Petition — E. I. du Pont de Nemours & Co. v. Environmental Protection Agency

-_—

7. #

Sui

IN THLE

Supreme Court of the United States

Ocrover Term, 1975

kK. I. Du Pont bE Nemours AND COMPANY, AND

PPG Inpustrries. Inc. Petitioners,

U.

l.NVIRON MENTAL PROTECTION AGENCY, Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

DaANreEL M. Grippon

ALLAN J. Topor

S88 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

KE. I. Du Pont de Nemours and

Company, and PPG Indus-

trie S. Ine.

Of Counsel:

COVINGTON & BURLING

SSS Sixteenth Street, N.W.

Washington, D.C. 20006

ME “ma Court, U. Se yw

4 f 4 \Y 3 1976

wo, SH-LSGOQ mm sorrs

TABLE OF CONTENTS

; Page

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Dc cc cac cee ne bdacedteceseneaceshe 3

Sr POND i abs ccedebvandivexsokiuaes 4

Proceedings Before EPA ............cccceccecees 9)

Proceedings in the Court of Appeals .............. 9

Reasons for Granting the Writ ..................4. 13

I. The Administrator Violated the Requirements

of Due Process and the Administrative Proce-

I a a ed ee ee 14

YI. Authority Has Not Been Delegated by Congress

to the Administrator to Make a Discretionary

Policy Judgment Based Upon Speculative and

Inconclusive Scientific and Medical Evidence.. 19

Ill. Judicial Review of Agency Rulemaking That

Is Based Upon Scientific and Medical Evidence

Requires a Thorough Examination by the Court

of the Evidence Relied Upon by the Agency To

Determine Whether There Has Been a Clear

Sr Ge IE. 6-50 0 8:K403-0vbc0bs00000 600 23

ee re er ee 29

il

TABLE OF AUTHORITIES

Page

CASES:

Amoco Oil Co. v. EPA, 163 U.S. App. D.C. 162, 501

A 8, Fi. eee, cseankawaedeune 6

Bowman Transp. Ine. v. Arkansas-Best Freight Sys.,

6s 2 8 Be pers

Buckeye Power Inc. v. Environmental Protection

Agency, 481 F.2d 162 (6th Cir. 1973) .......... 17

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

8 rrr errr 13, 23, 25, 26, 28

International Harvester Co. v. Ruckelshaus, 155 U.S.

App. D.C. 411, 478 F.2d 615 (1973) ......... 17, 26, 27

Industrial Union Department v. Hodgson, 162 U.S.

App. D.C. 331, 338-9, 499 F.2d 467, 474-5 (D.C.

Se ED. vac ewes 04n4<abesbeeeesuens cisdeans 26

National Tire Dealers and Retreaders Association v.

Brinegar, 160 U.S. App. D.C. 238, 244, 491 F.2d

es Ae UE SE o6c0 enh 6edeeee seeuenses 26

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 163 U.S. App. D.C. 111,

114, 512 F.2d 1351, 1354 (D.C. Cir. 1975) ........ 27

Natural Resources Defense Council, Ine. v. Environ-

mental Protection Agency (No. 72-2233) ........ rs

O’Donnelly v. Sechatfer, 160 U.S. App. D.C. 266, 269,

491 F’.2a 50, 62 (D.C. Cir. 1974) 2... cc ccccccnse 27

Portland Cement Ass’n. v. Ruckelshaus, 158 U.S. App.

D.C. 308, 486 F.2d 375, 393 (1973), cert. denied 417

SA EE EE cb daneevcteaseeenas déasennss 17, 26

Rodway v. United States Department of Agriculture,

168 U.S. App. D.C. 387, 514 F.2d 809 (D.C. Cir.

EE Rr ite Barer ee mer eet sna 17

Table of Authorities Continued iii

StTaTuTES AND Rugs:

Federal Rules of Appellate Procedure Rule 4i(b) ... 2

ens pe eteaseniecteenseeeuene 4,16

eo Be ee See 16

EE SS re ere ee 2

Ev eicdeuned dus o90nneen6oeensss 27

ee cei dee cacenavesonas@eeeebaenes 5, 22

GB UA. START ESOIOEIA) 2... cccccsccccccscess 22

ee ak Co costa ceeeeeeutneen 3

ee OD oc cede cestamavnciesss 27

42 U.S.C. § 1857¢-6, 1857c-7, 1857f-1, 1857f-6e, 1857f-9 27

Pe A EE 4 ce nedevnsdesnevakateush<engeseces 27

MISCELLANEOUS:

H. Rep. No. 91-1146, 91st Cong., 2d Sess. 15 (1970) .. 22

IN THE

Supreme Cowt of the United States

Ocroper TERM, 1975

No.

E. I. Du Pont pe NEMouRS AND COMPANY, AND

PPG Inpustries, Inc. Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, E. 1. Du Pont de Nemours and Company,

and PPG Industries, Inc., pray that a writ of certio-

rari issue to review the opinion and judgment of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The opinion en bane of the United States Court of

Appeals for the District of Columbia Circuit of Mareh

19, 1976, is reported-at 8 ERC 1785. It is also set

2

forth in a volume separately submitted to the Court as

a Joint Appendix by these petitioners and other parties

who participated in the case below.’ The opinion of the

Administrator of the Environmental Protection Agen-

cy (hereinafter ‘*EPA’’) in the form of a preamble to

the regulations challenged in this case appears at 38

Fed. Reg. 33734-33741. Pertinent portions of his opin-

ion are included in the Joint Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered on

Mareh 19, 1976. Issuance of the mandate has been

stayed pending the filing of a petition to this Court for

a Writ of Certiorari, as provided in Rule 41(b) of the

Federal Rules of Appellate Procedure, by an order of

the Court of Appeals entered pursuant te a joint mo-

tion submitted by all petitioners and the EPA. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmen-

tal Protection Agency, acting under an order of the

Court of Appeals directing final action within thirty

days, satisfied the requirements of due process and the

Administrative Procedure Act where interested per-

! This Appendix represents the Court’s opinion in E. I. Du Pont

de Nemours and Company v. Environmentai Protection Agency

(No. 73-2269), PPG Industries, Inc. v. Environmental Protection

Agency (No. 73-2268), Ethyl Corporation v. Environmental Pro-

tection Agency (No, 73-2205), Naleo Chemical Company v. En-

vironmental Protection Agency (No. 73-2270), and National Petro-

leum Refiners Association v. Environmental Protection Agency

(No. 74-1021), all of which involve judicial review of the same

EPA regulations. It is petitioners’ understanding that Ethyl,

Nalco and National Petroleum Refiners Association are separately

filing petitions for Writ of Certiorari.

