Memorandum — Washington v. General Motors Corp.

Supreme Court brief1971

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ADER

Supreme Court of the United

OCTOBER TERM, 1971

STATE OF WASHINGTON, ET ALi, DEC 22 197)

\ 7 Plaintiffs,

| E. ROGERT SEAVER, CLERK

GENERAL MOTORS CORPORATION, ET_AL.,

De fendants.

SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO

MOTION FOR LEAVE TO FILE COMPLAINT

Pigies— -

upreme Court, U.S,

FILED)

‘ WALTER J. WILLIAMS WRIGHT TISDALE

‘ 14250 Plymouth Road , Ford Motor Company |

: Detroit, Michigan 48232 The American Road |

: Forrest A. HAINLINE, JR. Dearborn, Michigan 48121

: ' Cross, WROCK, MILLER & ROBERT L. STERN |

: VIESON \ ROGER W. BARRETT |

4 Penobscot Building MAYER, BROWN & PLATT |

: Detroit, Michigan 48226 ° 231 South LaSalle Street

Z Attorneys for Defendant Chicago, Illinois 60604

American Motors CARL J. SCHUCK

‘ Corporation ERNEST E. JOHNSON

é Lioyp N. CUTLER OVERTON, LYMAN & PRINCE

; Louis F, OBERDORFER 550 South Flower Street

; JAMES S. CAMPBELL \ Los Angeles, California 90017

j ROBERT A. GERARD : Attorneys for Defendant :

: WILMER, CUTLER & PICKERING Ford Motor Company

: 900- 17th Street, N.W. Ross L. MALONE

7 Washington, D.C. 20006 : ROBERT A. NITSCHKE :

JULIAN O. VoN KALINOWSKI General Motors Building ;

{ PAUL G. BOWER Detroit, Michigan 48202 f

: GIBSON, DUNN & CRUTCHER “HAMMOND E. CHAFFETZ :

: 634 South Spring Street JOSEPH DUCOEUR é

Los Angeles, California 90014 KIRKLAND, ELLIS, HODSON, ‘

: Attorneys for Defendant CHAFFETZ & MASTERS 3

: Automobile Manufacturers : Prudential Plaza 2

Association, Inc. Chicago, Illinois 60601 ‘

ToM KILLEFER MARCUS MATTSON — :

PauL A. HEINEN RICHARD F. OUTCAULT, JR. ‘

WILLIAM E. HuTH SLAWLER, FELIX & HALL é

Chrysler Corporation 605 West Olympic Boulevard

840 Massachusetts Ave. Los Angeles, California 90015 ‘y

Detroit, Michigan 48231 Attorneys for Defendant i

G. WILLIAM SHEA General Motors Corporation :

PHItip K. VERLEGER : —.

McCUTCHEN, BLACK, VERLEGER e

& SHEA 5

80th Floor ;

8435 Wilshire Blvd.

Los Angeles, California 90010 ry

Attorneys for Defendant

Chrysler Corporation

-_——_s_m_s

INTRODUCTION AND SUMMARY

Il.

ITI.

CONCLUSION

APPENDIX A

APPENDIX B

INDEX

Following the principles of the recent Wyandotte

decision, the Court should decline to assume

original jurisdiction over the plaintiffs’ pro-

posed complaint

1. The Availability of Other Forums .............. me

2. The Technical and Political ew of

the Cause

8. Special Disadvantages of Trial by this Court..

The relief sought by plaintiffs herein is unneces-

sary and undesirable in light of the comprehen-

sive legislative and administrative program, de-

cisively strengthened by the Clean Air

Amendments of 1970, for reducing vehicle emis-

sions to a minimal level by a time certain...

1. The Clean Air Amendments of 1970

2. The Impropriety of a Federal Judicial “Re-

trofit” Program

Plaintiffs’ complaints in the district courts, and

the proceedings currently in progress under the

direction of the Multidistrict Litigation Panel,

demonstrate that there is no necessity for this

Court to exercise original jurisdiction over

plaintiffs’ proposed complaint herein soliathevonianibs

Page

< 3

_ TABLE OF AUTHORITIES

Cases Page

Ames V. Kansas, 111 U.S. 449 (1884) -.................. 7

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

(1959) ...... 3, 14

Blonder-Tongue V. University Foundation, 402 U. s.

$18 (1971) 15

Brown Shoe v. United States, 370 U.S. 294, 364

(1961) (Harlan, J.) 18

Case V. Bowles, 327 U.S. 92 (1946) .......................... 1

Conference of Studio Unions v. Loew’s, Inc., 193

F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S.

i a iccecineenininiet 87

Dairy Queen, Ine. v. Wood, 369 U.S. 469 (1962) ..... 14

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

a cacesineeptebeanlgpeesusenaitimcenniionne 7

Kansas Vv. General Motors Corp., Civil No. T-4896

ON aitidinkpnmniineepienpeeiicinnnipiineaneentapminncmrecnenet 34

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)... 3, 12

Massachusetts v. Missouri, 308 U.S. 1 (1930) ....... 7

In re Motor Vehicle Air Pollution Control Equin-

ment, 311 F. Supp. 1849 (J.P.M.L. 1970) ........... 13

North Dakota v. Chicago & N.W. Ry., 257 U.S.

a eraneiiaibninewnnennns 7

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

i ciicivenincceahiieeticcebrevinnninetiemataoensinmres passim

United Mine Workers v. Gibbs, 3838 U.S. 715

(1966) 8

United States v. California, 297 U.S. 175 ( 1936) . 7

United States v. Louisiana, 128 U.S. 32 (1887)...... 7

United States v. Singer Manufacturing Co., 374

oe ES 18

Washington v. General Motors Corp., Civil No.

71-611-R (C.D. Cal.) ..... us <a 8, 9, 34

Statutes

Federal

Act of October 20, 1965, Pub. L. No. 89-272, 79

RRR ZENER eS eee See ae 18

Air Quality Act of 1967, Pub. L. No. 90-148, 81

Stat. 485 18

— 9

INDEX

INTRODUCTION AND SUMMARY 1

I. Fo'lowing the principles of the recent Wyandotte

decision, the Court should decline to assume

original jurisdiction over the plaintiffs’ pro-

posed complaint 5

1. The Availability of Other Forums ...___ ra

2. The Technical and Political Complexity of

the Cause 8

8. Special Disadvantages of Trial by this Court.. 13

II. The relief sought by plaintiffs herein is unneces-

sary and undesirable in light of the comprehen-

sive legislative and administrative program, de-

cisively strengthened by the Clean Air

Amendments of 1970, for reducing vehicle emis-

sions to a minimal level by a time certain + Seen 15

1. The Clean Air Amendments of 1970 _..___ 16

2. The Impropriety of a Federal J udicial “Re-

trofit” Program 25

III. Plaintiffs’ complaints in the district courts, and

the proceedings currently in progress under the

direction of the Multidistrict Litigation Panel,

demonstrate that there is no necessity for this

Court to exercise original jurisdiction over

plaintiffs’ proposed complaint herein... 33

CONCLUSION 41

APPENDIX A 42

APPENDIX B , 43

TABLE OF AUTHORITIES

Cases Page

Ames V. Kansas, 111 U.S. 449 (1884) .................... 7

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

(1959) 3, 14

Blonder-Tongue Vv. University Foundation, 402 U. S.

$13 (1971) ... 15

Brown Shoe v. United States, 370 U.S. 294, 364

ee 8g OR ere oe ecco cummnneraee 13

Case V. Bowles, 327 U.S. 92 (1946) 7

Conference of Studio Unions v. Loew’s, Inc., 193

F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S.

FI oo ei ee 37

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ..... 14

Georgia v. Pennsylvania R.R., 324 U.S. 489

6) ROSS Tae er alae Or Ro 7

Kansas v. General Motors Corp., Civil No. T-4896

ina iiiee ceeeecrnsieceersieeaniereetinbtaewenticinennenee 34

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)... 3, 12

Massachusetts v. Missouri, 308 U.S. 1 (1930) -...... 7

In re Motor Vehicle Air Pollution Control Equip-

ment, 311 F. Supp. 1849 (J.P.M.L. 1970) -.......... 13

North Dakota v. Chicago & N.W. Ry., 257 US.

Os. SER oa ienes Saeieenmmeseeccmemommce rere 7

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

(March BB, 1GTL) | a. osnnceevnsis nena ersnwsernnee~s passim

United Mine Workers v. Gibbs, 383 U.S. 715

(1966) 8

United States v. California, 297 U.S. 175 (1936) .. rs

United States v. Louisiana, 123 U.S. 32 (1887)...... 7

United States v. Singer Manufacturing Co., 374

oo Gg ge: MRSS RRR Sa oreo 13

Washington v. General Motors Corp., Civil No.

i Ce cinerr tcc cirninreiccine 8, 9, 34

Statutes

Federal

Act of October 20, 1965, Pub. L. No. 89-272, 79

HE REA SIE SIRPSE ROS Baa inten ensuite aca GO oevoe sr Mece EOS 18

Air Quality Act of 1967, Pub. L. No. 90-148, 81

Stat. 485 18

TABLE OF AUTHORITIES iii

Page

Clean Air Amendments of 1970, Pub. L. No. 91-

604, 84 Stat. 1676 _..... SOE 18

United States Code, Title 28, § 1292 (b) (1970) ..... 37

United States Code, Title 28, § 1407 eo . , aaeaeen 36

United States Code, Title 42, § 1857 et seq. (1970)... 18

United States Code, Title 42, §§ 1857c-2, -5 (1970) .. 27

(1970) eneoveereveenenveweearensuseusnneensenenntuceneceeenesenvenceneuseneen 19

United States Code, Title 42, § 1857f-1 (b) (1) (B)

CPP Cite 19

United States Code, Title 42, § 1857f-1(b) (4) .

San ESPOREROE TORIES eS SRG tea Es eet 20

United States Code, Title 42, § 1857f-1 (b) (5) (BE)

oot: _ RE CERN ae Se 20

United States Code, Title 42, §1857f-6a(c)

Eo ig Ga ED titan oe EE, Os Re REN SOR 27

United States Constitution, Article III, §2 covesenes 7

State of California :

California Health & Safety Code, §§ 426.1, 426.5 .... 18

California Statutes, 1959, ch. 200, § 1, at 2091 _.... 18

California Statutes, 1968, ch. 999, § 8, at 2267 ...... 11

California Statutes, 1965, ch. 8, §§ 1, 2, at 872-

i CORRE SNE SAGA ed Rei aera Oa 11

California Statutes, 1965, ch. 3,33 ate... 27

California Statutes, 1965, ch. 2031, § 4, at 4069 _. 11

Other

Chicago, Ill, Amendment to Chapter 17 of the

Municipal Code, Art. IIA, Nov. ae, 100k... 28

Miscellaneous

Federal

TABLE OF AUTHORITIES

Page

116 Cong. Rec. S20602 (daily ed. Dec. 18, 1970)

(remarks of Senator Muskie) 29

Council on Environmental Quality, First Annual

Report, Environmental Quality (1970) ............ 17, 24

Council on Environmental Quality, Second Annual

Report, Environmental Quclity (1971) ............. 22, 23

Environmental Protection Agency (EPA), Annual

Report to the Congress of the United States

in Compliance with Section 202(b) (4), Public

Law 90-148, The Clean Air Act As Amended

I a 10, 19, 21, 30, 32

36 Fed. Reg. 12652 et seq., 12657 et seq., 16905-C5,

i 16

HEW, Nationwide Inventory of Air Pollutant

Emissions, 1968, National Air Pollution Control

Administration Publication No. AP-73 (1970) .. 22, 25

HEW, Control Techniques for Carbon Monoxide,

Nitrogen Oxide, and Hydrocarbon Emissions

from Mobile Sources, National Air Pollution

Control Administration Publication No. AP-66

5, SBOE Shiai ap.nas Sr steneaetn eres gO E> ensunnS OOS 10, 25, 28

Hearings before the Subcommittee on Air and

Water Pollution of the Senate Committee on

Public Works, Air Pollution—1967 (Automo-

tive Air Pollution), 90th Cong., 1st Sess., Pt. I

4s ERNGhS Se ENTIRE a Oe ae 28

Report of the Panel on Electrically Powered Ve-

hicles to the Commerce Technical Advisory

Board, The Automobile and Air Pollution: A

Program for Progress, Pt. 1 (Department of

Ce I, ND 30

S. Rep. No. 403, 90th Cong., Ist Sess. (1967) ........ 27

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) .. 26

State of California

Assembly [of the State of California] Interim

Committee Reports 1963-1965, Vol. 8, No. 8,

a 1l

Assembly [of the State of California] Report of

the Subcommittee of the Interim Committee on

Governmental Efficiency and Economy, Study

TABLE OF AUTHORITIES

and Analysis of the Facts Pertaining to Air

Pollution Control in Los Angeles County 14

(1953) p genantenmemaren ne Te

Assembly [of the State of California] Interim

| Committee on Governmental Efficiency and

Economy, August 7, 1964: Hearing on Motor

Vehicle Repair and Smog Control Devices, Tran-

OPN Re

Assembly [of the State of California] Interim

Committee on Transportation and Commerce,

December 1, 1958: Hearing on Automotive Smog

Control, Transcript, at ee

Assembly [of the State of California] Interim

Committee on Transportation and Commerce,

Motor Vehicle and Highway Problems 45

(Assembly Interim Committee Reports 1957-59,

Vol. 8, No. 6, cogent EE ENS ee

Assembly [of the State of California] Committee

on Transportation and Commerce, Hearings on

Air Pollution Contro] (March 8, a

California Air Resources Board, A Report to the

Legislature on Vehicle Emission Inspection

OD oe

IV [California] Motor Vehicle Pollution Control

Board Bulletin 1, 2 (September | See a

California Motor Vehicle Pollutior, Control Board,

Resolutions 64-12, 64-13, 64-14 and 64-15 (June

SF NY ce

California Motor Vehicle Pollution Control Board,

SE 8 ND

California Motor Vehicle Pollution Control Board,

Resolution 64-36 (November 18, | EE

California Motor Vehicle Pollution Control Board,

Resolution 65-2 (January 20, cahcee Stee Reet

California Motor Vehicle Pollution Control Board,

Resolutions 65-17, 65-18, 65-19, 65-20 and 65-21

Oe OO

California Motor Vehicle Pollution Contro] Board,

Page

28, 21

TABLE OF AUTHORITIES

Page

California Motor Vehicle Pollution Control Board,

Summary of Report on Exhaust Control] Devices

of American Machine & Foundry Company—

Chromalloy Corporation, June 10, 1964 -........... 33

Other

Automobile Manufacturers Association, 1971 Auto-

metre Pec ae Fires .......... 26, 31

Babcock, A Combined Pollution Index for Measure-

ment of Total Air Pollution, 20 J. of Air Pollu-

ton Contra Boon Gee (1070) —...................... 23

2 Barron & Holtzoff, Federal Practice and Proced-

ure § 894 (Wright ed. 1961) -. 14

Burger, The State of the Federal Judiciary—

1571, Ft aes ee te) 39

Eisenbud, Environmental Protection in the City of

New York, 170 Science 706 (1970) -.................... 23, 24

Gerhardt, Incentives to Air Pollution Control, 33

Law & Contemp. Prob. 358 (1968) -................... 30

Los Angeles Times, Nov. 16, 1971 -...................... “28

5 J. Moore, Federal Practice J] 38.19[2], 38.37[2],

i sciasenpoecieciieea 12, 14

New Jersey State Department of Environmental

Protection, Notice of Public Hearing on Air

Pollution Control Code, Proposed Chapter 15

eames 28

Note, The Original Jurisdiction of the United

States Supreme Court, 11 Stan. L. Rev. 665

i i culinenenaniinsennoe 20

Posner, Antitrust Policy and the Consumer Move-

ment, 15 Antitrust Bull. 361 (1970) ........202000000.. 31

Ruff, The Economic Common Sense of Pollution,

19 The Public Interest 69 (1970) ......................... 31

P. Samuelson, Economics (8th ed. 1970) -............... 30

Sawyer & Caretto, (Dept. of Mechanical Engineer-

ing, Univ. of California at Berkeley), Letter on

“Air pollution sources reevaluated,” 4 Environ-

mental Science & Technology 453 (1970) .......... 23, 24

Transcript of Proceedings, November 22, 1971,

In Re Multidistrict Vehicle Air Pollution, M.D.L. ?

Docket No. 31 (C.D. Cal.) 38

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 45 Original

STATE OF WASHINGTON, ET AL.,

Plaintiffs,

VS.

GENERAL Motors CORPORATION, ET AL.,

Defendants.

SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO

MOTION FOR LEAVE TO FILE COMPLAINT

' INTRODUCTION AND SUMMARY

On August 5, 1970, fifteen States (subsequently

joined by three additional States) moved this Court

for leave to file an original action for injunctive re-

lief against the four major motor vehicle manufac-

turers and the Automobile Manufacturers Associa-

tion. The complaint is in three counts, one under the

federal antitrust laws, one under the “common law”

of gonspiracy in restraint of trade, and one under

the state laws of public nuisance. The main relief

sought is mandatory installation of emission controls

in new and used vehicles, : |

Defendants filed a brief in opposition to the mo-

tion on October 6, 1970. On February 12, 1971,

plaintiff States filed a supplemental memorandum in

support of the motion. On August 31, 1971, an

amicus brief was filed by the City of New York and

sixteen additional states, of which none is a plaintiff

here but fourteen are plaintiffs in parallel federal dis-

trict court actions. This Court has set plaintiffs’

motion down for oral argument. 402 U.S. 940.

Defendants are filing this supplemental memo-

randun. primarily to discuss three developments that

have occurred since defendants’ brief in opposition

was filed: (1) this Court’s decision of March 23,

1971, in Ohio v. Wyandotte Chemicals Corp., 401 U.S.

