Petition — ETHYL CORP. v. ENVIRONMENTAL PROTECTION AGENCY (Nos. 75-1612, 75-1602, 75-1613, 75-1614)

Supreme Court brief1975

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In The

Supreme Court of the United States

October Term, 1975

No. bh 1612

ETHYL CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Of Counsel: Josern C. Carrer, Jr.

Davin F. Peters

Freperick P. Warne HuNTON & WILLIAMS

Ethyl Corporation PO - 1535

330 South Fourth Street 700 ene ve St et

Richmond, Virginia 23219 Se ne ee

IC , | Richmond, Virginia 23212

General Counsel Joun J. Apams

Hunton & WILLIAMS

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Counsel for Petitioner

TABLE OF CONTENTS

Page

Opinions BEL ow . |

JURISDICTION 2

QUESTIONS PRESENTED . 2

STATUTES AND REGULATIONS INVOLVED a 5

STATEMENT Or Tue CAse . ‘|

REASONS For GRANTING THE Writ 8

The Majority Below Has Accorded the Respondent A

Broad Policy Making Authority That Far Exceeds the

Specific Power Congress Hlas Delegated to Respondent

(CONCLUSION

APPENDIX

under Section 211 of the Clean Air Act. . i)

The MajorityyBelow Has So Narrowed the Scope of Judicial

Review of Environmental Regulatory Actions As To Place

Deference To Supposed Administrative Expertise Above ‘The

Standard of Reasoned Decision-Making. 15

By Sancuoning Reguiauons Based Principally Upon Pre-

liminary, Untested Data Never Subjected to Scrutiny by the

Scientific Conununity Or Made Available ‘To The Public

For Meaningful Cominent, The Majority Below Has Frus-

trated The Policy of The Administrative Procedure Act.

And Further Reduced The Due Process Accountability of

Administrative Agencies For Their Rule-Making Decisions. .. 2!

CERTIFICATE OF SERVIC! 2b

\. Statutes and Regulations Involved App. !

TABLE OF AUTHORITIES

Cases Page

Amoco Oil Go. v. EPA, 501 F.2d 722 (D.C. Cir, 1974)... a?

Bowman Transp., Inc, v. Arkansas-Best Freight Sys., Inc., 419

TID. BID (IBGG) aceciscsceccnccsecqsessssccees sicsilidaanicaorsseulanasedbaanaiane 15, 19

Calvert Cliffs’ ‘Coord. Comm., Inc. v. AEC, 449 F.2d 1109

(D.C. Cir, 1971) ........ccecceeeeecsesssccensseneensversnensnensnsnsnossanenssensassensats 26

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S, 402

(VIL) crenceccsescecornssesececesssncsnsessternsensasnenessnsensssuepnansnansonsesnnsensnsnensansns 15

Environmental Defense Fund, Inc, v. EPA, 465 F.2d 528 (D.C.

le, GEFID oc cxcccsnecevncescrncssonnnssorsstessansnsiocnsne ie sSulaminddsnaptsesieneabanni 20

Greater Boston Television Corp. .. FCC, 444 F.2d 841 (D.C, Cir.

1970), cert. denied, 403 U.S. 923 (1971)... cceeteeeseseceeeceenenssnees 15

International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.

CAE, TITS), onecencssersctccesccossesnnes sciikiakibesaeiiaadeaeeadaniouiaian ss iadeneemnmanent 15

Natural Resources Defense Council v. EPA, D.C. Cir. No.

Tt _ scsesaendgiobescapbeonbibedosensaglinommanete cateteuinbesasssaanaenabainieia’ 6, 22

NLRB v. Brown, 380 U.S. 278 (1965) -........c0:cccescsseeesoeseesee eid \4

Powhatan Mining Co. v. Ickes, 118 F.2d 105 (6th Cir, 1941) ..... 22

South ‘Verminal Corp. v. EPA, 504 F.2d 646 (Ist Cir, 1974) 0... 21

Stark v. Weinberger, 497 F.2d 1092 (7th Cir, 1974) ec eee eee 21

Other Authorities ’

Administrative Procedure Act, 5 U.S.C. § 553 ...........ecceeed, 21

Federal Judicial Code, 28 U.S.C. § 1294.1) cece ees 2

Clean Air Act:

£108, 42 U.S.C. 8 165 7e-3 ...........-.:0erese0--: pe >

BO hts fe GE) . eeeeereeenre. sdiatiakoa a

Oe Rs Pe ts Se eicecteitpecitcceccseevinistenensncemdiguiaiatane iaieniaaibes 9

ge eb | , ¢ 9

SG BED Ce), SE WB. © UGB TE ele) aaiceeccesesscsessnnsnasen sR eccanseccsine 4

§ 211(c) (1), 42 U.S.C. § 1857£-6(c) (1) ...ecececscoceesecsesececeeeeeees 5

§ 211(c) (2) (A), 42 U.S.C. § 1857f-6e(c) (2) (A) .o.ececeececeeeeeees 9

§ 307(b) (1), 42 U.S.C, § 1857h-5(b) (1) .o.eceeecccccccccceeeeeeeeeeeees 4,7

Safe Drinking Water Act, 42 U.S.C. § 300f(1) (B) ........0..-.ccceceons 12

EPA Regulations:

eR EE 4

WO CPR. G5 G0. -.26 anna ccnncceseccceqovececescnvecoveccnnereveeseececvecccseceves 5

Ir On SURI IPT ss csistalbcesdebaminodaidetoebatibuanioniags 6

en ks eee dchaohdbseenaddlieains 6

Pe ie UU CI CUD rece cccccesctseciienwerennnnesescni TERR OPOnE en 6

I I I oe tamale 6

ee Wie TD, DOO CERT crccrcstcceceseceicnnnncecenetcevenchensenennssinidaasestoses 7, 14

|. | en 4

ee Is CE, PP CUED csccccsssntsensstivsonntipimnmnciieesecsinccscmseicitiedlvcsees 23

H. Rep. No. 93-1185, 93d Cong., 2d Sess., U.S. Code Cong. &

a TIEN ee 12

S. 3149, 94th Comg., 2d Seas., $ 6 at 96 ..........ccccccceccccecsecesscccecereseceese 13

Wesster’s New Dictionary Or Synonyms 639 (1968) .0000000000..... 10

WessTer’s THirp New INTERNATIONAL Dictionary 748 (1971) .. 10

Wright, The Courts and the Rulemaking Process: The Limits of

Judicial Review, 59 Cornell L. Rev. 375 (1974) oooccccccccccceecceseen. 17

In The

Supreme Ceurt of the United States

October Term, 1975

ETHYL CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE-

DISTRICT OF COLUMBIA CIRCUIT

The Petitioner, Ethyl Corporation (a Virginia corpora-

tion), respectfully prays that a Writ of Certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the District of Columbia Circuit

entered in this proceeding on March 19, 1976.

OPINIONS BELOW

The majority and dissenting opinions of the Court of

Appeals are contained in the Joint Appendix being sepa-

rately filed with the Court on behalf of all of the petitioners

in the proceeding below.* The opinions have not yet been

published in the official reports, but they have been pub-

lished at 8 ERC 1785.

JURISDICTION

In Opinions issued January 28, 1975 (7 ERC 1353), a

panel of the Court of Appeals for the District of Columbia

Circuit ruled by a vote of two to one that the Respondent's

regulations, the subject of review in this proceeding, should

be set aside. On March 17, 1975, the Court of Appeals

granted Respondent's petition for a rehearing en banc and

vacated the pancl opinions. The final judgment of the Court

of Appeals, affirming Respondent’s regulations by a five

to four vote, was entered on March 19, 1976. Upon joint

motion of all of the petitioners in this proceeding and the

Respondent, the Court of Appeals entered an order on April

7, 1976, staying its mandate through May 6, 1976, pending

the filing of a petition for a writ of certiorari and a final

determination thereon by this Court.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

This case involves a challenge by Petitioner and others to

the validity of regulations issued by Respondent under Sec-

tion 211(c)(1)(A) of the Clean Air Act requiring the

phased reduction of lead additives (“lead antiknocks”) in

* The Joint Appendix contains the final opinions of the Court of

Appeals in the cases of Ethyl Corp. v. EPA (No. 73-2205). PPG

Industries. Inc. v. EPA (No. 73-2268), E. I. DuPont de Nemours &

Co. v. EPA (No, 73-2269), Nalco Chemical Co. v. EPA (No.

73-2270). and National Petroleum Refiners Ass'n v. EPA ( No.

74-1021). The Petitioner understands that separate petitions for a writ

of certiorari are being filed by PPG Industries, DuPont, Nalco and

the National Petroleum Refiners Association

motor gasoline. The case raises difficult and complex issues

of national significance that were decided by a closely di-

vided Court of Appeals whose lengthy and sharply con-

flicting opinions demonstrate the need for review and final

decision by this Court. Specifically, the questions presented

are:

1. Whether the Administrator of the Environmental Pro-

tection Agency has been empowered by Section 211 of the

Clean Air Act to assess hypothetical and speculative risks

and make “essentially legislative policy judgments,” as the

majority of the Court of Appeals held, even where the

available medical and scientific evidence (which is volu-

minous) is admittedly inconclusive and fails to establish

that the emission products of lead antiknocks in gasoline

cause any harm to the public health.