3

sons were not provided notice of and an opportunity to

comment on new evidence that was importantly relied

on by the Administrator in deciding to regulate the lead

content of gasoline.

2. Whether Congress has delegated to the Adminis-

trator the authority to regulate the use of lead additives

in gasoline on the basis of a discretionary policy judg-

ment where the scientific and medical evidence as to the

effect on the public health of emission products from

such additives is speculative and inconclusive.

3. Whether the court below engaged in proper

review of administrative agency rulemaking that pur-

ports to be based upon scientific and medical evidence

where two members of the majority refused to examine

the evidence relied upon by the agency to determine

whether the agency had made a clear error of judgment.

4. Whether, in any event, it was an abuse of discre-

tion for the Administrator to impose nationally uni-

form limitations ou the lead content of gasoline instead

of establishing ambient air quality standards, or pro-

viding for regional controls.’

STATUTES INVOLVED

The regulations challenged in this case were promul-

gated by the Administrator of EPA pursuant to Sec-

tion 211(c) of the Clean Air Act, 42 U.S.C. § 1857f-6e

(ce), which provides in pertinent part:

‘*(¢) Control or prohibition of offending fuels and

fuel additives,

‘*(1) The Administrator may, from time to time

on the basis of information obtained under sub-

*This question is discussed in detail in the Petition for a

Writ of Certiorari filed on behalf of National Petroleum Re-

finers Association from the same Court of Appeals decision;

these petitioners incorporate by reference the discussion on this

question in that petition,

4

section (b) of this section or other information

available to him, by regulation, control or prohibit

the manufacture, introduction into’ commerce, of-

fering for sale, or sale of any fuel or fuel additive

for use in a motor vehicle or motor vehicle engine

(A) if any emission products of such fuel or fuel

additive will endanger the public health or welfare,

or (B) if emission products of such fuel or fuel ad-

ditive will impair to a significant degree the per-

formance of any emission contro] device or system

which is in genera] use, or which the Administra-

tor finds has been developed to a point where in a

* reasonable time it would be in general use were

such regulation to be promulgated.

**(2)(A) No fuel, class of fuels, or fuel addi-

tive may be controlled or prohibited by the Admin-

istrator pursuant to clause (A) of paragraph (1)

except after consideration of all relevant medical

and scientific evidence available to him, including

consideration of other technologically or econom-

ically feasible means of achieving emission stand-

ards under section 1857f-1 of this title.’’

The pertinent portion of 5 U.S.C. § 553 (¢) provides:

‘‘After notice required by inis section, the agency

shall give interested persons an opportunity to par-

ticipate in the rule making through submission of

written data, views, or arguments with or without

opportunity for oral presentation. After consid-

eration of the relevant matter presented, the

agency shall... .”’

STATEMENT OF THE CASE

Section 211 (c)(1) of the Clean Air Act authorizes

the Administrator of EPA to ‘‘control or prohibit’’

the sale of any fuel or fuel additive ‘‘if any emission

products of such fuel or fuel additive will endanger

the public health or welfare.”’

Lead additives have been used by refiners of gasoline

for more than fifty years. EPA estimated that sales in

4)

1973 would exceed $400 million.* The use of lead addi-

tives rests upon the basic economics of the refining in-

dustry, which require that refiners blend the different

distillation products of crude oil to form gasoline with

the desired octane rating. Lead additives contribute

significantly to energy conservation and cost savings

by permitting refiners to increase the yield of gasoline

that ean be produced from a given volume of crude oil.

If lead concentrations are reduced, refiners will be re-

quired to add extensive new equipment and to process

a significantly greater quantity of crude oil to produce

the same quantity of gasoline of a given octane.‘ The

emission products of lead additives are not a factor in

the photochemical air pollution or smog caused in part

by automobile emissions, which is the subject of a reg-

ulatory program developed under Section 202 of the

Clean Air Act.°

Proceedings Before EPA. Acting under Section

211(e)(1), the Administrator published on January

30, 1971, an advance notice of proposed rulemaking

relating to the use of lead additives in gasoline.’ More

than a year later on February 23, 1972, the Adminis-

trator published proposed regulations requiring a sub-

stantial reduction in the lead content of gasoline over

3 A. 1615. Record references ‘‘A’’ are to the Joint Appendix filed

with the Court of Appeals. In response to a request to transmit that

Appendix to this Court, the Clerk of the Court of Appeals advised

petitioners that the preferred practice was not to transmit any rec- _

ords in connection with pctitions for certiorari, but rather to

respond to requests from this Court for such records.

* See testimony on April 27 and 28, 1972, of William Burnap

(pp. 211-212); Allan V. Hoffman (p. 24); Fred L. Hartley (pp.

78-79, 113-114); and Walter Famariss (pp. 516-517). (A. 1998,

2005, 2008-2009, 2013-2014, 2017-2018, 2095-2096) See also testi-

mony on May 2, 1972, of Osborne Fremd (p. 202). (A. 1970, 1980)

542 U.S.C. § 1857f-1.

®36 Fed. Reg. 1486. (A. 26)

6

the next four years, and mandating the general avail-

ability of lead-free gasoline by July 1, 1974." The re-

duction portion of the proposed regulations was based

upon a finding that air lead levels in some, but not all,

urban areas were excessive, that motor vehicles were

the predominant source of this airborne lead, and that

the proposed regulations would result in a reduction of

airborne lead to acceptable levels." Interested persons

were invited to submit written comments, and public

hearings were held on the proposed regulations in the

spring of 1972.°

Taking into account the criticism that was received

from interested parties, including petitioners and gov-

ernmental agencies, in the comments and at the public

hearings, the Administrator decided not to promulgate

that portion of the regulations calling for a reduction

in the lead content of gasoline.”® Instead, he reproposed

737 Fed. Reg. 3882-3884. (A. 22)

“These findings were described in the Federal Register state-

ment of February 23, 1972. 37 Fed. Reg. 3882 (A. 22) They

were described more fully in a position paper which accompanied

the proposed regulations and was entitled ‘‘Health Hazards of

Lead’’ (A. 292); as revised and corrected in A. 254 and A. 272.

® A: 1970; A. 1998; and A. 2107.