493; (2) enactment on December 31, 1970, of the

Clean Air Amendments of 1970 and the adminis-

trative actions recently taken under that law; and

(3) the filing by many of the plaintiffs, in March of

1971, of identical or substantially similar complaints

in the federal district courts. We also respond herein

to several of the assertions contained in the amicus .

brief filed by the sixteen additional States and the

City of New Yerk.

In Part I of this Memorandum we show that the

instant case fully satisfies the two Wyandotte tests

for declining jurisdiction over an original action be-

tween a State and the citizens of other States. First,

there are a number of other impartial forums avail-

able, in which any or all of plaintiffs’ claims can be

(and in fact are being) tried as fairly and expedi-

tiously as they could be in this Court. Second, the

ongoing regulation of the problem of vehicle emissions

by federal and state legislative and administrative

bodies is a cogent “reason of practical wisdom” for

this Court to decline to assume the trial court role.

There are other cogent reasons as well. Trial of

the equity claims in this Court, before the damage

claims based on identical] allegations. by many of

these same plaintiffs are tried by juries in the dis-

trict courts, would conflict with this Court’s decision

in Beacon Theatres, Inc, v. Westover, 359 U.S. 500

(1959). And resort to a Special Master to conduct

the trial, as plaintiffs suggest to get around this

Court’s obvious inability to sit as a trier ‘of testimo-

nial fact, would violate the salutary principles of La

Buy v. Howes Leather Co., 352 U.S. 249 (1957).

As we show in Part II, the Clean Air Amendments

of 1970 completed the structure, begun in 1965, of

a comprehensive federal legislative program for re-

ducing vehicle emissions to a minimal level by a time

certain. Administrative action to execute this pro-

gram is well under way. In Wyandotte the mere pos-

sibility of legislative and administrative relief was an

important reason for this Court to decline jurisdic-

tion. Here a comprehensive program of legislative

and administrative relief ig an ongoing fact.

Amici tacitly concede that this program parallels

the plaintiffs’ request that this Court order emission

controls installed on new vehicles. But they contend

that the prayer for mandatory “retrofit” of control.

' devices on used cars is not affected. As we further °

show in part II, for the Federal Judiciary to impose

a retrofit obligation is not only impracticable but is ~

also likely to conflict with the program of vehicle

emission control adopted by Congress. In the Clean

Air Act and its subsequent amendments, Congress

deliberately focused the federal effort exclusively on ~

new vehicle controls and reserved all questions of

‘retrofitting controls on used vehicles to the judgment |

and regulatory power of each of the States. __

In Part III we show that plaintiffs here, by filing

actions in the district courts alleging that those courts

have jurisdiction of counts identical with all the

counts in the instant complaint, have demonstrated

the lack of any need to impose the burden of trying

these complex cases upon the tightly-rationed time

of this Court.’ Nor is,there any merit in the sugges- — Z

tion of amici that this Court must. nevertheless as-

sume jurisdiction of the proposed @omplaint in order

to give the plaintiff States the opportunity to proceed

‘jointly in a single action. If plaintiffs in fact believed

(as defendants do not) that a joint trial of all their,

claims is feasible, nothing prevented the entire group

of plaintiffs and amici from seeking that result by

filing a joint complaint in a single district court, as

eight of them in fact did. ,

We also show in Part III that the complaints of

amici over the progress of the ongoing district court

‘litigation are unfounded, and that defendants are

doing more to expedite the evidentiary phase of the

pretrial proceedings than are the plaintiffs. :

In sum, trial of this complex litigation as an origi-

nal action in the Supreme Court would offer no ad-

vantages over trial in the lower federal courts and, if

1 All the plaintiffs and fourteen of the seventeen amici

here are plaintiffs in lower court antitrust actions arising

out of the same subject matter as the original action sought

to be instituted in this Court. Some of these lower court anti-

trust actions also involve “common law conspiracy” and

“nuisance” claims identical. with those in the instant com-

p.aint.

need be for any state law claims, in the’ state courts.’ ..

. Whatever relief’ plaintiffs can obtain’ in this Court

_ they can obtain in those courts. Trial of the cases

here could be a severe strain on the resources of this

Court, with no assurance whatever that the proceed-

ings could be completed more justly, efficiently or ex-

peditiously than by trial in the courts created for

trial purposes followed, if needed, by appeal in the

ordinary course,

I. Following the principles of the recent Wyandotte

decision, the Court should decline to assume original

jurisdiction over the plaintiffs’ proposed complaint.

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

493 (March 23, 1971), this Court: declined to enter-

tain Ohio’s original action against American and Ca-

nadian chemical companies for pollution abatement.’

The decision to decline jurisdiction was based on an

analysis of the purpose of the Arti¢le III jurisdiction

_ grant and on several practical considerations relating

to the Court’s paramount appellate role. The Court

found that the policies underlying the grant of origi-

nal jurisdiction were satisfied by the avaiiability of

an alternative and more, desirable trial forum (401

U.S. at 500-01), and that substantial “reasons of

practical wisdom” (id. at 499) for declining jurisdic-

2 Plaintiffs may have no need to resort to their state courts,

since a number of them have alleged in their district court

complaints that. these courts have pendent jurisdiction over

the state law claims. See pp. 7-8, infra.

* The complaint sought to stop the introduction of mercury

into Lake Erie; to require the defendants to remove from the

Lake mercury already introduced, or provide funds to the

state for such removal; and to recover damages for the harm

done to the Lake.

o. .

tion were furnished by the activities of federal and

local legislative and administrative bodies, better

suited than the Supreme Court to deal with the com-

plex technical and political problems raised: by the

complaint. 401.U.S. at 502-03. .

. The principles adhered to by this Court in Wyan-

dotte apply with even greater force to the present

~ motion. ‘ 3 : .

-1. The Availability of Other Forums

The Court in Wyandotte noted that Article IIT

granted original jurisdiction to the Supreme Court

in order to afford an impartial forum to a State seek- ~

jing redress against citizens of another State where

the courts of that other State might be—or appear.

to be—partial to their own citizens, and no: other

impartial forum was available. 401 U.S. at 500. In

Wyandotte, where the complaint was grounded on

an alleged violation of the state law of Ohio, the Court

found that this Constitutional policy was not “impli-

cated” by Ohio’s complaint because at least one suit-

able alternative forum was, in fact, available—name-

ly, Ohio’s own state courts. _

The instant case, of course, presents both federal

and state law claims. As to the former, since plain-

tiffs plead a federal cause of action (namely, a vio-

lation of the federal antitrust statutes), the district

courts have explicit jurisdiction over the untitrust

claim. 28 U.S.C. § 1337 (1964). Where they had

valid claims, many States have sought and obtained —

effective antitrust relief in actions filed in the district —

courts,‘ and as we discuss further in Part III below,

- 4See cases cited in defendants’ Br. in Opp. at 16, n.20.

Amici repeatedly assert that a State unable to sue in its own

courts (as on a federal antitrust claim) “should not be

aeeeingnd (lao

the plaintiff States have now filed district court ac-

tions asserting the very same antitrust claim they

present here. These suits, filed in the district courts »

of many plaintiff States by the States themselves, ob-

viously do not subject the States to the risk of a

forum biased in favor of the defendants.

As-for the nuisance claim presented in the third

count of the plaintiffs’ complaint, it is obvious that

a plethora of state court forums not partial to de-

fendants is available. Plaintiffs’ state law nuisance

claim can clearly be filed in their own state courts.

Plaintiff States have advanced no reason why they

cannot, if they prefer, file this claim jointly in the

state courts of a single’ plaintiff State.

Moreover, in the jurisdictional allegations of essen-

tially identical district court complaints (treated more

fully in Part III of this memorandum), a number of

the plaintiffs here have pleaded that the same district

courts hearing plaintiffs’ antitrust claim have pend-

ent jurisdiction to adjudicate the state nuisance law

required to go anywhere else except this [Supreme] Court.”

Amici Br. at 9; also, at 6, 8. This is patently erroneous. It

is well established that the availability of a federal district

court affords a sufficient basis for this Court to decline to

exercise its original jurisdiction. See Massachusetts v.

Missouri, 308 U.S. 1, 19-20 (1930) ; North Dakota v. Chicago

& N.W. Ry., 257 U.S. 485 (1922). Cf. Georgia v. Pennsylvania

R.R., 324 U.S. 439, 464-68 (1945). See also Case v. Bowles,

327 U. S. 92, 97 (1946); United States v. California, 297 U.S.

175, 187 (1936); United States ‘v. Louisiana, 123 U.S. 32

(1887); ‘and Ames v. Kansas, 111 U.S. 449 (1884) (U.S.

Const. Art. III, § 2, gives Supreme Court original but not

exclusive jurisdiction of cases in which a State is a party).

A contrary rule could. substantially increase this Court’s

docket. oe

Jeepers , .

TE a a ae Sep agree) MER RENE EIS “e

claim pleaded in the third count of the instant com-

plaint. E.g., Washington v. General Motors Corp.,

Civil No. 71-611-R (C.D. Cal.), Complaint, Count

III, para. 1-2. As these allegations suggest, the

federal district courts are also available to try plain-

tiffs’ nuisance claim if it and the federal anti-

trust claim both derive “from a common. nucleus of

operative fact,” United Mine Workers v. Gibbs, 383

U.S. 715 (1966). If not, the state courts remain

available.* | | ,

In sum, the first of the Wyandotte tests—avail-

ability of alternative forums not partial to the de-

fendants—is fully satisfied here.

2. The Technical and Political Compl2xity of the Cause

The second Wyandotte test for deciding whether

to exercise jurisdiction is the existence of “reasons

of practical wisdom” which make the Supreme Court

an inappropriate forum for this kind of original ac-

tion. The Court in Wyandotte began by noting that

“the course of this Court’s prior efforts to settle

disputes regarding interstate air and water pol-

lution has been anything but smooth.” 401 U.S.

at O01, - .. ;

‘If plaintiffs’ second count,*based on the “eommon law”

of conspiracy, states a claim under federal law (as plain-

tiffs evidently believe, plaintiffs’ Br. at 14-15), then the

district courts obviously have jurisdiction under 28 U.S.C.

§ 1831 (as plaintiffs have pleaded below, e.g.Washington V.

General Motors Corp., Civil No. 71-611-R (C.D. Cal.),

Complaint, Count II, para. 1, 2). If, however, plaintiffs’

second count is based on state law (see defendants’ Br. in

Opp. at.12), then under the Gibbs test there would appear to

be pendent jurisdiction in the district courts. Id.

The Court referred to the “complex technical and

political matters that inhere in all disputes of the

kind at hand” (id. at 502).. It observed that these ;

difficulties were “severely compounded” by the fact’

that “a number of official bodies are already actively

involved in regulating the conduct complained of

cok Consequently, the Court concluded:

‘‘In view of all this, granting Ohio’s motion for

leave to file would, in effect, commit this Court’s

resources to the task of trying to settle a small

piece of a much larger problem that many com-

petent adjudicatory and conciliatory bodies are

actively grappling with on a more practical |

basis.” 401 U.S. at 503.

Technical and political matters of even greater

complexity inhere in the control of motor vehicle emis-

sions. Although plaintiffs try to frame their case

here in conventional antitrust terms, their principal

effort is not to seek ordinary antitrust relief. In-

stead, what plaintiffs ask from this Court is a novel

type of relief never before granted in an antitrust

case. They seek a decree requiring defendants, inter

alia, to (1) “adopt and pursue an accelerated pro-

gram of spending, research and development” to pro-

duce “fully effective’ emissions control devices or a

“pollution free engine” (Complaint, Prayer, para. 2),

and (2) install such control devices ‘as the Court

deems reasonable and proper,” at defendants’ own

expense, on all used cars built “during or following”

the alleged conspiracy. Id., para. 4.

As we demonstrate in Part II, any court attempt-

ing to grant and enforce such relief would thereby

constitute itself as nothing less than a full-fledged

regulatory agency, without the benefit of legislative

standards or agency expertise. Leaving aside the

Bees pe he ka a a ht ach i a

COD STONE RAE GTR Rae

QS I

disputed question of the power of any court to grant

such novel equitable relief, any such judicial interven-

tion would be unnecessary and unwise in view of the

ongoing efforts (described in Part II below) of the

Legislative and Executive Branches of the Federal.

Government, along with the parallel efforts of the

States, to grapple with the identical issues.

The factual and policy issues being resolved by

these legislative and administrative bodies are sub-

stantially more “formidable” (401 U.S. at 503) than.

those from which the Court drew back in Wyandotte.

Notwithstanding the efforts of amici here to suggest

that vehicle emissions control (and especially “retro-

fitting”) is a simple matter, the legislative and ad-

ministrative bodies actually responsible for control

' programs have found the subject to be highly com-

plex. The Environmental Protection Agency, for ex-

ample, has stated in a recent report to Congress that

“a major technological challenge” faces the motor ve-

hicle industry in its efforts to meet the emissions

standards for the coming years.° —

Similarly, reports of the Department of Health,

Education and Welfare have indicated the multitude

of interacting technological considerations involved in

vehicle emissions control,’ and the experience of the

¢ EPA, Annual Report to the Congress of the United States

In Compliance With Section 202 (b) (4), Public Law 90-148,

The Clean Air Act As Amended, at 1-9 (July 9, 1971). Ex-

tracts from this Report are reprinted for the convenience of

the Court as Item 1 in the Separate Appendix to defendants’

Supplemental Memorandum filed herewith.

7 See, e.g., HEW Control Techniques for Carbon Monoxide,

Nitrogen Oxide, and Hydrocarbon Emissions from Mobile

Sources, National Air Pollution Control Administration

Publication No. AP-66 (1970). Extracts are printed as

Item 2 of the Separate Appendix. :

_ California legislature with retrofitting of crankcase

emission controls is strong evidence of the complexity

of the technical problems posed by vehicle emissions.’

Major antitrust cases usually require years of pre-

trial and trial proceedings, in which the documentary

and testimonial strands of a decade or more of prior

commercial and industrial activity are painstakingly

unraveled. In the present cases, assuming plaintiffs

have stated a claim upon which relief can be granted,

this process will be complicated by the unusually

complex and technical nature of the defendants’ ac-

tivities, involving a myriad of separate transactions

relating to research, development. and installation of

many different kinds of emission control systems and

devices. These cases deal not with traditional busi-

‘ness practices of a settled industry, but with -the

frontiers of an arcane and still imperfectly under-

stood technology, as they have advanced over a period

of almost twenty years. Litigation of the present

type- presents great difficulties to agy judicial ‘tri-

bunal. It is especially likely to overtax the resources

® That experience, briefly stated, was that after the retrofit

. requirement was imposed, more than 20,000 complaints were. -

received; that many vehicle owners reported “disastrous ex-

/periences” involving damage to their cars or exorbitant in-

stallation costs; and that the Califorgis legislature first sus-

pended, and then sharply restricted, the retrofit requirement.

See Transcript, Assembly [of the State of California] Interim -

Committee on Governmental Efficiency and Economy, August.

7, 1964: Hearing on Motor Vehicle Repair and Smog Control

Devices, at 1, 97; Assembly [of the State of California] Inter-

im Committee Reports 1963-65, Vol. 8, No. 8, at 34; Cal. Stats.,

1963, ch. 999, § 8, at. 2267 (requiring retrofit); Cal. Stats.,

1965, ch. 3, §§ 1, 2, at 872-73 (repealing requirement); Cal.

Stats., 1965, ch. 2081, § 4, at 4609 (requiring retrofit only

‘upon transfer of ownership). Relevant extracts from the

foregoing materials are printed as Item 3 of the Separate

Appendix.

LOT EAN TER LTE I NA TT a a

of this Coax: already strained by its inerenetny

appellate responsibilities.

Nor is the technique of employing a Special Master

to resolve complex factual issues, as plaintiffs sug-

gest, one which this Court should be tempted to em-

brace. This Court observed in Wyandotte that it is

basically “ill-equipped for the task of fact-finding,”

since it must necessarily function “without actually

presiding over the introduction of evidence.” 401

U.S. at 498. That handicap is especially disabling in

the context of the present litigation, where the nature

of the plaintiffs’ antitrust claims—portraying an al-

leged conspiracy to delay and deceive—will require

the triers of fact to hear extensive oral testimony and |

to base their determinations in substantial part upon

their assessments of the credibility of live witnesses.

This Court has held that it was an abuse of dis- .

cretion for a judge, assigned a much simpler anti-

trust trial than this one, to refer it for trial to a “tem-

porary substitute appointed on an ad hoc basis.” La

Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957).

Litigants, especially incomplex antitrust cases, as the

Court emphasized, are- entitled to a trial presided

over by the judge responsible for deciding the basic

issues in the cause. It would hardly comport with the

-salutary decision in La Buy for the Court to accept

original jurisdiction of the present action only to turn

over all of the crucial testimonial aspects to a master

of its own.” _

° Nor would such a course rélieve the Court of the consid-

erable burden of supervising the proceeding before the Master

or reviewing his findings. A Master’s findings and rulings

do not have the force of law, and.are merely recommendations

to the Court. 5 J. Moore, Federal Practice 53.06 (2d ed.

1969).

3. Special Disadvantages of Trial by this Court

Amici urge that Wyandotte does not control the

present case because plaintiffs’ complaint here. pre-

sents issues of federal antitrust law rather than local

law. Amici Br. at 10-12. But this difference does not

help plaintiffs, since it means that, as noted above,

“numerous additional impartial forums are available,

namely, the various federal district courts, thus les-

sening the need for the exercise of original jurisdic-

tion. In addition, it. provides two other reasons why

the Court should decline jurisdiction. here.

This Court has previously expressed its dissatis-

faction with the “great burden” imposed upon it by

direct appeals from trial court antitrust decisions

which “deprive [this Court] of the valuable assist-

ance of the Court of Appeals.” United States v.

