeditious resolution that can come only if this

Court takes the case now.

ee

ARGUMENT.

This Court’s decision last Term in Ohio v. Wyan-

dotte, 401 U.S. 493 (1971), established the framework

for the Court’s determination as to whether the federal

antitrust count of the present complaint should be re-

tained here or remitted to the concurrent jurisdiction

of the several district courts.

As this Court recognized in Wyandotte, that determi-

nation starts with the presumption that the Court must

generally exercise the jurisdiction it has, 401 U.S. at

497, but proceeds on the principle that the Court may

exercise discretion to select those cases that are especial-

ly deserving of and appropriate for original considera-

> tion. That is, the Court “may decline to entertain a

complaint brought by a State against the citizens of

another State * * * only where we can say with assur-

ance that (1) declination of jurisdiction would not dis-

serve any of the principal policies underlying the Article

III jurisdictional grant and (2) [there are] reasons of

practical wisdom that persuade us that this Court is an

inappropriate forum * * *.” 401 U.S. at 499. We shail

show that application of these criteria to the unique

circumstances of this case militates in favor of the

Court’s exercising its jurisdiction over the present com-

plaint.

The Article III policies discussed in Wyandotte add

up to a general principle that a state should not be re-

quired to resort to another state’s courts or indeed to

any court other than its own in order to obtain relief.

In Wyandotte, the Court concluded that plaintiff

Ohio’s own courts would be competent to entertain its

lawsuit, which was based purely on local law. Here,

unlike Wyandotte, a federal forum is available (indeed

ie nn

ie

many are available) to these plaintiffs but the nature

of the case is such that (1) no state’s own courts have

jurisdiction, and (2) no state’s claim can, as a

practical matter, be handled in the federal court sit-

ting in that state even if that would satisfy tne Article

III policy. In fact, the pending district court cases

brought by the states are all now centralized in a Cali-

fornia federal district court for pretrial proceedings.

The second branch of the Article III policy articu-

lated in Wyandotte makes it insufficient that a state

plaintiff has a remedy in a lower federal court. Rather,

Article III by its terms reflects the Framers’ judgment

that a state unable to sue in its own court should not

be required. to go anywhere else except this Court:

“Such exclusive jurisdiction was given to this court be-

cause it best comported with the dignity of a state that

a case in which it was a party should be determined in

the highest, rather than in a subordinate, judicial tri-

bunal of the nation.” United States v. Texas, 143 U.S.

621, 643 (1892). There is, moreover, the further Article

III policy, reflected in such cases as South Carolina v.

Katzenbach, 383 U.S. 301 (1966), and Oregon v.

Mitchell, 400 U.S. 112 (1970), that matters of urgent

importance to all or many of the states of the Union are

particularly appropriate for determination here, without

the necessity of time-consuming and duplicative litigation

in numerous district courts and courts of appeals.

Thus the principles of Wyandotte permit this Court

to decline original jurisdiction only if the declination

is both consistent with Article III policies and required

by practical considerations. The practical considerations

outlined in Wyandotte are four:

1. Whether there are serious issues of federal

law presented;

iene

2. Whether the matter is one of national im-

port;

3. Whether other official bodies are “actively

involved in regulating the conduct complained of”

(401 U.S. at 502); and

4. Whether there are complex fact questions

which would be better dealt with initially at a

trial: level.

Measured against these standards, this litigation

merits treatment different from Wyandotte.

8

REASONS OF PRACTICAL WISDOM FAVOR THIS

COURT’S RETENTION OF ITS ORIGINAL JURISDIC-

TION IN THIS LITIGATION.

1. Issues of Federal Law.

In Wyandotte, the single factor which weighed most

heavily was that only an issue of local law was pre-

sented. The State of Ohio sought abatement of a nui-

sance. This Court held that “much would be sacrificed,

and little gained, by our exercising original jurisdic-

tion over issues bottomed on local law.” 401 U.S. at

497. In this litigation, however, every important issue

is one of federal antitrust law—the nature of the of-

fense, plaintiffs’ standing to sue, and the propriety of

the relief sought. These are issues with which this Court

is continually concerned. They are bound to come

to this Court eventually if they are not entertained now.

Nature of the Offense. The gravamen of the com-

plaint here is Count I, the charge of violation of the

antitrust laws. What is charged is a classic antitrust

conspiracy to suppress technology. See Rep. of Attorney

General's Comm. to Study Antitrust Laws, 230-231

cca Gai

(1955), and cases cited. However, defendants’ asser-

tion that the theory of violation is “novel and unadjudi-

cated,” raises a fundamental question of the interpre-

tation of the Sherman Act, a staple of this Court’s busi-

ness.

Plaintiffs’ Standing to Sue. In the Docket 31 cases,

defendants have also attacked plaintiffs’ standing,

claiming that the state and other public body plaintiffs

are not entitled to sue because they were not the parties

against whom the violation was directed, had no “com-

mercial relationship” with defendants, and were not

within the “target area” of the violation. Although we

believe this issue was decided correctly against defend-

ants by the §1407 judge, his certification of the issue

to the Ninth Circuit incorporated his determination that

it is “a controlling question of law as to which there is

substantial ground for difference of opinion.” 28 U.S.C.