The Administrator did publish in final form on January

10, 1973, regulations requiring, inter alia, the general availability

of at least one grade of lead-free gasoline by July 1, 1974. These

regulations were not based on any determination as to the effect

of lead additives upon the public health. They were issued under

Section 211 (¢)(1)(B) on the basis of a finding that lead-free

gasoline was required to permit proper operation of pollution

reducing catalytic converters which were expected to appear in

1975 and later model automobiles. 38 Fed. Reg. 1254-1256.

(A. 10) These regulations were sustained by the United States

Court of Appeals for the District of Columbia in Amoco Oil Co.

v. EPA, 163 U.S. App. D.C. 162. 501 F.2d 722 (1974), and are

not at issue in this case.

7

on January 10, 1973, regulations calling for a four-

stage reduction in the lead content of gasoline. The Ad-

ministrator stated that he had ‘‘reevaluated”’ his posi-

tion on the health effects of airborne lead, that ‘‘it is

difficult if not impossible’”’ to establish an acceptable

level for airborne lead, and that ‘‘the original health

position can no long[er] be considered sufficient.’’™

A ‘‘new health position’? was adopted based on his

opinion that ‘‘considerable numbers of urban residents

have abnormally elevated’’ blood lead levels, and that

emissions from automobiles contribute to these elevated

blood lead levels.”

In the January 10, 1973 notice, the Administrator in-

vited public comment for 60 days on the proposed regu-

lations. In response to the request, extensive comments

criticizing the Administrator’s new position and sup-

porting documents were again received from petition-

ers and other interested persons, including governmen-

tal agencies, |

While the Administrator was considering these com-

ments, the Natural Resources Defense Council (NR

DC) sought an order from the United States Court of

Appeals for the District of Columbia Cireuit to compel

the Administrator to promulgate iead-limiting regula-

tions. Natural Resources Defense Council, Inc. vy. En-

vironmental Protection Agency (No, 72-2233). The

Administrator opposed the NRDC request on the

138 Fed. Reg. 1258-1261. (A. 14)

12 38 Fed. Reg. 1258. (A.15) The reproposed regulations were

accompanied by a second position paper presenting the agency’s

appraisal of the evidence on this subject. This second position

paper was entitled ‘“‘EPA’s Position on the Health Effects of

Airborne Lead,’’ November 29, 1972. (A. 158)

8

ground that very extensive medical and scientifie data

had been presented and that he was attempting to

‘‘make a good faith evaluation of the materials pre-

sented to determine the nature of the medical problem

of airborne lead, if anv, and the most cost effective

method of dealing with this problem.’’"* The Court of

Appeals denied the Administrator’s plea and on Oc-

tober 29, 1973, entered an order requiring the Adminis-

trator to make a final decision on the matter within

30 days.

In response to the Court’s order, the Administrator

announced on November 28, 1973, and published in the

Federal Register of December 6, 1973, his decision to

promulgate regulations calling for a phased reduction

in the lead content of gasoline.* The regulations were

accompanied by a lengthy preamble in which the Ad-

ministrator, in justifying his decision, relied to a

substantial extent upon ‘‘new evidence’’ consisting of

scientific and medical studies that had only recently

become available to the Administrator and that had

not been cited in any previous statement on the sub-

ject." According to the Administrator, these new

studies established in the ease of adults that ‘‘airborne

lead does contribute significantly to lead exposure in

'S EPA Opposition to Petitioners ‘‘Renewal of Motion for

Summary Judgment’’, pp. 2-3, filed on July 3, 1973 in No. 72-2233.

M38 Fed. Reg. 33734-33741. (A. 1) The regulations were ac-

companied by still a third position paper, entitled ‘‘EPA’s Posi-

tion on the Health Implications of Airborne Lead.’’ (A. 27) The

first position paper was entitled ‘‘Ilealth Hazards of Lead’’ (A.

292), and the second was ‘‘EPA’s Position on the Health Effects

of Airborne Lead,’’ November 29, 1972 (A. 158). The shift in

titles is indicative of the general weakening in the Administra-

tor’s position in response to criticism by the scientifie community.

5 A. 3-5.

9

the general population,’”’® and that children present a

special problem because they may ingest non-food

items subject to contamination with lead.”

Prior to the promulgation of the final regulations,

the Adminstrator did not provide interested parties

with notice of or an opportunity to comment on the new

scientific and medical evidence relied upon or the new

position paper which accompanied the regulations.”

This oceurred despite the fact that the Administrutor

had received, prior to promulgation, a request from

one of the petitioners for an opportunity to comment

in the event that the final regulations were based upon

different scientific and technical information.”

Proceedings in the Court of Appeals. Petitioners

sought judicial review of the Administrator’s action,

contending that the regulations should be invalidated

for three basic reasons. First petitioners argued that

the evidence does not establish that the emission prod-

ucts of lead additives will endanger publie health. In

support of this argument they contended that blood

"A. 3.

at *

'’The ‘‘new’’ evidence relied on by the Administrator did

nothing to eliminate the uncertainties that had been exposed in

his first two attempts to ascertain whether the use of lead additives

in gasoline endangers the public health. The studies were largely

inconclusive and were conceded by their authors to be preliminary.

Nowhere, in the new evidence or in the old evidence, is there any

study comparable to the Surgeon General’s report on the effect of

cigarette smoking on health. (A. 3-5)

™ See the request from E. I. Du Pont de Nemours and Company,

(A. 1965) and EPA’s response (A. 1967).

10

lead levels in the general adult population are not ele-

vated above the limit that the Administrator conceded

to be free of adverse health effects... That limit is 40

micrograms of lead per 100 grams of whole blood,

referred to as 40 ug.”’ Petitioners argued that lead in

the air in community environments does not make a

significant contribution to blood lead levels.” In the

ease of children, petitioners argued that, although

some children suffer from lead poisoning and elevated

blood lead levels, the clear cause is the ingestion of

20 A. 27, 64 and 97.

*! There is only one recent comprehensive study which has de-

termined blood lead levels of the general population using sub-

jects throughout the United States. That is the Seven Cities

Study which was supported and directed in part by EPA and

completed in 1972 (A. 840). Only three of the entire 1,935

people whose blood lead levels were measured in that study

(0.15% )had blood lead levels of 40 ug. or greater, and when the

original blood samples drawn from these three people were later

reanalyzed by the same laboratory, the results were 31 ug, 9 ug,

and 36 ug. (A. 2568, 2381) A statistical analysis of the Seven

Cities data showed that the number of people having blood lead

levels above 40 ug was ‘‘zero to four decimal places.’’ (A. 2322,

2351)

*° This. point is well illustrated by data relied upon by Dr.

