# Memorandum — Washington v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0003%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1971 - **Citation:** 404 U.S. 811 ## Text ion 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) cs a ‘ 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 I. 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 ry Page 13 15 16 41 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 17 11 18 17 28, 21 34 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, 2 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 4 ‘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. 5 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 2 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 8 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. 9 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 10 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. : 11 _ 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 12 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). 18 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.). 14 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 15 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 16 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). . ee 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). ; 18 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 20 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 21 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- 22 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). | 23 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 24 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 25 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. 27 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. 28 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). 29 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 30 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 31 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 32 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 33 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 34 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. 35 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. 36 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. mi 87 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.” 89 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). 40 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 41 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 42 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.). 43 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.). 44 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.). 44 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.) X 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 a Page 11 21 8 = ii INDEX— (Continued) Item 6 Varying Legislative Approaches to Inspection A. B. 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 A. Hoo A Dp H. 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 .... 57 67 67 69 70 72 75 76 81 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. 2 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. . 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. 17 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 | 18 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 19 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 20 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 21 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). (c) No passenger motor vehicle, except those spe- 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 22 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 23 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 24 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). 25 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. | 26 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. 27 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. | (c) Every motor vehicle of 1955 through 1962 _ 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. 29 ¢ 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). 7 rs, ae 30 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 31 - 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. 32 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. 33 t 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) ). 34 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 ‘ 35 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0003%3A09. Public record. Not legal advice.