§ 1292(b). Issues relating to standing to sue under the

antitrust laws are of a kind over which this Court does

have a “claim to special competence.” Wyandotte, 401

U.S. at 497-8. See, e.g., Hawaii v. Standard Oil of

California, No. 70-49.

The Relief Sought—Retrofitting. The ultimate issue

presented in this litigation is whether, if the allega-

tions of the complaint are sustained, the defendants

should be required to “retrofit,” i.e., install anti-pollu-

tion devices on the automobiles they manufactured dur-

ing the conspiracy period. In this Court, defendants

have reiterated their contention, previously urged in

lower courts, that the mandatory relief which plaintiffs

8Br. in Opp. 7. Defendants rely on a comment by Judge Curtis

made in support of his approval of the consent decree in the

federal case. United States v. Automobile Manuf. Ass’n., 307 F.

Supp. at 621.

|

seek is beyond the equitable powers of any federal

court. (Br. in Opp. at 22 n. 23.) This argument is

based on defendants’ construction of §16 of the Clay-

ton Act. That, of course, raises a question of federal

law. And defendants’ subsidiary arguments that such

a remedy would be inappropriate because of state and

federal laws dealing directly with pollution likewise

raise issues which—if they are sufficiently substantial

to merit notice at all—involve federal questions, and

of a character particularly suitable for this Court. For

whether federal courts should defer in formulating a

remedy for a violation of a federal statute to various

state schemes of regulation is an issue of federalism

which has historically been within this Court’s special

competence. And defendants’ alternative assertion that

there is some inconsistency between an crder requiring

retrofitting of cars manufactured in the past, pursuant

to an antitrust conspiracy, and their duty under recent

Acts of Congress to install such devices on cars built

in the future, invites an accommodation of federal

statutes. This, too, is a task which only this Court can

fulfill with authority and finality. Compare Boys Markets

y. Retail Clerks, 398 U.S. 235 (1970); Mine Workers v.

Pennington, 381 U.S. 657 (1965).

In summary, it is plain that at every turn this litiga-

tion presents federal questions, and federal questions

only. It is a foregone conclusion that, given their im-

portance, and the enormous stakes involved, the parties

to this litigation are unlikely to rest until they have

made every effort to have these issues finally decided

by this Court.

4We treat this issue on the merits at pp. 20-21, infra, because

it is logically antecedent to consideration of defendants claim

that the retrofitting remedy involves such factual complexities

that this Court should stay its hand.

sein Mihaaie

2. Matters of National Import.

In Wyandotte, the problem concerned the contam-

ination of a limited geographic area, Lake Erie. One

state brought the complaint. Here the problem is na-

tional and 34 states are seeking relief.

The national character of the problem results prin-

cipally from the oligopolistic character of the automo-

bile industry. Through 1969 the defendant automobile

manufacturers consistently accounted for over 85% of

all cars registered in the nation.” When these manu-

facturers conspired, the result was inherently a na-

tional problem, compounded by the natural movement

of the air and the mobility of motor vehicles. In this

litigation the enormity of the injury caused by defend-

ants overshadows every other consideration.

This Court declined Wyandotte because otherwise it

“would unavoidably be reducing the attention we could

give to those matters of federal law and national im-

port as to which we are the primary overseers.” 401

U.S. at 498. This litigation presents precisely those seri-

ous “matters of federal law and national import” which

are deserving of this Court’s attention. Accordingly, as-

sertion of jurisdiction in the present case would not, as

in Wyandotte, require the Court to “pick and choose

arbitrarily among similarly situated litiganis” (401 US.

at 504) with localized pollution problems. The mag-

nitude of the automotive air pollution problem and its

nationwide character differentiaties this case in kind, not

merely in degree.

5See Automotive News, 1971 Almanac, issue of April 26,

1971, p. 20, Table: Percentage of Car Makes to Total U.S.

Registrations, 1962-1970.

a)

3. Involvement of Other Official Bodies.

In Wyandotte this Court declined to commit its “re-

sources to the task of trying to settle a small piece

of a much larger problem that many competent adjud-

icatory and conciliatory bodies are actively grappling

with on a more practical basis.” 401 U.S. at 503.

The case here is far different.”

The most important issue which this Court is being

asked to resolve, and the one with which amici are

principally concerned, is the appropriateness of a de-

cree requiring retrofitting. Assuming the automobile

manufacturers’ violation ceased as of the entry of the

consent decree, the automobiles manufactured and sold

during the time of the conspiracy are still on the road,

and, lacking control equipment, continue to spew their

pollutants into the atmosphere. The violation caused

these polluting cars and the “natural remedy” is to

retrofit them, just as the “natural remedy” for an illegal

merger is dissolution. United States v. E. I. du Pont de

Nemours & Co., 366 U.S. 316, 329 (1961).

