General Motors Corporation v. United States

PETITIONER:General Motors Corporation
RESPONDENT:United States
LOCATION:Residence of Clyde Osborne

DOCKET NO.: 89-369
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 496 US 530 (1990)
ARGUED: Mar 21, 1990
DECIDED: Jun 14, 1990

ADVOCATES:
Lawrence G. Wallace – on behalf of the Respondent
Theodore L. Garrett – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – March 21, 1990 in General Motors Corporation v. United States

William H. Rehnquist:

We’ll hear argument first in No. 86-369, General Motors Corporation v. United States.

Mr. Garrett.

Theodore L. Garrett:

Mr. Chief Justice, and may it please the Court:

This case involves central issues concerning the adoption and the enforcement of state air control regulations under the Clean Air Act.

The question presented is, in a case where a state has revised its regulations, whether EPA may bring a suit to enforce the original unrevised regulations and to collect penalties without first complying with its statutory duty to act to approve or disapprove the revision.

We request that the decision below be reversed because it allows EPA to veto state regulatory choices through an enforcement mechanism without following the procedures and requirements of the statute.

We submit that this procedure EPA is following creates a regulatory limbo which frustrates the efforts of states and companies to respond to changing conditions.

Now, I want to clarify at the outset that our point is not simply that EPA took too long in acting on the revision in question here.

Our point is a more fundamental one than that.

We submit that Congress established a very careful sequence in the statute, first, for the state promulgation of state implementation plans and revisions to those plans, secondly, for limited and timely EPA review of those plans and, only after that, for enforcement.

We submit that by skipping that second step, the limited and timely review, EPA has put the cart before the horse, if you will.

Now, in this case, the Commonwealth of Massachusetts gave General Motors an extension of time, from 1985 to 1987, 1987 being the attainment deadline in the Clean Air Act that’s relevant here and, indeed, it was the deadline for all of Massachusetts, as granted by EPA.

The purpose of the extension was to allow General Motors to replace an older painting facility that it had in Framingham, Massachusetts and instead to build a new more modern facility with substantially lower emissions.

EPA had previously approved similar extensions of time through state plan revisions for other companies in 1984 and 1985, and the Agency did so pursuant to a policy that it had announced in 1981.

In this particular case, EPA waited while General Motors built its plant.

It completed the new facility at great expense in July of 1987, and then when the new facility was built and the old facility was shut down, EPA filed a lawsuit in August of 1987 to collect penalties for the period of time during which the company had operated the old paint shop.

It did so without taking any action… any final action on a revision.

Now, we submit that General Motors should have been entitled to comply with the Commonwealth’s revision and should have not been penalized for doing so until EPA took action on the revision.

Sandra Day O’Connor:

Well, Mr. Garrett, the statute, does it not, makes the terms of the original plan enforceable until a revision is approved, as I understand it.

Theodore L. Garrett:

Are you referring to Section 110(d) of the statute, Your Honor?

Sandra Day O’Connor:

Uh-huh.

Theodore L. Garrett:

Your Honor, it seems to us that the government’s argument with respect to that section proves a little bit too much, and it’s somewhat a mechanical and artificial reading of the statute.

And the reason we say that is because it does not deal with EPA’s corresponding duty under the statute to comply with its obligations to review a plan in a timely way.

We submit that the Congress–

Sandra Day O’Connor:

Well, of course, the SG takes the position that there is no four-month deadline requirement for action on proposed revisions.

And I suppose you would be first to acknowledge that the language of the statutory provisions could be interpreted as the Solicitor General suggests, as not requiring revisions to be approved within four months.

Theodore L. Garrett:

–We disagree on that point, Your Honor.

But there’s a more fundamental point that I would like to emphasize.

I think that there can be no doubt under the statute, because it uses the word EPA has a duty to act on the plan and plan revisions.

And we’re saying that EPA has breached that duty act.

Theodore L. Garrett:

Whether it’s four months or a reasonable time–

Sandra Day O’Connor:

Well–

Theodore L. Garrett:

–they should be acting before they bring lawsuits.

Sandra Day O’Connor:

–But the… the language of the statute dealing with the four months says the administrator shall within four months after the date required for submission of a plan under Paragraph 1.

Now, that doesn’t appear to refer to any revisions.

Theodore L. Garrett:

The… if you’re referring to Subsection (a)(3), that section deals entirely with revisions, and we believe–

Sandra Day O’Connor:

But (a)(3) says that the administrator will approve any revision if he determines that it meets the requirements of Paragraph 2.

Not that he meets the requirements by acting, but that the plan meets the requirements.

Theodore L. Garrett:

–The language of the statute, I think, Your Honor, we have to be careful not to try to parse it a little bit too fine but to look to the overall intent of it.

In our reply brief we pointed out one example where EPA does not interpret the language to refer only to the requirements of the plan.

And in particular the first sentence of Section (a)(2) states that the administrator may approve or disapprove a plan or a portion of a plan.

There is no reference to a portion of a plan in Section (3)(a).

But yet the administrator in the public service case has said Congress basically intended these two provisions to work the same way and the administrator has the same obligations and responsibilities under (a)(2) as it does under (a)(3).

Sandra Day O’Connor:

Well, I… I guess my question is specifically whether you would acknowledge that the language of the statute could be read as the Solicitor General says it should be read.

Theodore L. Garrett:

Our view, Your Honor, is that the language is intended to be a provision of incorporation, and it’s plain, to us anyway, that Congress intended to incorporate all of (a)(2) into (a)(3).

Sandra Day O’Connor:

But it could be read otherwise?

Theodore L. Garrett:

I don’t think so, Your Honor.

Sandra Day O’Connor:

No?

Theodore L. Garrett:

I really don’t.