Singer Manufacturing Co., 374 U.S. 174, 175 nl

(1963). In the instant case, not only would the Court

be denied the benefit of an evaluation of the trial

record and clarification of the issues by an interme-

diate appellate court, this Court would also be forced

to make the trial court record itself, and to decide in

the first instance the countless legal questions involved

in the pretrial and trial phases of what the Judicial

Panel on Multidistrict Litigation foresaw would be-

come “the largest and most complicated” litigation

ever to come before it." The Congress has recognized

that this role is inappropriate for the Supreme Court

by creating a system of inferior federal courts and

conferring upon them jurisdiction to try antitrust

10In re Motor Vehicle Air Pollution Control Equipment,

311 F. Supp. 1849, 13850 (J.P.M.L. 1970); and see Brown

Shoe v. United States, 370 U.S. 294, 364 (1961) (Harlan, J.).

cases (and, except in certain cases brought by the

United States, to hear intermediate appeals). There

is no reason to short-circuit this system here.

To the contrary, there is an important reason why

short-circuiting this system would be particularly in-

appropriate. The antitrust count of the complaint,

like the other two counts, seeks equitabie relief only,

‘and hence would be tried by the Court without a

jury. This count, however, is also the basis for dam-

age claims by these same plaintiffs (and others) in

the actions which all of them have filed in the district

courts. Under the doctrine of Beacon Theatres, Inc. v.

Westover, 359 U.S. 500 (1959), the claims for equita-

ble relief which all these district court complaints also

contain could not be tried separately to a judge before

the damage claims are tried to juries, because to do so

would prejudice defendants’ Seventh Amendment

right to jury trial of the damage claims." For this

Court to try the equitable claims presented in the

first count of the instant complaint before the trial

of the damage claims presented in the plaintiffs’ dis-

trict court complaints would be equally violative of

defendants’ rights.

uite aside from the question of whether and to

what extent this Court’s findings and judgment in

the instant action would be technically binding on the

defendants in a later trial of the district court dam-

age claims, they would, as a practical matter, have

11See Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962);

5 J. Moore, Federal Practice 4 38.19[2] at 170, 38.37 [2] at

299 n.18 (text & supp.) (2d ed. 1969); 2 Barron & Holtzoff,

Federal Practice and Procedure § 894, at 82-85 (Wright ed.

1961).

Fo LOR RE ERO I MI PORES MR RE NING OS

a powerful and perhaps controlling effect? And if

this Court may not properly try the equitable claims

of the present action before the district court damage

claims are tried, there is plainly no point to accepting

original jurisdiction, particularly since, as noted

above, the district court complaints also include pray-

ers for equitable relief overlapping the relief sought

in this original action.

In Wyandotte this Court held that only the “strict-

est necessity” (401 U.S. at 505) would justify the

Court’s assumption of original jurisdiction over an

interstate pollution case. Given the availability of

many alternative forums, the difficulties of trying the

case a8 an original Supreme Court action, and the

activity of other competent governmental authorities,

the element of necessity was found “totally lacking”’

in Wyandotte. Id. at 505. For similar reasons, it is.

equally absent in the case at bar. :

II. The relief sought by plaintiffs herein is unnecessary

and undesirable in light of the comprehensive legis-

lative and administrative program, decisively strength-

ened by the Clean Air Amendments of 1970, for

reducing vehicle emissions to a minimal level by a

time certain. :

In our earlier brief, we described the comprehen-

sive pattern of emerging federal and state regulation

* See Blonder-Tongue v. University Foundation, 402 U.S.

318, 320-27, 329-80 (May 8, 1971). Not only the plaintiffs

and amici States, but numerous other governmental bodies \

and classes of private citizens have filed identical damage

complaints in the district courts, and defendants’ right to

jury trial of the antitrust issues in these damage cases might

also be prejudiced if this Court decided the original action

first.

og ee ee ee ot eT

of motor vehicle emissions. We discussed the difficul-

ties in reconciling plaintiffs’ prayers for mandatory

injunctive relief in this action with the dictates of

the legislative program for emission control. See Br.

‘in Opp. at 2-6, 20-24. Since that brief was filed, the

Congress has passed and the President has signed

the Clean Air Amendments of 1970, imposing dras-

tie new emission control standards. The Environ-

mental Protection Agency has begun to implement

these requirements in detailed regulations.” These

measures express and execute, the best judgment of

the Legislative and Executive Branches as to the

~ steps necessary at the federal level to serve the. public

interest in the control of automobile emissions.

In Wyandotte, the mere possibility of some legis-

lative relief was an important element in the Court’s

decision to decline to exercise its original jurisdic-

tion. 401 U.S. at 502-08. Here a far-reaching and

definitive legislative program is an accomplished fact.

The complex task of administering the program is well

under way. There is no occasion for this Court to

depart from the principles it so yecently reaffirmed.

1, The Clean Air Amendments of 1970

For a full understanding, the Clean Air Amend-

ments of 1970 must be placed in their proper his-

torical framework. ne ;

“When the first federal air pollution control

legislation was passed in 1955 [authorizing funds

for research and related activities by the Public

Health Service], there were no viable ongoing

State programs at all, There was little interest

13 See, e.g., 36 Fed. Reg. 12652 et seq., 12657 et seq.,

16905-06, 19697 (1971). .

in the scientific community, and the public, by

and large, equated air pollution with coal smoke

and considered smog a problem unique to Los

Angeles. It is no wonder that air pollution is re-

garded as a recently discovered phenomenon.”

Council on Environmental Quality, First Annual

Report, Environmental Quality 62 (1970); see

also, id. at 73-75. .

In Los Angeles in 1953, after six years of regulating

stationary sources, it was recognized that the automo-

bile contributed significantly to the Los Angeles pol-

lution problem.* That problem, termed “smog,” was

the result of a chemical reaction between unburned

hydrocarbons—largely unburned gasoline—and nitro-

gen oxides, the latter being a chemical formed in every

flame through the combination of the oxygen and the

nitrogen in the air.

Commencing in 1953, the County of Los Angeles

sought the assistance of the auto industry in an at-

tempt to find a solution, and the industry responded

by initiating the cooperative research: and develop-

ment program here under attack.” The first prob-

lem tackled was the development of measurement

techniques and instrumentation. At the urging of

** Report of the Subcommittee of the Assembly [of the State

of California] Interim Committee on Governmental Efficiency

and Economy, Study and Analysis of the Facts Pertaining

to Air Pollution Control in Los Angeles County 14 (1953).

Relevant excerpts from sources cited .herein relating to the

early history of vehicle emissions control in California are

printed as Item 4-of the Separate Appendix.

** Report of the Assembly [of the State of California]

Interim Committee on Transportation and Commerce, Motor

Vehicle and Highway Problems 45 (Assembly Interim Com-

mittee Reports 1957-59, Vol. 3, No. 6, 1959).

;

the California authorities, the industry directed its

efforts toward the development of “deceleration de-

vices.” When it was learned, however, that emissions

durin;y deceleration were a much smaller portion of

- total vehicle emissions than had been supposed, Los

Angeles County declined to require installation of

the devices.”

With the passage of time, the legislative emphasis

shifted from the County to the State. Through the

work of legislative committees, which sought and ob-

tained°the advice of industry committees, the neces-

sity of defining the degree of control required was

established. Standards were fixed, both for air qual-

ity and for auto exhaust emissions. This activity

marked the start.of regulation of automotive .emis-

sions.”

By 1965, interest in air pollution had become na-

tionwide. Federal legislation relating, inter alia, to

vehicle emissions was enacted in 1965, in 1967, and

again in 1970. Legislation prior to the 1970 Amend-

ments is summarized in our earlier brief. In gen-

eral, it directed the administrative establishment of

“criteria” for air quality and the adoption of regu-

16 Jd.; Transcript, Assembly [of the State of California]

Interim Committee on Transportation and Commerce, Decem-

ber 1, 1958: Hearing on Automotive Smog Control, at 3-4.

17 Cal. Stats. 1959, ch. 200, §1, at 2091; Cal. Health &

Safety Code, §§ 426.1, 426.5.

18 Act of October 20, 1965, Pub. L. No. 89-272, 79 Stat. 992;

Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485;

Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat.

1676. These provisions are codified at 42 U.S.C. § 1857 et seq.

(1970).

19 -

lations fixing permissible levels of automotive emis-

sions.

The 1970 Clean Air Amendments go beyond pre-

existing law in one critical respect: they establish

what their principal author described as a final “dead-

line for the cleanup of the internal combustion engine

in the passenger automobile.” ” The effect of the 1970

Amendments is to prohibit the sale of 1975 or later

model-year motor vehicles which fail to reduce emis-

sions of carbon monoxide and hydrocarbons to a

level 97-98% below the emissions from uncontrolled

vehicles.” As to emissions of oxides of nitrogen, 1976

and later model year vehicles must meet a compara-

ble standard.” The spelling out of the standards

and supervision of the automotive industry’s com-

pliance are entrusted to the Administrator of the

Environmental Protection Agency, who is required

to report annually to the Congress and to make “any

* See 116 Cong. Rec. S20599 (daily ed. Dec. 18, 1970)

(remarks of Senator Muskie).

*°The Amendments require that the 1975 model vehicles

meet emission standards for hydrocarbons and carbon monox-

ide 90% more stringent than the standards in force for 1970

vehicles. 42 U.S.C. § 1857f-1(b) (1) (A) (1970). The 1970

standards reduced hydrocarbons by almost three-quarters and

carbon monoxide by about two-thirds in relation to uncon-

trolled vehicles. EPA, Annual Report to the Congress of the

United States in Compliance with Section 202 (b) (4), Pub-

lic Law 90-148, The Clean Air Act As Amended, at 2-2 and ..

2-3 (July 9, 1971). Thus, the effect of the Amendments is to

mandate reductions of approximately 98% for hydrocarbons

and 97% for carbon monoxide. Id., Fig. 1, at 6-2.

* 42 U.S.C, § 1857f-1(b) (1) (B) (1970).

: ee

a aS ocak oe

recommendations for additional congressional action

necessary to achieve the purposes of” the Act.”

As a practical matter, no decree that might be is-

‘sued by this Court could reasonably be expected to

replace, modify, or accelerate the imposition of the

standards mandated by the Amended Act. We say

this for three reasons. In the first place, the new

standards are scheduled to be imposed within less

than three years. Unless the law is amended, they

must be imposed, assuming the longest extension

permissible, within four.” It is highly unlikely that

an original proceeding in this Court could result in

a final decree by that time.”

In the second place, Congress acted with full

awareness that the automotive industry did not pos-

sess the technology required to meet the new stand- .

ards. The 1970 Amendments were literally a de-

mand that the industry “do the impossible” within

a stated period (very much, as one Senator observed,

in the manner of the Apollo program to put a man

22 42 U.S.C. § 1857f-1(b) (4) (1970).

23 The Administrator is statutorily prohibited from extend-

ing the effective date of the new standards for more than

one year. 42 U.S.C. § 1857f-1(b) (5) (E) (1970).

2A useful chronology of original actions entertained by

this Court appears in Note, The Original Jurisdiction of the

United States Supreme Court, 11 Stan. L. Rev. 665, 701 et

seq. (1959). A great numier of them have required more

than four years.

25 See 116 Cong. Rec. S16093 (daily ed. Sept. 21, 1970)

(remarks of Senator Muskie): “TI]f we thought the tech-

' nology existed today [to meet the new standards] we would

insist that it be incorporated in these cars today.”

Lrey > ee ys

on the moon).” The 1970 Amendments were can-

didly designed to insure a maximum effort to solve

the problem of vehicle pollution forthwith, regardless

of the amounts of money and manpower required.

It is difficult to see how the judiciary can be expect-

ed to order more.

Third, as noted above (pp. 9-11, supra), the es-

tablishment and enforcement of rules for the control

of vehicle emissions are tasks.far better suited to the

legislative and administrative process than to “com-

mon law” case-by-case decisions of the judiciary.

Effective vehicle emissions control requires the fact-

gathering, policy-evaluation and rule-making capa-

bilities of legislatures and administrative agencies.

Courts are not equipped to make the policy trade-

offs between, for example, more carbon monoxide

emissions but less emissions of oxides of nitrogen.”

Courts do not usually have before them all the par-

ties interested in, and affected by, the solutions to

a social problem of this type. Where_a comprehen-

**See 116 Cong. Rec. S16258 (daily ed. Sept. 22, 1970)

(remarks of Senator McIntyre). |

** See EPA, Annual Report to the Congress of the United

States in Compliance with Section 202 (b) (4), Public Law

90-148, The Clean Air Act As Amended, at 1-9 (July 9,

1971):

“One of the unfortunate aspects of motor vehicle emission

control is that reducing levels of hydrocarbons and carbon

monoxide, which is done primarily through increasing

the efficiency of combustion, tends to make more diffi-

cult the control of oxides of nitrogen, whose formation

is largely a function of heat combustion.”

See also p. 28 n.37, infra.

** For example, the statute contemplates that as a matter

of competitive fairness, standards and the means for measur-

sive regulatory scheme for the control of vehicle

emissions has already been established, there is no

need to rely on the ad hoc equitable powers of this

Court or any other court over the particular defend-

ants before it. | |

Nevertheless, in an effort to induce this Court to

substitute a judicial emissions control program for

that adopted by Congress, amici carefully cultivate

the widespread misimpression that the motor vehicle

is almost entirely responsible for the damage to health

and property caused by air pollution, and that alleged

violations of the antitrust laws by the motor vehicle

manufacturers are responsible for the fact that the

problem of air pollution has not been solved. Amici

Br. at 27-30. None of this is true. .

While transportation of all types is currently esti-

mated to be the source of 51% of U.S. air pollution

on a weight basis,” transportation generally, and

motor vehicles in particular, are responsible for a

much smaller fraction of total air pollution on an

environmental effects basis. Using California air

quality standards as the basis for measuring the en-

vironmental impact of each of the major air pollu-

ing compliance must be uniform for all manufacturers of

like vehicles. Yet many of the world’s largest vehicle manu-

facturers, occupying substantial positions in the United States

market, are not defendants in the present actions.

2 Council on Environmental Quality, Second Annual Re-

port, Environmental Quality 212 (1971). The contribution of

automotive vehicles (cars, trucks, buses) is estimated, as of

1968, at 38.8%. See HEW, Nationwide Inventory of Air

Pollutant Emissions, 1968, National Air Pollution Control

Administration Publication No. AP-73 (1970) (computed

from Tables 2, 4, 7, 9 and 11). |

tants, two University of California researchers have

placed the contribution of motor vehicles to total

U.S. air pollution at only 12%. While motor ve-

hicles are a major source of pollution even on an

environmental effects-basis in Los Angeles and some

other cities where hot, dry, stagnant air and sun-

*°See Letter from Robert F. Sawyer and Lawrence S.

Caretto (Dept. of Mechanical Engineering, University of

California at Berkeley), “Air pollution sources reevaluated,”

4 Environmental Science & Technology 453 (1970). The

other contributors to air pollution are, on an environmental

effects basis, industry—37%; power plants—36%; space-

heating—10% ; and refuse disposal—5%. Another academic

study, using air quality criteria (the “pindex” method) and

' the earlier high tonnage figure for transportation, found

transportation responsible for 19% of U.S. emissions, behind

the industrial and electric power generation categories. Bab-

cock, A Combined Pollution Index For Measurement of Total

Air Pollution, 20 J. of Air Pollut. Control Ass’n 653 (1970).

The difference in the weight vs. effects measurements of

vehicle emissicns is primarily due to the automobile’s rela-

tively high emission of carbon monoxide, which is the least

noxious of air pollutants on a mass-for-mass basis, and its

minimal emission of sulfur oxides, a pollutant more than one

hundred times as noxious as carbon monoxide. Eisenbud,

Environmental Protection in the City of New York, 170

Science 706, 707 (1970); Sawyer & Caretto, supra.

The Council on Environmental Quality has recognized the

_ Misleading character of weight measurements of air pol-

lutants and the importance of considering the effects of par-

ticular pollutants and their geographical distribution. See

Council on Environmental Quality, Second Annual Report,

Environmental Quality 213 (1971).

LRRD hE PI LT EY OE NEE FSET ENR

shine are common, most cities do not have this prob-

lem.* :

Moreover, the national failure to appreciate the

environmental implications of vehicle and other emis-

sions at an early date cannot fairly be ascribed to

the vehicle manufacturers alone. As the Council on

Environmental Quality has explained, the failure is

plainly a social and political one, growing out of the:

national commitment to economic growth and the

public preferences for the increasing urbanization,

industrialization and personal mobility that technol-

ogy can provide.’ Effective remedies for vehicle

emissions have at all times depended upon a public

decision to require development of emissions controls

and, most importantly, to accept the very real eco-

nomic and social costs of such a program. That deci-

sion has now been made and is in process of imple-

mentation by the reguiatory agencies that Congress

and the States have entrusted with the job.

Whether this essentially political decision could

have been made earlier, and whether the technologi-

cal obstacles to developing effective vehicle emissions

31 Kisenbud, supra; Sawyer & Caretto, supra. The principal

ingredients of photochemical (“Los Angeles type’) smog

are hydrocarbons, oxides of nitrogen and sunlight, while

“London type” smog is principally composed of the sulfur

dioxide and particulates found in smoke and fumes from

burning coal and oil. Chicago, for example, has London-type

smog about one-third of the days of the year, and ‘photo-

chemical smog less than one. per cent of the time. It is, of

course, local differences of this kind which caused Congress

to leave the control of used car emissions to the States.

8? See Council on Environmental Quality, First Annual

Report, Environmental Quality 12-16 (1970). Excerpts from

this report are reprinted as Item 5 of the Separate Appendix.