This issue is one which can best be resolved in this

Court. Defendants of course say otherwise. The sim-

ple fact is that the auto manufacturers are currently en-

gaged in seeking to persuade each adjudicatory and reg-

ulatory body before whom they appear on any pollution

problem, that the relief “pea” is not under that “shell.”

In this Court the manufacturers point to federal reg-

ulatory statutes. They argue that plaintiffs “do not as-

sert that defendants are not or will not continue to be

in compliance with Federally prescribed standards.”

(Br. in Opp. 21.) This argument is at best unseemly.

Defendants stand accused of a conspiracy in violation

of federal law, resulting in an enormous nationwide

injury. They should act, in effect, taunt the injured

—15—

parties with the claim that there were not at the time

of injury any laws which affirmatively required them

to do that which they illegally conspired not to do.

More important, as defendants know full well, there

is no federal regulation covering emissions on used cars

or retrofitting. Federal regulation of automotive emis-

sions began with the 1968 model year—but only for

new cars.” Accordingly, the effects of the antitrust vio-

lation which was the subject of the 1969 consent decree

remain to be dealt with—at the least—with respect to

pre-1968 models.’ Defendants’ only answer to the in-

disputable fact that reirofit is solely a matter of judicial

concern is the suggestion that a conflict “may * * *

arise” if federal legislation is passed in the future.

(Br. in Opp. 21.) Such a possibility cannot meet the

Wyandotte test of involvement by other adjudicatory

and regulatory bodies.

6Public Law 89-272 enacted October 20, 1965 [42 U.S.C.

§1875f-1 et seq.] authorized the Secretary of Health, Education

and Welfare to establish national Standards applicable to emis-

sions from “new motor vehicles or mew motor vehicle engines

* * *” (Emphasis added.) Partial regulations were promul-

gated under this law for vehicles beginning ‘vith the 1968 model

year. See generally 45 C.F.R. §85 (1970). Stricter and more

comprehensive controls were imposed by the Clean Air Act of

1970, Pub.L.91-604. None of these statutes or regulations, how-

ever, dealt with retrofitting of pre-1968 models.

“In explaining the EPA’s approach to automotive pollu-

tion control to the Detroit Auto Writers Group, [Eric]

Stork, [Acting Director, Mobile Source Pollution Control,

Environmental Protection Agency], indicated that the Fed-

eral Government will continue to concentrate its regulatory

efforts on the auto industry. On retrofitting used cars with

emission control equipment—a move which would greatly

speed the current downward trend in total automotive emis-

sions—Stork said the federal level has no authority to act.”

Automotive News, July 2641971, p. 12.

TAlthough an argument against granting relief with respect

to new vehicles in the 1968 and later model years may have

(This footnote is continued on next page)

ae

Defendants also seek to have this Court defer to

“the important role assigned to state and local govern-

ments under the provisions of the Air Quality act of

1967 * * * in the control of pollution from all

sources.” (Br. in Opp. 22.) But automotive air pollu-

tion is a problem which inherently has nationwide sig-

nificance.* Moreover, since federal law “control[s]

the appropriateness of redress despite the provisions of

[existing] state * * * law,” J. I. Case Co. v. Borak,

superficial appeal, the delay caused by defendants’ conspiracy

in all likelihood set back the state of auto pollution control

technology even after the conspiracy purportedly ended. And

since the National Emissions Standards Act, unlike the Shipping

Act, contains no provision “explicit [or otherwise] exempting

activities which are lawful under * * * the Act from the

Sherman and Clayton Acts,” Carnation Co. v. Pacific Confer-

ence, 383 U.S. 213, 216 (1966), defendants’ argument loses much

of its force. United States v. Borden Co., 308 U.S. 188, 198-202

(1939); United States v. R.C.A., 358 U.S. 334, 339-346 (1959);

Georgia v. Pennsylvania R. Co., 324 U.S. 439, 461 (1945).

In City of Chicago v. General Motors Corporation, et al., No.

70 C 1904 (N.D. Ill.), Judge Marovitz dismissed a “class action

products liability case,” brought under state law, against the auto

manufacturers based on the charge that motor vehicles are prod-

ucts creating a hazard to health and welfare of the Chicago

area. Opinion filed June 25, 1971. In doing so he held that

federal lez'siation “essentially pre-empts the motor vehicle pollu-

tion field” insofar as an action based on state law is concerned,

but nevertheless recognized that “the vehicles in question [pre-

1968 models] are not covered by recent federal legislation.”

(Slip Opin. p. 12.)

8Indeed, in the very act on which defendants rely for their

“state and local government” argument there was a specific find-

ing that “federal standards should supersede state and local laws

on emissions from motor vehicles * * * in order to prevent

a chaotic situation from developing in interstate commerce in new

motor vehicles.” H.R. 728 on S. 780, 90th Cong., 1st Sess.,

1967 U.S. Code Cong. & Adm. News 1956. Even earlier, in

passing the Motor Vehicle Air Pollution Control Act of 1965,

Congress found that “The high rate of mobility of automobiles

suggests that nothing short of nationwide control would scarcely

be adequate to cope with the * * * problem.” H.R. No.

