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

No. 75-1612

In The

Supreme Court of the United States

October Term, 1975

ETHYL CORPORATION,

Petitioner,

v.

ENVIRONMFNTAL PROTECTION AGENCY,

Respondent.

On Petition fur a Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR THE PETITIONER,

ETHYL CORPORATION

Of Counsel: Joseru C. Carter, Jr.

’ Pw Davin F. PeTers

REDERICK I’. WARNE HuNTON & WILLIAMS

Ethyl Corporation 700 E. Main Street

= enter Virgin ag Richmond, Virginia 23212

, . Joun J. ApAms

General Counsel Hunton & WILLIAMS

1730 Pennsylvania Ave., N.W.

Washington, D. C. 20006

Counsel for Petitioner

TABLE OF CONTENTS

Page

PIII scent cicshasdacanngspnateneanaaaiabladsancensaauniaetoanmauieiiemsmieecen 2

Significance of Decision Below |... cidaganannananiadanndéianenen eens 2

Re GPE DOIN ccnsedisscsctnssnccsevssnscpnsmansecovny-osenecieesinn 2

2. Scope of Judicial Review 4

i TUMMmeD TUG anise cess sessctncesennncensenseeese )

CONCLUSION ............... 6

TABLE OF AUTHORITIES

Cases

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

RATAN NUT CADET: CSOT a TT Ee ONSET TT

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

CRITE niiccescnecedtessenvepsreocoroenahteamnsastinieninscamteusaions euetetaniaama 4,

Other Authority

Thompson, The Role of the Courts, in Feperat ENVIRONMENTAL

MITT sasccnpnsieasisienmdteredtacdnatessonebensdesndaantcisntsmecsdads

J

nh

In The

Supreme Court of the United States

October Term, 1975

No. 75-1612

ETHYL CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari to the United Siates Court

of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR THE PETITIONER,

ETHYL CORPORATION

In its bricf in opposition to the petition for a writ of

certiorari, Respondent characterizes these cases as a factual

dispute only, with no disagreement of consequence among

the judges of the court below that would be worthy of the

Court’s review. This surprising characierization is a com-

plete reversal of Respondent's position in the court below

that the issues involved were so important as to require an

on banc hearing. and that. unless reversed, the decision of

the initial panel would make impossible any further rule-

making in the area of environmental health. EPA Petition

for Rehearing and Suggestion for Rehearing En Bane at 3;

Supplemental Brief for Respondent at 6-7. Respondent's

Brief misinterprets the five separate opinions of the ma-

jority and minority below and improperly belittles the sig-

2

nificance of the issues involved. This Reply Brief is re-

quired to answer specifically these inaccuracies.

ARGU MENT

Significance of Decision Below

The decision below upholding Repondent’s regulations

requiring for public health reasons the phased reduction of

lead antiknocks used in motor gasoline illustrates clearly the

need for this Court to define the scope of judicial review of

complex environmental regulations of great economic and

social impact where the agency admittedly acted on the

basis of incomplete data and predictions of future harm.

The fact that the decision came from the “bellwether

circuit for administrative law questions,”' the closely di-

vided vote, the differences within the majority as to scope

of review, and the depth of disagreement between majority

and minority all underscore the importance of this case.

The specific questions at issue were (1) Respondent's

statutory authority for regulatory action, (2) the scope and

method of judicial review under the “arbitrary and ca-

pricious standard” of future-oriented environmental con-

trols, and (3) the procedural propriety under due process

standards of the manner in which the agency promulgated

and justified its reculations. The Respondent's brief not-

withstanding, the majority and minority of the court be-

low were totally at odds over all these questions.

a

STATUTORY AUTHORITY

As to the statutory standard, the majority approved

Respondent's interpretation that “will endanger” means the

‘Thompson, The Role of the Courts, in Feperar ENVIRONMENTAL

Law 192. 21] (1974).

3

same as “substantial risk of harm.” In so doing the majority

reasoned that the statute is precautionary and authorizes

regulation without evidence of actual cause and effect, thus

empowering Respondent to make “quasi-legislative policy

judgments” and to assess risks of future harm. In developing

this novel theory of total deference to administrative ex-

pertise in the field of environmental regulation, Judge

Wright has gone directly contrary to the established pro-

cedure of most scientists and judges to make decisions and

predictions on the basis of completed data demonstrating a

highly probable chain of causation.

Respondent's intimation that the dissenting judges ulti-

mately agreed with the agency's interpretation of the statu-

tory standard (EPA Brief at 12) is totally misleading.