2. Whether, in reviewing agency rule-making in the area

of environmental control, the courts should be limited to a

finding of minimal rationality on the part of the agency, as

held by the majority below, without inquiry into the pro-

priety of the methodology employed by the agency in

assessing the evidence or the reasonableness of the pro-

cedures it followed in formulating its regulatory program.

5. Whether, notwithstanding the requirements of due

process and the Administrative Procedure Act, the Admin-

istrator may issue regulations based in large part upon pre-

liminary, untested studies and new data as to which inter-

ested parties have not been given notice or the opportunity

for meaningful comment.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the Clean Air Act (42 U.S.C.

§§ 1857c-3, 1857c-4, 1857f-1, 1857f-6c(c)), the Adminis-

trative Procedure Act (5 U.S.C. § 553), and the regulations

involved (40 C.F.R. §$§ 80.1, 80.2(c), 80.20, 80.25, 80.26)

are set forth in Appendix A to this petition.

STATEMENT OF THE CASE

Background of Lead Antiknocks

The regulations under review' were promulgated by the

Respondent, the Environmental Protection Agency, under

Section 211(c)(1)(A) of the Clean Air Act, 42 U.S.C.

§ 1857f-6c(c). The Regulations require the phased reduc-

tion over five years by 60-65% of lead antiknocks used in all

motor gasoline sold in the United States. 40 C.F.R. §§ 80.1,

2, .20, .25, .26, 38 Fed. Reg. 33734-33741 (1973) (A. at

1-9).

Lead antiknocks have been added to motor gasoline since

1923 to increase the octane rating of gasoline for use in high

compression engines that operate with greater efficiency. A

large industry, providing thousands of jobs and owned by

thousands of private investors, has grown up to supply lead

antiknocks to gasoline refiners.

Lead antiknocks serve as “energy extenders,” enabling

the refiner to produce more gasoline of a higher octane from

a given amount of crude oil at a lower cost. The saving of

crude oil from the use of lead antiknocks is 5-6 . The use

of lead antiknocks over the years has resulted in the saving

of billions of barrels of essential crude oil and billions of

dollars by the motoring public in the United States. Today,

in the face of continuing energy problems, the substantial

elimination of lead antiknocks will greatly increase the use

of crude oil and the cost of gasoline (placing substantial re-

liance upon imported supplies and further draining our bal-

1 Judicial review is expressly authorized under Section 307(b) (1) of

the Clean Air Act. 42 U.S.C. § 1857h-5(b) (1).

ance of payments), require the substitution of aromatic

compounds which result in the emission of carcinogens and

compel the expenditure of billions of dollars by the refining

industry to make the changes in equipment necessary to

manufacture commercial gasoline without lead antiknocks.

The effects on the public health of the use of lead anti-

knocks in gasoline have been the subject of continued study

and monitoring for more than fifty years, much of it planned,

sponsored, financed and supervised by governmental agen-

cies. From all this study, not one person has been found to

have any identifiable adverse health effects from lead emit-

ted from motor vehicle exhausts. Neither the Respondent

nor the majority of the Court of Appeals have shown other-

wise.

Background of Regulations

The Respondent issued the regulations in question under

Section 211(c)(1)* of the Clean Air Act Amendments of

1970, which in precise terms authorizes the EPA Adminis-

trator to:

“control or prohibit the manufacture, introduction

into commerce, offering for sale, or sale of any fuel or

fuel additive for use in a motor vehicle or motor ve-

hicle engine (A) if any emission products of such fuel

or fuel additive will endanger the public health or wel-

fare ....”° (Emphasis added. )*

* 42 U.S.C. § 1857f-6e(c) (1).

* Section 211 also authorizes the regulation of fuel additives upon a

finding that the additive significantly impairs the performance of an

emission control device in general use. Regulations based on that

ground requiring the general availability of at least one grade of un-

leaded gasoline were issued in early 1973, 40 C.F.R. $$ 80.1-.24, and

were upheld by the D. C. Circuit in Amoco Oil Co. v. EPA, 501 F.2d

722 (D.C. Cir. 1974). Those regulations are not in issue in this

proceeding.

—s

Within a month after Section 211 was enacted by Con-

gress, the Respondent publicly announced that it was re-

viewing the medical and scientific data applicable to the

health effects of lead, and that regulations to reduce the

lead content of motor fuel were “anticipated.”* Proposed

regulations were first published on February 23, 1972,° ac-

companied ‘by a document purporting to summarize the

medical and scientific basis for the proposal.° EPA invited

comments on the proposal and conducted public hearings

on the subject during the Spring of 1972 in Washington,

Dallas, and Los Angeles.

Thereafter, on January 10, 1973, EPA issued a new set

of proposed regulations’ as well as a completely revised

health document.* The Respondent again invited public

comment, citing the fact that the agency’s basis for the regu-

lations “has been substantially revised.” 38 Fed. Reg. 1254

(1973).

On October 28, 1973, a panel of the Court of Appeals

below (Judges Wright and McGowan), in an unreported

order entered in response to a motion filed in Natural

Resources Defense Council v. EPA, D.C. Cir. No, 72-

2233, directed the Respondent to reach a final decision

on whether to regulate the lead content of fuel for health

reasons within thirty days. The final regulations were pro-

mulgated on November 28, 1973, accompanied by a third

—and again substantially revised—review of the available

* 36 Fed. Reg. 1486 (Jan. 30, 1971) (A. at 26).

5 37 Fed. Reg. 3882 (1972) (A. at 22).

®R. Doc. No. 13 (A. at 292), revised with R. Doc. No. 10 (A.

at 254).

7 38 Fed. Reg. 1258 (1973) (A. at 14).

®R. Doc. No. 9 (A. at 158).

medical and scientific data (hereafter referred to as the

“Third Health Document” ) .*

Court of Appeals Review

On the day the final regulations were published in the

Federal Register,'” December 6, 1973, the Petitioner herein

promptly filed a petition to review the regulations with the

Court of Appeals for the District of Columbia Circuit."

Similar petitions were also filed by PPG Industries, Inc.,

£. I. DuPont de Nemours & Co., Naleo Chemical Co. and

the National Petroleum Refiners Association.

The panel assigned to the case heard arguments on Sep-

tember 9, 1974, and on December 20, 1974, the panel, one

judge dissenting, ordered the regulations set aside. Extensive

opinions (73 pages for the majority; 96 pages for the dis-

sent) were issued January 28, 1975.

On March 17, 1975, the Court of Appeals granted the

Respondent’s petition for a rehearing en banc, and the panel

judgment and opinions were vacated. Reargument was held

May 30, 1975 before eight judges of the Court of Appeals,

Chief Judge Bazclon not being present. On March 19, 1976,

the Court decided by a vote of five to four to affirm the regu-

lations, issuing the five separate opinions contained in the

Joint Appendix.

*R. Doc. No. 7 (A. at 27).

" Section 307(b) (1) of the Clean Air Act specifies the D. C. Circuit

as the exclusive forum for review of regulations issued under Section

211. 42 U.S.C. § 1857h-5(b) (1).

REASONS FOR GRANTING THE WRIT

This case as no other before it calls into question the basic

accountability of a federal administrative agency for its

rule-making decisions in an area of environmental control

that results in major economic and social impacts. As

indicated by the vigorous opinions of the majority and the

dissent below, the medical and scientific considerations in-

volved in this case are complex and highly controversial.”

The final outcome of this case will vitally affect the future

of the entire lead additive industry, its employees and its

stockholders. It will also have a direct and substantial effect

on the refining industry and through it on our national

energy policy.

The case requires an assessment of the propriety of the

agency’s regulatory action at three distinct, but related,

levels: First, the statutory standard prescribed by Congress

as a precondition for regulatory action; second, the method-

ology employed by the agency in assessing the available evi-

dence; and third, the reasonableness of the procedures fol-

lowed by the agency in its formulation and issuance of the

regulations. At each of these levels the majority below ac-

corded the agency the broadest possible discretion, thus ef-

fectively abdicating the court’s role as an independent over-

seer of agency action. The majority was clearly motivated

by some feeling that environmental regulations are entitled

to special deference—indeed to virtual exemption from the

normal rules designed to uncover and reverse arbitrary

agency action. The majority has presented a “blank check”

to the EPA for the future exercise of standardless, irrevers-

ible discretion affecting all areas of our national life. The

Former EPA Administrator, William D. Ruckelshaus, publicly

described the subject as “one of the most controversial complicated

problems that I have ever had to deal with.” R. Doc. No. 1094,

Transcript of press briefing, p. 28 (A. at 2585).

implications of this decision are so enormous as to require

this Court’s immediate attention.

A. The Majority Below Has Accorded the Respondent A Broad

Policy Making Authority that Far Exceeds the Specific Power

Congress Has Delegated to Respondent under Section 211 of the

Clean Air Act.