899 on S.306, 89th Cong., Ist Sess., 1965 U.S. Code Cong.

& Adm. News 3608, 3612.

a a

377 U.S. 426, 434 (1964), the argument that a state or

local government’s remedy under the federal antitrust

laws can be defeated by self-help, i.e., by enacting state

or local legislation to provide it, is undeserving of seri-

ous consideration.

While seeking to avoid this Court’s jurisdiction on

retrofit as an antitrust remedy, the manufacturers are

concurrently indicating their inability to meet future

federal regulatory standards on new cars.® At the

same time, the manufacturers are of course complaining

of the burden and interference of state regulation:”

The pollution created by used cars is in itself a

clearcut and separable problem to be remedied, quite

See, e.g., statement by H. L. Misch, Vice President-Engineer-

ing and Manufacturing, Ford Motor Company, to the Environ-

mental Protection Agency, May 6, 1971:

“Ford Motor Company is actively engaged in an extensive

research and development program in an all-out effort to

meet“the emission requirements of the Clean Air Amend-

ments of 1970. The attainment of 1975 standards in the

short time available is a tremendous task. It is too early

- to determine whether we will actually be able to meet

those requirements * * *.”

And see statement by S. L. Terry, Vice President-Safety and

Emissions, Chrysler Corporation, to the EPA, May 7, 1971:

“-“[P]assage of the Clean Air Act of 1970 completely changed

our plans. As you know, the Act calls for reduction of

98% of the hydrocarbons, 97% of the carbon monoxide,

and 90% of the oxides of nitrogen from unmodified cars.

Today we know of no way to meet these levels * * *.”

* * *

“The passage of the Clean Air Act of 1970, however,

has removed all sense of order from our development and

planning because of the completely unexpected stringency

and timing of the emission levels required for all new

cars.” :

‘Ford Motor Company shares with you the objective of

complying with the 1975-76 standards specified in the Clean Air

Amendments of 1970, but we are compelled to tell you that our

engineering efforts to realize that goal are being diluted by the

necessity to respond to the 1972-74 standards of EPA and Cali-

fornia.” Misch statement to EPA, supra, note 9.

we

apart from the problems of new cars. Defendants no-

where advance the contrary contention. Indeed, the

most defendants say is that “further reductions [in

emissions | will result as the proportion of post-1967 cars

increases * * *.” (Br. in Opp. 21.) This state-

ment undoubtedly reveals the basic thrust of the manu-

facturers’ efforts, which is to thwart and delay being

brought to book for their antitrust violation until cor-

rective action will no longer be of any use, and full

compensation for the injury done may be impossible.

It is to prevent precisely such a result that this Court

should assume jurisdiction of the problem.

4. Whether There Are Complex Fact Questions.

In Wyandotte this Court concluded that what was

“in dispute is not so much the law as the facts.” 401

U.S. at 503. The Court found “virtually no published

research” on how to solve the fact problem presented,

and that “novel scientific issues of fact [were] inher-

ent.” 401 U.S. at 503, 504-5. Accordingly this Court

indicated that it would be “to say the least unrealistic”

to expect an appellate tribunal to deal with complex

facts involved “even with the assistance of a most com-

petent Special Master * * *” 401 U.S. at 504.

Again, the situation here is the contrary. The princi-

pal issue of liability involves essentially a legal question

centering on Federal antitrust law. Defendants freely

admit the contractual framework of their conspiracy.

(Br. in Opp. 3) Defendants’ documents now under

protective order of the district court in the Docket 31

proceedings will establish the actions, and non-action,

of the defendants within this framework. Knowledge of

the intricacies of automotive technology is not necessary

to the proof ofthe initial issue of whether defendants’

SL EE AeA SRR NaS aT

a

actions constituted an antitrust conspiracy. The issue

of relief, as discussed in point 1, supra, also basically

involves an issue of federal law.

Defendants also claim that this Court should decline

jurisdiction because the propriety of the retrofitting rem-

edy “poses complex factual issues” involving “a highly

technical and complicated field.” (Br. in Opp. at 1 and

20.) This argument is inconsistent with defendants’ de-

nial that any federal court has the power, under §16

of the Clayton Act, to provide such a remedy. For, if

this Court were to sustain the latter contention, no fac-

tual issues regarding propriety of this remedy or its

precise terms could ever arise in the case. .

Plainly, the “practical considerations” which govern

the exercise or non-exercise of this Court’s original ju-

risdiction under Wyandotte do not include the theoreti-

cal difficulties of litigating issues which cannot arise as

a matter of law. This does not mean, of course, that

in determining whether to entertain a case the Court

must anticipate every legal question which may arise

in the course of the litigation. But it does mean that,

before it declines to exercise jurisdiction on grounds

of avoiding unsuitably complex questions of facts, the

Court must at least be satisfied that there is a substan-

tial likelihood that those factual issues are not merely

hypothetical.