I think it’s a very strained reading for the government to say that every provision of (a)(2) is incorporated in (a)(3) with the exception of the four-month rule.

And if you go word by word almost to see what provisions the government believes are incorporated and which are not, they believe that everything is incorporated except the four-month rule.

I don’t think that there’s any indication in the statute that Congress intended to carve out that one provision.

And we think that all of the lower courts and all of the amici that have filed briefs with this Court are correct in assuming that Congress intended that.

And we think that the proof of the pudding is Section 110(g) of the Act, which we’ve pointed out in our brief requires EPA to comply with the plan revisions… to act on certain plan revisions, quote, (a)(3).

But again–

Antonin Scalia:

It says… it says the required period, what four-month period has been required.

Theodore L. Garrett:

–Our position, Your Honor, is that the only reference that’s logical is the required period for EPA to act on the revisions under Section (a)(3).

Antonin Scalia:

But that’s… that’s a required period after the… the SIPs must be submitted.

That was four months after the Act was originally passed… after the date that the Act required states to submit plans.

And as the Act originally passed, it said four months after that date the administrator must have acted on those plans.

Theodore L. Garrett:

That’s correct, Your Honor, and the statute does–

Antonin Scalia:

That is the only required four-month period.

Four months… not after the plans were filed.

The plans could have been filed before that… that period, couldn’t they?

They could have been filed right after the Act was passed.

So the four-month period might indeed have been… I don’t know when the Act was passed, it might have been an eight-month period.

It was four months after the plans were required to be filed, not four months after they were filed.

Theodore L. Garrett:

–Again, Your Honor, there’s some distinctions that could be made.

I think that the government argues that plans are never required after the original plans and, therefore, that can’t apply.

I think–

Antonin Scalia:

It makes sense to me.

Why isn’t that true?

Theodore L. Garrett:

–It assumes that Congress really didn’t intend that there be prompt action on revisions and that revisions somehow were less important than the original plans.

Antonin Scalia:

No.

It just assumes that Congress… that Congress for prompt action relied upon the Administrative Procedure Act which… which assures prompt action in all other areas.

Theodore L. Garrett:

Let’s assume–

Antonin Scalia:

And the four-month provision was just to get this Act off and running really fast.

That’s all.

Theodore L. Garrett:

–Let’s assume for the moment that the four-month provision is not applicable and that EPA’s duty is to act within a reasonable time.

Antonin Scalia:

Good.

I was going to ask you what… what you think that leads to.

Theodore L. Garrett:

What that leads to is this, Your Honor, and this is the point I was trying to make a moment ago.

Under the Court’s decision in the Train v. NRDC case, EPA must approve a revision if it satisfies the basic requirements of the statute.

And what EPA has done here is that they’ve invented a new option.

What they do is they exercise a pocket veto by ignoring a revision while bringing a suit to enforce the old plan.

This, in effect, disapproves the revision without any of the restrictions on EPA authority that are in the statute.

And indeed, it provides incentives for EPA to delay further in order to advance its enforcement action.

Now, by proceeding in this way, it seems to us, that EPA is leaving the states and industry in a regulatory limbo.

It undercuts state efforts to develop and enforce revised plans for improved control strategies.

It removes any incentives that industry would have to accept and implement revisions that would make progress.

Theodore L. Garrett:

And we submit that these consequences are totally inconsistent with the goals of the Act, and they are inconsistent with the basic obligation that EPA has in the statute where it says the administrator shall approve any revision.

And even if it’s not four months, even if it’s a reasonable time, he’s obligated to approve that revision if it meets the basic requirements of the Act because the states have the primarily role in establishing a mission limitations.

And by exercising this pocket veto what the Agency is doing is writing the states out of the statute and saying we’re going to ignore what you do and we’re going to bring enforcement action to enforce our choices and not yours.

Sandra Day O’Connor:

Well, in circumstances as in this case, who should have the burden of proving that the revision meets the requirements and therefore has to be approved?

Could that be established as a matter of defense by your client if an enforcement action is brought based on the original plan?

Theodore L. Garrett:

That was the remedy that the court of appeals suggested… or, at least one of the two remedies that the court of appeals suggested, Your Honor.

And we respectfully suggest that that’s not very meaningful.

Let’s think about what would be involved in doing that.

Under the government’s approach, the district court would be required to consider whether the revised plan was, quote,

“clearly approvable or clearly not approvable. “

and it would be doing so well before the Agency itself had acted.

For example, in the Cyanamid case which we rely on heavily in our briefs, that was a 1982 plan revision.

The court of appeals handed down its decision in 1987 after a full round of administrative proceedings concerning the amount of the penalty.

To this day there’s been no final decision by EPA on that SIP revision.

It seems to us that this approach of requiring a district court judge to make a decision as to whether a plan was clearly approvable or not really turns notions of primary jurisdiction on their head.

The Agency should be making that determination first.

And that’s the basic problem that we’ve got.

Antonin Scalia:

The problem, Mr. Garrett, is once you abandon the form… well, you haven’t abandoned it.

But once you assume I don’t agree with… with your four-month clear line, industry isn’t helped very much by simply adopting a reasonable time rule and say that after a reasonable time for approval has elapsed the industry is thereafter excused from… from complying with the original SIP and… and can act as though the revised SIP has been approved.

Theodore L. Garrett:

That–

Antonin Scalia:

Reasonable time will vary enormously from… from one case to another.

The Agency says it goes from something like three months to… what, 18 at the outside?

Something like–

Theodore L. Garrett:

–That’s quite right, Your Honor.

And that’s not our position, by the way.

And let me try to make it clear if I haven’t.

Antonin Scalia:

–No, I know it’s not your primary position.

But… but you… you… but you offered it as a fallback position.

That even if… even if we don’t agree with your four-month clear line, still in all, the Agency had an obligation to act within a reasonable time.