The Respondent’s authority to regulate the content of

motor fuel derives solely from Section 211 of the Clean Air

Act. That section, as a precondition to regulatory action

against a fuel or fuel additive on health grounds, requires

the Administrator to consider “all relevant medical and sci-

entific evidence available to him.’ Then, in unique lan-

guage found nowhere else in the Clean Air Act, Section

211 provides that the Administrator may control or prohibit

a fuel additive if the emission products of the additive “will

endanger” the public health or welfare.

The meaning of “will endanger” is central to the question

of Respondent’s authority to issue the regulations. The Peti-

tioner’s position is that the “will endanger” standard, par-

ticularly when contrasted to the discretionary language of

the other operative sections of the Act,’* requires a threshold

8 Clean Air Act § 211(c) (2) (A), 42 U.S.C. § 1857f-6c(c) (2) (A).

That section also requires the Administrator to consider “other tech-

nological or economically feasible means of achieving emission stan-

dards under Section 202.”

‘* Section 108 authorizes the Administrator to issue air quality cri-

teria for air pollutants that—“in his judgment”—adversely affect

public health. 42 U.S.C. § 1857c-3. Section 109, in turn, requires the

Administrator to prescribe national standards for such pollutants,

allowing “an adequate margin of safety” for the protection of health.

42 U.S.C. § 1857c-4. Section 112 authorizes the promulgation of

emission standards for air pollutants that—‘in the judgment of the

Administrator”—“‘may cause, or contribute to”—death or irreversible

illness. 42 U.S.C. § 1857c-7. Section 202 authorizes the Administrator

to prescribe new motor vehicle emission standards for any emissions

which—“‘in his judgment”—are “likely to cause or to contribute to” air

pollution endangering the public health. 42 U.S.C. § 1857f-1(a) (1).

determination by the Administrator on the basis of factual

data that the emission products are, to a high degree of

probability, in fact harmful to health."® A conclusion that

harm is merely possible, or even likely."” is not sufficient.

Neither Respondent nor the majority below suggest that

Respondent has satisfied such a standard; they rather con-

tend that far less is required. The majority thus reads

Section 211 as conferring broad authority to assess the rela-

tive risks of underprotection against overprotection, and to

make a policy choice based on a “fear of uncertain or un-

known harm.” Maj. op. at 56."" According to the majority,

the Respondent has been given a “mandate to protect the

public health,” and through “speculation, conflicts in evi-

dence, and theoretical extrapolation,” the agency may base

the regulations on a “slight or nonexistent data base.” Id.

at 47. It is noteworthy that Cong ess could easily have

written such a “mandate” into the statute, but instead it

chose to condition its delegation of a power upon a thres-

hold factual determination by the agency that could be

reviewed by the courts in the traditional way. As Judge

Wilkey aptly observed in his dissent:

“In essence, it is argued that the ‘will endanger the

public health . . .. standard is a delegation of quasi-

legislative power to the Administrator and not a re-

15 “Endanger” means “to bring into danger or peril of probable

harm or loss.” Wenster’s THirp New INTERNATIONAL DicTIONARY

748 (1971) (emphasis added).

16 The distinction between “probable” and “likely” is clearly ex-

plained by Webster: “Something probable has so much evidence in

its support or seems so reasonable that it commends itself to the mind

as worthy of belief... . [I]n contrast with probable, likely does not as

often or as definitely suggest grounds sufficient to warrant a presump-

tion of truth...” Wesster’s New Dictionary Or SynonyMs 639

(1968) (emphasis in original)

17 References to the majority opinion are to the opinion authored by

Judge Wright contained in the Joint Appendix.

quirement that he reach a reasoned determination pure-

ly on the scientific and medical data.” Dissenting op.

2 36.>

In the judgment of the dissenters, such a construction by the

majority “is to grant the plainest license for the wildest

speculation.” Dissenting op. at 53. It is also contrary to

the plain language used by the Congress in Section 211.

The Respondent has argued from the outset that, because

its role in protecting the environment is so important, the

agency should be released from the narrow confines of Sec-

tion 211 and given more discretion to regulate automotive

fuels (with fewer standards to meet). Amazingly, this re-

quest was not made to Congress, the sole constitutional

source of all Respondent’s authority, but to the Court of

Appeals. And the majority affirmatively responded with a

new judicial grant of authority, embodied in this broad

assertion:

“Regulators such as the Administrator must be ac-

corded flexibility, a flexibility that recognizes the special

judicial interest in favor of protection of the health and

welfare of people, even in areas where certainty does

not exist.”’ Maj. op. at 46.

Then, as if to set a universal standard for all environmental

rule-making, the majority concluded:

“Where a statute is precautionary in nature, the evi-

dence difficult to come by, uncertain, or conflicting be-

® References to the dissenting opinion are to the opinion authored

by Judge Wilkey contained in the Joint Appendix.

'® Judge MacKinnon, in a separate dissenting opinion, agreed. “In

my view the court’s opinion in a number of respects exaggerates the

Administrator’s ability to act in the policy field without an underlying

factual basis . . . . Thus I do not agree that Congress intended to vest

the Administrator with authority to act on a speculative basis to the

extent the court would allow.” Opinion by MacKinnon, J., at 3.

cause it is on the frontiers of scientific knowledge, the

regulations designed to protect the public health, and

the decision that of an expert administrator, we will

not demand rigorous step-by-step proof of cause and

effect.” Maj. op. at 53-54.

The Petitioner submits that the specific and limited grant

of statutory authority made by Congress, not a general ex-

pression by the courts of need for flexibility in areas affecting

the public health, should govern the validity of an agency’s

rule-making in a given case. In certain areas, Congress has

indeed conferred broad policy making discretion; in others,

such as Section 211, it has not. In every case, however, the

plain language employed by the Congress should control.”

Certainly the courts should not extend their deference to

administrative expertise to the point where the clear stand-

ards set by Congress may be ignored by the agency.

20 The significance of the particular language chosen for a statute

is well illustrated by a comparison of Section 211 to the language

and legislative history of the recently enacted Safe Drinking Water

Act. That Act empowers the Administrator of EPA to prescribe stand-

ards for drinking water contaminants, which “in the judgment of the

Administrator, may have any adverse effect on the health of per-

sons... 2’ 42 U.S.C. § 300f(1) (B). In drafting the language of the

Drinking Water Act, the House Interstate and Foreign Commerce

Committee, the same Mouse Committee that reported out the Clean

Air Act Amendments of 1970, deliberately chose the word “may,”

rather than “will.” which appears in Section 211, with purpose. As

the Committee’s report explains: “The words used by the Committee

were carefully chosen. Because of the essentially preventive purpose of

the legislation, the vast number of contaminants which may need to

be regulated. and the limited amount of knowledge presently available —

on the health effects of various contaminants in drinking water, the

Committee did not intend to require conclusive proof that any con-

taminant cill cause adverse health effects as a condition for reculation

of a suspect contaminant, Rather, all that is required is that the Ad-

ministrator make a reasoned and plausible judgment that a contami-

nant may have such an effect.” H. Rep. No. 93-1185, 93d Cong.., 2d

Sess. U.S. Code Cong. & Admin, News 6463 (1974) (emphasis in

original) .

Where Congress intends for an agency to exercise broad

policy making discretion, to err on the side of overprotection

in an area “on the frontiers of scientific knowledge,”** Con-

gress carefully selects words particularly suited to that pur-

pose—-“may,” “likely,” “risk,” “in his judgment.” By con-

trast, where the subject matter has been thoroughly studied

for more than fifty years, as with lead antiknocks,** Congress

understandably requires firm factual determinations, for

which “will endanger” is more appropriate.

The point is that, the majority below notwithstanding, no

generality is possible as to the standard to be applied in

environmental rule-making. Congress has prescribed vary-

ing degrees of accountability for agency rule-making, and

the appropriate standard in a given case can only be deter-

mined on the basis of the particular statutory language em-

ployed.™ In the case of regulation of fuel content, which

the majority concedes Congress expected Respondent to

undertake only with trepidation,” Congress obviously con-

templated that the agency would be held to a high degree

of accountability.

The Respondent has not concluded that the evidence

supports a “will endanger” conclusion for lead antiknocks.

“1 Maj. op. at 54.

** For example, the toxic substances legislation now pending in

Congress would authorize the Administrator of EPA to ban the use

of any chemical substance that he finds “presents or is likely to present

an unreasonable risk of injury to health or the environment.” S. 3149.

94th Cong., 2d Sess., § 6, at 36.

** The majority argues that although lead additives have been

studied for 50 years, emissions at present levels have existed only for

the last 15-20 years. Maj. op. at 49. The record evidence shows that

in spite of increases in airborne lead levels in the past 20 years, blood

levels have not increased. R. Doc. No. 817, Fig. 1-1. .

** For this reason, the majority’s reliance on other cases, involving

totally different statutes and different facts, is misplaced.

2° Maj. op. at 16 n. 14.

Indeed, Respondent has even conceded that the evidence

does not establish a “reasonably clear causal relation” be-

tween ambient lead levels and adverse health effects, which

according to Respondent precludes the setting of ambient

air standards for lead under Section 108-109. EPA Supp.

