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AMERICAN AUTO. v. MA. DEPT. OF ENVIRON. PROTECTION

No. 98-1036.

163 F.3d 74 (1998)

AMERICAN AUTOMOBILE MANUFACTURERS ASSOCIATION, et al., Plaintiffs, Appellees, v. MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant, Appellant.

United States Court of Appeals, First Circuit.

Decided December 29, 1998.

Attorney(s) appearing for the Case

William L. Pardee, Assistant Attorney General, Environmental Protection Division, with whom Scott Harshbarger, Attorney General of Massachusetts and James R. Milkey, Assistant Attorney General, Environmental Protection Division, were on brief, for appellant.

Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Lisa M. Burianek, Assistant Attorney General, Section Chief and James M. Tierney, Assistant Attorney General, on brief for the State of New York, amicus curiae.

Edward W. Warren, with whom Stuart A.C. Drake, Gary E. Marchant, Jeffrey Bossert Clark, Kirkland & Ellis, Robert F. Sylvia, Eric F. Eisenberg, Hinckley, Allen & Snyder, Phillip D. Brady, V. Mark Slywynsky, Charles H. Lockwood and John T. Whatley were on brief, for appellees.

Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant-appellant Commissioner of the Massachusetts Department of Environmental Protection ("MDEP") appeals from the district court's entry of summary judgment in favor of plaintiffs-appellees American Automobile Manufacturers Association, Association of International Automobile Manufacturers, Inc., and Massachusetts State Automobile Dealers Association, Inc. (collectively, "the Automakers"). In this appeal, the second in this case,

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