Petition — NATL. PETROLEUM REFINERS ASSN. v. ENVIRONMENTAL PROTECTION AGENCY (Nos. 75-1614, 75-1602, 75-1612, 75-1613)

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MAY 5 1996

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IN THE

Supreme Court of the United States

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HIN VIRONA rar. Proves . ANckeNevo Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

il, Kpwarp Denker Benorn. dn

Theobore dT. Goatuery

COVINGTON & Pot Ne

aS Sixteenth Street, 8

Washiteton, 1) ¢ “POM

Lil/orueys Pas) Petitioners

Mav 5. 1976

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TABLE OF CONTENTS

Page

ES Ce oe 2

I oe N88 a Ne ae eee eats a

GOMSUROD TUM oi oc cc ccdc ge ccccsccccsccssees 2

STaTuTEs AND REGULATIONS INVOLVED ...........-e0- 3

STATEMENT OF THE CAGB ....ccccccccccccccccecececs 4

Proceedings Before the Agency ................ 6

A I ns os cu we bueee es s

REASONS FOR GRANTING THE WRIT ..............eeee0% 10

I. The Decision Below Which Upheld EPA Regu-

lations Based Upon New Evidence Which Was

Never Brought to the Publie’s Attention So As

To Allow for Informed Public Participation Is

Contrary to This Court’s Decision in Bowman

Transportation and Inconsistent With the Re-

quirements of the APA and Fundamental Re-

quirements of Due Process .................. 11

II. The Decision Below Is Contrary to the Mandate

of Congress in Holding That the Administrator

Has Quasi-Legislative Power To Reach a De-

termination Which ‘‘Is Necessarily a Question

of Policy’’ and Which Need Not Be Based Upon

.hsdenahsckawed cuenccnihoedhakas os 15

III. The Decision Below Presents Important Ques-

tions As To the Proper Role of the Judiciary

in Reviewing Agency Action and Conflicts With

This Court’s Decision in Citizens To Preserve

UE. 5 ba rob ecek oudnaebandscodéveenes 18

IV. The Decision Below Is Inconsistent With Con-

gressional Policy Requiring EPA To Consider

Alternative Means of Limiting Lead Emissions 21

CoNCLUSION

il

TABLE OF AUTHORITIES

Page

CASES:

Bowman Transportation Inc. v. Arkansas-Best Freight

System, 419 U.S. 28 (1974) ..........-eeees 11, 12,13

Buckeye Power Inc. v. EPA, 481 F.2d 162 (6th Cir.

i PPT ETE ero T ET Teer TTT TTT Tye rer TT Te 13

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

ih Ge CP OR 5 kb ncnos cages Cans 6eceasees 18, 19, 20

International Harvester Company v. Ruckelshaus, 478

ree We Ce, GO. BOD a csccnpecccevvcccnsss 13

NRDC v. EPA, D.C. Cir. No. 72-2233 (1973) ........ 7

NRDC vy. Train, 8 ERC 1695 (S.D.N.Y. 1976) ....... 23

Portland Cement Association v. Ruckelshaus, 486 F.2d

375 (D.C. Cir. 1973), cert. denied, 4417 U.S. 921

EET See pp lace os ee ee ane 13

S.E.C. v. Chenery Corp., 332 U.S. 194 (1947) ........ 14

Train v. NRDC, 421 U.S. 60 (1975) ................ 4

STaTUTEs:

Administrative Procedure Act

3 BG BS Beer rrr rrr 12

DS as SE EIN bFonccdcccvsvseceshesecds 18

Clean Air Act, As Amended |

Oe EF ND cece wscveddcsatencdacda 21, 22, 23

Ss OF IO 6 onc dc cdacdecewieedsceces 4, 22, 23 -

rere 4, 21, 99": 23

42 U.S.C. § IDE RUGEED y cdcecvccsccundses 22

ts Sa | ROR rae 4, 5, 22

42 U.S.C. § 1857f-6e(c)(1) ...............3, 16, 17, 22

42 U.S.C. § 1857f-6Ge(e)(1)(A) ......... 5, 9, 16, 18, 22

42 U.S.C. § 1857f-Ge(c)(2)(A) .......... cee eee 22

42 U.S.C. § 1857f-6e(c)(4)(C) .............008. 22

Ge Ue © BRP CP ERD oon ob on ce vcncecmcccecs 8

Judicial Code, 28 U.S.C. § 1254(1) ................. 2

REGULATIONS:

ba SR ft, ere 6

a URS: eee 7

38 Fed. Reg. 33734 (1973) .............006. 4, 8, 15, 16, 22

Table of Authorities Continued ‘iii

Page

LEGISLATIVE MATERIAL:

H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) ...... 17

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) ...... 17

116 Cong. Rec. 19230 (1970) .......... cece eee c evens 17

116 Cong. Rec. 32920 (1970) ......3.....ccccccccees 22

BOO CUE, HOO, GEE CUUOD voce ccncccscccseccices 17

_ Cong. Research Service, A Legislative History of The

Clean Air Amendments of 1970 (1974) .......... 19

IN THE

Supreme Court of the United States

OcToBeR TERM, 197i

No.