And at least after that reasonable time elapses, the same consequences should ensue.

Antonin Scalia:

That is, that the company should be able to comply with the revised plan rather than the original plan.

Theodore L. Garrett:

No, Your Honor, we go a step further than that.

Our position is that EPA has a fundamental duty under the statute to first act on the revision, up or down, before it brings an enforcement action.

And we’re not going to ask the district courts to look at whether there was a reasonable time on the four-month rule.

We think that the four-month rule is very important because it underscores the urgency of EPA to act, but there can be no question to us that the statute imposes a mandatory duty on EPA to act on those plans and that they should be prohibited from bringing an enforcement action.

Antonin Scalia:

Even before the four months expires?

Theodore L. Garrett:

Yes, Your Honor.

During that period of time EPA should be making a neutral, unbiased decision on whether that plan–

Antonin Scalia:

I see.

I see what you’re saying.

Theodore L. Garrett:

–was approvable or not.

It shouldn’t be… they shouldn’t be rushing to court to enforce a regulation when there hasn’t been a… determination made under the statute as to what regulation ought to be enforced.

Sandra Day O’Connor:

Well, Mr. Garrett, what language in the statute would you point to to support that view that that’s a requirement and that the EPA may not resort to enforcement actions?

Is there any particular provision?

Theodore L. Garrett:

Your Honor, there is not a particular provision in the sense of language saying that EPA may not bring an enforcement action.

However, we suggest that… several things.

That the mandatory in the language in the statute saying that they are obligated to approve, the language in the statute saying in several places… in the preamble to the case and to the statute in the declaration of findings and purpose… that the prevention and control of pollution at its source is the primarily responsibility of the state and local governments, and in Section 7407(a) which says that each state shall have the primary responsibility for assuring air quality within its entire geographic area.

The states don’t have that authority if EPA is allowed to just ignore state plans, pick and choose among revisions and original plans, and if it prefers the original plan rather than the revision for any reason or no reason at all, without following the statutory procedures, to just go ahead and enforce the original plan.

We submit that that is so contrary to the fundamental workings of the statute that this Court should devise a remedy to deal with that situation.

Sandra Day O’Connor:

Well, they… they can enforce neither the original plan, because there’s a revision pending, nor the revised plan, because that hasn’t yet been approved.

So it’s… it’s just a free-for-all during… during the period while the revision is pending.

You can’t enforce anything.

All the rules are gone.

Is that… is that the regime that… that would follow?

Theodore L. Garrett:

The… to some extent, Your Honor, the revision certainly would be enforceable in state court.

Antonin Scalia:

Oh, it would?

It would?

Theodore L. Garrett:

We believe so, Your Honor.

In fact–

Antonin Scalia:

You know, all… all these revisions are not going to be in your client’s favor.

Antonin Scalia:

What if a state adopts… proposes a revised plan that tightens the environmental restrictions?

The regime you’re arguing for is that the state can impose upon… upon industry those… those additional restrictions even though they haven’t been approved by EPA?

Theodore L. Garrett:

–Yes, Your Honor.

As a matter of fact–

Antonin Scalia:

Wow, that’s… that’s high risk.

Theodore L. Garrett:

–The Clean Air Act… the way it’s structured, Your Honor, requires that before a state submits a plan to EPA that it be adopted as a matter of state law and they be able to show EPA at the time that it’s submitted that it’s been promulgated and enforced.

And the states go through substantial procedures of their own to establish these revisions.

They’re required by statute to have public hearings.

And in this case Massachusetts did have hearings.

The public was invited; the American Lung Association appeared and did not object to the revision.

EPA had advance notice of this.

These revisions aren’t a surprise.

EPA had been talking to the Commonwealth about this; they appeared at the hearings.

They had some technical comments, but they did not object.

Massachusetts believed that it satisfied all of its concerns, and after considering all of the concerns of interested parties and the public, the state decided that it was in the best interest of the citizens of the state to go ahead with this revision, to allow General Motors to build a more modern, lower emission facility and extend the deadline to the statutory deadline that EPA had already approved.

We submit that–

Harry A. Blackmun:

On the other hand, Massachusetts, your Commonwealth, is opposing you here, isn’t it?

Theodore L. Garrett:

–Yes, and that’s very puzzling, Your Honor.

We would urge the Court to look at the brief filed by the National Governors’ Association.

We think that it’s much more representative of the views of state and local officials concerning these issues.

The Massachusetts brief is frankly puzzling and incomprehensible to us.

The… I can elaborate some more, if you’d like.

[Laughter]

Harry A. Blackmun:

I’d like to some elaboration on one point, Mr.–

–I’m only pointing out that your own… the state involved is on the other side.

Theodore L. Garrett:

The… Massachusetts certainly believed, and still believes that the plan revision involved was in the public interest, and I would on that point urge the Court to look at the 1987 comments by the State of Massachusetts that we’ve lodged with the Clerk of the Court.

When EPA had eventually proposed to disapprove the plan, the State of Massachusetts filed very vigorous comments with EPA saying that this is a good revision and your concerns are unwarranted.

We want this approved.

John Paul Stevens:

May I ask this question about the interplay between the state and the Federal authority?

If you focus on Section 110(g), which provides… gives the governor the power to suspend enforcement if he makes the finding that it’s necessary to prevent the closing of a plant and so forth.

John Paul Stevens:

It seems to me that extra precaution there would be totally unnecessary in view… if your view of the basic statutory scheme is correct, that the state could accomplish it without that planning.

I’d like you to comment on that portion.

Theodore L. Garrett:

Certainly, Your Honor.

We have two responses to that.

One is that we and the government disagree on the interpretation of that language of 110(g).