Accordingly, assessment of this phase of defendants’

argument that this Court is an inappropriate forum

must be undertaken in two steps. First, we shall estab-

lish that this Court does have power to require retro-

fitting if liability is proven. It will thus appear that

the supposed “factual complexity” of the retrofitting

remedy is relevant to a disposition of the motion for

EE ARENT PUREE E EY oy PRS SONG TMQ Meme a POR chee hares OF

eer

leave to file the complaint—a logical step which de.

fendants would elide. We shall then show that this

Court should nevertheless assert jurisdiction because

the technical difficulties envisaged by defendants are,

like the original reports of Mark Twain’s death, “con-

siderably exaggerated.”

(1) The Retrofitting Remedy Is Authorized by 15 U.S.C. § 26,

Defendants have contended that §16 of the Clayton

Act, 15 U.S.C. § 26, permits only injunctive relief

against future antitrust violations.

Section 16 authorizes a private litigant to seek injunc-

tive relief against “threatened loss or damage.” The stat-

utory words are clear and unequivocal. An injunction

may issue under § 16 to prevent future “loss or dam-

age”—not merely future violations. Even if the antitrust

violation is over and done with, the federal courts may

issue decrees to prevent continuance of the injury resuk-

ing from the past violation.”

The antitrust laws empower the federal courts to

order whatever affirmative action is necessary “to re-

dress the anti-trust violation proved,” United States v.

E. I. du ront de Nemours & Co., 366 U.S. 316, 323

(1961), ‘to make certain that justice is done,” Jnter-

national Boxing Club of New York v. United States, 358

U.S. 242, 252 (1958), and to “undo what could have

been prevented * * *.” Schine Chain Theatres v. United

States, 334 U.S. 110, 128 (1948). Thus, upon proof

that these defendants conspired to retard and prevent

the development and installation of air pollution emis-

11This Court has consistently construed other federal statutes

to afford such mandatory relief. E.g., J. 1. Case Co. v. Borak,

377 U.S. 426 (1963); Louisiana v. United States, 380 U.S. 145,

154 (1965); Alabama v. United States, 371 U.S. 37 (1962), aff.

304 F. 2d 583, 590-593 (5 Cir. 1962).

pha Tee ——

a ae

sion devices, injured private plantiffs would be as much

entitled to have the federal courts “undo what could have

been prevented” as would the federal government. Cf.

Porter v. Warner Holding Co., 328 U.S. 395, 398

(1946). The iegislative history of the Clayton Act

establishes that Congress intended the equitable remedies

available to private parties under § 16 to be equivalent

to those available to the United States.”

(2) There Is No Mystery as to the Technical Facts.

Since automobiles are ubiquitous in our society, as

are garages and repair shops, the basics of automobile

engine operation are necessarily well-established and

not open to dispute. The basics of automotive pollution

and its control are similarly well-established.”

These basic facts of auto pollution can be briefly

stated. The important automotive pollutants ‘are three

noxious gases: hydrocarbons (HC) carbon monoxide

(CO), and oxides of nitrogen (NOx). HC, which are

simply unburned gasoline particles, react chemically

with NOx in the presence of sunlight to form photo-

chemical smog. CO is in itself a noxious gas which is

lethal in sufficient concentrations.

1251 Cong. Rec. 14214-14215 (1914). This is why, for

example, divestiture has been declared an appropriate remedy in

private antitrust cases, as well as in Government cases. Com-

pare Ames Co. v. Bostitch, Inc., 240 F. Supp. 521, 526

(S.D.N.Y. 1965); McKeon Construction Co. v. McClatchy News-

papers, 1970 Trade Cas. § 73,212 (N.D. Calif. 1969). Defend-

ants make a related argument that the relief sought by the

tendered complaint would be “punitive and confiscatory.” (Br. in

Opp. at 23, n. 25.) But a federal court cannot be blocked

from granting effective,relief by such hyperbole. United States

v. Crescent Amusement Co., 323 U.S. 173, 189) (1943); Schine

Chain Theatres v. United States, supra; United States v. E. I.

du Pont de Nemours & Co., supra, 366 U.S. at 326.

18$ee “Motor Vehicles, Air Pollution, and Health,” A Report

of the Surgeon General to the U.S. Congress in Compliance

with Public Law 86-493, June 1962, p. 9, et seq.

a AE

ics.

HC are emitted in three ways on uncontrolled auto-

mobiles. Most HC, generally about 60%, are emitted

from the exhaust. Second, a significant amount of HC,

averaging perhaps 20%, is emitted from the road draft

tube, which is a vent from the crankcase into the open

air. Any of the gases in the cylinder that are blown

past the piston rings go into the crankcase, and out the

road draft tube. These gases, popularly called “blowby,”

contain HC. Third, evaporative losses from the fuel

tank and carburetor together account for perhaps an-

other 20% of total HC emissions.

CO and NOx result from the combustion of gaso-

line and air. These two gases emanate almost entirely

from the exhaust.

Auto emission controls must therefore cure these pol-

lution sources—(i) blowby emissions, (ii) evaporative

losses, and (iii) the exhaust. Crankcase controls and

evaporative controls have for all practical purposes elimi-

nated both these sources of HC emissions on new cars.