Edward FE. David, Jr.. then Director of the White House Office

of Science and Technology, in criticizing EPA’s proposed regia-

lations. (A. 2470-72) The data were as follows:

Table I

Air Lead Blood Lead Level

(mierograms/ M3) (mierograms/100m))

Pasadena 3.4 17.5

Ardmore (a Philadelphia

suburb) 1.15 18.

Los Alamos 0.2 15.

11

leaded house paint and not lead from automobile emis-

sions in dust and dirt.”

Second, petitioners argued that Congress had not

delegated to the Administrator the authority to limit

the use of lead additives in gasoline where the evi-

dence of their effect on health was speculative and

inconclusive.

Third, petitioners argued that the Administrator had

not provided an opportunity for interested persons to

comment on the recent medical and scientifie studies

and the position paper which formed the basis for the

Administrator’s promulgation of the regulations, and ~

that the Administrator had abused his discretion in

failing to publish ambient air quality standards for

lead.

On December 20, 1974, the Court entered an order

setting aside the Administrator’s order and regula-

tions. The majority (Judges Wilkey and Tamm)

found that the regulations promulgated by the Ad-

ministrator were invalid on the ground that the Ad-

ministrator ineorrectly interpreted Section 211 (ce)

(1)(A) of the Clean Air Act, and that, ‘‘even assum-

ing the incorrect statutory standard employed by the

ageney,’’ the Administrator’s analysis reflected ‘a

clear error of judgment upon the available evidence.’’

23 For example, the Administrator’s hypothesis that children in-

gest lead from automobile emissions in dust and dirt was rejected

by Dr. Henrietta Sachs, a pediatrician who established the City of

Chicago lead poisoning clinie and directed the screening of ap-

proximately 200,000 children in the period from October 1966

to July 1972. Dr. Sachs stated: ‘‘I consider the danger from

eating dirt infinitesimal unless broken plaster has been thrown

into the yard from buildings under repair.’’ (A. 2444, 2448)

12

(Panel Op. at 69-70) A dissenting opinion was filed

by Judge Wright.

On March 17, 1975, the Court granted EPA’s peti-

tion for rehearing en bane, and vacated the opinion of

the panel. The case was argued before eight of the

nine judges of the Court on May 30, 1975. (Chief

Judge Bazelon was not present at the oral argument. )

On March 19, 1976, the Court handed down a five to

four decision affirming the Administrator’s order and

regulations. Five separate opinions were filed, re-

flecting sharp disagreement about the major issues in

this case.

he primary opinion for the majority, which was

written by Judge Wright,” concluded that petitioners

were not deprived of administrative due process by the

procedures employed by the Administrator, that the

Administrator had properly interpreted Section 211 (c)

(1) of the statute, that the Administrator’s determina-

tion had support in the evidence, but that, in any event,

the court was not required to examine carefully the

scientific evidence relied on by the Administrator, A

separate opinion was filed by Chief Judge Bazelon

and Judge MeGowan,*” who concurred in the result

reached by the majority but refused to examine

the scientific and technical evidence relied upon by the

Administrator in reaching his decision. Judge Leven-

thal filed a separate concurring opinion, asserting that

the court was required to conduct a significant review

24 Judge Wright was one of the two judges who had entered the

order of October 29, 1973 compelling the Administrator to make

a final decision in thirty days.

3 Judge MeGowan was the second judge who joined in the

court’s thirty day order of October 29, 1973.

13

of the factual evidence which was before the Admin-

istrator.

The primary dissenting opinion was written by

Judge Wilkey with whom Judges Tamm and Robb

joined. They concluded that the action of the Admin-

istrator was both procedurally and substantively de-

ficient and could not be sustained. A separate dissent-

ing opinion was filed by Judge MacKinnon, who con-

eluded that the Administrator, acting under the im-

petus of the court’s thirty-day order, had failed to com-

ply with the requirements of the Administrative Pro-

cedure Act.

REASONS FOR GRANTING THE WRIT

This case raises important questions of federal law

which have not been, but should be, settled by this

Court. It presents fundamental issues involving the

obligations and responsibilities of administrative agen-

cies and reviewing courts in rulemaking proceedings,

particularly those that involve assessment of medical

and other scientific evidence. The action of the Ad-

ministrator and the opinions of the Court of Appeats

make imperative the need for clarification of the pro-

cedures for public participation and comment to be

followed by agencies during rulemaking proceedings

involving such evidence and the statutory requirement

that agencies rest their actions upon factual evidence.

In addition, the majority decision of the Court below

is in conflict with the decision of this Court in Citizens

to Preserve Overton Park vy. Volpe, 401 U.S. 402

(1971) as to the role that the reviewing courts should

play in environmental regulation.

The lengthy and sharply divided opinions of the

Court of Appeals demonstrate the clear need for guid-

14

ance from this Court. Nine experienced appellate

judges differed widely as to whether the Administrator

had given due process and otherwise acted in accord-

ance with the mandate of Congress, and as to their own

proper function in reviewing the action of the Admin-

istrator. The majority opinion expressly recognized

‘‘the importance of the issues raised.’? (Wright Op.

p. 113)

In concluding that EPA’s action should be sustained,

the majority fashioned novel theories of administrative

law. It swept aside the well-settled right of interested

parties to comment on evidenee. critical to the agency’s

decision, the established requirement that an agency

make a determination based upon factual evidence, and

the safeguard of effective and meaningfwu! judicial re-

view. A determination by this Court is thus essential

to clarify for administrative agencies, reviewing courts

and the increasingly numerous affected parties, the

guidelines for the imposition of pervasive environmen-

tal and publie health regulations under the Constitu-

tion and the mandate of Congress.

I. The Administrator Violated the Requirements of Due

Process and the Administrative Procedure Act.

Six members of the Court of Appeals, including two

who joined in the majority, seriously questioned the

procedure followed by the Administrator. The Ad-

ministrator had twice before attempted and failed to

ascertain, even to his own satisfaction, whether emis-

sion products of lead additives in gasoline endangered

the publie health. He was in the process of evaluating

new evidence precisely at the moment when the Court

of Appeals, over the Administrator’s objection, entered

an order requiring final action in 30 days. Faced with

15

such an order, the Adminisrator did not give interested

persons notice of and an opportunity to comment on

the new evidence. Instead, he rushed to judgment in

response to the order of the Court entered at the behest

of a group that demanded a limitation on lead addi-

tives, and he promulgated regulations that were based

to a substantial extent upon this new evidence.”