We believe that that was an emergency provision that was designed to deal with imminent plant closings and in a situation where the state really couldn’t even afford to wait the four months.

So what Congress did was allow the states the authority to, in those situations, suspend immediately without waiting for the four-month period to… to–

John Paul Stevens:

No, but they would then have to at least make… make the finding that they approved the revision, just as they do in an ordinary revision situation.

Theodore L. Garrett:

–Well, eventually EPA would, but during the–

John Paul Stevens:

No, not the EPA.

I’m talking that the governor would, the state would.

Theodore L. Garrett:

–Oh, yes.

John Paul Stevens:

So why couldn’t… but if they’ve done that, and then your basic view of the state authority prevailed, why would they need to make any other finding because that in itself would become the law until EPA acted?

Theodore L. Garrett:

We would urge the Court to not read Section 110(g) as an exclusive remedy, basically, which is our second provision.

There are a number of provisions in the statute, 110(g), 110(f), that provide for special relief.

In fact, the Train case, which we rely very heavily on, involved just that kind of an issue.

There was a provision for certain kinds of variances in the statute that the State of Georgia wanted to provide.

But the State of Georgia wanted to do it by a SIP revision rather than using 110(f).

And they said that that was the exclusive provision in the statute.

If you could do it by a SIP revision, why have a SIP revision?

And this Court held no, that the SIP revisions are the basic mechanism under the Act for states to make these kinds of choices.

And the fact that Congress may have provided some particular remedies doesn’t make them exclusive.

So we would say that the fact that Section 110(g) of the statute is there doesn’t at all conflict with the remedy that we’re urging.

In fact, in some way we think that since Congress never thought about this problem, it supports it.

Byron R. White:

Mr. Garrett, what is the… what happens when an original plan is submitted and the EPA doesn’t comply with the express four-month requirement for approval or disapproval?

Theodore L. Garrett:

The very first plans under the Clean Air Act?

I think, quite frankly, Your Honor, that–

Byron R. White:

Does the plan then become effective–

Theodore L. Garrett:

–No.

Byron R. White:

–just… just by default?

Theodore L. Garrett:

I think that the… my impression is that when we’re talking about the original 70 Clean Air Act, that the states were trying to get the plans into EPA in a hurry, that EPA tried to act in four months.

I don’t believe they acted in four months in every case.

And eventually EPA ended up approving and disapproving the various plans.

Byron R. White:

But the plan doesn’t automatically go into effect after four months?

Theodore L. Garrett:

That’s correct.

Byron R. White:

Well, I don’t think your… I take it your position is that… that when the revision is submitted and it is… it is… say, it isn’t approved or disapproved within four months but finally it is disapproved, then, I take it, the company has to comply with the original plan from there on.

Theodore L. Garrett:

That’s correct.

Byron R. White:

From there on?

Theodore L. Garrett:

That’s correct.

Byron R. White:

But you say that they… until then they may not be fined–

Theodore L. Garrett:

That’s right.

Byron R. White:

–for their noncompliance?

Theodore L. Garrett:

And the reason is–

Byron R. White:

Meanwhile.

Theodore L. Garrett:

–That’s correct, Your Honor.

Byron R. White:

And that’s true even if they act within four months?

Suppose they act within four months and disapprove, and you say they nevertheless may not be fined for the… for their noncompliance with the original plan up till then?

Theodore L. Garrett:

That’s right, although as a practical matter that situation would virtually never arise.

Byron R. White:

Well, that’s your position anyway.

Theodore L. Garrett:

Yes.

Under the statute they’re required to give 30 days’ notice.

Byron R. White:

Uh-huh.

Theodore L. Garrett:

And then they can bring an enforcement action if violations occur beyond the 30th day.

So the likelihood of that hypothetical would ever arise and a suit would be filed within the four months is quite remote.

Byron R. White:

Well, it is… well, it’s not unlikely that they… that they’ll take longer than four months, obviously.

And once they… once… even though they disapprove and then you have to comply from then on with the original plan, you say they may not fine you for the… for the period up until disapproval?

Theodore L. Garrett:

That’s right.

What we’re saying, Your Honor, is that the company needs someplace to look as to its compliance obligations.

And in a situation where the state–

Byron R. White:

Well, but that’s not… that’s not very hard, I wouldn’t think, until the plan… until the revision is approved–

Theodore L. Garrett:

–Well, if it’s–

Byron R. White:

–you’ve been under an obligation.

Theodore L. Garrett:

–It’s hard in two respects.

If you believe that state choices are really supposed to have primacy under the statute, and indeed the state can go into state court and enforce the revision against the company, we think that it’s fundamentally unfair to put a company in that position of being subject to conflicting obligations–

Byron R. White:

Well, I know, but your position is that… let’s assume there was an express four months limit for a revision and let’s say that EPA had never exceeded four months, you say that… that the company should be able to assume that the revision will be approved at least within that four-month period, because you… you say you’re… you just don’t have… you’re excused from compliance with the original plan for… for up till four months.

Theodore L. Garrett:

–What we’re saying… now, the Cyanamid court actually adopted a slightly different approach.

They said you could start the clock running after the four months.

Byron R. White:

Well, I know, but your position is–

Theodore L. Garrett:

Our position is that the company should look to state law and be expected to follow what the state adopted after public hearings until EPA makes a decision one way or the other, because EPA is in a state of neutrality at that point and the company ought to be able to assume–

Byron R. White:

–But the statute requires before… before a state plan goes into effect originally, or a revision, the statute requires approval.

Theodore L. Garrett:

–That’s correct, Your Honor.

And what we’re saying is that the other alternative which would allow EPA in effect to veto state plans that are very well considered plans adopted after public hearings and by the entity of government that Congress really entrusted to make these decisions, would basically switch the presumption… it would be… you’d have a situation where all state plans are presumed disapproved under the statute even though EPA had not made any showing that there were any grounds for such disapproval.