Exhaust emissions on new cars have been reduced but

not eliminated by engine modifications.

Blowby Emissions. Starting with 1963 models, the

domestic manufacturers have simply removed the road

draft tube, and in its place run a line to carry the blow-

by back into the intake manifold of the engine. This

is the so-called PCV (positive crankcase ventilation)

system. On all 1968 and later models, total elimination

of blowby emissions was accomplished by another line

carrying excess blowby gases from the air breather

cap at the top of the engine back into or below the air

cleaner—the so-called “closed system.”

Retrofitting of used cars to eliminate blowby emis-

sions is not only possible, it is an established everyday

=. ae

procedure which has been carried on since 1964 in

California under the law of that state. California

Health and Safety Code § 39129. The devices to ac-

complish this retrofit \are all developed and awaiting

only a court order requiring their installation.

It is important to note that such relief will go directly

to one aspect of the violation charged in the complaint.

The manufacturers’ delay in installing these crankcase

controls on their vehicles constitutes one of the prin-

cipal charges before the Court."

Evaporative Controls. Controls which substantially

eliminate evaporative losses were introduced nationally

on 1971 models. These controls consist essentially of a

sealed gas tank cap, a carburetor with no external

vents, and lines from each of these evaporation sources

to a carbon canister or to absorptive surfaces of the

crankcase, to channel the vapors which otherwise would

be released to the atmosphere. Again, this is a simple

mechanical system. Amici are prepared to demonstraie

14Paragraph 17 of the complaint charges in pertinent part

that the auto manufacturers:

“(c) agreed to install motor vehicle air pollution control equip-

ment only ae a uniform date determined by agree-

ment, and subsequently agreed on at least three separate

occasions to attempt to delay the installation of motor

vehicle air pollution control equipment; ‘

(1) in 1961 the defendants agreed among themselves to

delay installation of ‘positive crankcase ventilation’ on ve-

hicles for sale outside of California until the model year.

1963, despite the fact that this antipollution device could

have been installed nationally for the model year 1962 and

that at least some automobile manufacturers expressed will-

ingness to do so, in the absence of a contrary industry-

wide agreement,

(2) in late 1962 and extending into 1963, the defend-

ants agreed among themselves to delay installation of an

improvement to the positive crankcase ventilation device, an

improvement which the California Motor Vehicle Pollution

Control Board had indicated it would make mandatory.”

snaiiltll ines

from documents now under protective order that the

principles of this control have been known to the auto

manufacturers for many years.

Exhaust Controls. Beginning with 1968 models, the

auto manufacturers made minor modifications to their

engines the primary effect of which is to permit them

to run on leaner mixtures, that is, a higher ratio of

air to fuel. This modification has resulted in reduction

of CO and HC. Thus, while exhaust emissions are an

auto pollution source which has not as yet been com-

pletely eliminated, they have been substantially re-

duced.*®

The additional controls which are now needed on the

exhaust system are precisely those which the manu-

facturers conspired to block. On April 2, 1971, Gen-

eral Motors advised the Environmental Protection Agen-

cy as follows: |

“The emission controls we have employed up to

now generally have involved only the front side

of the engine. * * * In evaluating the even more

drastic reductions in emission levels required for

the 1975 models, it is obvious that these engine

modifications would have to be supplemented with

control hardware on the exhaust side, which would

do a final ‘clean-up’ job on both HC and CO.

* * *

/

18“The committee has found that the automotive industry has

the capability for limiting the emissions of hydrocarbons and

carbon monoxide from both the crankcase and exhaust system

of gasoline powered motor vehicles * * *.” (Emphasis Su

plied.) H.R. No. 728 on S. 780, 90th Cong. Ist Sess., 1967

U.S. Code Cong. & Adm. News 1956, quoting S. Rept. No. 192,

89th Cong.

(pa SRR CERRO ARTO ANNES NEE T RRT

a a

“In our basic 1975 emission control system,

the catalytic converter would handle this ‘clean

ae

* * *

“We do not have a proven catalytic converter

at this time.”*®

The other two manufacturers, Ford and Chrysler,

have both echoed these two points—that a catalytic con-

verter is needed and that neither company has such a de-

vice at this time suitable for mass application.”

Defendants’ alleged inability to produce effective ex-

haust devices flies in the face of the fact that four such

devices developed by other companies were certified

by California in 1964, and would have been installed

the following autumn on 1966 models had not the auto

manufacturers blocked this advance by hurriedly propos-

ing engine modifications. This was the basis for one of

the explicit charges made by the federal] government in

its civil complaint.”**

164 Progress Report by General Motors Corporation to U.S.

Environmental Protection Agency, April 2, 1971, pp. 6, 7, 9.

17Ford Motor Co., Technical Report on Compliance with the

Clean Air Amendments of 1970, Submission to Environmental

Protection Agency, April 5, 1971, pp. 3, et seq. “Catalysts, all

of which require lead-free fuel, are planned and under continu-

ing development for 1975 models,” p. 3.