NATIONAL PETROLEUM REFINERS ASSOCIATION,

ASHLAND On, INc.,

CLARK Or & REFINING CORPORATION,

Kerr-McGre CorporaTION,

MouAWK PETROLEUM CorPoRATION, INC.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners National Petroleum Refiners Associa-

tion et al. pray that a writ of certiorari issue to review

the opinion and judgment of the United States Court

of Appeals for the District of Columbia in this case.

2

OPNION BELOW

The opinion of the court of appeals below, on re-

hearing en banc, is unofficially reported at 8 E.R.C.

1785 anid is reprinted in the Appendix to this Petition.’

JURISDICTION

The judgment of the court of appeals was entered

on Mareh 19, 1976. Issuance of the mandate of the

court of appeals has been stayed pending the filing of

this petition. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

The regulations at issue involve fundamental ques-

tions concerning the use of the nation’s limited petro-

leum supplies. The use of lead additives in gasoline

is of paramount importance to the refining industry.

The split decision below, reversing a decision of a

panel of the court of appeals, upholds EPA regula-

tions limiting lead usage based upon an admittedly

speculative health concern that is said to be essentially

unreviewable by the courts. The questions presented

are:

1. Whether the Administrator of the Environ-

mental Protection Agency, acting under the command

of the court of appeals to complete his action within

thirty days, satisfied the requirements of due process

and the Administrative Procedure Act where inter-

ested persons were not provided notice of and an

opportunity to comment on new evidence that was

ge ret ye submitted as the joint appendix in

four related petitions. ll five-eases involved the same regula-

tions and were jointly decidéd im the opinion below.

3

relied on by him in determining that emission products

of lead additives in gasoline will endanger the public

health. —

2. Whether authority has been delegated by Con-

gress to the Administrator to limit the use of lead

additives in gasoline on the basis of a policy judgment

even though the available scientific and medical evi-

dence is speculative and inconclusive as to the effect of

such additives on the public health.

3. Whether appellate review of administrative

agency rulemaking that is based upon scientifie and

medical evidence requires examination of the evidence

relied upon by the agency or is satisfied by a determi-

nation that the agency received and gave considera-

tion to such evidence.

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

cretion for the Administrator to impose nationally

uniform limitations on the lead content of gasoline,

instead of establishing ambient air quality standards

and providing for regional controls.

STATUTES AND REGULATIONS INVOLVED

Section 211(¢) (1) of the Clean Air Act, as amended,

(‘‘the Act’’), 42 U.S.C. § 1857f-6e(c)(1), grants the

EPA Administrator certain authority to control the

sale of any fuel additive which has emission products

that will endanger the public health, as follows:

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

time on the basis of information obtained under

subsection (b) of this section or other information

available to him, by regulation, control or pro-

hibit the manufacture, introduction into com-

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

additive for use in a motor vehicle or motor vehicle

4

engine (A) if any emission products of such fuel

or fuel additive will endanger the public health

or welfare... .”’

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

may be controlled or prohibited by the Adminis-

trator 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 eeonom-

ically feasible means of achieving emission stand-

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

The regulations involved, ‘‘ Regulation of Fuels and

Fuel Additives, Control of Lead Additives in Gaso-

line,’’ were published in 38 Fed. Reg. 33734 (December

6, 1973) (R.1)?

STATEMENT OF THE CASE

The principal means by which the Clean Air Act, as

amended in 1970, provides for the protection of public

health and welfare from the harmful effects of air

pollution is the promulgation of national ambient air

standards by EPA under Section 109 of the Act, and

the adoption under Section 110 of state implementation

plans providing for attainment and maintenance of the

standards by such means as emission limitations for

stationary and moving sources, and land use and trans-

portation controls.*

The Act contains supplementary provisions specifie-

ally directed at automotive emissions. The preferred

methods of control, as expressed by Congress, are di-

* References to ‘‘R’’ are to the record as set forth in the

Joint Appendix below.

$42 TS.C. §§ 1857e-4, 1857¢-5; see Train v. NRDC, 421 U.S.

60, 66-67 (1975).

5

rect limits on vehicle emissions to be met by auto manu-

facturers under Section 202 of the Act. A different

means of control is provided in Section 211(¢) (1) (A)

of the Act, involved here, which grants EPA certain

authority to contro] the sale of fuel additives if it finds

on the basis of medical and scientifie evidence that

emission products of such additives ‘‘will endanger”’

the public health.°

The lead additives which are the subject of the regu-

lations at issue in this case are of paramount im-

portance to the refining industry. The use of lead

additives enables refiners to increase the yield of gaso-

line, at a given octane, which is produced from a quan-

tiiy of crude oil. It also permits refiners to produce

gasoline of desired octane levels with a minimum of

refinery and processing equipment. The regulations

at issue will have an adverse impact upon the nation’s

energy crisis, and will result in substantial increases

in rude oil usage.” The regulations will also result

in huge added production costs which will be borne by

the consuming public and the refining industry,’ and

#42 U.S.C. § 1857f-1.