Two of the requisite members of the majority (Chief

Judge Bazelon and Judge MeGowan concurring), con-

ceded, that the 30-day order may have ‘‘interfered

with’’ deliberate consideration by the ageney (Bazelon

Op. p. 5), acknowledged that the reviewing court was

able only ‘‘by inference and surmise’’ to determine the

procedural steps followed by the Administrator, and

observed that ‘‘ordinarily’’ a case in this procedural

posture ‘‘would require a remand for elarification.”’

(Bazelon Op. p. 5) The four dissenting judges were

in agreement that the Administrator had violated the

requirements of the Administrative Procedure Act by

failing to give interested persons, including petition-

ers and other governmental agencies, notice of and an

opportunity to comment upon the new evidence which

played an important role in the Administrator’s deiib-

erations and upon which the Administrator ‘‘relied

materially’’ in promulgating the regulations. (Wilkey

Op. pp. 19, 32; MacKinnon Op. p. 1)

The extent to which the Administrator relied upon

evidence that he did not make available for public

comment is set forth in Judge Wilkey’s dissenting

opinion: five of the six studies relied upon by the Ad-

ministrator as indicating that lead additives are a

26 As to the inconclusive character of the evidence, see footnote

18, supra.

16

hazard to the adult population—the two lead isotope

studies, the unpublished Japanese study, the chambers

study, and the reanalysis of the Seven Cities study

(Wilkey Op. pp. 20-23); and, all five of the studies

(two from Newark and one from Philadelphia, Chi-

cago and Rochester) which *‘ were absolutely erucial ...

to the Administrator’s entire conclusions in regard to

the lead danger to urban children.’”’ (Wilkey Op. p.

25) *

The majority decision on this issue was contrary to

the requirements of the APA, to the teachings of nu-

merous decisions of this Court and even to other de-

cisions of the Court of Appeals—all of which recognize

the right of interested persons to participate in rule-

making by commenting upon important evidence

relied upon by the agency.” This conclusion follows

from Section 553(¢) of the APA, which provides:

‘*After notice required by this section, the agency

shall give interested persons an opportunity to

participate in the rule making through submisssion

of written data, views, or arguments with or with-

out opportunity for oral presentation. After con-

sideration of the relevant matter presented, the

agency shall....’’ 5 U.S.C. §553(e).

Unless interested persons are given notice of and an

opportunity to comment upon the evidence critical to

an administrative agency’s decision, they obviously

Pe |

27 Indeed the Administrator characterized this hew evidence as °

.

‘significant new information received since the regulations were re-

proposed ...."’ (A. 3)

*“ The APA provides that a reviewing court ‘‘shall hold un-

lawful and set aside’’ agency action taken ‘‘without observance

of procedure required by law.’’ 5 U.S.C. § 706(2)(D).

17

cannot ‘‘participate’’ meaningfully in rulemaking pro-

ceedings.

Only two years ago, this Court stressed the impor-

tance of the right to comment on evidence in an admin-

istrative proceeding in Bowman Transp. Inc. v. Arkan-

sas-Best Freight Sys., 419 U.S. 281 (1974). The Court

stated:

‘‘A party is entitled . . . to know the issues on

which decision will turn and to be apprised of the

factual material on which the: ageney relies for

decision so that he may rebut it. Indeed, the Due

Process Clause forbids an agency to use evidence

in a way that forecloses an opportunity to offer

a contrary presentation.”’ 419 U.S. at 288, n. 4.”

29 In International Harvester Co. v. Ruckelshaus, 155 U.S. App.

D.C. 411, 478 F.2d 615 (1973), the United States Court of Ap-

peals for the Distriet of Columbia Circuit remanded regulations

under the Clean Air Act to EPA where the agency had not given

interested persons an opportunity to comment upon the reli-

ability of the methodology which formed the basis for EPA’s

regulations. Similarly in Portland Cement Ass'n. v. Ruckelshaus,

158 U.S. App. D.C. 308, 486 F.2d 375 (1973), cert. denied 417

U.S. 921 (1974) it held that EPA rulemaking under the Clean

Air Act was defective where the ageney had failed to make

available for comment the test results and methodology which

formed the basis for the emission control level adopted in the

regulations. The Court observed that ‘‘it is not consonant with

the purpose of a rule-making proceeding’’ to promulgate rules

on the basis of data which to a ‘‘eritical degree, is known only

to the ageney.’’ 158 U.S. App. D.C. at 326, 486 F.2d at 393.

See also Rodway vy. United States Department of Agriculture,

168 U.S. App. D.C. 387, 514 F.2d 899 (D.C. Cir. 1975) (holding

that USDA's reliance upon agency expertise rather than soliciting

comments from interested persons on the basis for the promul-

gation of food stamp regulations was a violation of See. 553(¢)

of the APA); and Buckeye Power Ine. v. Environmental Protec-

tion Agency, 481 F.2d 162 (6th Cir. 1973) (holding that See. 553

(c) of the APA was violated where EPA did not allow interested

parties an opportunity to comment in a rulemaking procedure

under the Clean Air Act.)

a a a a

18

The right to comment on the new evidence in this

case involves very significant substantative issues, On

the two previous occasions that the Administrator had

exposed to public and scientific scrutiny his appraisal

of the evidence bearing on the effect of lead additives

in gasoline upon the public health, that appraisal was

severely criticized by numerous persons, including

other responsible governmental agencies. The new

evidence that the Administrator finally relied upon

should have been subject to the same publie serutiny.

That evidence, as the Administrator and the majority

of the Court of Appeals acknowledged, is at best speeu-

lative and inconclusive ; it deserved more deliberate and

complete consideration.