Brief at 15.°° All the Respondent has suggested is that lead

emissions from motor vehicles present a “significant risk of

harm to the health of urban populations, particularly the

health of city children... ,” and this only when lead emis-

sions from autos are combined with other sources of lead.”

Passing up the other, less rigorous options given to it

under the Clean Air Act (ambient air standards, emission

limitations), Respondent has taken the extreme action ot

regulating fuel content, at enormous costs to the petroleum

industry and the motoring public, without any real knowl-

edge that lead additives are a direct endangerment to public

health, or that their reduction will have any measurable,

beneficial effect.

Congress could take such action, perhaps; but Respon-

dent cannot, at least not under Section 211. For purposes

of this case and those that will inevitably follow, it is essen-

tial that this Court restrain administrative rule-making with-

in its proper limits and restore the statutory standard laid

down by Congress as the measure of regulatory power.”

26 The reference is to the supplemental brief filed by Respondent

upon rehearing en banc in the Court of Appeals.

27 38 Fed. Reg. 33734 (Dec. 6, 1973) (A. at 1).

2* As this Court has often reminded: “The deference owed to an

expert tribunal cannot be allowed to slip into a judicial inertia which

results in the unauthorized assumption by an agency of major policy

decisions properly made by Congress.” NLRB v. Brown, 380 U.S, 278,

291 (1965).

B. The Majority Below Has So Narrowed The Scope of Judicial

Review of Environmental Regulatory Actions As To Place Def-

erence To Supposed Administrative Expertise Above The Stand-

ard of Reasoned Decision-Making.

Guided by the opinions of this Court in Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971),

and Bowman Transp., Inc. v. Arkansas-Best Freight Sys.

Inc., 419 U.S. 281 (1974), the dissenting judges below .

carefully reviewed the record and concluded that Respond-

ent had not taken the objective, hard look at the evi-

dence that Section 211 and “reasoned decision-making” re-

quire,” and that the methodology employed by the agency in

assessing the evidence had been arbitrary and capricious.”

The record in this case abounds with danger signals that

Respondent had not been rational and principled in_ its

approach to the subject. The waffling of positions during

the three year rule-making through three separate health

documents—alleging health hazards of lead in the first."

** The reviewing court “must consider whether the decision was

based on a consideration of the relevant factors and whether there has

been a clear error of judgment.” Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971).

*°“(T}hough an agency’s finding may be supported by substantial

evidence . . . it may nonetheless reflect arbitrary and capricious action.

* * * The agency must articulate a ‘rational connection between the

facts found and the choice made.’” Bowman Transp., Inc. v. Arkansas-

Best Freight Sys., Inc., 419 U.S. 281, 284-85 (1974).

*' “Its supervisory function calls on the court to intervene . . . if

the court becomes aware, especially from a combination of danger

signals, that the agency has not really taken a hard look at the salient

problems, and has not genuinely engaged in reasoned decision-making.”

Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir.

1970), cert. denied, 403 U.S. 923 (1971).

“The Administrator must sustain the burden of adducing a

reasoned presentation supporting the reliability of EPA’s methodology.”

International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 648 (D.C.

Cir. 1973).

33 R. Doc. No. 13, “Health Hazards of Lead,” EPA (Feb. 23, 1971)

(A. at 292). 2

the health effects of lead in the second,” and finally the

health implications of lead in the third®—indicated a grasp-

ing at straws in the evidence. The dissent recognized Re-

spondent’s prolonged struggle with the evidence as signifi-

cant, saying:

“This extended gestation period has significance in

itself. Implicit in the administrative record generated

by this three-year delay is the recognition by EPA that

available scientific data did not provide a clear and

certain basis for reaching the statutorily mandated con-

clusion, i.e., that a ‘fuel additive will endanger the

public health or welfare.’

“* * * The history of the regulations is really the

history of the EPA Health Documents, a history of

EPA’s effort to discover somewhere, somehow, a scien-

tific rationale which would withstand the unanimous

criticism of the remainder of the government scientific

community.” Dissenting op. at 6-7.

The dissent was also struck by the fact that every other

agency of the Federal Government that had studied the

evidence—the Department of Health, Education and Wel-

fare, the Department of the Interior, the Department of

Commerce, the White House Office of Science and Tech-

nology, the National Institute for Occupational Safety and

Health of the United States Public Health Service—had

unanimously concluded that Respondent's position on the

health effects of lead antiknocks was without support in the

evidence.”

34 R. Doc. No. 9. “EPA’s Position on the Health Effects of Airborne

Lead” (Nov. 29, 1972) (A. at 158).

35 R. Doc. No. 7, “EPA’s Position of the Health Implications of

Airborne Lead” (Nov. 28, 1973) (A. at 27).

%6 See the review of the other agency criticisms at Dissenting op. pp.

8-15. “Our analysis of the flaws in the Administrator’s logic finds

powerful support in the unaminity of conclusion of the independent

scientific minds throughout the Government outside of EPA itself.”

Dissenting op. at 15-16.

The record also contained numerous expressions of con-

cern from the independent scientific community highly criti-

cal of Respondent’s analysis and corclusions.*’ Within the

agency itself, serivus questions had been expressed as to

the scientific soundness of any health basis for the regula-

tions.**

The majority dismisses the contrary evidence and critical

comment with the conclusion that “evidence may be isolated

that supports virtually any inference one might care to

draw.” Maj. op. at 74. In the majority’s view, “the problem

here is one of choosing among the items of evidence,” id.

at 80, and as to the basis employed in such choosing, the

majority would simply “defer to the Administrator’s judg-

ment.” Jd. at 81. In environmental rule-making, where the

record evidence is conflicting and inconclusive, the majority

has thus held that the reviewing court must be “highly

deferential” toward the agency’s decision, id. at 68, and

affirm that decision if it reflects but minimal rationality. Id.

at 73. Indeed, as interpreted by two members of the

majority (Judges Bazelon and McGowan), 2 reviewing

court must affirm on the basis of procedural regularity alone,

*7 Dr. Anna M. Baetjer, a member of the National Air Quality Crite-

ria Advisory Committee, critically challenged Respondent's analysis in

the health documents, saying: “I think this document lacks scientific,

basic sound, scientific knowledge.” (A. ai 1052). Similarly, Dr. Norton

Nelson, a consultant to EPA’s Hazardous Materials Advisory Com-

mittee, observed: “[W]hat I read here is such a tenuous argument

that it becomes, in some degree, self-destroying. And I find it complete-

ly deficient.” (A. at 998).

*8 A. at 1057; A. at 960; A. at 1936.

*° Under the minimal rationality standard, as previously explained

by Judge Wright, an administrative regulation “can be less than rea-

sonable and still survive the ‘arbitrary and capricious’ test”; all that is

required is that the agency satisfy “only the most rudimentary com-

mand of rationality.” Wright, The Courts and the Rule-Making Proc-

ess: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 392 (1974).

without regard to the substantive rationality of the agency's

decision (opinion-by Bazelon, C.J., at 1-4) —a position Judge

Leventhal recognized as advocating “no substantive review

at all.” Opinion by Leventhal, J., at 1.,

The problem with the majority's suggested standard of

review (whether it be Judge Wright's or Chief Judge Baze-

lon’s) is that it virtually immunizes the regulatory agency

from substantive accountability, a result totally at odds

with the “clear error of judgment” test prescribed by this

Court in Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971), a decision Judge Wright finds

“difficult to plumb.” Maj. op. at 70 n. 74. Where the evi-

dence is indeed conflicting, the agency would have no dif-

ficulty in reciting isolated bits and pieces of inferential

support in the record for its position, and thereby establish

the minimal rationality the majority says it must affirm. If

the majority’s analysis is correct, the exercise of judicial

review is but a charade.

As the dissent perceived, the question of rationality in

administrative rule-making cannot truly be determined by

automatically deferring to the agency’s judgment in select-

ing evidence from the record to support its position. Rather,

the crucial question to be asked is why the agency selected

the evidence it did and rejected others.*’ If, in answer to

that question, the agency’s basis for assessing the evidence is

found to be inconsistent and variable according to whether

4#°In the words of the dissent, “[T]he court concludes that {t]he

problem here is one of choosing among the items of evidence.” We

respectfully disagree. The problem here is really one of choosing among

the items of evidence and explaining why! The Administrator dis-

agreed with the negative conclusions of the Seven Cities study and

several other studies, but never said why he disagreed. This is why

we can fault his conclusion.” Dissenting op. at 72 (emphasis in orig-

inal).

the particular study supports the agency’s position or op-

poses it, the rule-making can only be characterized as arbi-

trary and irrational.”

With disturbing frequency, the record reveals the use of

inconsistent criteria by Respondent in the assessment of

evidence. Where a study fails to support a basic premise

in Respondent's position, such as, for example, that in-

creased levels of airborne lead correspond to increased

blood lead levels,** Respondent has rejected the study be-

cause of its failure to control dietary sources of lead. In the

case of studies supporting Respondent’s position, however,

the absence of dietary control is forgotten.“ In response to

one of Respondent’s more blatant inconsistencies, the dissent

remarked:

“| I]t passes our understanding how anyone can find

dietary control a problem in a comparison between

greater Philadelphia and greater New York (thus justi-

fying rejection of that data), but of no importance in

a comparison between Scarsdale and Harlem (thus

justifying reliance on urban-suburban data from great-

er New York). The art of reconciling total inconsis-

tencies has soared to new heights when this court can

seriously conclude (1) that ‘dietary lead [can] be

assumed relatively constant’ between the most affluent

*' This Court has recognized that even where evidence exists to sup-

port an agency rule, the rule “may nonetheless reflect arbitrary and

capricious action.” Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 284 (1974).