Ds See ss

control systems could have been surmounted more

rapidly, are necessarily matters of conjecture which

no court can possibly resolve. It is clear, however,

that the alleged actions and omissions of the vehicle

manufacturers—even if they had occurred—could

have been no. more than one contributing factor

among many that were far more significant.

2. The Impropriety of a Federal Judicial “Retrofit”

Program

Amici strenuously urge that nothing in the emis-

sions control program established by the Clean. Air

Act bars “retrofitting” (installing emissions control

systems on used cars), and that retrofitting, at least,

is a form of relief that the Court could and should

order. Amici Br. passim, esp. at 21-26. In amici’s

' 33 For example, the one specific allegation of delay in the

complaint herein charges the defendants with having agreed

to delay the installation of a crankcase ventilation valve on

some new 1962 model year vehicles (and to delay an improve-

ment thereon “in late 1962 and extending into 1963”). Com-

plaint, para. 17(c) (1), .(2). But the entire motor vehicle —

population accounts for less than half of the total annual

hydrocarbon emissions in the U.S.; the crankcase accounts

for only one-fifth of the automotive hydrocarbons emissions

from an uncontrolled vehicle (and essentially no carbon

monoxide or oxides of nitrogen); and the number of ve-

hicles produced in any one model year is only about one-|

tenth of the total number of cars on the road. So the

alleged delay could have affected no more than one one-

hundredth of the total annual U. S. hydrocarbon emissions—

or between one and two one-thousandths of total annual

emissions of all known types of pollutants (since hydrocarbons

represent only 15% by weight of total emissions). See HEW,

Nationwide Inventory of Air Pollutant Emissions, 1968,

National Air Pollution Control Administration Publication

No. AP-73, at 8, 138 (1970); HEW, Control Techniques for

Carbon Monoxide, Nitrogen Oxide, and Hydrocarbon Emis-

view, because “there is no federal regulation cover-

. ing emissions on used cars or retrofitting,” therefore

“retrofit is solely a matter of judicial concern.” Jd.

at 15. Several important omissions and over-simpli-

fications render the argument wholly untenable.

In the first place, amici fail to note that in the

Clean Air Act the Congress advertently left the

problem of used car emission controls to the judg-

ment and powers of the several States. In consid-

ering the Clean Air Amendments of 1970, Con-

gress explicitly considered and rejected the proposal,

reintroduced by plaintiffs here, for a federally-im-

posed retrofit program:

“In considering alternative means of control-—

ling emissions of air pollution agents from used

vehicles, the Committee was unable to develop a

feasible national system. The Committee reject-

ed ideas ranging from the imposition of a retro-

active installation obligation on automobile

manufacturers to a Federal subsidy rrogram.”

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 138

(1970) (emphasis added).

The Senate Committee went on to state:

“The Committee believes at this time that ,reg-

ulations relative to the retroactive application of

emission control devices and methods is manage-

able only at the State and regional level and

expects and hopes that the regions and States

sions From wedi Sorc National Air Pollution Control

Administration Publication No. AP-66 (1970), at 2-12; Auto-

mobile Manufacturers Association, 1971 Automobile Facts

and Figures, at 22. This small fraction would be even smaller

on an environmental-effects basis. See pp. 22-23 & n.30,

supra.

will be innovative in this area.” Jd., at 138-14

(emphasis added).

For this Court to attempt to establish a particular

retrofit program by federal judicial fiat would be

fundamentally inconsistent with the Congressional

scheme, and in disregard of the legislative findings

as to the inadvisability of federal action in this area.

The Clean Air Act makes the States responsible

for adopting and enforcing implementation plans to

bring local air into compliance with the regional air

quality standards.“ As one part of this regulatory

scheme, the power to regulate used car emissions is

reserved to the States.* And the various kinds of

requirements relating to used car emissions that dif-

ferent States may find feasible, appropriate and ac-

ceptable to their citizens may diverge radically from

the used vehicle control requirements that plaintiffs

would have this Court impose.” For example, be-

cause of the fact that measures reducing hydrocarbon

emissions from used cars may increase emissions of

nitrogen oxides, and vice versa, two different States

may choose two entirely different kinds of used car

control programs (or none at all), depending on local

* 42 U.S.C. §§ 1857c-2, -5 (1970).

42 U.S.C. § 1857f-6a(c) (1970); S. Rep. No. 408, 90th

Cong., Ist Sess. 34 (1967).

* For example, in 1963 California required that crankcase

emission controls be installed within ten months beginning

January 1, 1965, on used as well as new cars, but the require-

ment for used cars was first suspended, and then sharply

restricted, before 1965 was over because it had “caused great

concern and confusion throughout the state.” Cal. Stats.,

1965, ch. 3, § 3, at 878. See p. 11 & n.8, supra.

air conditions, population density, and other yari-

ables.*’

Secondly, in their enthusiasm for a nationwide,

judicially-imposed retrofit obligation, amici do not

discuss the extent to which the imposition of this

obligation on the manufacturers as to used cars would

** For example, the California Air Resources Board report-

ed to the State legislature in July of this year that it would

not recommend establishment of a system of mandatory in-

spection and maintenance of used vehicles, in part because

while such a system would reduce hydrocarbon emissions, it

would increase oxides of nitrogen. See California Air Re-

sources Board, A Report to the Legislature on Vehicle Emis-

sion Inspection (July 1, 1971). While rejecting inspection to

control hydrocarbons, California has adopted a retrofit law

designed to reduce oxides of nitrogen. See Los Angeles

Times, Nov. 16, 1971, Pt. II, at 6, reporting enactment of

S.B. 578. In contrast, the City of Chicago has adopted man-

datory inspection aimed only at hydrocarbons and carbon

monoxide. Chicago, Ill., Amendment to Chapter 17 of the

Municipal Code, Art. ITA, Nov. 29, 1971. The State of New

Jersey is evidently adopting a similar inspection program,

also not involving nitrogen oxides standards. See New Jersey

State Department of Environmental Protection, Notice of

Public Hearing on Air Pollution Control Code, Proposed

Chapter 15 (May 27, 1971). Excerpts from the foregoing

materials are reprinted as Item 6 in the Separate Appendix.

For further elucidation of the conflict between controlling

hydrocarbon emissions and controlling nitrogen oxide emis-

sions, see HEW, Control Techniques for Carbon Monoxide,

Nitrogen Oxide, and Hydrocarbon Emissions from Mobile

Sources, National Air Pollution Control Administration Pub-

lication No. AP-66 (1970), extracts from which are contained

in Item 2 of the Separate Appendix, and Hearings Before

the Subcommittee on Air and Water Pollution of the Senate

Committee on Public Works, Air Pollution—1967 (Auto-

motive Air Pollution), 90th Cong., Ist Sess. Pt. 1, at 238-41,

$26 et seq., 470 (1967).

actually conflict with the Congressionally-imposed

obligation to create essentially pollution-free new au-

tomobiles by 1975. Senator Muskie, the principal

architect of the Clean Air Amendments, explained

the Congressional treatment of the new car-used car

problem as follows:

“There is a tendency to focus upon the new

car provisions in the bill, and understandably

sc.. Nevertheless, what really moved the com-

mittee, the Senate, and the conferees to go in

the direction of a tough deadline for new cars

is the fact that there are used cars, and the

used car population creates a problem.” 116

Cong. Rec. S20602 (daily ed., Dec. 18, 1970)

(emphasis added).

Stating that these used cars are “beyond the reach,

really, of any effective technological control develop-

ment,” the Senator went on to say that “to deal with

the used car problem, we need a new car deadline

in order to begin the process of cleaning up new used

cars” that come onto the streets each year. Id. at

$20602-03.

Rather than invoke federal power to require par-

tially effective retrofit devices, Congress opted for

fully effective new car controls. Before any court

were to order the defendants to divert their resources

and energies into a massive retrofit program, it would

certainly have to consider the effect of such an order

on the ability of each one of the several vehicle manu-

facturers to meet the new car deadlines that Con-

gress preferred as the federally-imposed solution of

the problem. At present, the Environmental Protec-

tion Agency is “moderately optimistic” that the ve-

hicle manufacturers can overcome the “major techno-

logical challenge” facing them and meet the 1975

standards on schedule.* A massive judicial retrofit

program could substantially and adversely affect the

basis for this moderate optimism.

Any court contemplating such a departure from

the Congressional choice would also have to consider

whether independent automobile dealers and gas sta-

tion operators have the necessary trained manpower

and skills to install and maintain the particular kinds

of retrofit devices involved, whether the necessary de-

gree of public cooperation with the retrofit program

could be obtained, and whether the time required for

manufacture and installation of the devices would in

any event take so many years that the beneficial ef-

fect on overall emission levels would be minimal.”

3s EPA, Annual Report to the Congress of the United States

in Compliance with Section 202(b) (4), Public Law 90-148,

The Clean Air Act As Amended, at 1-9, 1-10, and 5-17 (July

9, 1971).

3° Additionally, before ordering retrofit at defendants’ ex-

pense, the court would have to consider that even if plain-

tiffs’ theory were correct and that, absent the alleged vio-

lation, some of the defendants would have introduced some

control devices earlier, the cost of these devices would have

been reflected in the prices defendants charged for their

vehicles. Some of the defendant companies have in fact

developed and test-marketed certain types of retrofit de-

vices at moderate prices, but with total lack of market

success. The reason, undoubtedly, is that to the average

automobile owner, an emissions contro] device is, in eco-

nomic terms, an “externality” that he does not perceive

as worth the price in benefits to him, and that, if given a

market choice, he will not purchase. See, e.g., P. Samuelson,

Economics 791-92 (&th ed. 1970); Gerhardt, Incentives to Air

Pollution Control, 33 Law & Contemp. Prob. 358 (1968); Re-

port of the Panel on Electrically Powered Vehicles to the

Commerce Technical Advisory Board, The Automobile and

he STEAL NE Ra ESS LONE AE BR TARLIDT Reateny BAER Ry ANN ERR MPR ES SIREN SO RIN TEN BN TTS ¥.

Y ? PUM)

Ba aad

Obviously, all these issues call for essentially legis-

lative, not judicial, choices.

Thirdly, given the constantly shrinking number of

uncontrolled used vehicles on the road and the in-

creasing stringency of the standards applicable to

new models, it is obvious that plaintiffs’ proposed

retrofit remedy, in addition to its other defects, can

be of little practical significance in reducing overall

levels of air pollution. By the time this Court or any

court could responsibly render a judgment anting

the extraordinary retrofit relief plaintiffs st and

by the time a retrofit program (with the ne ssary

inspection and maintenance that would have to ac-

company it**) could be established, the overwhelm-

ing proportion of the used cars on the road would

be the federally-controlled vehicles of the 1968 and

subsequent model years.** At that point in time, the

need or effectiveness of any judicial retrofit relief

whatever would be, at best, open to serious question,

Air Pollution: A Program for Progress, Pt. 1, at 36 (Dept.

of Commerce Print, 1967); Ruff, The Economic Common

Sense of Pollution, 19 The Public Interest 69 (1970); Posner,

Antitrust Policy and the Consumer Movement, 15 Antitrust

Bull. 361 (1970).

“See California Air Resources Board, A Report to the

Legislature on Vehicle Emission Inspection (July 1, 1971), ex-

cerpts from which are reprinted in Item 6 of the Separate

Appendix.

* The Automobile Manufacturers Association estimates that

by July 1975, 77 million of the 100 million passenger cars then

on the road will be 1968 or later models. (In 1970, 78% of

the vehicles on the road were less than eight years old. See

Automobile Manufacturers Association, 1971 Automobile

Facts and Figures, at 22.)

PENTA TERA EN ATE CTE OSS, MAMTA PA HD

even assuming the States had not acted on their own

in the interim.”

Finally, even if retrofit were ultimately found

after trial to be an appropriate and useful federal

judicial remedy in this case, both the trial and the

remedy, as we show in the next section of this Memo-

randum, could be more efficiently provided in the

cases plaintiffs have filed against defendants in the

federal district courts, with such appellate review as

this Court deems appropriate when and if the occa-

sion should arise. There is.nothing so simple or magi-

cal in the proposed retrofit remedy, or in the imagined

power of this Court to provide that remedy more

quickly, that would justify trying one of the most

complicated fact cases in modern times before a court

so admittedly “ill-equipped for the task of fact-find-

ing” and so heavily burdened with other responsibili-

ties. Ohio v. Wyandotte Chemicals Corp., 401 U.S. at

498.*°

“The States’ implementation plans for attaining the na-

tional ambient air standards within their boundaries by 1975

are to be submitted to the Environmental Protection Agency

by January 30, 1972. EPA, Annual Report to the Congress of

the United States in Compliance with Section 202 (b) (4),

Public Law 90-148, The Clean Air Act As Amended, at 4-4

(July 9, 1971). These plans are “expected to include a variety

of abatement strategies and contribute greatly to-our under-

standing of the significance of motor vehicle emissions con-

trol.” Id.

43 Defendants feel constrained to comment on the grossly

misleading assertion by amici that used cars now on the

road can be retrofitted with exhaust controls which are

“precisely” the same ones that “the manufacturers conspired

to block” and that California would have ordered installed

on 1966 models, “had not the auto manufacturers blocked this

advance by hurriedly proposing engine modifications.” Amici

III. Plaintiffs’ complaints in the district courts, and the

proceedings currently in progress under the direction

of Multidistrict Litigation Panel, demonstrate that

there is no necessity for this Court to exercise original

jurisdiction over plaintiffs’ proposed complaint herein.

All of the eighteen plaintiffs in the instant case

have now filed actions identical or substantially sim-

Br. 24-25. The true facts, as contained in official reports, are

quite different.

Four exhaust control devices, produced by manufacturers

other than defendants here, were certified by the California

Motor Vehicle Pollution Control Board in 1964; but three

of the devices were approved only for installation on new

1966 model cars, not for retrofit on used cars. Calif. Motor

Vehicle Pollution Control Board, Resolutions 64-12, 64-13, 64-

14 and 64-15 (June 17, 1964). (The one device certified for

installation on used cars as well could not be produced by its

manufacturer for sale at a price within the $65 limit set by

California law. See Transcript, Assembly [of the State of

California] Committee on Transportation and Commerce,

March 8, 1966: Hearing on Air Pollution Control, at 4; Calif.

Motor Vehicle Pollution Control Board, Summary of Report

on Exhaust Control Devices of American Machine & Foundry

Company—Chromalloy Corporation, June 10, 1964, at 3-4.) The

defendants made their proposals for exhaust emission control

(which were made possible by the cooperative industry effort

here under attack) in order to meet the new California

emissions standards for 1966 cars that became operative upon

the certification of these four devices, not to block implemen-

tation of the standards. Defendants’ various proposals for

their 1966 model cars were approved by the Control Board,

with an exemption for that small part of their 1966 model

production that they could not engineer into conformity.

California Motor-Vehicle Pollution Control Board, Resolution

64-86 (November 18,1964) ; California Motor Vehicle Pollu-

tion Control Board, Resolution 65-2 (January 20, 1965) ;

California Motor Vehicle Pollution Control Board, Resolu-

tions 65-17, 65-18, 65-19, 65-20 and 65-21 (July 14, 1965).

The Board in fact congratulated General Motors, Ford,

Chrysler, and American Motors on their “significant contri-

bution” and urged them to continue their “outstanding de-

velopmental efforts.” California Motor Vehicle Pollution Con-

iia

ilar to this one in various federal district courts.“

Plaintiffs allege in their complaints below that the

federal district courts have jurisdiction to try all of

the counts in all of their cases, and to grant all the

relief—including the “retrofit” relief—they seek -

from this Court. Neither in their communications

to this Court, nor elsewhere, have plaintiffs disavowed

trol Board, Resolutions 64-18, 64-19, 64-20, and 64-21 (August

12, 1964). By contrast, the Board later effectively decertified

the four devices of the other manufacturers because they

required regular maintenance, and the State legislature, in

response to public protest, had refused to give the Board au-

thority to impose on vehicle owners the compulsory mainten-

ance requirements upon which the certification of the devices

was predicated. California Motor Vehicle Pollution Control

Board, Resolution 65-26 (September 15, 1965). See also IV

[California] Motor Vehicle Pollution Control Board Bulletin

1, 2 (September 1965).

Excerpts from the items cited above are reprinted as

Item 7 of the Separate Appendix.

44 The district court proceedings initiated by the eighteen

plaintiffs herein are listed in Appendix A of this Memoran-

dum. (The total of eighteen includes two States whose pending

motions for leave to join in the complaint as parties plaintiff

have not yet been acted on by the Court.) All of these district

court complaints contain one or more federal antitrust counts

containing the same allegations as the complaints sought to be

filed herein, and all of them pray for damages as well as

injunctive relief. Two of the complaints, brought by eight

of the plaintiffs here plus one State not a plaintiff in this

Court (Nevada), also contain counts identical with the second

and third counts of the instant complaint. Washington V.

General Motors Corp., Civil No. 71-611-R (C.D. Cal.) ; Kansas

v. General Motors Corp., Civil No. T-4896 (D. Kan.). As

previously noted, supra, pp. 7-8, these complaints allege that

the district courts have federal question jurisdiction over

the second count and pendent jurisdiction over the third count.

these allegations.** The filing of these district court

complaints, and the resulting proceedings currently

in progress under the direction of the Multidistrict

Litigation Panel, provide conclusive proof (not pres-

ent in Wyandotte) that there is no need to impose the

responsibility for conducting the trial of this complex

litigatioii upon the tightly-rationed time of the Su-

'preme Court.