Byron R. White:

So you… you say the… the court of appeals didn’t… didn’t go far enough?

Theodore L. Garrett:

Yes, Your Honor.

Byron R. White:

Yeah.

You think another court of appeals has got the best of it?

What is it, the Fifth Circuit or–

Theodore L. Garrett:

The Fifth Circuit approach is the approach that comes closest to our position, yes.

I’d like to reserve my time–

Antonin Scalia:

–It is… it is the consequence of your position, if I understand it, that during the period that… that a revision is pending the Federal Government cannot enforce anything?

It can neither enforce the old plan nor the revised plan.

It must rely entirely upon the states for… upon the state for enforcement?

Theodore L. Garrett:

–With… with one small qualification.

If there are common elements of the two… in other–

Antonin Scalia:

Right.

Theodore L. Garrett:

–words, if the original plan says A plus B and they’ve been revised–

Antonin Scalia:

Right.

Theodore L. Garrett:

–and the plan says A plus C and it’s intended that there is some separate element, yes, certainly the Agency can enforce under that circumstance.

But basically where there’s… to the extent that there’s a revision, what we’re saying is that the states can enforce the revision and EPA should be barred from enforcement.

And that bar serves as a salutary purpose.

Theodore L. Garrett:

It serves to encourage the Agency to act promptly so that there can be a consensus between the Federal and state governments as to what should be enforced.

If I may, I’d like to reserve my remaining time for rebuttal.

William H. Rehnquist:

Thank you, Mr. Garrett.

Mr. Wallace.

Lawrence G. Wallace:

Thank you, Mr. Chief Justice, and may it please the Court:

I would like to preface my remarks by pointing out that the time limitations that were specified in the Act in 1970 in order to get the states to make prompt submissions and EPA to move on them within four months were designed to get into place protections of the public health which were not yet in place under the previous versions of the Clean Air Act.

And enforcement authority was included in the 1970 Act so that these protections of the public health of the breathing public would be in place and enforceable.

The enforcement authority was given both to the EPA and to citizen suits, and citizen suits could also be brought by the states under the definition of who is a person in the Act who can bring a citizens’ suit.

But the primary enforcement authority was in the EPA.

In order to bring a citizens’ suit, the EPA first must be notified and the citizen suit can proceed only if the EPA has not brought a suit and is not diligently prosecuting it.

So that Petitioner’s submission at oral argument would turn around the explicit priorities of the enforcement provisions as well as undermine the basic purpose of what after all was entitled the Clean Air Act, which was to get protections for the breathing public in place.

Sandra Day O’Connor:

Mr. Wallace, would you agree that the EPA is required to act within a reasonable time on proposed revisions?

Lawrence G. Wallace:

Absolutely.

That is part of our submission, that it is a duty imposed by the Administrative Procedure Act in–

Sandra Day O’Connor:

Well, what is a company to do if the EPA does not act on a proposed revision and when the facts show that the revision clearly meets the standards of the Act and must be approved ultimately?

Now, that’s… that’s the alleged position that the Petitioner is in.

And whether or not it’s true, let’s assume that’s true.

Then should the EPA be able to, under those circumstances, continue to enforce the older plan?

Lawrence G. Wallace:

–I think the court of appeals reached the correct answer, which is, yes, with two qualifications.

One is that in determining what penalties, if any, are appropriate, all of these questions of the equities of the particular case will be taken into account in the penalty proceeding.

And the other is that mandamus actions do lie to get the EPA to act.

But I must point out that in this case the EPA has disapproved this proposed revision, so that it is not exactly Petitioner’s situation that is posed in the hypothetical.

And as a matter of fact, a case is pending now in the Court of Appeals for the First Circuit in which Petitioner is challenging the disapproval.

We recount that in our brief.

So I’d like now to point out that if we analyze Petitioner’s claim and the American Cyanamid rule adopted by the Fifth Circuit in relation to the statute that is before the Court, the extraordinary lack of legal footing for this claim is revealed.

And our analysis proceeds in five short steps, which I can summarize very briefly.

The first is that it is undisputed and cannot be disputed under this Court’s decision in Train that Petitioner’s legal obligation under the statute is to comply with the requirements of a SIP that is in place.

That’s what the Court held in Train.

And here the SIP was adopted… the state implementation plan was adopted by Massachusetts and approved by EPA to address Massachusetts’ very serious ozone problem.

Two, the Act explicitly confers authority on the government to bring an enforcement suit against a source of emissions for failure to comply with the requirements of the SIP.

Lawrence G. Wallace:

Now, number three–

Byron R. White:

xxx in that regard, suppose the EPA approves a revision and… but meanwhile, obviously, the… the… or, it so happens that the company has not been living up to the unrevised plan, to the original one, can you then fine the company for that period up till approval of the revision?

Lawrence G. Wallace:

–A suit could be brought.

There is enforcement authority.

The Act is concerned with damage to the public health that occurs–

Byron R. White:

So your answer to the question is yes?

Lawrence G. Wallace:

–Yes.

Byron R. White:

Yes.

Lawrence G. Wallace:

Although, as a matter of enforcement policy, EPA does not ordinarily bring such suits.

We’ve pointed that out in footnote 32 of our brief on page 29 and explained the enforcement policy that EPA has been following.

Now, to return to my brief analysis here–

Antonin Scalia:

Of course, the company here had no real reason to think that that policy would apply because fairly early on, as I recall, there was indication that EPA would oppose this… this revision anyway.

Lawrence G. Wallace:

–EPA even testified in the state proceedings that it had doubts about it.

And there was considerable communication between the state and Federal authorities, as there should be.

This is an Act that contemplates cooperation between the state and Federal authorities.

Of course, EPA could not state a concluded view in the state proceedings, but it did certainly indicate its doubts.

And it urged the state authorities to pursue the course they did, which was to try to negotiated a so-called delayed compliance order, which would have required General Motors before making this major technological change to take some steps to improve the emissions situation as it was existing.

It would have set up a schedule of improvements.

But those negotiations failed.

Antonin Scalia:

In a way, Mr. Wallace, your position would be better for purposes of this case if you didn’t have that humane enforcement policy.

That is to say, if it was your policy to go after lawbreakers whether or not the manner in which they were breaking the law was later approved, because it seems to me one of the strongest arguments that General Motors has here is that your attitude towards the revision will… will be affected by the fact that you bring a prosecution.

While the revision is pending, you… you come into court to prosecute somebody for violating it, it’s very difficult later to say, yeah, it was a good idea after all, they were violating what was a stupid law and… and… you know, you’re not inclined to approve the submission.

Lawrence G. Wallace:

Or the scheme–

Antonin Scalia:

Now, that wouldn’t be a problem if you prosecuted everybody anyway, see?

[Laughter]

Lawrence G. Wallace:

–Even if we thought it appropriate to prosecute everybody, it would be hard to devote the resources to that endeavor.

And the scheme Congress adopted is one which does not remove prosecutorial discretion and still confers the responsibility to pass on these proposed revisions.

And we think of it the other way around.

If somebody is making satisfactory progress, that’s not the place to devote our limited enforcement resources, even though the progress may not be ideal and there might actually be legal liability.

It’s just the–

Byron R. White:

What do you have?

About three more to go?

Lawrence G. Wallace:

–Well, in this little analysis I thought I would mention these three more points.

Number three, the Petitioner is asking the courts to erect a bar to the exercise of the government’s explicit enforcement authority even though no such bar appears in the text of the statute itself or is adverted to in any way in the legislative history of the Act.

Nothing is pointed to that shows that it was at all contemplated by Congress in enacting it.

And at least the American Cyanamid court… and Petitioner hasn’t totally renounced it… that court based this judicially created enforcement bar on EPA’s failure to complete regulatory action on a proposed SIP revision within a four-month period supposedly required by the statute even though that alleged four-month requirement also does not appear in the text of the statute and is not adverted to in any way in the legislative history of the statute.

And my fifth point in this brief analysis is that Petitioner seeks to justify its proposed judicial building of inference on inference here to supersede the statutory text on the ground that otherwise the Act’s overall policy of state and Federal cooperation will be distorted to the prejudice of the states.

And yet Massachusetts, the state whose interests are involved here, joined by 12 other states, has filed a brief in this Court stating, for very cogent reasons… and I commend this brief to the Court’s attention… that their interests are better served by the government’s ability to enforce the Act according to its terms.

And it–

Byron R. White:

xxx National Governors’ Association position?

Lawrence G. Wallace:

–Well, that brief was earlier filed, and I think the Massachusetts brief which was filed along with ours as a bottom-side brief took into account that submission and improved on it considerably.

The… the chief problem that we have with the National Governors’ Association brief is–

Byron R. White:

Well, it doesn’t agree with you.

That’s one problem.

[Laughter]

Lawrence G. Wallace:

–is… well, it goes part way.

It says there should be no enforcement bar, but it assigns… it would have the Court assign to the district court in the penalty proceeding–

Byron R. White:

Yeah?

Lawrence G. Wallace:

–the entire authority that the Act places in the court of appeals in reviewing EPA’s action in disapproving a proposed SIP.

It equates the role of the reviewing court reviewing administrative action under this Court’s decision in Harrison against PPG Industries, with the proper role of the district court in one of these enforcement proceedings.

So, I would have to commend the Massachusetts brief as the better reasoned of the two briefs, with all respect.

Now, in developing a couple of these points briefly, there is a sixth point that I hope to make, and that is that even if it would ever be appropriate for courts to erect an enforcement bar in the circumstances I have outlined, it would not be appropriate here, in this Act it would be a misfit that would be out of phase with other provisions and policies of the Act.

Now–

–Well, on that point, it is true that Section 110(g) creates just such an enforcement bar in a particular situation.

So it’s not a totally wild suggestion.

It… it is… it is the fact that an enforcement bar in limited circumstances has been provided by Congress in the Act which, under this Court’s jurisprudence, cuts more in our favor than against our point because it shows that Congress, when it thought it was appropriate, knew how to draft an enforcement bar, did draft an enforcement bar–

John Paul Stevens:

Well, you say it knew how to draft it, but what was it saying when it talked about the required four-month period in that very section?

Lawrence G. Wallace:

–Well–

John Paul Stevens:

How good was its draftsmanship?

Lawrence G. Wallace:

–We… we have addressed that in our brief to the best of our ability.

Lawrence G. Wallace:

We–

John Paul Stevens:

Which suggests to me that you don’t think it was very good draftsmanship.

That’s my very point.

[Laughter]

Lawrence G. Wallace:

–We suggest that the way that provision evolved may be an explanation of why there was a reference to a required four-month period.

The provision was dealing entirely with this temporary emergency suspension authority that it… it deals with and that was the focus of congressional attention.

And the conclusion that we have come to is that it contemplates that in those situations EPA should act within four months.

But it does not in terms impose a four-month requirement nor is there a requirement elsewhere imposed in the Act, nor was it adopted at the time the 1970 provisions that Petitioner is relying on were adopted.

So, this is a… a… something that–

John Paul Stevens:

Well, even if they’re not all adopted at the same time, they’re all part of the same statute now.

Lawrence G. Wallace:

–That is correct.

John Paul Stevens:

Yes.

Lawrence G. Wallace:

And they can shed light on one another.

And we have attempted to reconcile all of the provisions of the Act in a way that will help them to fit together.