“? The Seven Cities Study (A. at 840), conducted under the joint

sponsorship of EPA and industry, is generally recognized as the most

extensive epidemiological study in the field. That study found no sig-

nificant correlation between airborne lead levels and blood lead levels.

*8 As discovered by the dissent, “the record indicates that even the

studies relied upon by the Administrator failed in this same respect.”

Dissenting op. at 76 (emphasis in original).

and the least affluent neighborhoods of greater New

York City and (2) that ‘[t]he Administrator treated

all the evidence in a consistent and rational manner.’

The Administrator has thus utterly failed to present us

with a reasoned and principled analysis of the evi-

dence.” Dissenting op. at 77-78 (footnotes omitted).

Further, where Respondent fails to provide any explana-

tion for its rejection of contrary data, the majority has filled

the gap with post hoc rationalizations as support for the

agency’s decision.** In so doing, the majority has over-

stepped its bounds as a reviewing court, and has merely

accentuated the inadequacies in Respondent's analysis.”

In short, the record demonstrates that rather than engag-

ing in the objective, hard look at the evidence that Section

211 contemplates, Respondent has searched high and low

for bits and pieces of inferential support for the “get the

lead out” crusade that was predetermined by Respondent

even before the ruie-making process began. In the process,

Respondent has functioned as an advocate, not the impartial

analyst of the evidence Congress clearly intended. Under

the majority’s “highly deferential” standard of review, such

single minded advocacy on the part of regulatory agencies

is wholly endorsed. That expert agencies are entitled to

sonie deference is not disputed, but there must come a point

at which the danger signals of arbitrariness are so clear that

44 Indeed it is highly significant that the majority, while protesting

that a substantive review of the evidence is unnecessary or even im-

proper, devotes 31 pages of its opinion to such a review, in which it

undertakes to explain away the shoddy analysis and biased conclusions

of the Respondent’s “health documents.”

45 “(The specific decision must be explained, not merely explainable,

in terms of the ingredients announced by the Administrator as com-

prising the Agency's policies and standards.” Environmental Defense

Fund, Inc. v. EPA, 465 F.2d 528, 539 (D.C. Cir. 1972).

not even “scientific expertise” can shield an agency from

judicial intervention.**

The record here reveals a classic case of arbitrary rule-

making. If such arbitrariness is to be excused in this case,

then judicial review has been reduced to an exercise in form

only, totally devoid of substance. And when judicial review is

gone, there is no protection left against arbitrary procedures,

manipulation of data or even political misuse of agency

powers.

C. By Sanctioning Regulations Based Principally Upon Preliminary,

Untested Data Never Subjected to Scrutiny by the Scientific

Community Or Made Available To The Public For Meaningful

Comment, The Majority Below Has Frustrated The Policy of

The Administrative Procedure Act, And Further Reduced The

Due Process Accountability of Administrative Agencies For Their

Their Rule-Making Decisions.

Basic to all federal rule-making proceedings is the funda-

mental due process requirement that the public be advised

of the basis of the proposed action and be afforded a mean-

ingful opportunity to comment thereon prior to adoption

of the rule. This requirement, expressed in Section 4 of the

Administrative Procedure Act," reflects a recognition by

Congress of the “essential canons of fairness.” Powhatan

Mining Co. v. Ickes, 118 F.2d 105, 109 (6th Cir. 1941).

*° Accord, South Terminal Corp. v. EPA, 504 F.2d 646, 665 (Ist

Cir. 1974) (“A court would abdicate its function were it, when con-

fronted with important and seemingly plausible objections going to the

heart of a key technical determination, to presume that the agency

could never behave irrationally”); Stark vy, Weinberger, 497 F.2d

1092, 1099 n. 14 (7th Cir. 1974) (Judicial review requires “more than

an uncritical rubber stamping of the administrative action”),

475 U.S.C. § 553.

The double standard the decision below has established

for environmental rule-making is nowhere more pronounced

than in the majority’s assessment of Respondent’s com-

pliance with the notice and oppor*unity for comment re-

quirements. Public comments on the first two proposals of

the regulations (issued in February 1972 and January 1973,

respectively), pointed out the fundamental defects in Re-

spondent’s position and caused the agency to withdraw each

proposal. Under the unreported and unrealistic court order

of October, 1973, to reach a final decision in thirty days,“

however, Respondent issued the regulations and the Third

Health Document without the benefit of advance notice or

public comment.

Both the preamble to the final regulations and the Third

Health Document refer to numerous sources and _ studies

that had never been cited in the previous discredited

documents. The Third Health Document contains a total

of 190 citations to reference sources. Of that number,

a full 757 of them were not cited in the previous health

documents, Fifty-two of the references cited bear a date

subsequent to November 29, 1972, the date of the second

health document, indicating that they were not even in the

literature when that review of the evidence was issued.

The significance of the new citations is not so much their

numbers, but rather the importance Respondent has as-

signed to them in defending its position on the final regu-

lations. The dissenting judges have very carefully reviewed

the record in this case and have found, almost without ex-

ception, that the principal studies relied upon by Respond-

ent were developed after the close of the comment period

on the Second Health Document and were cited for the

*8 Natural Resources Defense Council v. EPA, D.C. Cir. No.

72-2233; see discussion page 6 supra.

first time in the preamble to the final regulations or the

Third Health Document.” Critical to Respondent’s conclu-

sion that concentrations of lead in the ambient air correlate

directly with lead levels in the blood, for example, were

two pilot isotope studies,’ and an unpublished study from

Japan.” As explained in the preamble to the regulations,”

data from these studies were “preliminary” only and had

“not yet been completely analyzed” ; nevertheless, Respond-

ent weighed them against the mass of previous data to the

contrary and concluded that an air/blood correlation does

exist. As the dissent discovered, these studies did not become

available even to Respondent until October and July, re-

spectively, of 1973, and were never mentioned by Respond-

ent as important to its consideration until the final regula-

tions were issued in November, 1973.

Similarly, Respondent has cited a series of studies it

calls “persuasive evidence’ in support of its hypothesis

that children eat dust and dirt contaminated by airborne

lead from auto exhausts. As the dissent found, these studies

were developed at the last minute, with no opportunity for

scrutiny by the general scientific community. A study from

Newark, New Jersey, of the effect of lead absorption of

proximity to high traffic density, for example, had not even

been published at the time the regulations were issued. Dis-

senting op. at 24. The scientific community thus had no

# See dissenting op. at 17-50, where the dissent first isolates the new

studies heavily relied upon by Respondent, and then details their

availability (or lack thereof) to pet'tioners and the public for comment.

6° R. Doc. No. 113 (A. at 678, 704).

51 R. Doc. No. 462 (A. at 1092).

82 38 Fed. Reg. 33735 (Dec. 6, 1973) (A. at 3).

88 Third Health Doc. at VI-20 (A. at 130).

opportunity to determine whether the study had taken into

account such important variables as condition of housing,

age or ethnic group. Likewise, studies from Chicago, Phila-

delphia and Rochester which Respondent has termed as

“persuasive” did not come to Respondent until after the

court below had ordered the agency to make a decision with-

in thirty days and shortly before the regulations were issued.

Dissenting op. at 25. Again, no opportunity for public

comment on these critical studies was afforded.

The majority below considers this objection to Respond-

ent’s procedure unimportant, stating that the agency had

invited and received public comment on the lead phase-

down proposal on three previous occasions. Maj. op. at 99.

What the majority refuses to recognize, however, is that the

basic documents upon which Respondent ultimately relied in

defending its position were effectively shielded from public

scrutiny by the timing of the court’s order and issuance of

the regulations. As the dissent noted:

“| Bly October-November 1973 he [the Adminis-

trator] was largely shifting his ground trom the dis-

credited scientific data of the First and Second Health

Documents to new data embraced in the Third Health

Document. This is the crucial time at which informed

comment from the best scientific minds in other govern-

ment agencies and elsewhere should have been sought

—unless EPA was irrevocably resolved to promulgate

the restrictive reguiations on lead which it had origi-

nally proposed years before, in spite of the barrage of

unanimous critical comment from other government

scientific minds, as well as interested outsiders.” Dis-

senting op. 26-27.

Concerning the prior opportunities for comment, the dissent

recognized :

“It certainly, as a practical matter does no good for

an agency to propose an action, support it with data

which is severely criticized, abandon that data for new,

fail to subject the new data to informed comment, and

then promulgate the same proposed regulations on the

basis of new data.” Dissenting op. at 38.