Faced with the reality of these ongoing proceed-

ings below, amici seek refuge in the argument that

this Court must nevertheless assume original juris-

diction over plaintiffs’ claims in order to enable plain-

tiffs to proceed jointly in a single action and thereby

avoid “the necessity of time-consuming and duplica-

tive litigation in numerous district courts and courts

of appeal.” Amici Br. at 9. But the decision whether

to file separately or jointly, in several districts or

in one district, was wholly within plaintiffs’ con-

trol. While eleven plaintiff States filed separately in

district courts located in their own States, seven

plaintiff States as widely separated as Hawaii and

Maine joined with one amicus State (Nevada) in

filing a single complaint in the Central District of

€alifornia. In defendants’ view, there are many prac-

tical reasons why a single consolidated trial of the

claims of all the plaintiff States is not feasible in

this or any other court. But if plaintiffs genuinely

held the contrary view, they obviously were free to

‘5 By letter dated April 7, 1971, addressed to the Clerk of

the Court, defendants informed the Court of these filings.

Plaintiffs responded by telegram dated April 15, 1971, with

the assertion that the district court actions had been filed

merely as a “standby” to avoid the possible effect of the

statute of limitations upon district court claims should this

Court deny the motion for leave to file.

seek a single trial by filing a joint complaint in one

of the district courts. They cannot contend that an

original action in this Court was the only way to

pursue that objective.

On the other hand, if it is consolidated pretrial

proceedings that plaintiffs seek, acain they need not

come here for relief. Plaintiff States—and amici

States as well—are parties to the consolidated pre-

trial proceedings presently taking place in the Central

District of California, which also include complaints

filed by other governmental bodies and private citi-

zens. Nevertheless, in a further effort to avoid the

obvious fact that those consolidated proceedings con-

tradict the asserted need to proceed in an original

action in this Court, amici complain, albeit in a

rather tentative way, about the rate of progress

below. Amici Br. at 26-30. They urge that this

Court should attempt to expedite the litigation by

assuming original jurisdiction over plaintiffs’ com-

plaint, in which event amici “will seek leave to join

as plaintiffs here.” Amici Br. at a

Amici do not explain, however, what they would

do with their pending district court cases and the

damage claims those cases contain, nor do they sug-

gest what would happen to the district court cases

filed by the ten other plaintiffs who are not amici

here and who, since they are not States, cannot file

46 The district court actions that have been filed by four-

teen of the seventeen amici and a number of other parties,

arising out of the same subject matter as the original action

sought to be commenced here, are listed in Appendix B. All

cases, including the district court cases recently filed by

plaintiffs herein, have been transferred to the Central Dis-

trict of California for consolidated pretrial proceedings pur-

suant to 28 U.S.C. § 1407.

original actions in this Court.*’ In any event, with-

out repeating the previous discussion of the difficul-

ties which this Court would have in superseding the

trial of some but not all of the previously filed com-

plaints in the district courts, several points need to

be made about the allegedly slow pace of the actions

below.

Amici appear to be chiefly disturbed by the fact

that the District Court has certified for interlocutory

review, and the Court of Appeals for the Ninth Cir-

cuit has accepted, appeals from the District Court’s

orders denying defendants’ motions to dismiss which

were filed in all but two of the consolidated actions

and rejecting, in part, defendants’ challenges to cer-

tain of the class actions and parens patriae claims.“

All briefs in those appeals have been filed, defendants

did not object to plaintiffs’ request that oral argu-

ment be expedited, and the Court of Appeals has

scheduled that argument for January 13, 1972.

‘7 Similarly, amici do not attempt to show any basis for

this Court’s original jurisdiction over an action by the one

of their number which is not a State, namely, City of New

York. >

“8In the District Court proceedings defendants moved to

dismiss, primarily on the ground that plaintiffs had no re-

lationship, direct or indirect, to the line of commerce allegedly

restrained. See Conference of Studio Unions v. Loew’s, Inc.,

193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919 (1952).

In addition, defendants challenged the authority of the gov-

ernmental unit plaintiffs to sue parens patriae and challenged

the propriety of the class actions, which had been filed on be-

half of classes as broad as every resident of the United States. .

The District Court denied the motion to dismiss, and granted

in part and denied in part defendants’ objections to the parens

patriae claims and the class actions. The District Court there-

after certified these issues to the Court of Appeals as appro-

priate for interlocutory review under 28 U.S.C. § 1292(b).

88 @

More importantly, no stay of discovery or other

pretrial proceedings has been sought by defendants

pending this interlocutory appeal. By agreement, the

mass of documents compiled py the government in

connection with its earlier investigation of the de-

fendants’ cooperative research and development pro-

gram was made available to plaintiffs, and it has

evidently taken plaintiffs considerable time to ex-

amine, classify and analyze these papers. Beyond:

this, however, it has been defendants who initiated

pretrial evidentiary proceedings by seeking and ob-

taining, without plaintiffs’ support, a district court

order dated September 8, 1971, commencing a depo-

sition program—now under way—to take the testi-

mony of certain retired employees. It ill behooves

amici, who are plaintiffs below, to charge defendants

with attempting to delay the lower court proceed-

ings.”

Finally, defendants are puzzled by amict’s evident

concern that the congressional emission control pro-

gram, together with the“manufacturers’ efforts to

meet the stringent legislative goals, may solve the

antire vehicle emissions problem before the massive

litigation launched by plaintiffs and others can be

brought to a definitive conclusion. If this is so, it

merely bears witness to thdjpuperiority of legislative

and administrative action to resolve the problem of

vehicle pollution, as compared to the type of judicial

relief sought by plaintiffs. It affords no reason for

“ Cf. Transcript of Proceedings, November 22, 1971, at 49,

In Re Multidistrict Vehicle Air Pollution, M.D.L. Docket No.

81 (C.D. Cal.) (remarks of Judge Manuel L. Real): “..-

delays in this [initial] deposition [of a retired General Motors

employee] have been the delays of the plaintiff and not the

defendant.”

this Court to seek to compete either in speed or in

substance with the legislative and administrative

processes, or for this Court to take over, so far as

plainly judicial responsibilities are concerned, the du-

ties currently being discharged in this and related

litigation by the federal trial and intermediate ap-

pellate courts.

The Chief Justice, in a recent review of the Court’s

work, reiterated the concern expressed in Wyandotte

over the need to safeguard the Supreme Court’s

“paramount role as the supreme federal appellate

court” (401 U.S. at 505):

“[W]Je cannot keep up with the volume of work

and maintain a quality historically expected

from the Supreme Court... .

“Hither the quantity or quality of the work of

the Court must soon yield to the realities.” “

Plaintiff States are presently pursuing their claims

in other forums better suited than this Court to sort

out the factual and legal complexities of the cases

they plead, and with as much power as this Court

to grant the relief they seek. Yet in disregard of

this Court’s other manifold responsibilities, they ask

it to assume the heavy burden of a proceeding dupli-

cative of the district court proceedings and, in its

basic thrust, either duplicative of or potentially in

conflict with legislative and administrative efforts at

the federal and state levels to resolve the same prob-

lems.

Over the next several years, this Court may well

find it necessary to function as the appellate court

Burger, The State of the Federal Judiciary—1971, 57

A.B.A.J. 855 (1971).

of last resort to review some of the more important

legislative, administrative and judicial decisions that

will emerge from these ongoing activities. This task

alone may require a substantial commitment of the

Court’s resources. No justification has been shown

for asking the Court to assume the added burden of

acting as the trial court of first resort for this one

set of exceedingly complex and time-consuming cases.

Accordingly, leave to file the complaint herein

should be denied.

Respectfully submitted,

WALTER J. WILLIAMS

14250 Plymouth Road

Detroit, Michigan 48232

FORREST A. HAINLINE, JR.

Cross, WRocK, MILLER &

VIESON

Penobscot Building

Detroit, Michigan 48226

Attorneys for Defendant

American Motors

Corporation

LLOYD N. CUTLER

LouIs F. OBERDORFER

JAMES S. CAMPBELL

ROBERT A. GERARD

WILMER, CUTLER & PICKERING

900 - 17th Street, N.W.

Washington, D.C. 20006

JULIAN O. VON KALINOWSKI

PAUL G. BOWER

GIBSON, DUNN & CRUTCHER

634 South Spring Street

Los Angeles, California 90014

Attorneys for Defendant

Automobile Manufacturers

Association, Inc.

ToM KILLEFER

PauL A. HEINEN

WILLIAM E. HUTH

Chrysler Corporation

340 Massachusetts Ave.

Detroit, Michigan 48231

G. WILLIAM SHEA

PHILIP K. VERLEGER

McCUTCHEN, BLACK, VERLEGER

& SHEA

30th Floor

8485 Wilshire Blvd.

Los Angeles, California 90010

Attorneys for Defendant

Chrysler Corporation

CONCLUSION

WRIGHT TISDALE

Ford Motor Company

The American Road

Dearborn, Michigan 48121

ROBERT L. STERN

ROGER W. BARRETT

MAYER, BROWN & PLATT

231 South LaSalle Street

Chicago, Illinois 60604

CARL J. SCHUCK

ERNEST E, JOHNSON

OVERTON, LYMAN & PRINCE

550 South Flower Street

Los Angeles, California 90017

Attorneys for Defendant

Ford Motor Company

Ross L. MALONE

ROBERT A. NITSCHKE

General Motors Building

Detroit, Michigan 48202

HAMMOND E. CHAFFETZ

JOSEPH DUCOEUR

KIRKLAND, ELLIS, HODSON,

CHAFFETZ & MASTERS

Prudential Plaza

Chicago, Illinois 60601

MARCUS MATTSON

RICHARD F. OUTCAULT. JR.

LAWLER, FELIX & Hub

605 West Olympic Boulevard

Los Angeles, California 90015

Attorneys for Defendant

General Motors Corporation

APPENDIX A

Plaintiffs

Arizona v. Automobile Mfrs. Ass’n, Civil No. 71-

174 PHX-WPC (D. Ariz.).

Illinois vy. Automobile Mfrs. Ass’n, Civil No. 69 C

2194 (N.D. Iil.).

Iowa v, Automobile Mfrs. Ass’n, Civil No. 10-231-

C-2 (S.D. Iowa).

Kansas v. General Motors Corp., Civil No. T-4896

(D. Kan.).

Massachusetts v. Automobile Mfrs. Ass’n, Civil

No. 71-622-M (D. Mass.).

Minnesota v. Automobile Mfrs. Ass’n, Civil No.

8-70-205 (D. Minn.).

Missouri v. Automobile Mfrs. Ass’n, Civil No.

19192-2 (W.D. Mo.).

Ohio v. Automobile Mfrs. Ass’n, Civil No. 71-51

(S.D. Ohio).

Rhode Island v. Automobile Mfrs. Ass’n, Civil No.

4552 (D. R.L.).

Vermont v. Automobile Mfrs. Ass’n, Civil No.

6232 (D. Vt.).

Virginia v. Automobile Mfrs. Ass’n, Civil No. 190-

71-R (E.D. Va.).

Wahington, et al. (Wash., Colo., Hawaii, Idaho,

Maine, W. Va., N.D.) v. General Motors Corp., Civil

No. 71-611-R (C.D. Cal.).

APPENDIX B

Amici

Alabama v. Automobile Mfrs. Ass’n, Civil No.

3285-N (M.D. Ala.).

California v. Automobile Mfrs. die Civil No.

70-541-R (C.D. Cal.).

Florida v. Automobile Mfrs. Ass’n, Civil No. 1698

(N.D. Fla.).

Louisiana v. Automobile Mfrs. Ass’n, Civil No.

71-645 (E.D. La.).

Mississippi v. Automobile Mfrs. Ass’n, Civil No.

2349 (S.D. Miss.).

Washington, et al. (Nevada) v. General Motors

Corp., Civil No. 71-611-R (C.D. Cal.).

New Mexico v. American Motors Corp., Civil No.

69-C-2040 (N.D. Il.)

New York v. Automobile Mfrs. Ass’n, Civil No.

69-Civ. 5037 (S.D. N.Y.).

Oklahoma v. American Motors Corp., Civil No. 71-

155 (W.D. Okla.). ,

Pennsylvania v. Automobile Mfrs. Ass’n, Civil No.

71-610 (E.D. Pa.).

South Dakota v. General Motors Corp., Civil No.

71-14W (D. §8.D.).

Texas v. Automobile Mfrs. Ass’n, Civil No. CA-

8-4584-D (N.D. Tex.).

Wisconsin v. General Motors ict .. Civil No. 70-C

70 (W.D. Wis.).

City of New York v. Automobile M frs. Ass’n,

Civil No. 70-1535 (S.D. N.Y.).

Others

AMF, Inc. v. General Motors Corp., Civil No. 70-

4665 (S.D. N.Y.). |

Connecticut v. American Motors Corp., Civil No.

70C-417 (N.D. IIl.).

City of Denver v. American Motors Corp., Civil

No. 70C-418 (N.D. IIl.).

srossman v. Automobile Mfrs. Ass’n, Civil No.

69-1855-R (C.D. Cal.).

Handy v. General Motors, Inc., Civil No. 69-1548-R

(C.D. Cal.).

Keane v. General Motors Corp., Civil No. 69-C

1900 (N.D. IIl.).

Kentucky v. Automobile Mfrs. Ass’n, Civil No.

3875 (E.D. Ky.).

County of Lackawanna v. Automobile M fr.’s Ass’n,

Civil No. 70-398 (E.D. Pa.).

Morgan v. Automobile Mfrs. Ass’n, Civil No. 70-

366 (E.D. Pa.).

New Jersey v. American Motors Corp., Civil No.

69C-2041 (N.D. IIl.).

City of Philadelphia vy. Automobile M frs. Ass’n,

Civil No. 70-345 (E.D. Pa.).

Puerto Rico v. Automobile M frs. Ass’n, Civil No.

190-71 (D. P.R.).

Sturtz v. General Motors Corp., Civil No. 69-1892-

R (C.D. Cal.).

City of New York v. Automobile .M frs. Ass’n,

Civil No. 70-1535 (S.D. N.Y.).

Others

AMF, Inc. v. General Motors Corp., Civil No. 70-

4665 (S.D. N.Y.).

Connecticut v. American Motors Corp., Civil No.

70C-417 (N.D. IIl.).

City of Denver v. American Motors Corp., Civil

No. 70C-418 (N.D. IIl.).

Grossman v. Automobile Mfrs. Ass’n, Civil No.

69-1855-R (C.D. Cal.).

Handy v. Generai Motors, Inc., Civil No, 69-1548-R

(C.D. Cal.).

Keane v. General Motors Corp., Civil No. 69-C

1900 (N.D. Ill.).

Kentucky v. Automobile Mfrs. Ass’n, Civil No.

375 (E.D. Ky.).

County of Lackawanna v. Automobile M fr.’s Ass'n,

Civil No. 70-398 (E.D. Pa.).

Morgan v. Automobile M frs, Ass’n, Civil No. 70-

366 (E.D. Pa.).

New Jersey v. American Motors Corp., Civil No.

69C-2041 (N.D. Il).

City of Philadelphia vy. Automobile M frs. Ass’n,

Civil No. 70-345 (E.D. Pa.). -

Puerto Rico v. Automobile M frs. Ass’n, Civil No.

190-71 (D. P.R.).

Sturtz v. General Motors Corp., Civil No. 69-1892-

R (C.D. Cal.).

DEC 22 1971

No. 45 Original

BERT SEAVER, CLERK

IN THE

Susreme Court of the United States

OCTOBER TERM, 1971

“

STATE OF WASHINGTON, ET AL.,

ee Plaintiffs,

GENERAL MOTORS CORPORATION, ET AL.,

Defendants.

SEPARATE APPENDIX TO DEFENDANTS’

SUPPLEMENTAL MEMORANDUM

(Names and addresses of attorneys on inside cover.)

WILSON - EPES PRINTING Co., INC. - RE 7-6002 - WASHINGTON, D. C. 20001

INDEX

Item 1 Overview of the Vehicle Emissions Problem...

A. Summary and Conclusions from EPA An-

nual Report on Vehicle Emissions

B. Relationship of Emissions Control to Air

Quality Standards: EPA Annual Report...

Item 2 Technical Factors Involved in Control of Ve-

hicle Emissions

Item 8 The California Experience in Retrofitting

Crankcase Emission Controls ....

A. 1963 California Statute Requiring Retrofit

of Crankcase Emissions Controls ..............

B. 1964 California Legislative Hearing on Re-

sults of Retrofitting Crankcase Emissions

Controls

C. 1965 California Legislative Report on Re-

sults of Retrofitting Crankcase Emissions

Controls

D. 1965 California Statute Suspending Crank-

case Retrofit Requirement

E. 1965 California Statute Limiting Scope of

Crankcase Retrofit Requirement

Item 4 Early History of Vehicle Emissions Control

in California

A. 1958 Legislative Report Discussing Discovery

of Role of Hydrocarbons in Air Pollution ..

B. 1958 Report to Legislature on Progress in

Developing Vehicle Emissions Controls...

C. 1959 Legislative Report on Status of Vehicle

Emission Control

Item 5 Social, Political, and Economic Factors in Air

Page

INDEX— (Continued)

Item 6 Varying Legislative Approaches to Inspection

and Maintenance of Used Vehicles ...................

1971 California Air Resources Board Report

on Reducing Emissions by Inspection ............

1971 California Law Authorizing Retrofit

Requirement to Reduce Oxides of Nitrogen ..

1971 Chicago Ordinance Requiring Inspec-

tion to Reduce Hydrocarbon and Carbon

Monoxide Emissions ..............

. Proposed New Jersey Law hesititée Sania:

tion to Reduce Hydrocarbon and Carbon

Monoxide Emissions ............ ioe sce dean

Item 7 California Experience with Exhaust Control

Hoo A Dp

pT RSTO YES ce a or

Approval of Three Exhaust Devices for

Factory Installation on New 1966 Model

I a ica Ra dis tee consensus

Approval of One Exhaust Device for 1962

and Subsequent Model Vehicles _.....................

Staff Report on Device Approved for 1962

and Subsequent Model Vehicles -....................