Consideration by this Court of the Administrator’s

procedure is all the more necessary because it was an

order of the Court below that made it diffieult, if not

impossible, for the Administrator to grant the right of

comment assured by the Administrative Procedure

Act.” As Judge MacKinnon noted, ‘it was patently

unrealistic’’ for the Court of Appeals ‘‘to believe that

the ageney could sift through its accumulated data,

afford the public and other agencies an opportunity

to review any evidence contributed since the end of

the last comment period on March 11, 1973, reach a

proper decision based on all the evidence and draft

the complicated regulations within the required 30

* Prior to the promulgation of these regulations, on November

19, 1973, E. 1. Du Pont de Nemours and Company requested an op-

portunity for further comment in the event that the final regu-

lations differed from the previously proposed regulations or were

based upon different scientific and technical arguments and data

than those previously announced. (A. 1965) This request was

denied on December 4, 1973—after the regulations were promul-

vated. (A. 1967)

ee ee

19

days.’”? (MacKinnon Op. p. 1)" The Administrator

was faced with time constraints imposed by the court

that made it ‘‘impossible . . . to comply with the no-

tice and comment requirements of the Administrative

Procedure Act.’’ (MacKinnon Op. p. 1)

Review by this Court is thus appropriate to make

clear to administrative agencies and reviewing courts

that the right to comment on critical evidence cannot

be short-circuited in rulemaking proceedings—even

under the pressure of a court order. As the dissent

noted, the approach taken by the majority in this case

permits the agency to “‘keep secret information im-

portant to its decision’’ and ‘‘affords no opportunity

for informed public comment.’’ (Wilkey Op. pp. 32-

33) This approach should not be permitted to stand.

Agencies cannot be permitted to maintain critical evi-

dence in secret, divulging it only when rules are pro-

mulgated.

II. Authority Has Not Been Delegated by Congress to the

Administrator to Make a Discretionary Policy Judgment

Based Upon Speculative and Inconclusive Scientific and

Medical Evidence. ,

In promulgating these regulations, the Administra-

tor never claimed in the preamble or in the aeccom-

panying position paper that the evidence bearing on

the effect of lead additives on the publie health is

definitive or that further information is not required.

31 According to Judge MacKinnon, the result of the court’s

order was to force ‘‘a hasty decision’’ from the agency on a

‘‘highly complicated matter.’"’ (MacKinnon Op. p. 2) The

anomaly here is that two members of the majority felt that the

facts in this case were too complex for them to review meaning-

fully; and yet the Court did not believe that the complexity of

the matter precinded an order requiring final agen’y action

within an arbitrary 30 days.

20

Instead, the Administrator acknowledged that he was

acting upon the basis of ‘ta hypothesis,’ that ‘‘not

all links in the argument have been established beyond

dispute,’’*’ and that ‘“[fJurther information is re-

quired,’’** Similar expressions of uncertainty occur

throughout the preamble to the regulations and in the

position paper. In short, the Administrator has con-

ceded the speculative nature of his determination that

the emission products from lead in gasoline will endan-

ger the publie health. Even the majority opinion noted

that ‘‘hard proof of any danger caused by lead auto-

motive emissions has been hard to come by.”’ (Wright

Op. p. 9)

The majority concluded that the Administrator was

warranted in acting under Section 211(¢) notwith-

standing the state of the evidence because the deter-

mination under that section is ‘‘necessarily a question

of policy that is to be based on an assessment of risks

and that should not be bound by either the procedural

or the substantive rigor proper for questions of fact.”’

(Wright Op. p. 46) The majority expressly stated

that it would ‘‘not demand rigorous step-by-step proof

of cause and effect’? because questions ‘‘involving th :

environment are particularly prone to uncertainty.”’

(Wright Op. pp. 54, 46) The majority tolerated

‘speculation, conflicts in evidence, and theoretical

8238 Fed. Reg. 33735. (A. 3)

32 38 Fed. Reg. 33736. (A. 4)

4 EPA’s Position on the Health Implications of Airborne Lead,

p. VI-13. (A. 123) See also, an EPA internal memorandum of

August 3, 1973, in which two officials of EPA’s Office of Planning &

Evaluation stated that ‘‘no concrete link has been established be-

tween lead from automotive exhausts and harmful health effects.’’

(A. 1053, 1057)

21

extrapolation”? because the agency is “given a man-

date to protect the public health but only a slight or

nonexistent data base upon which to draw.’’ (Wright

Op. p. 47)

In contrast, the dissenting opinion rejected the view

that Section 211(¢)(1)(A) is a ‘‘deiegation of quasi-

legislative power to the Administrator and not a re-

quirement that he reach a reasoned determination

purely on the scientific and medical data.’’ (Wilkey

Op. p. 55) It emphasized that the majority’s view is

directly inconsistent with the intention of Congress

as shown by the legislative history and the language of

Section 211, particularly when compared with other

sections of the statute. From its analysis of the legis-

lative history and the statute, the dissent concluded

that the threshold determination of whether lead addi-

tives ‘‘will endanger’’ the publie health turns ‘‘cru-

cially on factual issues and not upon choices of policy.”’

(Wilkey Op. p. 57)”

It is respectfully suggested that the view of the dis-

sent is correct. The legislative history makes clear

that Congress, in enacting Section 211(¢), realized

that the regulation of gasoline and its additives poses

complex and important questions concerning this coun-

try’s use of a vital natural and economic resource,

Accordingly Congress, despite strong urgings from

35 The dissenting opinion reached an alternative conclusion that,

even assuming the correctness of the Administrator’s interpretation

of the statute, ‘‘his analysis reflected a clear error of judgment

upon the available evidence.’’ (Wilkey Op. p. 85) According to

the dissenting opinion, the Administrator’s ‘‘choice here is only a

guess, not an expert judgment drawn from conflicting evidence”’ ;

‘*the logie of his conclusion has great gaps in the chain’’; and ‘‘the

evidence to support his conclusion is totally insufficient.’’ (Wilkey

Op. p. 16, n.28)

22

environmental groups, refused to ban lead additives

in gasoline as a matter of legislative policy. Instead,

it required that before the Administrator exercises the

authority delegated to him he must find on the basis

of scientific and medical evidence that the use of the

additive involved ‘‘will endanger the public health ;”’

and it specified that no fuel additive may be controlled

or prohibited by the Administrator except upon the

basis of such evidence.” Congress did not contem-

plate action on the basis of surmise, or apprehension

on the part of environmental groups, of which it was

fully aware when it delegated limited authority to

the Administrator.’

If the Court of Appeals decision is permitted to

stand, administrative regulations in many environ-

mental and public health areas could be justified as a

‘‘legislative policy judgment’’ despite the lack of a

solid factual basis or even with a ‘‘nonexistent data

base.’” (Wright Op. p. 47) Relieved of the necessity

of being responsible to reviewing courts, administra-

tive agencies would then be encouraged to act without

“6 Section 211()(2)(A). 42 U.S.C. § 1857f-6e(e) (2) (A).