The majority further suggests that the notice and op-

portunity for comment requirements of the Administrative

Procedure Act were fully satisfied when all the studies and

documents referred to in the preamble and the Third Health

Document were placed in the agency’s public information

file, Maj. op. at 100 & n. 102, and that in any event Peti-

tioner can have no complaint because it was furnished all

the record documents as a result of a Freedom of Informa-

tion Act suit. Maj. op. at 108 n. 118. The absurdity of this

position is obvious. As observed by the dissent:

“{T]i is not enough under the Administrative Pro-

cedure Act merely to make the scientific data ‘avail-

able’ to the public and all interested parties. First, the

claimed ‘availability’ here boils down to a compelled

furnishing of data to one interested party under the

Freedom of Information Act and the placing of hun-

dreds of miscellaneous documents—scientific studies,

papers, published articles, etc.—in a poorly indexed

dust bin of a file in the public rooms of the Environ-

mental Protection Agency. Second, there was never any

notice—and our colleagues do not and can not contend

that there was—on which data out of the great miscel-

laney EPA would rely until the Third Health Docu-

ment was published simultaneously with the regula-

tions. Third, the opportunity to comment effectively on

the new data on which EPA ultimately relied was far-

cical, as our detailed discussion above nails down.”

Dissenting op. at 46-47 (emphasis in original).

The procedural irregularities sanctioned below have se-

rious implications for future regulatory actions. The majority

opinion blithely ignores (and indeed discounts by its overly

deferential approach) the growing public ciamor for in-

dependent research bodies to advise the regulatory agencies

on highly complex technical issues like this (as was done

in the recent restructuring of the Atomic Energy Commis-

sion). The majority fails to take into account its own un-

realistic time limitation placed on the Respondent that

made it impossible for public comment to be solicited with

respect to the final regulations.” Finally, the majority puts

its stamp of approval.on a procedure whereby an agency

avoids the public notice and comment requirements Con-

gress has imposed by simply dumping thousands of pages

of record material into a public information file (without

proper indices or classifications )—a procedure totally repug-

nant to traditional concepts of principled administrative

rule-making.” As the dissent perceived, “From the pages of

the court’s opinion there seeps the theme that this is an

environmental case; hence, the court like the agency need

not labor by the usual rules.” Dissenting op. at 50. In order

to assure the public the “most intelligent, optimally bene-

ficial decision” possible,”* however, environmental agencies

** It is perhaps of considerable importance that Judge Wright, who

wrote two lengthy opinions in this case to justify all the Respondent’s

actions, was the ieading. member of the panel that put the Respondent

under an unrealistic 30 day deadline to take final action against lead

antiknocks.

®® Judges Bazelon and McGowan, in their concurring opinion, like-

wise lamented the procedural inadequacies of Respondent’s rule-

making, observing that “Ordinarily . . . I think a record which so

burdens judicial review would require a remand for clarification.” Op.

by Bazelon, C.J., at 5. Indeed, a total of six judges of the court below

found significant irregularities in Respondent’s procedures.

56 Calvert Cliffs’ Coord. Comm., Inc. v. AEC, 449 F.2d 1109, 1114

(D.C, Cir. 1971).

can be no less accountable for their decisions than are other

administrative bodies.

The actions of the administrative agency in this case are

so difficult to justify that the majority below first had to go

to extremes to supply even “minima! rationality,” and then

had to be overly deferential to so-called administrative ex-

pertise to reach its final result. In so doing, the majority

has notified the Respondent that henceforth there will be no

meaningful judicial review of environmental regulations.

This will likely encourage the disregard of statutory stand-

ards, the performance of shoddy scientific analysis and even

the manipulation of data, and the avoidance of rules de-

signed to give the public advance notice and a meaningful

opportunity to comment on proposed regulations. Such a

momentous redefinition of the scope of judicial review in

the vitally important area of environmental controls re-

quires prompt review by this Court.

CONCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the Court of Appeals for

the District of Columbia Circuit.

Respectfully submitted,

Joseru C, Carter, JR.

Davin F. Peters

700 E. Main Street

Richmond, Virginia 23212

JOHN J. ADAMS

1730 Pennsylvania Ave., N.W.

Washington, D. C. 20006

Counsel for Petitioner

May 5, 1976

CERTIFICATE OF SERVICE

I, John J. Adams, counsel for the Petitioner, and a mem-

ber of the Bar of the Supreme Court of the United States,

hereby certify that I have served all parties required to be

served by depositing three copies of the foregoing Petition

for Writ of Certiorari in the United States Mail, first class

postage prepaid, this 5th day of May, 1976, addressed

to: The Solicitor General, Department of Justice, Washing-

ton, D. C., and to Robert V. Zener, Environmental Protec-

tion Agency, Waterside Mall Building, 4th and M Streets,

S.W., Washington, D. C. 20460.

Joun J. ADAMS

Counsel for Petitioner

APPENDIX A

Clean Air Act

42 U.S.C. §$§ 1857c-3, 1857c-4, 1857f-1, 1857-6

Administrative Procedure Act

5 U.S.C. § 553

Environmental Protection Agency Regulations

40 C.F.R. §§ 80.1, 80.2, 80.20, 80.25, 80.26

42 U.S.C. § 1857c-3

Air Quality Criteria And Control Techniques

Sec. 108. (a) (1) For the purpose of establishing national

primary and secondary ambient air quality standards, the

Administrator shall within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970 publish, and

shall from time to time thereafter revise, a list which in-

cludes each air pollutant—

(A) which in his judgment has an adverse effect on

public health or welfare ;

(B) the presence of which in the ambient air resuits from

numerous or diverse mobile or stationary sources ; and

fore the date of enactment of the Clean Air Amendments

of 1970, but for which he plans to issue air quality criteria

under this section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included such

pollutant in a list under paragraph (1). Air quality criteria

for an air pollutant shall accurately reflect the latest scien-

tific knowledge useful in indicating the kind and extent of

all identifiable effects on public health or welfare which may

be expected from the presence of such pollutant in the

App. 2

ambient air in varying quantities. The criteria for an air

pollutant, to the extent practicable, shall include informa-

tion on—

(A) those variable factors (including atmospheric con-

ditions) which of themselves or in combination with other

factors may alter the effects on public health or welfare of

such air pollutant;

(B) the types of air pollutants which, when present in the

atmosphere, may interact with such pollutant to produce

an adverse effect on public health or welfare ; and

(b) (1) Simultaneously with the issuance of criteria under

subsection (a), the Administrator shall, after consultation

with appropriate advisory committees and Federal depart-

ments and agencies, issue to the States and appropriate air

pollution control agencies infeiiation on air pollution con-

trol techniques, which information shall include data re-

lating to the techuology and costs of emission control. Such

inferination shall include such data as are available on

available technology and alternative methods of prevention

and control of air pollution. Such information shall also in-

clude data on alternative fuels, processes, and operating

methods which will result in elimination or significant re-

duction of emissions.

(2) In order to assist in the development of information

on pollution control techniques, the Administrator may

estabiish a standing consulting committee for each air pol-

lutant included in a list published pursuant to subsection

(a) (1), which shall be comprised of technically qualified

individuals representative of State and local governments,

industry, and the academic community. Each such com-

App. 3

mittee shall submit as appropriate, to the Administrator

information related to that required by paragraph (1).

and, as appropriate, modify, and reissue any criteria or in-

formation on control techniques issued pursuant to this sec-

tion.

(d) The issuance of air quality criteria and information

on air pollution control techniques shall be announced in

the Federal Register and copies shall be madle available to

the general public.

42 U.S.C. § 1857¢-4

National Ambient Air Quality Standards

Sec. 109. (a) (1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970, shall publish proposed

regulations prescribing a national primary ambient air

quality standard and a national secondary ambient air

quality standard for each air pollutant for which air qual-

ity criteria have been issued prior to such date of enact-

ment; and

(B) after a reasonable time for interested persons to

submit written comments thereon (but no later than 90 days

after the initial publication of such proposed standards)

shall by regulation promulgate such proposed national pri-

mary and secondary ambient air quality standardswith such

modifications as he deems appropriate.

(2) With respect to any air pollutant for which air

quality criteria are issued after the date of enactment of

the Clean Air Amendments of 1970, the Administrator shall

publish, simulianeously with the issuance of such criteria

App. 4

and information, proposed national primary and secondary

ambient air quality standards for any such pollutant. The

procedure provided for in paragraph (1)(B) of this sub-

section shall apply to the promulgation of such standards.

(b) (1) National primary ambient air quality standards,

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to

protect the public health. Such primary standards may be

revised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard

prescribed under subsection (a) shall specify a level of air

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary stand-

ards may be revised in the same manner as promulgated.

42 U.S.C. § 1857f-1

Sec. 202. (a) Except as otherwise provided in subsection

(b)—

(1) The Administrator shall by regulation prescribe (and

from time to time revise) in accordance with the provisions

of this section, standards applicable to the emission of any

air pollutant from any class or classes of new motor vehicles

or new motor vehicle engines, which in his judgment causes

or contributes to, or is likely to cause or to contribute to, air

pollution which endangers the public health or welfare. Such

standards shall be applicable to such vehicles and engines

for their useful life (as determined under subsection (d)),

App. 5

whether such vehicles and engines are designed as complete

systems or incorporate devices to prevent or control such

pollution.