While acknowledging that a finding of “significant risk of

harm,” if properly interpreted, could satisfy the “will en-

danger” standard of Section 211, Judge Wilkey’s opinion

entirely rejected the view that the statute conferred the

power to make quasi-legislative policy judgments. Com-

paring the unique language of Section 211 to the other

operative sections of the Clean Air Act, the dissent con-

cluded that the statute does not permit regulatory action

based on speculation as to risks and a nonexistent data base.

In short, the majority below has endorsed Respondent's

contention that it has the broadest regulatory power over

all areas of our national life—power that can be exercised

without any objective standards and without fear of reversal

by the judiciary. The minority below has insisted, on the

other hand, that until Congress speaks much more clearly

than it has done so far, Respondent must meet a definite

statutory standard that requires a clear evidentiary base

for regulatory action and that necessitates the application

by the courts of the traditional rules of judicial review. Only

this Court should decide which of these widely divergent

views will prevail in the future.

4

2.

Scope oF Jupiciat. Review

In an effort to minimize the legal issues that diametrically

split the court below, Respondent suggests that at least

seven of the nine judges of the Court of Appeals are in

“unqualified agreement” as to the reviewing court's respon-

sibility on judicial review. EPA Brief at 21. As a review of

the opinions demonstrates, however, the Wright and Wilkey

opinions agreed only that the “arbitrary and capricious”

standard of review should control. As to what the respective

judges consider the “arbitrary and capricious” standard to

mean, however, there are vast differences. In the case of

Judges Wright, Robinson and Leventhal, the evidence must

be reviewed, but only for the purpose of determining

whether it reflects a “minimum rationality.” Judges Bazelon

and McGowan expressed the view that the court must

affirm on the basis of procedural regularity alone, without

regard to substantive rationality at all. The dissenting

judges, on the other hand, would apply the standard set by

this Court to the methodology employed by the agency in

reviewing the evidence and in formulating its conclusions,

recognizing that an agency's approach to « problem is often

the best test of the arbitrariness of the action.”

Respondent's suggestion that Judges Bazelon and Mce-

Gowan may have actually reviewed the record evidence

with as much detail as the other judges (EPA Brief at 20-

21) belies the language of their opinion and ignores their

*“(Tihough an agency’s finding may be supported by substantial

evidence _. . it may nonetheless reflect arbitrary and capricious ac-

tion.” Bezuman Transp., Inc. v. Arkansas-Best Freight Sys., Ine., 419

U.S. 281, 284-85 (1974). 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 Prese ree

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

5

basic approach. The problem with the majority's suggested

standard of review (whether it be Judge Wright's or Chief

Judge Bazelon’s) is that it immunizes the regulatory agency

from any substantive judicial review; 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.

Rather than evidencing unqualified agreement. as Re-

spondent suggests, the widely divergent opinions and con-

flicting philosophies of the judges below reveal fundamental

differences as to the meaning of the “arbitrary and ca-

pricious’ standard of review. Until these differences are

resolved by this Court, the determination of the legality of

administrative action in a given case will be largely de-

pendent upon the particular panel of the court assigned to

review the matter.

3.

PROCEDURAL REQUIREMENTS

The final, and possibly the sharpest, dispute between the

majority and minority below involved the contention that

Respondent had not accorded the required administrative

due process because the final regulations were promulgated

without giving Petitioners or other interested parties the

opportunity for meaningful comment on new supporting

evidence.

In its Brief in Opposition, Respondent grossly distorts this

dispute by again claiming it was merely a factual disagree-

ment. Actually the dispute goes to the heart of settled doc-

trines of administrative due process, Judges Wright, Robin-

son and Leventhal brushed aside virtually all these doc-

trines in their rush to uphold the regulations under attack.

6

Yet the remaining six judges criticized procedural irregular-

ities indulged in by Respondent. Judges Bazelon and Me-

Gowan criticized Respondent's procedures, saying they

would ordinarily require a remand for clarification, but

ended up by concurring with the majority. ‘The remaining

four judges agreed strongly that Respondent had not com-

plied with administrative due process, and that the regula-

tions must be remanded or set aside on procedural grounds.

It is particularly important for this Court to resolve this

bitterly disputed question and to put the administrative

agencies clearly on notice that the basic rules of administra-

tive fairness have not changed.

CONCLUSION

For the reasons set forth herein and in the Petition, a

writ of certiorari should be issued in this case to review an

entirely new approach to judicial review of environmental

cases formulated and applied by a majority of the court

which (except for this Court) is most influential in shaping

administrative law in this country.

Respectfully submitted,

JosepH C. Carrer, Jr.

Davip F. Peters

HuNTON & WILLIAMS

700 E. Main Street

Richmond, Virginia 23212

Joun J. AbAMs

HuNTON & WILLIAMS

1730 Pennsylvania Ave., N.W.

Washington, D. C. 20006

Counsel for Petitioner

June 4, 1976