Chrysler Corporation—Progress Report: Technical Effort Aimed

at Compliance with 1975-76 Emission Standards Established by

December 1970 Clean Air Act, April 1, 1971, pp. 8, et seq.

“No production designs available,” p. I-14.

18Paragraph 14 of the federal complaint reads in pertinent

part as follows:

“(3) in early 1964 the defendants agreed —— themselves

to attempt to delay the introduction of new exhaust pollu-

(This footnote is continued on next page)

a oe

To sum up, the claim of “complex factual issues”

made by defendants is no more than a chimera which

could largely be disspelled by any competent auto me-

chanic. Many of the technical problems of retrofit relief

have already been answered, and relatively little need

be done to solve much of what remains. Control de-

vices are now in production, and others have been certi-

fied after extensive testing as long ago as 1964. What

is now required is that this Court rule on the basically

legal issues of liability and relief, and then, perhaps

with the aid. of a master, order the auto companies to

provide the retrofit relief which is possible by existing

solutions—and which they conspired to delay.

Il.

THIS COURT SHOULD ASSUME JURISDICTION IN

ORDER TO PROVIDE THE MOST EXPEDITIOUS

SOLUTION TO THE PROBLEM.

The overriding consideration in this litigation is that

it is of the greatest national importance and urgently

requires the promptest possible solution. The seriousness

of the massive violation charged against ccfendants is

amply attested by the number of sovereign states peti-

tioning as plaintiffs and amici for prompt relief.

As a matter of practical wisdom amici believe that

the earliest resolution of this problem can be achieved

by this Court’s assumption of jurisdiction. The history

tion control measures on motor vehicles sold in California

until the model year 1967; despite the fact that all were

capable of i ing the improvement for the model year

1966, the defendants agreed to tell California regulatory

officials that installation of exhaust antipollution measures

would be technologically impossible before. 1967, and only

under regulatory pressure made possible by competing de-

vice manufacturers not in the automotive industry did the

defendants agree to a California regulatory requirement that:

exhaust devices be installed for the model year 1966:”

—. oa

of the Docket 31 litigation thus far demonstrates this

point. Well over a year has passed since the district

court cases were consolidated on April 6, 1970. In this

period amici believe that the district judge has exercised

his judicial responsibilities commendably and with great

skill, but within the limitations inherent in his jursdic-

tion. The best example is the delay created by defend-

ants’ §1292(b) appeal. We do not quarrel here with the

district court’s determination that its ruling on control-

ling federal questions should be accorded interlocutory °

review, but had the ruling on these questions been made

by this Court, this interlocutory step would have been

unnecessary. The points would now have been settled.

Defendants have admitted that if they are required

to repair the injury charged against them this will cost

“amounts undoubtedly exceeding a billion dollars.”

(Br. in Opp. 22-23, n. 23.) In the belief that their

exposure to the expense of retrofit lessens day by day

“as the proportion of post-1967 cars increases” (Br.

in Opp. 21), defendants are seeking to stretch out this

litigation to the limit by interposing every possible le-

gal defense and by seeking painstaking review at every

possible level. But the very delay which decreases de-

fendants’ exposure to the cost of retrofit increases the

nationwide contamination which plaintiffs and amici

are suffering and are seeking to prevent.

Each day’s delay in requiring the defendants to con-

trol emissions from vehicles now on the highways takes

a toll in human life, health and property.”°

19[n addition to problems of health, economic loss from air

pollution is established at more than $1,720,000,900 annually.

This fi includes $5,000,000 in agricultural and livestock

losses alone. Middleton, Air Pollution Control—New Controls in

the Law, 59 Kan. L.J. 644, 645-646 (1970). These figures

(This footnote is continued on next page)

IS EELIC TIS 6 ii as co PATA PENS WR ec

ONS ge et eee se ee

oni cis

There is no doubt that polluted air can kill. The

relationship between air pollution and the incidence

and prevalence of cardiovascular, pulmonary and res-

piratory diseases is direct and devastating.” Pollutants

are a significant factor in the genesis of cancer,” in

the development and aggravation of emphysema,”

bronchitis,” and asthma.** They increase the mortality

do not include aesthetic and other incalculable losses such as

those resulting from irreversible damage to our national forests,

See e.g., California Department of Agriculture, A Survey .and

Assessment of «ir Pollution Damage to California Vegetation

in 1970 (June 1971). pp. 24-25.

~Zeidberg, et al., The Nashville Air Pollution Study: Mor-

tality From Diseases of the Respiratory System In Relation to Air

Pollution, Arch. of Environmental Health 15:214-224 (Aug.

1967); Legislative History of the Air Quality Act of 1967, 1967

U.S. Code Cong. & Adm. News, 1941-1944 (hereafter Legisla-

tive History); and see generally University of California Task

Force Assessments, Vol. II, Project Clean Air (1970) (here-

after Project Clean Air).