542 U.S.C. § 1857f-6e(¢e) (1) (A).

“EPA estimated an increase of between 102,000 and 351,000

barrels per day crude oil usage by 1985 (R. 1538-39). The

Department of the Interior estimated an increase of one million

barrels per day (R. 2494), and the Department of Commerce

projected even higher figures. (R. 2459).

7EPA estimated increased consumer costs from $14 to $75

million by 1980, and additional annual investment costs of $82 to

$113 million by 1980 (R. 1542-43). The Department of the In-

terior estimated consumer costs of over $48 billion in this decade

(R. 2498).

6

will have a particularly severe impact on smaller

refiners.*

Proceedings Before the Agency

On February 23, 1972, the Administrator proposed

regulations affecting the use of lead additives in gaso-

line.” These proposed regulations would have required

a four-stage reduction of lead in gasoline to 1.25 grams

per gallon by 1977. The reduction portion of the

proposed regulations was based upon an EPA health

paper entitled ‘‘Health Hazards of Lead,’’ which ac-

cepted a certain relationship between air and blood

levels, and made assumptions about the volume of air

inhaled by a person.’® Pubtie hearings were held by

EPA on the proposed regulations in Washington,

D. C., Dallas and Los Angeles in the spring of 1972."

Much of the testimony at the hearings and many of

the written comments received by EPA were critical

of the proposed regulations and EPA’s scientific

assumptions.”

In the light of these criticisms and subsequent pub-

lic comments received, on January 10, 1973, EPA an-

nounced reproposed regulations which would require

a four-stage reduction of lead in gasoline to 1.25 grams

per gallon by 1978. The basis for the new proposal

was that the Administrator had ‘‘re-evaluated’’ his

position and concluded that ‘‘it is difficult if not im-

SEPA consultants predicted that a number of small refiners

would close as a result of the regulations. R. 1592, 1674-78, 1653.

°37 Fed. Reg. 3882-84 (1972) (R. 22).

1 R, 292, 295-96, 254, 272.

1 R, 1970-2116.

12 R, 2022-69, 2245, 2070.

7

possible to rely on the analysis presented in the earlier

proposal’’ and that ‘‘the original health position can

no long[er] be considered sufficient.’’’* The repro-

posed reguiations were accompanied by a second health

document summarizing EP A’s ‘‘new health position’’

which was based upon the assertion that ‘‘considerable

numbers”’’ of people have elevated blood lead levels,

and that emissions from automobiles contribute thereto.

EPA invited public comment for 60 days on the re-

proposed regulations, and in response to this request,

extensive comments criticizing the new EPA position

and its supporting health document were received, in-

cluding comments from other government agencies.

On October 29, 1973, while EPA was considering these

comments and certain other new data which it had

received, the agency was required by the court of ap-

peals, in dismissing a premature petition for review,

to reach a final decision on the matter within 30 days.”

In response to the court’s order, EPA on November

28, 1973, announced that the Administrator had de-

cided to promulgate in revised form final regulations

to reduce lead levels in gasoline.” The final regula-

tions, published in the Federal Register on December

6, 1973, provided for a five-stage reduction in the

amount of lead in gasoline to an average lead content

838 Fed. Reg. 1258 (January 10, 1973) (R. 15). |

14 This second health document was entitled “EPA’s Position

on the Health Effects of Airborne Lead—November 29, 1972.’’

(R. 158).

15 Natural Resources Defense Council, Inc. v. Environmental

Protection Agency (D.C. Cir. No. 72-2233) (unpublished order).

See Wright Op. 14.

© R. 1143.

8

of 0.5 grams per gallon over a period of five years.

The regulations were accompanied by a preamble ™

which refers to new technical documents relied upon

to justify the regulations, including a third lengthy

health position paper.” Prior to the promulgation of

these regulations, EPA did not provide interested

parties with notice of or an opportunity to comment

either on the new health document upon which the

agency based the regulations, or the new scientific and

medical evidence upon which the ageney had heavily

relied.

~ The Decisions Below

Petitions for review of the final regulations were

filed by these petitioners and others pursuant to See-

tion 307(b) (1) of the Act, 42 U.S.C. § 1857h-5(b) (1).

Petitioners argued that the regulations should be held

unlawful and set aside on several grounds. First, we

argued that EPA’s health concern is speculative and

that the evidence could not support the conclusion,

required by the statute, that the use of lead additives

‘will endanger the public health.’’ Petitioners also

argued that the regulations should be remanded for an

opportnnity to comment on the new evidence relied

upon by EPA. