U.S. v. Ford Motor Co., 85-1945

• Citation: 814 F.2d 1099
• Decision Date: 27 March 1987
• Docket Number: No. 85-1945,85-1945
• Parties: , 55 USLW 2543, 17 Envtl. L. Rep. 20,655 UNITED STATES of America, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1099

814 F.2d 1099

25 ERC 1745, 55 USLW 2543, 17 Envtl.

L. Rep. 20,655

UNITED STATES of America, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

No. 85-1945.

United States Court of Appeals Sixth Circuit.

Argued Dec. 8, 1986.

Decided March 27, 1987.

Geneva S. Halliday, Asst. U.S. Atty., Detroit, Mich., Ellen J. Durkee, David C. Shilton, Appellate Section, Lands Div.-Dept. of Justice, Washington, D.C., William B. Lazarus (argued), for plaintiff-appellant.

Elizabeth N. Carroll, Robert A. Fineman, Detroit, Mich., Mary F. Edger, Thomas H. Truitt (argued), Washington, D.C., for defendant-appellee.

Before ENGEL and JONES, Circuit Judges, and EDWARDS, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

In this case Ford Motor Company and the United States are litigating a question fundamental to the authority of the federal government to control the emission of air pollutants within the boundaries of a particular state.

The pollutants at issue are volatile organic compounds which are the principal contributors to ambient ozone. The site of this dispute is a Ford Motor Company plant located in Mount Clemens, Michigan. This factory coats vinyl products with solvent-based coating and emits ambient ozone from eight production lines.

Plaintiff cites a vivid description of the problems posed by ozone from the District of Columbia Circuit Court of Appeals:

Ozone is the primary cause of the ill effects associated with smog, of which it usually comprises 65-100%. At certain concentration levels, ozone irritates the respiratory system and causes coughing, wheezing, chest tightness, and headaches. Due to its irritating nature, ozone can aggravate asthma, bronchitis, and emphysema. Some studies indicate that chronic exposure to fairly low levels of ozone may reduce resistance to infection and alter blood chemistry or chromosone structure. Ozone can destroy vegetation, reduce crop yield, and damage exposed materials by causing cracking, fading, and weathering.

American Petroleum Institute v. Costle, 665 F.2d 1176, 1177 (1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982).

The origin of this dispute is dated a decade ago. In February 1979 the United States Environmental Protection Agency (EPA) promulgated a combined primary and secondary national ambient air quality standard for ozone. This action was based on federal law, Sec. 109 of the Clean Air Act, 42 U.S.C. Sec. 7409. Michigan promulgated a State Implementation Plan which governed pollutants contributing to ozone formation in 1979, and U.S. EPA approved the State Implementation Plan in 1980. Two separate legal proceedings followed. On September 26, 1984, the United States initiated the first action under Sec. 113(b) of the Clean Air Act, 42 U.S.C. Sec. 7413(b), to enforce the EPA-approved State Implementation Plan (SIP). A month later, the Ford Motor Company filed suit in a Michigan state court against the Michigan Air Pollution Commission, the Michigan Natural Resources Commission, and the Michigan Department of Natural Resources. Ford sought to enjoin the state defendants from enforcing the State Implementation Plan concerning which the United States had filed the first action. EPA was not a party to the state action nor was it notified of its pendency.

Ford and the state defendants named above then negotiated a consent judgment which was entered March 18, 1985. Ford then filed a motion for summary judgment in the federal proceeding contending that the EPA-approved SIP could not be enforced because the state court consent judgment had invalidated it. On August 5, the United States District Court orally granted the Ford Motor Company's motion and dismissed the federal government's action. After the United States' motion for reconsideration and modification of the District Court's judgment had been denied, the United States initiated this appeal.

Ford's contention in this litigation is that the state court consent judgment is controlling and that the United States has no authority to overrule it. Essentially the United States District Court accepted this point of view.

As we see the question posed by this case, it is as follows: whether a state court consent order which was entered in an action brought by the defendant (Ford) against state air pollution regulatory authorities but not the United States or any of its agencies, and which purportedly vacated a State Implementation Plan adopted under the Clean Air Act and approved by EPA, precludes federal enforcement of the previously federally-approved plan?

We believe that under the United States Clean Air Act and settled case law, the answer to this question must be "no."

Although it is clear that the Clean Air Act contemplates very significant participation in air pollution control by state air pollution control agencies, it is equally clear that the final authority is vested in the United States Environmental Protection Agency and the courts of the United States. In Train v. NRDC, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975), the United States Supreme Court pointed out that the 1970 amendments to the Act had "sharply increased federal authority and responsibility in the continuing effort to combat air pollution." Justice Rehnquist, now Chief Justice, writing for a nearly unanimous Supreme Court held:

[A] polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Environmental Protection Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's, for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures.

Train v. NRDC, 421 U.S. at 92, 95 S.Ct. at 1488 (footnote omitted).

The Supreme Court's conclusion in Train is based upon the language of the Clean Air Act, which requires revisions of State Implementation Plans to be approved by EPA before such revisions are effective. See 42 U.S.C. Sec. 7410(a)(3)(A) & (i).

The ultimate authority of the United States EPA is indeed recognized by the state Staff Report on which the commission's final order and state court judgment were based. In the Supplemental Amended Answer, Exhibit 3, that report stated:

If approved by the Commission the Order will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).

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* * *

Because the proposed Order reflects limits that are different than those in the currently approved Michigan SIP, the order must be submitted to EPA as a revision to the SIP. Such "site specific" SIP revisions for existing sources must meet certain criteria in order to be approvable.

We observe at this point that standards for purification of the ambient air simply cannot be set along the boundaries of our 50 states. The winds, of course, recognize no such boundaries. The 50 states of this union compete intensely with one another for industry. As Congress has recognized, if state control of ambient air emissions were final, in short order, major shifts of smoke stack industries to states with the most lenient pure air standards would inevitably take place. Absent final authority in United States EPA, the attainment goals of the Clean Air Act would prove ephemeral.

In the face of overwhelming authority declaring that revisions of State Implementation Plans are ineffective until approved by EPA, Ford relies principally on a Seventh Circuit decision, Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (7th Cir.1983). Sierra Club was a citizen suit seeking to enforce an EPA-approved SIP provision in federal court. Prior to the federal lawsuit, a state appellate court had held the provision invalid on state procedural grounds, namely that the state officer who presided over the hearing on the provision had failed to submit written findings to the Indiana Environmental Management Board, as required by state law. This failure to make written findings made it impossible for the Board to evaluate and review the decision. The Seventh Circuit held that federal enforcement was barred because the SIP provision was not adopted in accordance with applicable state procedures, and...