Report to Legislature on Costs of Exhaust

Devices for Used Cars ..

Commendation of General Sitiee. Ford,

Chrysler and American Motors for Contri-

butions to California Emissions Control Pro-

Approval of Chrysler Exhaust Emission Con-

trol System for New 1966 and ‘Subsequent

ee I ee a

Approvals of General Motors, Ford, Ameri-

can Motors, International Harvester and

Kaiser-Jeep Systems for New 1966 and Sub-

sequent Model Vehicles

Exemption of Two Percent of 1966 Model

Vehicles from Exhaust Control Require-

ments .

I. Effective Decertification of Exhaust Controls

Not Developed by Vehicle Manufacturers ....

ITEM 1—Overview of the Vehicle Emissions Problem

A. Summary and Conclusions from EPA Annual

Report on Vehicle Emissions*

The Clean Air Act as amended diate the Ad-

ministrator of the Environmental Protection Agency

with major responsibilities for the control of motor

vehicle emissions. These duties include: establishing

emission standards for pollutants which endanger

public health and welfare; administrating a number

of related activities concerned with vehicle testing,

certification and enforcement; regulating the content.

of fuels; demonstrating the feasibility of low-emis-

sion vehicles; monitoring the development of improved

devices to control emissions from internal combustion

engines; and directing research and development ac-

tivities related to alternative power systems.

In addition Sections 202(b)(1)(A) and 202(b)

(1)(B) require that:

(1) 1975 automobiles achieve a 90% reduction in

the emissions of hydrocarbons (HC) and carbon mon-

oxide (CO) which were allowable in 1970, and

(2) 1976 automobiles achieve a 90% reduction in

the emissions of oxides of nitrogen (NO:) from the

average levels measured on 1971 automobiles which

were not subjected to any federal or state NO: emis-

sion standards.

* * * *

Since the establishment of the Environmental Pro-

tection Agency on December 2, 1970, EPA has com-

pleted a number of actions rel«ted to the control of

* Environmental Protection Agency, Annual Report’ to the

Congress of the United States in Compliance with Section

202 (b) (4), Public Law 90-148, the Clean Air Act As Amended

(July 9, 1971), at 1-1 to 1-10.

emissions from motor vehicles. An initial contract

has been signed with the National Academy of Sci-

ences to identify the \resources necessary to study

the technological feasibility of attaining the 1975 and

1976 standards. :

EPA has published an advance notice of proposed

rule-making indicating its intention to control or pro-

hibit the use of alkyl lead in motor vehicle gasoline.

* * * *

In February, the Administrator sent a letter to all

domestic and foreign auto manufacturers requesting

information about research and testing activities re-

lated to the development of emission control systems

designed to meet the 1975 and 1976 standards. EPA

also conducted two days of public hearings on this

subject during May of 1971.

* * * *

EPA has published certification test results for:

1971 model vehicles and engines. National ambient

air quality standards have been promulgated which

include motor vehicle related pollutants. Regulations -

have been proposed defining the useful life of vehi-

cles and requiring the inclusion in owners’ manuals

of maintenance instructions for emission control sys-

tems. Specific numerical standards and test proce-

dures have been established for 1975 and 1976 emis-

sions of HC, CO and NOx.

Demonstration programs relating to low-emission

vehicles have been initiated.

. < + *

~ The Low-Emission Vehicle Certification Board pre-

scribed by Section 212 of the Act has been established.

EPA is also directing a research and development

program for low-emission vehicular power systems

other than the internal combustion engine.

* * * *

Chapter 4 deals with the health and welfare effects

of motor vehicle related pollutants. While vehicular

emissions are important sources of pollution, espe-

cially in congested urban areas, they are not the only

sources of these contaminants. In discussing health

and welfare impacts it is important to note that it

is ambient air quality, the composition of a local air

mass, rather than emission levels from particular

sources, which is the significant factor although the

two are clearly related.

It is difficult to generalize about the relative im-

portance of various contributions of the same air

contaminants to ambient air quality because most air

masses undergo lateral movemerts. Thus relative im-

pacts must be looked at in terms of specific localities

reflecting differences in geography, meteorological

conditions, traffic patterns and the size and locations

of all sources of the same pollutants.

A detailed discussion of the progress reported by

industry is contained in Chapter 5. This material

describes a number of control devices under develop-

ment and outlines some of the technical problems fac-

ing the industry. This material also reiterates a

number of concerns expressed by the manufacturers

in their communications with EPA.

The final section of this report, Chapter 6, deals

with the costs associated with motor vehicle emission

control.

“er

Neither the final control system needed to achieve

the 1975 standards nor the technology for attaining

the 1976 standards, have yet been identified. Thus,

the cost figures contained in Chapter 6 must be con-

sidered preliminary and include informal industry

estimates of initial costs ranging from $80 to $600

per car for 1975. However, it appears clear that the

costs associated with 1975 and 1976 standards will

be considerably greater than those experienced in

reaching Federal emission standards through 1974.

Information provided to EPA by auto manufac-

turers revealed a significant increase in emission con-

trol systems research and development activity since

the passage of the 1970 amendments to the Clean Air

Act. During the first six months of accelerated de-

velopment, industry laboratories have reported the

attainment of reduced emission levels. While there

are many problems to be overcome to convert labora-

tory results into reduced emission levels from mass-

produced autos, the added industry effort should im-

prove prospects for significant technological improve-

ments.

+ om * a

During the recent public hearings industry spokes-

men expressed major reservations about the techno-

logical feasibility of achieving the statutory emission

standards within the time limits prescribed by law.

The manufacturers were unanimous in asserting that

the levels of reduction required for 1975/76 precluded

the substitution of alternative power systems, making

it essential that emission control be achieved through

an improved internal combustion engine. Industry

representatives consistently stated that reaching the

1976 NOx emission levels goes beyond the limits of

current knowledge and will require some major tech-

nological breakthrough early enough to permit mass

production of 1976 models. They also expressed con-

cern about the high cost of attaining the low levels

of emissions required by the statute.

At these same hearings representatives of public

interest organizations were skeptical of industry

statements about their inability to develop the nec-

essary technology to reduce emissions to the required

levels. These witnesses pointed to previous instances

of resistance by the industrial community to dead-

lines which were ultimately achieved. Suspicion was

also voiced about the vigor of government enforce-

ment concerning interim standards and test proce-

dures. This climate of mistrust makes it important

that, to thé degree possible, matters related to motor

vehicle emission control be given full public exposure.

Motor vehicle emissions are important sources of

HC, CO, and NO: pollutants especially in congested

urban areas. However, they are not the only sources

of these contaminants. The specific contribution of

vehicle emissions to the degradation of ambient air

quality is a complex matter and varies from place

to place. These variations are attributable to differ-

ences in geography, meteorological conditions, traf-

fic patterns, and the size and location of other sources

of these pollutants. More information on these mat-

ters is expected with the completion of State imple-

mentation plans required under the legislation. These

plans are also expected to include a variety of alter-

native abatement strategies. With additional infor-

mation about the costs and effectiveness of emission

control from all types of sources, it should be possible

to undertake detailed cost-effectiveness analyses in

order to insure that the ambient air quality stand-

ards are achieved at the most reasonable cost to the

American people.

One of the unfortunate aspects of motor vehicle

emission control is that reducing levels of hydrocar-

bons and carbon monoxide, which is done primarily

through increasing the efficiency of combustion, tends

to make more difficult the control of oxides of nitro-

gen, whose formation is largely a function of the

heat of combustion. Thus, a major technological chal-

lenge faces the Nation’s auto industry in meeting

these emission standards.

EPA is moderately optimistic that the 1975 stand-

ards can be attained especially since it is expected

that unleaded gasoline will be generally available at

that time. We are also hopeful that technological

developments will enable the manufacturers to reach

the 1976 standards. However, the costs associated

with achieving these standards may be high. There-

fore, the Agency is not recommending any legislative

changes at this time, although they may be needed

in the future.

B. Relationship of Emissions Control to Air Quality

Standards: EPA Annual Report*

As indicated in Chapter 4, the control of auto

emissions is an important element in achieving the

ambient air standards for HC, CO, NO:, and photo-

chemical oxidants. However, the relationships be-

tween automobile emissions control and the achieve-

ment of national ambient air quality standards is

extremely complex. For example:

* Environmental Protection Agency, Annual Report to the

Congress of the United States in Compliance with Section

202(b) (4), Public Law 90-148, The Clean Air Act As

Amended (July 9, 1971), at 6-6 to 6-10.

a) Motor vehicles are not the only important

sources of HC, CO, and NOx... .

b) The significance of auto emissions upon am-

bient air quality varies from place to place,

and therefore so does the effectiveness of auto

emission controls compared to controls over

other sources.

c) The cost of HC, CO, and NO: control for motor

vehicles are interrelated since some types of

HC and CO control make it more difficult to

reduce emissions of NOx.

d) Meeting the 1975/76 standards will have a

cumulative impact over time on air quality as

new controlled vehicles replace older models in

the autemobile fleet. This can be seen on Fig-

ures 3, 4, and 5 [included: see pp. 8-10, infra],

which depict EPA estimates of future national

levels of NOx, HC and CO emissions from gaso-

line-fueled motor vehicles assuming all future

Federal standards are achieved. The graphs

do not reflect the possible impact of modifying

used vehicles to attain emission reductions.

Considerations such as these are particularly im-

portant in attempting to find the least cost means

of achieving ambient air quality standards, since the

impact of achieving various reductions in automobile

emissions will influence the costs of reducing pollut-

ants from other sources. Other sources of particular

pollutants (e.g., NO: from power plants) may be so

important in some areas that the reduction of auto-

mobile emissions will contribute relatively little to

meeting ambient standards in that area.

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ITEM 2—Technical Factors Involved in Control of Vehicle

Emissions* =

The predominant source of carbon monoxide (CO),

nitrogen oxide (NO:), and hydrocarbon (HC) from

mobile combustion sources is the exhaust gas from

gasoline-fueled engines. An example of the difficul-

ties involved in eliminating exhaust emissions is por-

trayed in Figure 1-1. [Omitted.] This graph illus-

trates, for a typical range, that exhaust CO and HC

emissions could be.-reduced by increasing the ratio

of air to fuel to the point where more air is present

than is required for complete combustion of the fuel

to carbon dioxide and water (i.e., an air-fuel ratio

greater than the stoichiometric ratio). (**] Maximum

emissions of NOx, however, would occur under such

conditions. At very low air-fuel ratios, the NO: emis-

sions could be reduced, but high concentrations of

CO and HC would be produced. At the extremely

high air-fuel ratios where all three emissions could,

théoretically, be low, operating difficulties such as

misfire and stalling would be encountered with most

7 commercially available, gasoline-fueled, internal com-

bustion engines, causing poor performance and high

emissions of CO and HC.

Various approaches and devices have been devel-

oped, and others are under development for control-

ling emissions of CO, NO:, and HC from mobile.

sources. These encompass various principles of oper- .

* HEW, Control Techniques for Carbon Monoxide, Nitrogen

Oxide, and Hydrocarbon Emissions from Mobile Sources, Na-

tional Air Pollution Control Administration Publication No.

AP-66, at 1-1, 2-11 to 2-15 (1970) (footnotes omitted).

(**] “Stoichiometric ratio” is a term used to define an air-

fuel mixture which is theoretically of the correct ratio to. obtain

complete combustion without excess oxygen.

12,

ation, degrees of effectiveness, complexity, and cost.

It is the purpose of this document to present a re-

view of these control methods and to summarize Fed-

eral and state emission control programs as_ they

relate to emissions of CO, NOx, and HC from mobile

sources. |

2.2.3 Emissions

Contaminant emissions from a motor vehicle with-

out emission controls originate from four sources:

(1) the carburetor, (2) the fuel tank, (3) the crank-

case, and (4) the engine exhaust. Hydrocarbon emis-

sion from the first source is the result of fuel vapor-

ization during “hot soak” after shutdown.'*! Vapor-

ization from the tank-occurs primarily when the fuel

temperature in the tank increases. Crankcase emis-

sions are the result of blowby past the piston rings.

These emissions, unless controlled, escape to the at-.

mosphere through the road draft tube or the crank-

case ventilation cap. Hydrocarbons and CO appear

in the exhaust gas as products of incomplete combus-

tion. Oxides of nitrogen result from the reaction of

the nitrogen and oxygen contained in the combustion

air at the high temper site prevailing during com-

bustion.

Figure 2-9 ‘included: see following page] shows

the approximate distribution of the emissions from a

motor vehicle without any emission control dévices.

(*) “Hot soak” means the transfer of heat from hot com-

ponents of an engine to cooler components such as the

carburetor.

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2.2.8.1 Nature and Formation of Emissions

When a hydrocarbon fuel is burned with the ~

amount of air containing enough oxygen to oxidize it

completely, the following basic reaction might be as-

sumed to occur:

1.00 CH. + 1.460 0: + 5.50 N: >

0.925 HO + 1.00 CO: + 5.50 N,

This reaction incorporates the following assumptions:

1. Most hydrocarbon fuels are accurately repre-

sented as consisting of 1.85 hydrogen atoms

per carbon atom (CH:.:s).

. The volume ratio of nitrogen (N:) to oxygen _

(O:) in the air is 3.76:1.

. The fuel is burned completely to water (H:0) |

and carbon dioxide (CO.).

. Nitrogen is inert and does not react with any

other stibstances in the combustion chamber.

Assumptions 1. and 2. are quite true in practice. The

formation of CO, NOx, and HC in the combustion

process indicates that assumptions 3. and 4. are not

wholly correct.

2.2.8.1.1 CO and hydrocarbons. Combustion of the

carbon in the fuel proceeds (simplified) through the

following steps:

2C + 0.2 C0

2 CO + O. > 2 CO:

The first reaction proceeds at a’ much greater rate

than the second. Hydrogen in the fuel is oxidized to .

H:0 quite easily, provided sufficient oxygen is avail-

able locally for combustion. Poor distribution and

mixing of fuel and air (which is likely to occur to

16 .

-.gome extent when fuel droplets rather than fuel vapor.

are present) can result in incomplete combustion, and

produce CO that is emitted in the exhaust gases. Al-

though the overall air-fuel mixture may be stoichio-

metric, local conditions at a particular point in a

combustion chamber may be far from stoichiometric.

Such conditions of poor distribution are also condu-

cive to increased hydrocarbon emissions.

Obviously, a fuel-rich (low air-fuel ratio) mixture

introduces mere fuel into the combustion chamber

than canybe completely burned, increasing emissions

of CO and hydrocarbons. Also, an air-rich (high

air-fuel ratio) mixture would provide excess air to

partially offset the increased emissions that. result

from poor Wistribution and vaporizaticn. The rela-

tively large amount of excess air used in the diesel .

and gas turbine engines is the dominent reason for

their relatively low emissions of CO and hydrocar- .

bons.

Other factors may also contribute to increased

emissions. One of these is the quenching of the flame

at the relatively cool combustion chamber boundaries.

Quenching can. occur even if the fuel is perfectly

vaporized and distributed throughout the chamber

and is well established as the most significant mecha-

- nism leading to exhaust hydrocarbon emissions in

properly.designed spark-ignition engines.

Gross malfunction of the ignition or fuel induction

systems can increase emissions of CO and hydrocar-

bons from spark-ignition engines. A misfire allows

an entire air-fuel charge to be emitted. An automatic

choke sticking closed or a very dirty air cleaner ele-

ment can reduce air-fuel ratio,. generally increasing

emissions of CO and hydrocarbons.

Chemical equilibrium phenomena should be consid-

ered in a discussion of the formation of CO and hy-

drocarbons. Combustion reactions are somewhat re-

-versible at high temperatures, indicating that prod-

‘ucts and reactants can exist in equilibrium at high

temperatures. This partial reversal of combustion re-

actions at high temperature is known as dissociation.

If the equilibrium mixture is cooled rapidly (as it

is by rapid expansion), it may be “frozen”, meaning

that its composition: is unable to change, even though

equilibrium considerations indicate that dissociation

should be greatly reduced as the temperature is re-

duced. The rapid lowering of temperature and the

accompanying decrease in the rate at which the mix-

ture approaches the new low-temperature equilibrium, .

are responsible for the freezing of the composition of

the mixture. :

2.2.3.1.2 NOx. Equilibrium considerations are very

important in the discussion of the formation of NOx.

The reaction

N. + 0. — 2 NO

indicates that nitrogen may. be oxidized to nitric

oxide (NO) and exist in equilibrium with N. and

0.. The concentration of NO which may exist (theo-

retically) is significant only at high temperatures.

This means that N. and O. do not unite to form a

significant concentration of NO at low temperatures.

Rapid cooling (as discussed in Section 2.2.3.1.1) can

occur, however, and “freeze” the mixture with a rela-

tively high concentration of NO. Generally, the

higher the flame temperature to which air is exposed,

the higher will be the resulting NO concentration

after rapid cooling. The rate of reaction of NO back |

to N. and O: is very low at low temperatures, even

though equilibrium. considerations favor the reaction.

It is essential to understand the difference between

chemical kinetics, which involve the rate at which

chemical reactions proceed (which is influenced by

temperature), and chemical equilibrium, which in-

volves theoretical concentrations of products and re-

actants as a function of temperature (and pressure

for some reactions), without any consideration of

the time which may be required to achieve equilib-

rium as conditions of temperature (and pressure)

change.

From the preceeding discussion, it is apparent that

NO: emissions could be minimized by:

1. Reducing the flame temperature during com-

bustion of air-fue] mixtures.

2. Providing insufficient oxygen to oxidize N:.

8. Expanding (cooling) the mixture of combus-

tion products at a slow rate which would al-

low NO to reform N: and O:.