(2) Any regulation prescribed under this subsection (and

any revision thereof) shall take effect after such period as

the Administrator finds necessary to permit the development

and application of the requisite technology, giving ap-

propriate consideration to the cost of compliance within such

period.

(b) (1) (A) The regulations under subsection (2) appli-

cable to emissions of carbon monoxide and hydrocarbons

from light duty vehicles and engines manufactured during

or after model year 1977 shall contain standards which

require a reduction of at least 90 per centum from emissions

of carbon monoxide and hydrocarbons allowable under the

standards under this section applicable to light duty vehicles

and engines manufactured in model year 1970.

The regulations under subsection (a) applicable to emis-

sions of carbon monoxide and hydrocarbons from light-duty

vehicles and engines manufactured during model years 1975

and 1976 shall contain standards which are identical to the

interim standards which were prescribed (as of December 1,

1973) under paragraph (5) (A) of this subsection for light-

duty vehicles and engines manufactured during model year

1975.

(B) The regulations under subsection (a) applicable to

emissions of oxides of nitrogen from light duty vehicles and

engines manufactured during or after model year 1978 shall

contain standards which require a reduction of at least 90

per centum from the average of emissions of oxides of

nitrogen actually measured from light duty vehicles manu-

factured during model year 1971 which are not subject to

App. 6

any Federal or State emission standard for oxides of nitro-

gen. Such average of emissions shall be determined by the

Administrator on the basis of measurements made by him.

The regulations under subsection (a) applicable to emis-

sions of oxides of nitrogen from light-duty vehicles and

engines manufactured during model years 1975 and 1976

shall contain standards which are identical to the standards

which were prescribed (as of December 1, 1973) under sub-

section (a) for light-duty, vehicles and engines manufac-

tured during model year 1975. The regulations under sub-

section (a) applicable to emissions of oxides of nitrogen from

light-duty vehicles and engines manufactured during model

year 1977 shall contain standards which provide that such

emissions from such vehicles and engines may not exceed

2.0 grams per vehicle mile.

(2) Emission standards under paragraph (1), and meas-

urement techniques on which such standards are based (if

not promulgated prior to the date of enactment of the Clean

Air Amendments of 1970), shall be prescribed by recula-

tion within 180 days after such date.

(3) For purposes of this part

(A) (i) The term ‘model year’ with reference to any

specific calendar year means the manufacturer’s annual

production period (as determined by the Administrator),

which includes January | of such calendar year. If the man-

ufacturer has no annual production period, the term ‘model

year shall mean the calendar year.

(ii) For the purpose of assuring that vehicles and engines

manufactured before the beginning of a model year were

not manufactured for purposes of circumventing the ef-

fective date of a standard required to be prescribed by sub-

section (b), the Administrator may prescribe regulations

App. 7

defining ‘model year’ otherwise than as provided in clause

(i).

(B) The term ‘light duty vehicles and engines’ means

new light duty motor vehicies and ney, ught duty motor

vehicle engines, as determined under regulations of the Ad-

ministrator.

(4) On July 1 of 1971, and of each year thereafter, the

Administrator shall report to the Congress with respect to

the development of systems necessary to implement the emis-

sion standards established pursuant to this section. Such re-

ports shall include information regarding the continuing

effects of such air pollutants subject to standards under this

section on the public health and welfare, the extent and

progress of efforts being made to develop the necessary

systems, the costs associated with development and applica-

tion of such systems, and following such hearings as he may

deem advisabl . any recommendations for additional con-

gressional action necessary to achieve the purposes of this

Act. In gathering inforr ation for the purposes of this para-

graph and in connection with any hearing, the provisions

of section 307 (a) (relating to subpoenas) shall apply.

(5)(A) At any time after January 1, 1975, any manu-

facturer may file with the administrator an application re-

questing the suspension for one year only of the effective

date of any emission standard required by paragraph

(1)(A) with respect to such manufacturer for light-duty

vehicles and engines manufactured in model year 1977.

The Administrator shall make his determination with respect

to any such application within sixty days. If he determines,

in accordance with the provisions of this subsection, that

such suspension should be granted, he shall sindultane-

ously with such determination prescribe by regulation

App. 8

interim emission standards which shall apply (in lieu

of the standards required to be prescribed by paragraph

(1) (A) of this subsection) to emissions of carbon monoxide

or hydrocarbons (or both) from such vehicles and engines

manufactured during model year 1977.

(B) Any interim standards prescribed under this para-

graph shall reflect the greatest degree of emission control

which is achievable by application of technology which the

Administrator determines is available, giving appropriate

consideration to the cost of applying such technology with-

in the period of time available to manufacturers.

any such suspension, and after public hearing, the Adminis-

trator shall issue a decision granting or refusing such suspen-

sion. The Administrator shall grant such suspension only if

he determine that (i) such suspension is essential to the pub-

lic interest or the public health and welfare of the United

States, (ii) all good faith efforts have been made to meet

the standards established by this subsection, (iii) the ap-

plicant has established that effective control technology,

processes, operating methods, or other alternatives are not

available or have not been available for a sufficient period

of time to achieve compliance prior to the effective date of

such standards, and (iv) the study and investigation of the

National Academy of Sciences conducted pursuant to sub-

section (c) and other information available to him has not

indicated that technology, processes, or other alternatives are

available to meet such standards.

(D) Nothing in this paragraph shall extend the effective

date of any emission standard required to be prescribed

under this subsection for more than one year.

App. 9

(c)(1) The Administrator shall undertake to enter into

appropriate arrangements with the National Academy of

Sciences to conduct a comprehensive study and investiga-

tion of the technology feasibility of meeting the emissions

standards required to be prescribed by the Administrator

by subsection (b) of this section.

(2) Of the funds authorized to be appropriated to the

Administrator by this Act, such amounts as are required

shall be available to carry out the study and investigation

authorized by paragraph (1) of this subsection.

(3) In entering into any arrangement with the National

Academy of Sciences for conducting the study and investi-

gation authorized by paragraph (1) of this subsection, the

Administrator shall request the National Academy of Sci-

ences to submit semiannual reports on the progress of its

study and investigation to the Administrator and the Con-

gress, beginning not later than July 1, 1971, and continuing

until such study and investigation is completed.

(4) The Administrator shall furnish to such Academy

at its request any information which the Academy deems

necessary for the purpose of conducting the investigation

and study authorized by paragraph (1) of this subsection.

For the purpose of furnishing such information, the Ad-

ministrator may use any authority he has under this Act

(A) to obtain information from any person, and (B) to

require such person to conduct such tests, keep such records,

and make such reports respecting research or other activities

conducted by such person as may be reasonably necessary to

carry out this subsection.

(d) The Administrator shall prescribe regulations under

which the useful life of vehicles and engines shall be deter-

mined for purposes of subsection (a) (1) of this section and

App. 10

section 207. Such regulations shall provide that useful life

shall—

(1) in the case of light duty vehicles and light duty vehicle

engines, be a period of use of five years or of fifty thousand

miles (or the equivalent), whichever first occurs; and

(2) in the case of any other motor vehicle or motor ve-

hicle engine, be a period of use set forth in paragraph (1)

unless the Administrator determines that a period of use of

greater duration or mileage is appropriate.

‘e) Inthe event a new power source or propulsion system

for new motor vehicles or new motor vehicle engines is sub-

mitted for certification pursuant to section 206(a), the

Administrator may postpone certification until he has pre-

scribed standards for any air pollutants emitted by such

vehicle or engine which cause or contribute to, or are likely

to cause or contribute to, air pollution which endangers the

public health or welfare but for which standards have not

been prescribed under subsection (a).

42 U.S.C. § 1857f-6e

Regulations Of Fuels

Sec. 211. (a) The Administrator may by regulation desig-

nate any fuel or fuel additive and, after such date or dates as

may be preseribed by him, no manufacturer or processor of

any such fuel or additive may sell, offer for sale, or introduce

into commerce such fuel or additive unless the Administra-

tor has registered such fuel or additive in accordance with

subsection (b) of this section.

(b) (1) For the purpose of registration of fuels and fuel

additives, the Administrator shall require

App. 11

“(A) the manufacturer of any fuel to notify him as to

the commercial identifying name and manvfacturer of any

additive contained in such fuel; the range of concentration

of any additive in the fuel; and the purpose-in-use of any

such additive ; and

(B) the manufacturer of any additive to notify him as to

the chemical composition of such additive.

(2) For the purpose of registration of fuels and fuel ad-

ditives, the Administrator may also require the manufac-

turer of any fuel or fuel additive—

(A) to conduct tests to determine potential public health

effects of such fuel or additive (including, but not limited

to, carcinogenic, teratogenic, or mutagenic effects) , and

(B) to furnish the description of any analytical technique

that can be used to detect and measure any additive in such

fuel, the recommended range of concentration of such addi-

tive, and the recommended purpose-in-use of such additive,

and such other information as is reasonable and necessary to

determine the emissions resulting from the use of the fuel or

additive contained in such fuel, the effect of such fuel or

additive on the emission control performance of any vehicle

or vehicle engine, or the extent to which such emissions

affect the public health or welfare.