87 HT. Rep. No. 91-1146, 91st Cong., 2d Sess. 13 (1970). The

Chairman of the House Committee which reported the Act, Rep.

Staggers, stated that the Administrator could control additives

‘*{i]f he has the faets, and he has proven this by facets, that they

are a danger and poisonous.’’ 116 Cong. Ree. 19230. The Adminis-

trator does have authority under different provisions of the Act, to

adopt regulations dealing with indirect or inadequately proven

health effects of auto emissions. See, e.g. Section 202 (a) of the

Clean Air Act, 42 U.S.C. § 1857f-1, which gives the Administrator

authority to control the emission of a pollutant which ‘‘in his judg-

ment causes or contributes to, or is likely to cause or to contribute

to, air pollution which endangers the public health or welfare.’’

(Emphasis added.)

renee eee. ———

23

a careful or thorough analysis of the relevant scientific

and medical evidence.

III. Judicial Review of Agency Rulemaking That Is Based

Upon Scientific and Medical Evidence Requires a Thor-

ough Examination by the Court of the Evidence Relied

Upon by the Agency To Determine Whether There Has

Been a Clear Error of Judgment.

The opinions of the members of the Court of Ap-

peals reflect quite different understandings of, and

sharp disagreement as to, the scope of judicial review

of agency rulemaking based upon scientifie and tech-

nieal evidence. (See Wright Op. pp. 66-74; Bazelon

Op. pp. 1-4; Leventhal Op. pp. 1-4; and Wilkey Op.

pp. 57-64)

The opinion of Judge Wright found confusien in

the language of this Court in Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402 (1971), observ-

ing that ‘‘the Court’s intent in Overton Park [is]

somewhat difficult to plumb and its standard even

more uncertain of applieation.””. (Wright Op. p. 70,

n.74) Because Judge Wright thought that the lan-

guage in Overton Park ‘“‘may unintentionally prompt

judicial distortion of the ‘arbitrary and capricious’

standard,”’ he acknowledged that the Court was re-

quired to engage in a ‘‘close scrutiny of the evidence”’;

indeed ‘*‘the more technical the case, the more intensive

must be the court’s effort to understand the evidenee.”’

(Wright Op. pp. 70-72)

Judge Wright’s analysis of the evidence, however,

was not the basis for the majority opinion. Rather

he concluded that ‘‘the ultimate standard of [judi-

cial] review is a narrow one,’ and that the

Court’s obligation to review was fully satisfied by a

determination that ‘‘the agency decision was rational

and based on consideration of the relevant factors.”

24

(Wright Op. pp. 72-73) Thus, in sustaining what it

regarded as the Administrator’s determination of pol-

‘icy, the majority declined to let Judicial review ‘‘be

hound by either tie procedural or the substantive

rigor proper for questions of fact."’ (Wright Op.

p. 46)

The coneurring opinion of Judges Bazelon and

McGowan, whose votes were necessary to sustain the

Administrator’s action, not only subseribed to the lim-

ited concept of review actually applied by the majority,

but refused to make any examination of the underlying

evidence, Their concept of judicial review, as perceived

by Judge Leventhal in a separate concurrence, ‘‘advo-

cates engaging in no substantive review at all, when-

ever the substantive issues at stake involve technical

matters that the judges involved consider beyond their

individual technical competence.”’ (Leventhal Op. p. 1)

Indeed, the coneurring opinion of Judges Bazelon and

MeGowan candidly recognizes that the extended dis-

cussion of the evidence in Judge Wright’s opinion is

unnecessary and distracting in light of the standard

of review that ultimately governed the action of the

majority. They coneurred in the Court’s opinion only

because it would *‘bar’’ a ‘‘close analysis of the evi-

dence,”’ and they rejeeted the majoritv’s ‘‘exhaustive

analysis of the scientific evidence’? as ‘‘unnecessary.”’

(Bazelon Op. p. 4) This conclusion followed from

their expressed view that ‘‘substantive review of math-

ematical and scientifie evidence by technically illiter-

*“ Chief Judge Bazelon and Judge MeGowan also observed that

they concurred in the opinion of Judge Wright only because it

‘severely limits judicial weighing of the evidence by construing the

Administrator's decision to be a matter of ‘legislative policy’, and

consequentiy not subject to review with the ‘substantive rigor

proper for questions of fact.’*’ (Bazelon Op. p. 4)

25

ate judges is dangerously unreliable.’’ (Bazelon Op.

p. 3) 39

Nowhere in the concurring opinion of Judges Ba-

zelon and McGowan is there any attempt to show by

reference either to statutory language or legislative his-

torv why judicial review of the Administrator’s action

in this case should differ so substantially from judi-

cial review of agency action in other situations. Cer-

tainly the language of the Clean Air Act contains no

suggestion that the review envisaged by Congress is

to be any less rigorous than the review Congress has

traditionally provided for in numerous regulatory stat-

utes passed over the years. In the course of the argu-

ment Judge McGowan questioned whether substantive

judicial review might unconstitutionally involve the

courts in what he characterized as essentially legislative

activity. Any uncertainty as to the permissibility, in-

deed perhaps necessity, under the Constitution of pro-

viding for meaningful judicial review of agency action

in health and scientific matters should certainly be dis-

pelled by this Court.

Judge Leventhal disagreed with Judges Bazelon and

McGowan as to the proper scope of judicial review of

agency action in cases of this kind and asserted the pro-

priety of ‘‘substantive review of administrative action”’

under this Court’s decision in Overton Park, which

‘‘requires the reviewing court to scrutinize the facts.”

39 As Judge Leventhal noted, courts are frequently called upon

to decide cases involving scientific and technical facts in a number

of substantive areas including of course patent infringement. Con-

gress obviously could have created specialized courts to review

such actions, but by not doing so, Congress intended that the

Courts of Appeal would attciipi io educate themselves on the

issues involved. (See Leventhal Op. p. 2)

%G

(Leventhal Op. pp. 2-3) In his view ‘‘if there is some

factual support for the challenge, there must be either

evidence or judicial notice available explicating the

ageney’s result, or a remand to supply the gap.”

(Leventhal Op. p. 3) The dissenting opinion by Judge

Wilkey found no confusion or uncertainty in this

Court’s decision in Overton Park and stated that it

meant that reviewing courts are ‘obligated to engage in

a ‘substantial inquiry’ ’’ into the facts to determine if

the ageney had made a ‘‘clear error of judgment.”’