There is legislative consideration now of further amendments to the Act, and while–

Byron R. White:

It wouldn’t make any… I… it wouldn’t… wouldn’t your position be exactly the same if there was an express four months provision for approval of a plan?

Lawrence G. Wallace:

–It certainly would.

Byron R. White:

So–

Lawrence G. Wallace:

That there should be no enforcement bar nonetheless.

Byron R. White:

–Exactly.

Lawrence G. Wallace:

And as a matter of fact, we are entirely content with the judgment of the court of appeals, even though we think the court of appeals was wrong in saying–

Byron R. White:

Well, every court of appeals has implied a four-month period, contrary to your view.

Lawrence G. Wallace:

–Well, we hesitated because of that.

But even though they have all said the emperor is draped in that, we cannot find it in the statute.

We don’t–

Byron R. White:

Well, yes, but–

Lawrence G. Wallace:

–think it makes–

Byron R. White:

–your position–

Lawrence G. Wallace:

–much sense.

Byron R. White:

–Your position remains the same on enforcement.

Lawrence G. Wallace:

It… it remains the same as the First Circuit’s position.

Byron R. White:

Then, if it does, I don’t know why you are… you lie down for the court of appeals’ view that… that your enforcement power really is limited by the discretion of a judge to keep you from fining this company if it makes certain determinations.

Lawrence G. Wallace:

Well, see… well, we agree with the court of appeals that the question in the penalty phase is whether there was unreasonable delay by EPA to the prejudice of… the company and how that should be taken into account.

And the… the four-month interpretation is largely beside the point.

To some extent it may mean that four months is by definition not unreasonable, if the statute has specified a four-month period.

But we think it can be distracting because it’s not there, it’s impractical.

There were very plausible reasons for Congress to make a difference between the time for acting on the initial submissions and the time for acting on proposed revisions.

And we don’t think that distraction should be part of this Court’s analysis.

There’s certain–

Antonin Scalia:

Mr. Wallace, could you explain to me again what… what effect you do give to… to the… to the reference to the required four-month period in (g)(1)?

What effect do you give to that?

Lawrence G. Wallace:

–We… we take that–

Antonin Scalia:

You say that–

Lawrence G. Wallace:

–as a guide that in the situation when the state brings to our attention that it’s a temporary emergency suspension-type of situation, where the governor is at least contemplating invoking that authority, that EPA is supposed to act within four months.

Antonin Scalia:

–And the suspension only lasts within… for four months?

Lawrence G. Wallace:

He can then suspend it for four months.

As we read that statute, that is after the four-month period within… in which it is pending before EPA.

That statute is set forth in the appendix to our brief.

Antonin Scalia:

(1)(a), right.

Lawrence G. Wallace:

On the very first page of the appendix to our brief.

And the governor’s authority–

Antonin Scalia:

Right.

Lawrence G. Wallace:

–after the little inset part–

Antonin Scalia:

Right.

Lawrence G. Wallace:

–it says, which the administrator has not approved or disapproved under this section within the required four-month period.

So it seems to us plain on the face of it that the governor’s suspension authority arises if the administrator has not approved or disapproved within four months.

And it just doesn’t precede that.

And that is why the court of appeals was correct in saying that this provision in 1977 indicated that Congress thought no enforcement bar would otherwise be available and Congress had to provide a limited enforcement bar for this situation of the temporary emergency suspensions.

And even there where they thought an enforcement bar would be warranted, they limited it to a four-month suspension.

Antonin Scalia:

I see.

Lawrence G. Wallace:

So the court of appeals felt that in interpreting the Act as not otherwise allowing the courts to impose an enforcement bar, it was reconciling the ’77 amendments with the ’70 Act.

In fact, the court of appeals really understated it because otherwise the ’77 amendment would be that the temporary emergency suspensions would have only a four-month enforcement bar and other proposed revisions would have an indefinite enforcement bar.

Anthony M. Kennedy:

But getting back to the statute, you simply take the words “the required” and say they’re synonymous with the word “a”?

Lawrence G. Wallace:

Well–

Anthony M. Kennedy:

“Within a four-month period”?

Lawrence G. Wallace:

–We think… yes.

The answer is yes and we think that it evolved because there was a requirement at one time in the House version of that bill in 1977.

And there may not have been an adjustment in the statutory language.

But that has to be surmise on anyone’s part.

The background of the… of the consideration of that amendment would suggest why it may be worded that way, Mr. Justice.

And that’s the best we can say about it.

Antonin Scalia:

Mr. Wallace, I’m… I’m a little surprised that the government is so lackadaisical about, you know, whether it’s four months or who cares whether it’s a four-month requirement or not.

You’re clearly not even trying to meet the four-month requirement.

I mean, if it’s a provision of law, you should be breaking your back to meet it.

But you come in here and say, well, you know, maybe it’s four months, maybe it isn’t four months, what do we care.

Lawrence G. Wallace:

Mr. Justice, I thought we were quite clearly saying that the four-month requirement does not apply and would be impractical to try to apply–

Antonin Scalia:

But you said you’re perfectly content to accept a lower court’s decision on that and all the other courts of appeals which have said you’re supposed to be acting within four months.

Lawrence G. Wallace:

–If… if–

Antonin Scalia:

I would think that that’s… that’s the part of this case you should be most upset with.

If you… If I conveyed that impression, I… I did not mean to convey that impression.

We are not content to accept that reading of the statute.

It happens to be immaterial to the judgment of the court of appeals in this case which we’re defending, which is that no enforcement bar should apply and that the question in the penalty phase is whether EPA delayed unreasonably in the circumstances of the particular case.

The case, as GM charges… it is really true that EPA is not even trying to comply with the four-month period.