Tests under subparagraph (A) shall be conducted in con-

formity with test procedures and protocols established by

the. Administrator. The result of such tests shall not be

considered confidential.

(3) Upon compliance with the provisions of this subsec-

tion, including assurances that the Administrator will receive

changes in the information required, the Administrator shall

App. 12

basis of information obtained under subsection (b) of this

section or other information available to him, by regulation,

control or prohibit the manufacture, introduction into com-

merce, offering for sale, or sale of any fuel additive for use

in a motor vehicle or motor vehicle engine (A) if any emis-

sion products or such fuel or fuel additive will endanger the

public health or welfare, or (B) if emission products of such

fuel or fuel additive will impair to a significant degree the

performance of any emission control device or system which

is in general use, or which the Administrator 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 additive may be

controlled or prohibited by the Administrator 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 standards under

section 202.

‘B) No fuel or fuel additive may be controlled or pro-

hibited by the Administrator pursuant to clause (B) of para-

graph (1) except after consideration of available scientific

and economic data, including a cost benefit analysis com-

paring emission control devices or systems which are or will

be in general use and require the proposed control or pro-

hibition with emission control devices or systems which are

or will be in general use and do not require the proposed

control or prohibition. On request of a manufacturer of

motor vehicles, motor vehicle engines. fuels, or fuel addi-

tives submitted within 10 days of notice of proposed rule-

making, the Administrator shall hold a public hearing and

publish his findings with respect to any matter he is re-

App. 13

quired to consider under this subparagraph. Such findings

shall be published at the time of promulgation of final

regulations.

Administrator under paragraph (1) unless he finds, and

publishes such finding, that in his judgment such prohibi-

tion will not cause the use of any other fuel or fuel additive

which will produce emissions which will endanger the public

health or welfare to the same or greater degree than the use

of the fuel or fuel additive proposed to be prohibited.

(3) (A) For the purpose of obtaining evidence and data

to carry out paragraph (2), the Administrator may require

the manufacturer of any motor vehicle engine to furnish

any information which has been developed concerning the

emissions from motor vehicles resulting from the use of any

fuel additive, or the effect of such use on the performance of

any emission control device or system.

(B) In obiaining information under subparagraph (A),

section 307(2) (relating to subpoenas) shall be applicable.

(4)(A) Except as otherwise provided in subparagraph

(B) or (C), ne State (or political subdivision thereof) may

prescribe or attempt to enforce, for purposes of motor

vehicle emission control, any control or prohibition respect-

ing use of a fuel or fuel additive in a motor vehicle or motor

vehicle engine—

(i) if the Administrator has found that no control or

prohibition under paragraph (1) is necessary and has pub-

lished his finding in the Federal Register, or

(ii) if the Administrator has prescribed under paragraph

(1) a control or prohibition applicable to such fuel or fuel

additive, unless State prohibition or control is identical to

App. 14

the prohibition or control prescribed by the Administrator.

(B) Any State for which application of section 209(a)

has at anytime been waived under section 209(b) may at

any time prescribe and enforce, for the purpose of motor

vehicle emission control, a control or prohibition respecting

any fuel or fuel additive.

of motor vehicle emission control, a control or prohibition

respecting the use of a fuel or fuel additive in a motor

vehicle or motor vehicle engine if an applicable implemen-

tation plan for such State under section 110 so provides. The

Administrator may approve such provision in an imple-

mentation plan, or promulgate an implementation plan con-

taining such a provision, only if he finds that the State con-

trol or prohibition is necessary to achieve the national pri-

mary or secondary ambient air quality standard which the

plan implements.

(d) Any person who violates subsection (a) or the regu-

lations prescribed under subsection (c) or who fails to fur-

nish any information required by the Administrator under

subsection (b) shall forfeit and pay to the United States a

civil penalty of $10,000 for each and every day of the con-

tinuance of such violation, which shall accrue to the United

States and be recovered in a civil suit in the name of the

United States, brought in the district where such person has

his principal office or in any district in which he does busi-

ness. The Administrator may, upon application therefor,

remit or mitigate any forfeiture provided for in this sub-

section and he shall have authority to determine the facts

upon all such applications.

App. 15

5 US.C. $553

§ 553. Rule making. .

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the United

States; or

(2) a matter relating to agency management or personnel

or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making sha!i be pub-

lished in the Federal Register, unless persons subject thereto

are named and either personally served or otherwise have

actual notice thereof in accordance with law. The notice

shall include—

(1) a statement of the time, place, and nature of public

rule making proceedings ;

(2) reference to the legal authority under which the rule

is proposed ; and /

(3) either the terms or substance of the proposed rule or

a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply— |

oe -

(A) to interpretative rules, general statements of policy,

or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorpo-

rates the finding and a brief statement of reasons therefor in

the rules issued) that notice and public procedure thereon

are impracticable, unnecessary, or contrary to the public

interest.

App. 16

give interested persons an opportunity to participate in the

rule making through submission of written data, views, or

arguments with or without opportunity for oral presentation.

After consideration of the relevant matter presented, the

agency shall incorporate in the rules adopted a concise gen-

eral statement of their basis and purpose. When rules are

required by statute to be made on the record after oppor-

tunity for an agency hearing, Sections 556 and 557 of this

title apply instead of this subsection.

(d) The required publication or service of a substantive

rule shall be made not less than 30 days before its effective

date, except—

(1) a substantive rule which grants or recognizes an ex-

emption or relieves a restriction ;

(2) interpretative rules and statements of policy ; or

(3) as otherwise provided by the agency for good cause

found and published with the rule.

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

40 C.F.R. $§ 80.1, 80.2, 80.20, 80.25, 80.26

Part 80 of Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

1. In § 80.1, the second sentence is revised to read as

follows:

§ 80.1 Scope.

* * * These regulations are based upon a determination

by the Administrator that the emission product of a fuel

or additive will endanger the public health, or will im-

App. 17

pair to a significant degree the performance of a motor

vehicle emission control device in general use or which the

Administrator finds has been developed to a point where in

a reasonable time it would be in general use were such regu-

lations promulgated; and certain other findings specified by

the Act.

2. In § 80.2, a new paragraph (m) is added as follows:

§$ 80.2 Definitions.

(m) “Lead additive manufacturer” means any person

who produces a lead additive or sells a lead additive under

his own name.

3. Anew § 80.20 is added as follows:

§ 80.20 Controls applicable to gasoline refiners.

(a) (1) In the manufacture of gasoline at any refinery, no

gasoline refiner shall exceed the average lead content per

gallon specified below for each 3-month period (January

through March, April through June, July through Septem-

ber, October through December) :

(i) 1.7 grams of lead per galion, after January 1, 1975;

(ii) 1.4 grams of lead per gallon, after January 1, 1976;

(iii) 1.0 grams of lead per gallon, after January 1, 1977;

(iv) 0.8 grams of lead per gallon, after January 1, 1978;

(v) 0.5 grams of lead per gallon, after January 1, 1979.

)

(2) For each 3-month period (January through March,

April through June, July through September, October

through December) the average lead content per gallon

App. 18

shall be computed by dividing total grams of lead used at a

refinery in the manufacture of gasoline by total gallons of

gasoline manufactured at such refinery.

(3) For each 3-month period (January through March,

April through June, July through September, October

through December) commencing with the period January

1, 1975 through March 31, 1975, each refiner shall submit

to the Administrator a report showing for each refinery (i)

the total grams of lead in lead additive inventory on the

first day of the period, (ii) the total grams of lead received

during the period, (iii) the total grams of lead in lead addi-

tive inventory on the last day of the period, (iv) the total

gallons of gasoline produced by such refinery during the

period, and (v) the average lead content in each gallon

of gasoline produced during the period. Reports shall be

submitted within 15 days after the close of the reporting

period, on forms supplied by the Administrator upon re-

quest.

(b) The provisions of paragraph (a)(1)(i) and (ii) of

this section shall not be applicable to any refiner which does

not have more than 30,000 barrels per day crude oil or bona

fide feed stock capacity from owned or leased facilities or

from facilities made available to such refiner under an ar-

rangement such as, but not limited to, an exchange agree-

ment (except one on a refined product for refed procuct

basis) or a through-put or other form of processing agree-

ment, with the same effects as though such facilities had

been leased.

4. Anew § 80.25 is added as follows:

§ 80.25 Controls applicable to lead additive manufacturers.

For cach 3-month period (January through March, April

through June, July through September, October through

App. 19

December) commencing with the period January 1, 1975

through March 31, 1975, cach lead additive manufacturer

shall submit to the Administrator a report showing the total

grams of lead shipped to each refinery by such lead addi-

tive manufacturer during the period. Reports shall be sub-

mitted within 15 days after the close of the reporting period,

on forms supplied by the Administrator upon request.

5. Anew § 80.26 is added as follows:

$ 80.26 Confidentiality of information.

Information obtained by the Administrator or his repre-

sentatives pursuant to this part shall be treated, insofar as

its confidentiality is concerned, in accordance with the pro-

visions of 40 CFR Part 2.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.