One of the most effective methods for reducing both

flame temperature and the amount of oxygen avail-

able is to reduce the air-fuel ratio. A fuel-rich mix-

ture burns at a lower temperature than a stoichio- .

metric mixture because heat that could otherwise be

used to heat the gases in the combustion chamber

must be used to heat excess fuel.

Since oxidation of carbon to CO occurs at a greater

rate than oxidation of CO to CO:, and because com-

bustion of a mole (specific number of molecules) of

carbon to CO releases less heat than combustion of

a mole of CO to CO., burning of a fuel-rich mixture

results in a lower heat release than burning of a

stoichiometric mixture. The overabundance of fuel

leaves little oxygen available to react with nitrogen.

This rich-mixture approach would minimize NO:

emissions at the expense of greatly increased emis-

sions of CO and hydrocarbons unless further meas-

ures were taken to control them specifically.

When a high air-fuei ratio charge is burned, much

oxygen is available for oxidation of N:», but the effect

of low-flame temperature—resulting from the heating

of excess air that does not enter into the combustion

reactions—predominates, and reduces NOx emissions.

Presently available spark-ignited, gasoline-fueled en-

gines exhibit poor performance under such conditions,

however, probably because of the low velocity of flame

propagation through a fuel-lean mixture, resulting

in reduction of thermal efficiency. Operation at fuel-

lean conditions can damage exhaust valves, and may

cause backfiring through the carburetor at very high

air-fuel ratios.

Other engine variables influencing the NOx concen-

tration in spark-ignited engine exhaust gas are:

1. Spark timing—Advancing the spark usually

increases the oxides of nitrogen by increasing

peak combustion temperature.

2. Engine speed—Increasing speed while advanc-

ing the spark and at constant or increasing

torque (decreasing manifold vacuum) pro-

motes NO: formation with either lean or rich

mixtures by allowing less time for the prod-

ucts of combustion to expand and approach

equilibrium at a lower temperature. Increas-

_ ing engine speed, however, while maintaining

“constant power and decreasing torque may

tend to decrease NOx formation by depressing

combustion pressure and temperature. The

GFE A

fact that power is proportional to the product

of torque and speed suggests that it may be

possible to “optimize” the engine characteris-

tics for the lowest NOx emissions at a given

power level.

3. Compression ratio—Higher compression ratios,

which increase peak combustion pressure and

temperature, favor formation of NOx, particu-

larly under lean-mixture conditions.

4. Fuel distribution—NO: concentration for a

particular cylinder depends on the air-fuel ra-

tio in the cylinder. Poor mixture distribution

resulting in a near stoichiometric mixture in .

only a few cylinders of an engine causes a

relatively large increase of NOx for the entire

engine.

5. Coolant temperature—Raising the coolant tem-

perature tends to increase NOx concentration.

6. Combustion chamber deposits—A greater de-

posit accumulation may increase NO: concen-

tration.

The high compression ratio of the compression-igni-

tion (diesel) engine results in a high combustion

temperature conducive to NO: emissions. The gas

turbine may prove to have the inherent capability for

low NOx emissions. Combustion at fuel-lean condi-

tions in the primary zone, followed by dilution of

combustion gases with secondary air at an optimum

rate in a long combustion chamber to approach equi-

librium at the turbine inlet temperature, may greatly

reduce NO: emissions. The cooling of gases at an

optimum rate in a reciprocating-piston, internal-

combustion engine is difficult to achieve because en-

gine speed inherently sets the rate of expansion.

Ca ati 2 a eee i lle 3 OS EE ERLE PPR I Fe Nn BK 2S 0 RR UR RA Ea

ITEM 3—The California Experience in Retrofitting Crank-

case Emission Controls

A. 1963 California Statute Requiring Retrofit of

Crankcase Emissions Controls*

The people of the State of California do enact as

follows:

* * * *

Section 24393 of [the Health and Safety Code] is.

amended to read: ™ :

24393. (a) For the purpose of this section, the

10 months of January 1965 through October 1965

shall be considered as numbered consecutively from

1 through 10. :

(b) Each passenger motor vehicle except those

specifically exempted, or previously so equipped, shall,

during the calendar year 1965, be equipped with a

certified device to control emission of pollutants from

the crankcase during or prior to the month in which

the last digit of its license number corresponds with

the number assigned to such month in subdivision

(a).

cifically exempted, shall be registered after Decem-

ber 31, 1965, unless and until it is equipped with a

certified device to control emissions of pollutants

from the crankcase.

* California Statutes, 1968, ch. 999, § 8, at 2264-68.

Noa ngs ep tie a Se nl ak 5 ha oes ice ea ae

a3. 1964 California Legislative Hearing on Results of

Retrofitting Crankcase Emissions Controls*

CHAIRMAN McMILLAN: Today’s hearing of

the Assembly Interim Committee on Governmental

Efficiency and Economy is on the subject of legisla-

tion proposing to register and regulate persons in

the business of motor vehicle repair. The two bills

are Assembly Bill 2348 by Assemblyman Kennick

and Assembly Bill 2638 by Assemblyman Meyers.

This controversial matter has been before us for sev-

eral sessions and has been considered in previous

hearings by the Committee on Transportation and- |

Commerce as well as our committee. We hope that

a draft of a bill may be proposed at this hearing

that will answer the needs of the public and the pro-

fession and that we can recommend to the legisla-

ture during the 65 session.

Public attention has been called to this problem in

recent months due to new legislation providing for .

the installation of smog control devices on automo-

biles. Our committee has received numerous com-

plaints from people who have had disastrous experi-

ences. The device or the installation or workmanship

has been faulty, resulting in damage to their cars or

the. cost of the work has been exorbitant. We would

like to ascertain whether legislation of the nature

proposed here could protect the public in such in-

stances.

We expect to hear arguments for and against the

proposed legislation this morning and this afternoon

* Transcript, Assembly [of the State of California] Interim

Committee on Governmental Efficiency and Economy, August

7, 1964: Hearing on Motor Vehicle Repair and Smog Contaet

Devices, at 1, 97.

po Wage eet

will go into the specific charge’ pinpointing the prob- —

lems in the motor vehicle business.

a * * *

JENNINGS: My name is Lester Jennings.

7 * * cs

I have a prepared speech that will take about four

minutes if that won’t take too much time. There has

been considerable discussion recently concerning the

responsibility for engine damage caused by the pres-

ently required Crankcase Smog Control Devices on

automobiles. |

I would like to state that we are working with a

group known as the Citizens for Smog Suppression.

There is apparently little dispute on the fact of

damage, as Mr. D. A. Jensen, Executive Officer of

the Motor Vehicle Pollution Control Board, has stated _

his department has received complaints on more than

Ye of 1% of the 4 million presently installed devices,

or more than 20,000 complaints. He also says, “If

they (the automobile industry) have 1% of 1% com-

plaints on any part of an. automobile engine, it’s a

disaster.”

It is further inconceivable that all who have ex-

perienced difficulties of this nature would have com-

plained, or that even a large percentage would have.

The question resolves then to the area of respon-

sibility for the damage with the Moter Vehicle Board

claiming this is the fault, in the vast majority of

cases, of the mechanics installing these devices. Ap-

parently this accusation stems from the assumption

the devices are complicated, delicate, finely machined

and need such fine adjustments as to preclude the

average mechanic being capable of properly instal-

ling same.

RD SARE IE NS LE IE BELEN EP NE eS Le

C. 1965 California Legislative Report on Results of

Retrofittiny Crankcase Emissions Controls*

The committee heard testimony on Assembly Bill

2348 by Assemblyman Kennick (1962 Session) and

Assembly Bill 2638 by Assemblyman Meyers (1963

Session) in San Francisco on Friday, August 7, 1964.

The two bills provide for the registration and regu-

lation of persons in the business of motor vehicle

repair. A follow-up hearing on AB 2638 was held

in San Francisco on Wednesday afternoon, Decem-

ber 16, 1964. |

Public attention had been called to this problem in

recent months due to new legislation providing for

the installation of smog control devices on. automo-

biles. Many complaints had been received by the com-

mittee chairman and the authors of the bills that the

devices had been improperly installed, charges were

excessive, and motor damage had resulted. -

* * . .

FINDINGS

1. Devices installed upon used cars are causing prob-

lems which have not developed in new cars which -

were engineered anci designed for the use of a

particular device. | |

2. It was asserted that smog control] devices required

on old used cars is the first such retroactive or

“aftermarket” program and leads to forced obso-

lescence of cars. Additional motor tune-ups, new

engines, ete., sometimes necessitated are an un-

fair and undue expense for the public. The com-

* Assembly [of the State of California] Interim Committee

Reports 1963-1965, Vol. 8, No. 8, at 31-34 (1965).

plaints, according to the Smog Control Board, are

usually due to the incorrect installation of the

device. All agreed that crankcase devices on new

and old cars have increased mechanical problems

and the need for additional upkeep and expense.

. Charges were made that the devices even on new

cars cause the consumption of more oil and gaso-

line which eventually can cause an increase in

atmosphere pollution.

RECOMMENDATIONS

. Present law concerning inspections should be re-

considered.

. There should be a publicity program to inform

the public of the necessity for servicing devices

on cars.

. A modification of the present law is recommended

in cases where installation would be detrimental

to the vehicle or the installation charge out of

proportion to the value of the car, or the law

should be changed to require only new cars to

have such devices. |

D. 1965 California Statute Suspending Crankcase

Retrofit Requirement*

The people of tne State of California do enact as

follows:

SECTION 1. Section 27156.5 is added to the Vehi-

cle Code, to read: 7

27156.5. Notwithstanding the provisions of nsaction

40000, the failure of any person to have a certified

motor vehicle pollution control device for the control

of emission of pollutants from the crankcase installed

upon a used passenger vehicle, as required by Sec-

tion 24393 of the Health and Safety Code, shall not

constitute a crime; and no prosecution of such per-

son for any violation of Section 27156 on account of

such failure occurring prior to the effective date of

this section shall be commenced or continued.

Sec. 2. Section 24393.4 is added to the Health and

Safety Code, to read:

24393.4. Notwithstanding the provisions of Section

24396, the failure of any person to have a certified

device for the control of emission of pollutants from

the crankcase installed upon a used passenger vehi-

cle, as required by Section 24393, shall not constitute

a crime; and no prosecution of such person for any

violation of Section 24398 occurring prior to the ef-

fective date of this section shall be commenced or

continued.

SEc. 3. This act is an urgency measure necessary

for the immediate preservation of the public peace,

health or safety within the meaning of Article IV

* California Statutes, 1965, ch. 3, at 872-73.

of the Constitution and shall go into immediate effect.

The facts constituting ‘such necessity are:

Under existing legislation, owners of used passen-

ger vehicles in a number of counties in the State are

required; commencing in J anuary of this year, to

. have motor vehicle pollution control devices‘for the

control of emissions of pollutants from the crankcase

installed on their vehicles, This requirement has

caused great concern and confusion throughout the

state, and the Legislature is currently considering

legislation designed to substantially eliminate this re-

quirement and to clarify the law with respect to

motor vehicle pollution control. If such legislation is

enacted, and it appears probable that it will be, a

substantial number of motorists in this state will

either have incurred needless expense to have devices

installed or will have run the risk, during the period

prior to its enactment, of being prosecuted for a

misdemeanor. This act provides that the failure of

such persons to have the devices installed under the

existing schedule of installment is not a crime ; and

in order to provide immediate protection for these

persons it is essential that this act go into immediate

effect. :

28 -

E. 1965 California Statute Limiting Scope of Crankcase

Retrofit Requirement*

The people of the State of California do enact as

follows:

* * * *x

_ Section 24890 is added to [the Health and Safety

Code] to read:

24390. (a) Every 1966 or later year model motor

vehicle subject to registration in this state shall be

equipped with a certified device or devices to control

emission of pollutants from the crankcase and ex-

haust. ~

(b) On and after December 1, 1965, every motor

vehicle of 1963 or later year model Subject to regis-

tration in this state shall be equipped with a certified

device to control the emission of pollutants from the

crankcase. |

_ year model subject to registration in this state upon

transfer of ownership and registration to an owner

whose residence is in a county or portion of a county

within an air pollution control district which may

function and exercise its powers shall be equipped

with a certified device to control the emission of pol-

lutants from the crankcase.

* California Statutes, 1965, ch. 2031, § 4, at 4609.

ITEM 4—Early History of Vehicle Emissions Control in

California

A. 1953 Legislative Report Discussing Discovery of.

Role of Hydrocarbons in Air Poilution*

It was known, of course, when the air pollution

control district was created in 1947, that there was

smoke in the air, coming from oil burning, rubbish

burning, and the disposal of industrial wastes. This

pollution could be seen and was immediately attacked.

* * * *

Sulphur dioxide was also known to be present in

the air in large quantities, and it was known that

it was one of the causes of reduced visibility. Tests

showed about 600 tons were emitted into the atmos-

phere each day, about half of it from the chemical

and oil industries, and the other half from oil-burn-

ing heat-and-power producing equipment.

* * * *

_ Dusts, fumes, and liquid particles were also known

to be in the atmosphere, resulting from the metai-

lurgical industries, from mining, earth processing,

clay grinding, and asphalt production, etc. In 1948,

approximately 100 tons per day were emitted into

the atmosphere.

* * * *

None of these visible or known pollutants seemed

to be potent enough even at high concentration to

produce the eye irritation and crop damage which

*Report of the Subcommittee of the Assembly [of the

State of California] Interim Committee on Governmental

Efficiency and Economy, Study and Analysis of the Facts

Pertaining to Air Pollution Control in Los Angeles County

12-15 (1953).

rs,

was. complained of in Los Angeles County. Search

was made for other pollutants. Altogether more than

50 chemical compounds or elements were found in

the atmosphere. These were given scientific analy-

sis. The most important of these were discovered to

be hydrocarbons or gasoline vapors.

‘It was known that large quantities of gasoline

vapors were emitted into the air but gasoline vapor

in itself appeared to be harmless. As a result of sci-

entific studies, principally those of Dr. A. J. Haagen-

Smit, of the California Institute of Technology, who

was employed on a full-time basis by the air pollu-

tion control district, it was discovered that the hydro-

carbons in gasoline vapor were oxidized by ozone and

other substances when in the prescence of sunlight.

The concentration.of ozone in the atmosphere about

Los Angeles is about 10 times that known in any

other industrial area. Scientific research has shown

that the hydrocarbons under these circumstances give

rise to the irritating material which causes eye irri-

tation and crop damage. They also give rise to aero-

sols or haze and to bad smelling compounds, These

results can be produced in the laboratory artificially

by the oxidization of hydrocarbons.

More than 2,000 tons of hydrocarbons were emitted

into the atmosphere daily in 1948, about 1,100 tons

from petroleum refining and tank storage, about 850

tons from motor vehicles, about 115 tons from deliv-

ery losses in petroleum marketing and 25 tons by

other industries. Within the past six months a re-

duction of 100 tons per day has been effected by the

use of vapor-recovery systems and properly designed

storage tanks which prevent the emission of gasoline

vapors. The Automobile Manufacturers Association

in Detroit is working in close liaison with the district

- in endeavoring to develop some process by which the

emission from motor vehicles may be reduced.

. + * *

This very recent discovery of hydrocarbons in the

air pollution picture has created an entirely new prob-

lem which was undreamed of at the time the district

was created.

B. 1958 Report to Legislature on Progress in Develop-

ing Vehicle Emissions Controls*

My name is Smith Griswold. I am the Air Pollu-

tion Control Officer of Los Angeles County. It was

my feeling, from the letter I received from you as-

semblymen, that your prime purpose was to discuss

the progress made and the situation as it now exists

in regard to control devices and I would pretty much

like to stay with that and just comment briefly with

what has happened since your committee met nearly

two years ago, but I would like to go into detail so

that there wouldn’t be any misunderstanding of a

rather complicated problem as to the availability of

devices and as to their installation on the nearly six-

million cars we have in California.

Since your last meeting, there have been very im-

portant breakthroughs in the field of device develop-

ment. Now, I would like to outline briefly that a

device development, a practical development, has to

be broken down into several things. Now, four years

ago the industry and all of us in this field felt that

there were certain types of controls which could go

* Transcript, Assembly [of the State of California] Interim

Committee on Transportation and Commerce, December 1,

1958: Hearing on Automotive Smog Control, at 2-4.

on a car. Some of them were deceleration fuel shut-

offs to control the emissions of hydrocarbons at

the carburetor, on the intake side. At one time, five

years ago, it was felt that that was an easy thing

to do and most of our work was done in that field

and while we still were working on the control at

the exhaust, yet that being a very difficult job, nec-

essarily would take much longer.

* * * *

[S]ome two years ago our improved instrumentation

showed us that the deceleration cycle, instead of be-

ing about forty to fifty percent of the exhaust or of

the problem from the automobile, it dropped to where

it was around twenty to thirty percent. Now, it be-

came quite obvious that the installation of even a

deceleration fuel shutoff device, which is much sim-

pler, much easier to engineer, would require several

years, two to three years to install on the three mil-

lion cars in Los Angeles County.

During those three years, the normal accretion of

additional automobiles would be such in this area

that by the time the device was installed, the per-

centage of performance would be offset by the in-

creased number of automobiles, and therefore, there

might not be or, in fact, reasonably would not be, an

appreciable improvement in the general smog char-

acteristics as we know them in Los Angeles, so the

emphasis was shifted, rather drastically, not to the

exclusion of the deceleration fuel shutoff, but to

bringing along the exhaust-type control device with

a consideration of the fuel shutoff as a complemen-

tary or supplementary device.

C. 1959 Legislative Report on Status of Vehicle

Emission Control*

It is the purpose of this. report to review past

studies of the smog and noise nuisances produced by

motor vehicles in the heavily trafficked metropolitan

areas and to obtain information concerning the cur-

rent status of research programs by industry and

governmental agencies designed toward the develop-

ment of principles and devices with which to combat |

the spread of noxious gases and annoying noise.