Lawrence G. Wallace:

–Well, we don’t believe it applies to us, and that is our submission to this Court.

We’re not, in our view, violating the statute.

It certainly is not an express requirement of the statute, and we’ve explained in some detail in our brief why the notice and comment procedure under the Administrative Procedure Act, the difficulties in making the scientific determinations that must precede the proposed approval or disapproval that’s to be published to institute the notice and comment procedure, the fact that methodologies vary so much among the states that it’s often necessary for both the EPA regional office and for the national staff to be involved because of–

Antonin Scalia:

But… but, Mr. Wallace, you say it’s not part of the statute, but it is a part of the statute as construed by several courts of appeals, which normally creates some kind of a duty to comply.

Lawrence G. Wallace:

–Well, we’re… we’re doing the best we can, but we… we–

Antonin Scalia:

No, you’re not.

You’re not even trying to do it within four months.

Lawrence G. Wallace:

–Well, we–

Antonin Scalia:

You’re not even trying.

Partly because you know it can’t be done, but… but–

[Laughter]

Lawrence G. Wallace:

–We’re… the–

Antonin Scalia:

Well, maybe it’s very–

Lawrence G. Wallace:

–There are other obligations under the Act, substantive obligations in the way we’re to handle these proposed revisions, which have to be reconciled with whatever time limit the courts might think is the statutory guide to regulatory action.

I… I… I will say that this question is getting explicit consideration in the current amendments, which are still in an early stage.

But the Senate committee, the Senate Environment Committee, has reported out a bill which is now on the floor of the Senate.

That bill is S. 1630, and for the first time it explicitly does have a time limitation for EPA’s consideration of proposed revisions, and it’s 12 months–

Antonin Scalia:

–Well–

Lawrence G. Wallace:

–in… in the bill as it now exists.

And there is another provision–

Antonin Scalia:

–Is this bill drafted by the same guy that put in the required four-month period?

[Laughter]

Lawrence G. Wallace:

–And there is another provision that relates to the issue of this case, and I will read that sentence to the Court.

It is… says,

“Notwithstanding any other provision of this Act, each provision of such implementation plan and each permanent effect under such plan shall remain in effect and shall be enforced under this Act until a revision of such plan is approved by the administrator or a plan as promulgated by the administrator under Subsection (f). “

where he has to promulgate a Federal plan.

So, in addition to the 12-month requirement, the bill, as it’s now pending, repudiates the American Cyanamid rule even in the context of a 12-month benchmark.

Antonin Scalia:

By way of anticipatory subsequent legislative history?

Lawrence G. Wallace:

Well, I… I’m–

[Laughter]

–just pointing out that Congress is dealing with… with the question explicitly now, and it perhaps corroborates our point that our interpretation of the present Act is not so implausible that the courts would be justified in reading into it two provisions that are not there, one a four-month requirement and the other an enforcement bar.

Since neither the legislative history nor the text of the Act would support the erection of those requirements by the courts, the only possible justification would be that the Act would be so implausible without them that the courts have to feel themselves under a duty to impose them.

Harry A. Blackmun:

Maybe, again, Mr. Wallace, we’re dealing with very bad draftsmanship in Congress.

It’s not the first time.

Lawrence G. Wallace:

Not… not the first time.

Congress has many responsibilities, just as the EPA does and others in the government do.

Now, I want to point out in the very limited time that I have a very important point made in the Massachusetts brief, if I may, which is footnote 13 on page 23 of that brief, which is the most cogent point that has been made in response to the attempt to distinguish this Court’s decision in Brock against Pierce County on the ground that here the enforcement authority would be barred only temporarily and can be regained after EPA takes action on the proposed revision.

Lawrence G. Wallace:

And Massachusetts and the sister states point out very properly that the Act applies to a large variety of problems, including some that endanger human health, such as the carbon-monoxide problem, where hourly measurements have been required, that temporary suspensions would be… of enforcement authority would be an extreme misfit in this Act dealing with very serious problems of public health.

John Paul Stevens:

Yeah, but they’re only temporary enforcement after the state has said, we think it’s perfectly safe to do it.

Lawrence G. Wallace:

That is–

John Paul Stevens:

So then emergency you’re talking is rather unlikely to arise.

Lawrence G. Wallace:

–Well, still and all, we’re talking about interpreting an act that applies to a variety of emissions, some of which are much more serious in their short-term effects than others, and mistakes are made in these submissions, and mistakes that can have serious consequences.

The citizens’ suit provision is another one that–

William H. Rehnquist:

I think you’ve answered the question, Mr. Wallace.

Mr. Garrett, do you have rebuttal?

Theodore L. Garrett:

Just a few brief points, Your Honor.

In response to the last point concerning emergencies, it should be understood that our position is that EPA does have authority under a separate provision of the statute to deal with those, and we would not claim a bar to deal with those kinds of emergencies.

Our request for a bar only deals with state implementation plans.

With respect to the commingling point and Mr. Wallace’s comments about the government policy with respect to the negotiations of a DCO, the negotiations were simply that the government wanted GM to pay penalties as a price for getting the SIP revision.

They weren’t asking GM to make any other improvements or do anything else.

They had just changed their policies on whether or not SIP revisions could be allowed for these purposes as a revision or whether a DCO with penalties was the appropriate remedy.

And I would urge the Court to look at the Hannish memo… it’s a May 1986 memorandum by an EPA official that we’ve lodged with the Court.

It demonstrates the moving target problem in our brief.

Mr. Wallace said that the Cyanamid remedy, or the temporary bar on enforcement is an extreme remedy.

Well, we would submit to the Court that the mandamus remedy, or the First Circuit’s remedies, are much more intrusive and extreme than the remedy that we propose.

William H. Rehnquist:

Thank you, Mr. Garrett.

The case is submitted.