21Epstein, Potential Carcinogenicity, Mutagenicity, and Terato-

genicity Due to Community Air Pollutants, Project Clean Air,

Appendix M; Lave and Seskin, “4ir Pollution and Human

Health,” Science, Vol. 169, No. 3947 (August 21, 1970), pp.

723, 730 (hereafter Lave and Seskin).

22U).S. Dept. of Health, Education and Welfare, Public Health

Service, The Effects of Air Pollution (Washington 1967), p.

5 (hereafter 1967 HEW Report); See also, Ishikawa, et al.,

The Emphysema Profile in Two Mid-Western Cities in North

America, Arch. of Environmental Health, 18: 660-666 (1969);

Motley, et al., Effect of Polluted Los Angeles Air (Smog) on

Lung Volume Measurements, Journal of the American Medical

Association. Vol. 171, No. 13 (Nov. 28, 1959), pp. 1475-

1476. The HEW study shows that the death rate from emphy- ©

sema in polluted urban areas is double the rate in areas where

the air is clean. Since emphysema is second only to heart disease

as a disease of men under the age of 65, it is clear that elimi-

nation of vehicular emissions will save the lives and improve

the health of large numbers of persons.

*8Project Clean Air, pp. 2-7 through 2-10.

241. ave and Seskin at 732; 1967 HEW Report at 5-6; Phelps

et al., Air Pollution Asthma Among Military Personnel in Japan,

Journal of the American Medical Association, Vol. 175, No. 11

(March 18, 1961), p. 990.

scar ee

rate and the severity of cardiovascular diseases.”

Moreover, their effect falls most heavily upon those

least able to cope—the very old and the very young,

and those already weakened by disease.”

It has been responsibly estimated that in the Los —

Angeles area alone, where automotive emissions are

responsible for 88 to 90% of all air pollutants,” 100

to 500 deaths are attributable to air pollution an-

nually.** During a similar period, symptoms of 50,000

to 500,000 persons suffering from a vaiiety of diseases

will be aggravated and virtually the entire population

will suffer some interference with its well-being.” A

1970 survey of the research to date concludes that the

mortality rate for lung cancer could be reduced by 25%

and the morbidity and mortality rates for bronchitis by |

25 to 50% were a 50% reduction in air caiman

accomplished.”

It is commonplace that justice delayed is often

justice denied. In few cases, however, is delay so clearly —

tantamount to denial in disadvantaging one party while

benefiting its adversary. For here plaintiffs and their

citizens suffer injury each day that defendants’ con-

spiracy to withhold anti-pollution devices is unremedied;

meanwhile defendants benefit since their ultimate duty

25Cohen, et al., Carbon Monoxide and Survival from Myo-

cardial Infarction, Arch. of Environmental Health, 19:510-517

(October, 1969).

6] egislative History at 1941; See also, Kilburn, Human Cost

of Polluted Air, Medical Times, Vol. 98, No. 9 (Sept. 1970), p

161.

27Los Angeles County Air Pollution Control District, Profile

of Air Pollution Control (1971).

28Goldsmith, The New Airborne Disease: Community Air Pol- :

lution, California Medical, Vol. 113, No. 5 (Nov. 1970) p. 19.

297d.

3°Lave and Seskin at 730.

f i 5 q _

nein,

to retrofit is reduced as more and more cars built during

the conspiracy period are taken off the road. Prompt

relief in this case is of such national importance that the

probability that the case will be expedited by the exer-

cise of original jurisdiction is itself a “reason of practical

wisdom” (Wyandotte, 401 U.S. at 499) sufficient to

warrant this Court’s retaining original jurisdiction.

Conclusion.

For these reasons, amici respectfully urge that this

* Court grant petitioners’ motion for leave to file their .

bill of complaint.

Respectfully submitted, |

[Signatures of States alphabetically ]

WILLIAM J. BAXLEY,

Attorney General of Alabama,

JOHN E. HAVELOCK,

Attorney General of Alaska,

EVELLE J. YOUNGER,

Attorney General of California,

RoBERT L. SHEVIN, _

Attorney General of Florida,

JACK P. F. GREMILLION,

Attorney General of Louisiana,

FRANCIs B. BuRCH,

Attorney General of Maryland,

A. F. SUMMER,

Attorney General of Mississippi,

* .

abe

RoBeErT List, |

Attorney General of Nevada,

Davip L. NorvELL,

Attorney General of New Mexico,

, Louts J. LEFKow1rz,

Attorney General of New York,

LARRY DERRYBERRY,

Attorney General of Oklahoma,

J. SHANE CREAMER,

Attorney General of Pennsylvania,

ay

, DANIEL R. McLEOon, *

Attorney General of South Carolina,

GORDON MYDLAND,

_ Attorney General of South Dakota,

CRAWFORD C. MARTIN,

Attorney General of Texas,

ROBERT W. WARR2N,

Attorney General of Wisconsin,

J. Lee RANKIN,

Corporation Counsel City of New York,

’

DICKSTEIN, SHAPIRO & GALLIGAN,

Davip I. SHAPIRO, |

JEROME S. WAGSHAL,

Of Counsel.