A. SmoG CONTROL DEVICES

1. Background

This committee delayed its hearing on the problem

of control of that portion of smog which is induced

by motor vehicle exhaust fumes until after the auto-

motive industry had completed its symposium on this

topic in the late fall of 1958. This was done in order

that testimony might be taken and information ob-

tained from which some conclusions could be reached

on the progress of research in this field. From this

testimony it was hoped that recommendations could

be made concerning the type, or types, of devices

which could be used as standards for installation on

motor vehicles in California to reduce the output of

smog-producing hydrocarbons and oxides of nitrogen

from automotive exhausts. The conclusion by the Los

Angeles Air Pollution Control authorities, based on

nearly 10 years of research on the part plaved by

* Report of the Assembly [of the State of California] In-

terim Committee on Transportation and Commerce, Motor

Vehicle and Highway Problems 44-49 (Assembly Committee

Reports 1957-59, Vol. 3, No. 6 (1959) ).

the automobile in the increasing smog problem is the

basis for the assumption that they are a major con-

tributing factor.

* * * *

As a result of these assumptions concerning the

part the automobile has played, and is playing, in

the overall production of smog, not only in the Los

Angeles area but elsewhere, the automotive industry

in 1953 organized a Vehicle Combustion Products

Committee under the direction of the Automobile

Manufacturer’s Association Engineering Advisory

Committee, for the purpose of establishing an inten-

sive, co-operative research program to develop meth-

ods for the control of the emissions of automotive

exhaust gases which contribute to the air pollution

problem. This action was undertaken primarily to

assist the Los Angeles community to combat the auto-

mobile-induced factor of photochemical smog. The in-

dustry program has been conducted since that time

at a cost of approximately one million dollars a year,

as reported by them to an Assembly committee on

October 22, 1958.

2. Problems Encountered

The problems encountered and which have not yet

been completely and satisfactorily resolved by re-

search teams representing both the Los Angeles Air

Pollution Control District and the AMA are numer-

ous. As pioneers in the search for intruments with

which to accurately measure the effectiveness of prin-

ciples which have been advanced to control the output

of smog-producing gases from automobiles, the Los

Angeles APCD believes that they have succeeded in

effecting a breakthrough in this particular. As an

‘

example, this improved instrumentation has made it

possible for their researchers to eliminate the deceler-

ation cycle of automotive operation as the principal

cause of smog production by the automobile. While

this discovery was of major importance, it has had

the effect of increasing rather than decreasing the

overall problem of control. This seeming paradox is,

really, rather simply explained. While the problem

of engineering a suitable device to control the gaso-

line intake to the motor so as to eliminate, or greatly

reduce the quantity of a “rich” mixture of fuel pass-

ing through an idling motor was found to be a sim-

ple one, still the problem of installing such a device

on the three million cars in Los Angeles County was

a major one and would have required from two to

three years to effect. Since it was discovered that

the deceleration cycle was responsible for less than

one-fourth instead of more than one-half of the auto-

motive smog production, this would have been a major

blunder.

But the elimination of the deceleration cycle as the

major factor in automotive smog production has not

reduced the scope of the problem. Instead, the im-

proved instrumentation made it manifest that it

would be necessary to control the gaseous output in-

duced by all phases of car operation: that is, idling,

cruising and acceleration as well as deceleration.

_ This meant that any control to be effective, would

have to be located in the exhaust system. That is

Where research, currently, is being concentrated,

3. Principles and Devices

Two major principles for the reduction, percentage-

wise, of motor vehicle exhaust fumes have been de-

SCL SR

veloped. These are the use of catalytic converters to —

oxidize the exhaust hydrocarbons and the installation

of afterburners to complete the combustion of the

fuel which has passed, unburned, from the engine

into the exhaust system.

Both these principles represent breakthroughs in

the overall problem of reducing the amount of hydro-

carbons produced as the result of the emission of un-

burned fuel from the motor to the surrounding at-

mosphere. But these developments do not solve the

major problem, that of developing a device (or de-

vices), designed in such a manner so as to be effec-

tive, economical, and of a size and shape to be sym-

metrically and readily installed on all types of auto-

mobiles.

* * * .

4. Finding of Facts

a. That research by an agency of the Los Angeles

Air Pollution Control District, over a period of about

eight years, has convinced that body that between 60

and 66 percent of the eye-irvitating, crop damaging,

smog is caused by photochemically induced reactions

between the hydrocarbons and oxides of nitrogen

which are contained in automobile exhaust gases.

b. That the Automobile Manufacturers in 1953

began a co-operative attack, with the Los Angeles

“APCD on the problem of reducing the emissions of

hydrocarbons and oxides of nitrogen from automo-

biles. ko a

c. That in recent years it has been determined

that control of the problem can only be effected by

the installation of a suitable device in the exhaust

system of automobiles, rather than by controlling the

fuel mixture and quantity during the deceleration

and idling cycles of motor operation.

d. That the AMA, in conjunction with the Los

Angeles APCD, have developed two main principles

of control of automobile-induced smog. These are:

1. The principle of using a catalytic converter to

oxidize or dissolve the unburned hydrocarbons.

These are of several types, using different cat-

alytic agents, such as:

a. The Oxy-Catalyst (Houdry-GM) Converter

b. The Vanadium Pentoxide (Ford) Convert-

c. The Vanadia-Alumina (Ford) Converter

2. The afterburner principle designed to complete

the combustion of unburned gases in a furnace-

type device in the exhaust system.

e. That at the time of going to print, no device,

based upon either of the above principles, has been

developed which could be installed on automobiles al-

~ ready in operation.

f. That some of the problems confronting the AMA

in the design and construction of a suitable operating

device, employing either the catalytic converter or

afterburner principle of hydrocarbon control, are:

1. Design, including size, shape, weight, safety,

and installation characteristics.

2. Quantity of production. Will there be a mar-

. ket for such a product in areas other than

Los Angeles or, in the maximum, all of Cali-

fornia?

Buyer opposition to cars equipped with smog

, eontrol devices, regardless of local or state

regulations. This opposition is partly an eco-

nomic one. The first cost of the least expen-

sive device is now estimated to be between

$125 and $200 per unit. In all of California

this could mean an outlay of $1,125,000,000,

at least, using an average cost of $150 per

unit for 7,500,000 cars. This is a modest

estimate. In addition, such a great outlay

should be followed up by an adequate inspec-

tion system to insure that the devices are op-

erating in an efficient manner. This could re-

quire a statewide inspection system for all

motor vehicles with the concomitant problems

of what type of inspection operation would be

required, and whether state or private owner-

ship (or a combination of both), would finance

the project. Also involved would be the num-

ber and cost of individual inspections that

would be necessary.

g. That there is some evidence to support the con-

tention of the Los Angeles APCD that research in the

field of smog control should be augmented and speed

ed up by assistance from state funds.

h. That even if a suitable device is developed to

reduce the air contaminants produced by automobile

exhaust fumes, there is still the problem of air pollu-

tion stemming from fumes caused by the evaporation

of gasoline from automobile carburetors and tanks.

The Los Angeles APCD estimates that as much as

84 tons of irritants are produced on the hottest days

from this source.

i. That there is also the question of whether or

not the automobile-induced air contamination is a

local or a statewide problem.

j. That the witnesses representing the Los An-

geles APCD were unanimous in their praise of the

AMA smog control research team for their active in-

terest in attempting to solve the Los Angeles smog

problem and for the spirit of co-operation that exists

between the APCD and the AMA research groups.

k. That a contributing factor in the problem of

smog control is the rapid growth of the Los Angelés

area which amounts to an equivalent of the entire

present population of Pittsburgh, Pennsylvania, every

three and one-half years. Industries and automobiles

are increasing at least proportionately to the popu-

lation growth. :

1, That the California Highway Patrol will be

ready to set up testing procedures whenever adequate

smog control devices are produced and suitable stand-

ards for their operation are adopted. This could well

require statewide inspection of all automotive vehicles

at stated intervals because of the engineering diffi-

culties which are apparent at this time.

m. Dr, Haagen-Smit, of the California Institute of

Technology, in a letter to Chairman Lee Backstrand

of the Southern California subcommittee, and which

was read into the record, suggested an alternative to

attempting the control of automotive-induced smog

by the installation of devices on all motor vehicles,

This was that it might become necessary to legislate

on the olefin content of gasoline to produce a fuel

free from smog-producing ingredients,

ITEM 5—Social, Political, and Economic Factors in Air

Pollution*

Environmental problems seldom stem from simple

causes. Rather they usually rise out of the interplay

of many contributing circumstances.

Misplaced Economic Incentives

Many individuals cite selfish profit seekers for en-

vironmental degradation, rather than laying much of

the blame—where it belongs—to misplaced incentives

in the economic system. Progress in environmental

problems is impossible without a clearer understand-

ing of how the economic system works in the environ-

ment and what alternatives are available to take

away the many roadblocks to environmental quality.

Our price system fails to take into account the en-

vironmental damage that the polluter inflicts on

others. Economists call these damages—which are

very real—“external social costs.” They reflect the

ability of one entity, e.g., a company, to use water

or air as a free resource for waste disposal, while

‘others pay the cost in contaminated air or water. If

there were a way to make the price structure shoulder

these external costs—taxing the firm for the amount

of discharge, for instance—then the price for the

goods and services produced would reflect these costs.

Failing this, goods whose production spawns pollu-

tion are greatly underpriced because the purchaser '

does not pay for pollution abatement that would pre-

vent environmental damage. Not only does this fail-

ure encourage pollution but it warps the price struc-

* Council on Environmental Quality, First Annual Report,

Environmental Quality 12-16 (1970).

| 41

ture. A price structure that took environmental de-

gradation into account would cause a shift in prices,

hence a shift in consumer. preferences and, to some

extent, would discourage buying pollution-producing

products. |

Another type of misplaced incentive lies imbedded

in the tax structure. The property tax, for example,

encourages architectural design that leans more to

rapid amortization than to quality. It may also en-

courage poor land use because of the need for com-

munities to favor industrial development and discour-

age property uses, such as_ high-density housing,

’ which cost more in public services than they produce

~in property taxes. Other taxes encourage land specu-

. lation and the leapfrog development that has become

the trademark of the urban-rural fringe.

Values

Americans have placed a high priority on convenience

and consumer goods. In recent times they _ have

learned to value the convenience and comfort of mod-

ern housing, transportation, communication, and rec-

reation above clean earth, sky, and water. A major-

ity, like a prodigal son, have been willing to consume

vast amounts of resources and energy, failing to

understand how their way of life may choke off open

space, forests, clean air, and clear water. It is only

recently that the public has become conscious of some

of the conflicts between convenience and a deteriorat-

ing environment.

* * * *

Population

Americans are just beginning to measure the magni-

tude of the impact of population and its distribution

‘

— EAE

on their environment. The concept that population

pressures are a threat to the Nation’s well-being and

to its environment is difficult to grasp in a country

which, during its formative decades, had an ever

receding western frontier. That frontier ended at

the Pacific many years ago. And it is at the western

end of the frontier that some of the most serious

problems of population growth emerge most clearly.

California continues to lure large numbers of

Americans from all over the country, in large part

because of its climate and its beauty. But as the

people come, the pressures of population mount. Smog,

sprawl, erosion, loss of beaches, the scarring of beau-

tiful areas, and the congestion of endless miles of

freeways have caused thoughtful Californians to con-

sider stemming the continued uncontrolled develop-

ment of their State. When the Governor’s Confer-

ence on California’s Changing Environment met last

fall, it agreed that there was now a need “to deemp-

phasize growth as a social goal and, rather, to en-

courage development within an ideal and quality

environment.”

* os * *

Technology

The major environmental problems of today began

with the Industrial Revolution. Belching smoke from

factory stacks and the dumping of raw industrial

’ wastes into rivers became the readily identified, but

generally ignored hallmarks of “progress’’ and pro-

duction. They are no longer ignored, but the ex-

traordinary growth of the American economy con-

tinues to outpace the efforts to deal with its unwanted

byproducts.

Mobility

The extraordinary, growing mobility of the Ameri-

can people constitutes another profound threat to the

environment—in at least three major ways. The

physical movement of people crowds in on metropoli-

tan centers and into recreation areas, parks, and

wild areas. Mobility permits people to live long dis-

tances from their places of employment, stimulating

ever greater urban and suburban sprawl. The ma-

chines of this mobility—particularly automobiles and

aircraft—themselves generate noise, air pollution,

highways, and airports—all in their way affecting

the environment.

* + * *

Limitations of Government Units

Most government agencies charged with solving en-

vifonmental problems were not originally designed to

deal with the severe tasks they now face. And their

fétus is often too narrow to cope with the broad

environmental problems that cut across many juris-

dictions. Agencies dealing with water pollution, for

example, typically do not have jurisdiction over the

geographic problem area—the watersheds. Control is

split instead among sewerage districts, municipalities,

and a multitude of other local institutions. To attack

water pollution effectively may require establishing

new river basin authorities or state-wide basin agen-

cies with the power to construct, operate, and assess

for treatment facilities.

* . * *

Information Gap

Sometimes people persist in actions which cause en-

vironmental damage because they do not know that

they are causing it. Construction of dams, extensive

paving of land surfaces, and filling of estuaries for

industrial development have in many cases been car-

ried out with incomplete or wrong information about

the extent of the impact on the environment. Fur-

thermore, change in the environment has often been

slow and exceedingly difficult to detect, even though

piecemeal changes may eventually cause irreversible

harm, Widespread use of certain types of pesticides,

mercury pollution, and the use of dangerous sub-

stances such as asbestos occurred without advance

recognition of their potential for harm.

ITEM 6—Varying Legislative Approaches to Inspection and

Maintenance of Used Vehicles

A. 1971 California Air Resources Board Report on

Reducing Emissions by Inspection*

The California motor vehicle emission. control pro-

gram requires the installation of control systems on

motor vehicles as a means of reducing hydrocarbons,

carbon monoxide and oxides of nitrogen. Success of

this program depends on effectiveness of control sys-

tems at the time of installation and on their contin-

ual effectiveness during the service life of the vehicle.

Once properly installed, systems for crankcase and

evaporative emission control require relatively little

maintenance and adjustment to continue to operate

properly. Exhaust controls include the engine car-

buretion and ignition system and is much more sen-

sitive to adjustment and maintenance.

In emission surveys, it is not unusual to find cars

that discharge contaminants several times the aver-

age emissions. Many of these cars could be restored

_to a reasonable level of emission by minor adjust-

ments or replacement of worn out ignition system

components. Tests by the Air Resources Board of

controlled vehicles have shown that the exhaust emis-

sions often increase because of poorly maintairied or

maladjusted carburetion and ignition systems. The

emissions would be lower if the vehicles are properly

maintained and adjusted. Because of the potential

benefits for emission reduction, interest has developed

in a mandatory vehicle inspection program. As a

* California Air Resources Board, A Report to the Legis-

lature on Vehicle Emissions Inspection 1-2, 14-23 (July 1,

1971). ;

result, the 1970 Legislature directed the Air Re-

sources Board to undertake a study to determine:

1. The reductions in automotive emissions that

could be achieved by practicable vehicle emis-

sion inspection programs; and

2. The costs of carrying out such programs on a

permanent basis.

The Board was to report its findings and recom-

mendations to the Legislature by July 1, 1971. Should

the Beard recommend the initiation of any specific

vehicle emissions inspection program, it was also to

describe the estimate of the reduction in air pollu-

tion that would be achieved, the manner in which

the program would operate, and the projected annual

cost.

* a . +

V. DISCUSSION

1. General Comments on Northrop and TAC Con-

clusions

The study by Northrop and the evaluation by the

Board’s Technical Advisory Committee have both in-

dicated inspection and mandatory maintenance would

be beneficial in terms of hydrocarbon and carbon

- monoxide reductions, but would increase oxides of

nitrogen emissions. There are the common findings

that inspection would be costly in terms of total an-

nual costs, would require skilled personnel that are

not currently available, and would take a period of

several years to develop and implement. The con-

sensus of both studies is also that to be of maximum

benefit, the program must be operative within a few

years.

2. Effects on Emissions

Among the four possible methods of inspection

studied, Northrop concluded that the key-mode test

was the most cost-effective. If a statewide inspection

system is carried out using this method, exhaust hy-

drocarbon emissions could be reduced by 200 tons per

day statewide averaged over the first five years, or

by about 20 percent.

Reducing exhaust hydrocarbons by 20 percent, in

effect, produces about a ten percent decrease in total

hydrocarbon emissions to the atmosphere. In terms

of improvement in photochemical smog, the benefit

would even be less because the reduction of hydrocar-

bon is offset by oxides of nitrogen increases which

will be discussed later.

It is questionable that an inspection program could

be realistically expected to be fully implemented in

3 to 4 years. By that time, another 30 percent of

the older cars would be replaced by new vehicles

which will be equipped with exhaust control systems.

Since inspection is more effective in reducing hydro-

carbon from uncontrolled cars than new vehicles, the

benefits of a program will be less if it were not op-

erative until 3-4 years from now.

The expected hydrocarbon reduction, of 20 percent

would be similar to the effect of reducing motor ve-

hicle usage by 20 percent, that would be accomplished

by a ride-sharing program, or by voluntarily restrict-

ing the use of motor vehicles. Reducing motor vehicle

use would, of course, be even more beneficial because

it would reduce all emissions, not just hydrocarbons

and carbon monoxide.

A negative aspect of an inspection and mainte-

nance program for present cars is the adverse effect

on oxides of nitrogen emissions. The increase in these

emissions would partially offset the gain in the other

emissions. When cars have oxides of nitrogen con-

trol systems, inspection would be expected to reduce

the emission of these compounds from malfunction-

ing control systems. However, at that time the ex-

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