(Wilkey Op. p. 58)

These sharp differences among the members of the

Court of Appeals reflect widespread uncertainty on

their part as to the proper scope of judicial review in

light of Overton Park. The same difficulties have been

expressed in numerous other decisions of that court.”

See e.g., the following decisions holding that judicial review

of ageney action requires a thorough examination of the scien-

tifie facts and evidence relied upon by administrative agencies:

International Harvester Company v. Ruckelshaus, 155 U.S. App.

D.C, 411, 478 F.2d 615 (D.C. Cir. 1973) (opinion by Judge Leven-

thal, exhaustively reviewing the scientific evidence relied upon

by EPA and concluding that the technical facts require ‘‘a

different approach’’ from that taken by the agency); National

Tire Dealers and Retreaders Association v. Brinegar, 160 U.S. App.

D.C. 2&8, 244, 491 F.2d 31, 35 (D.C. Cir. 1974) (opinion by Judge

Wilkey, holding invalid Department of Transportation regu-

lations on the ground that the ageney’s conclusions were cast into

doubt by specifie technical comments in the record); Portland

Cement Association v. Ruckelshaus, 158 U.S. App. D.C. 308,

486 F.2d 375, 402 (1972), ecrt. denied 417 US. 921 (1974)

(opinion by Jnudve Leventhal observing that judicial review

‘‘steeping in technical matters.’’)

In contrast, sce e.g., the foliowing decisions holding that the

court’s responsibility is not to examine in detail the scientific facts

and evidence relied upon by agencies: Industrial Union Depart-

ment v. Hodgson, 162 U.S. App. D.C. 331, 338-9, 499 F.2d 467,

74-5 (D.C. Cir. 1975) (opinion by Judge McGowan characterizing

of agency decisions requires

a

- eee! aneter=

27

Thus, depending upon the panel assigned to a given

case, a court may engage in an analysis of the agency’s

evidence, or it may merely limit itself to determining

whether the agency gave consideration te the evidence

ina formal] sense. These uncertainties are particularly

unsettling because the Court of Appeals for the District

of Columbia Cireuit has been entrusted with exclusive

review of administrative agency action under numerous

statutory provisions, including Section 211 of the Clean

Air Act. In view of the exclusive judicial review

the promulgation of regulations ‘‘on the frontiers of scientific

knowledge’’ as questions of ‘‘policy’’ not subject to the same re-

view as questions of fact); O’Donnelly v. Schaffer, 160 U.S,

App. D.C. 266, 269, 491 F.2d 59, 62 (D.C. Cir. 1974) (opin-

ion by Chief Jndge Bazelon, giving great deference to the decision

of the agency where ‘‘complex technical issues are involved’’) ;

and see also the concurring opinion of Chief Judge Bazelon in

International Harvester Company y. Ruckelshaus, 155 U.S. App.

D.C. 411, 478 F.2d 615 (D.C. Cir. 1973), observing that ‘‘in

eases of great technological complexity, the best way for courts

to guard against unreasonable or erroneous administrative deci-

sions is not for the judges themselves to scrutinize the technical

merits of each decision.’’

4149 U.S.C. §1857h-5(b)(1) provides that judicial review of

EPA action under Section 211 shall be available exclusively

in the United States Court of Appeals for the District. of Co-

lumbia Cireuit. See also 42 U.S.C. $4915 (promulgation of noise

control regulations by EPA); 42 U.S.C. § 300j-6 (promulgation

of national primary drinking water regulations under the Safe

Drinking Water Act). Similarly other provisions of the Clean

Air Act involving nationwide regulatory programs vest exclu-

sive jurisdiction for judicial review in the United States Court

of Appeals for the District of Columbia Circuit. See Sections

1857¢-6, 1857e-7, 1857f-1, 1857f-6e, 1857f-9. As the Court of

Appeals for the District of Columbia Circuit pointed out in Nat-

ural Resources Defense Council, Ine. v. Environmental Protection

Agency, 168 U.S. App. D.C. 111, 114, 512 F.2d 1351, 1354 (D.C.

Cir. 1975), Congress considered such exclusive judicial review

‘‘necessary to preserve the ‘even and consistent national applica-

tion of standards .. .’ (citing S. Rep. No. 91-1196, 91st Cong.,

2d Sess. 40-41 (1970) ).”’

28

vested in that court, the disagreement among the meni-

bers of the court as to the nature of their review func-

tion has an effect comparable to a conflict between cir-

cuit courts of appeals and affords a further reason for

granting a writ in this case.

Only this Court can remove the ambiguity found by

the majority of the Court of Appeals to be inherent in

Overton Park, as that decision applies to agency action

based upon scientific and technical evidence. The Court

should make clear that reviewing courts have an obliga-

tion to make a searching and careful inquiry into the

facts in reviewing such action, and that on the basis of

such an inquiry the reviewing court must determine

whether the agency has made a clear error of judgment.

Such review is essential if the courts are to perform the

important role that Congress has entrusted to them.

Congress expected reviewing courts to provide balance

and proportion to the process of administrative regula-

tion in environmental and other technical areas. <Ad-

ministrators by their nature are the subject of intense

political pressures. All too often the most vocal or mox*

persistent group ultimately prevails; the most popular

cause is adopted. The reviewing court can serutinize

agency action free of such pressures, and Congress

meant that it should.

It is particularly important for the Supreme Court

to resolve this issue in this case. The concurring opin-

ion of Judges Bazelon and MeGowan indicates that

they did not scrutinize the evidence relied upon by the

Administrator as required by Overton Park. Indeed,

this was precisely Judge Leventhal’s interpretation of

their concurring opinion. As a result, only three of the

five majority judges were able to form any conclusion

as to the adequacy of the evidence relied upon by the

ew

29

Administrator. On the other hand, four dissenting

judges found that the evidence did not meet the re-

quired standard. A five to four decision affecting very

substantial rights should not be permitted to stand

where two members of the majority did not examine,

in the manner required by this Court, the evidence re-

lied upon by the Administrator.

CONCLUSION

Petitioners respectfully request that this Petition

for a Writ of Certiorari be granted.

Respectfrlly submitted,

DANIEL M. GRIBBON

ALLAN J. TOPOL

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

E. 1. Du Pont de Nemours and

Company, and PPG Indus-

tries, Inc.

Of Counsel:

Covineton & BURLING

888 Sixteenth street, N.W.

Washington, D.C. 20006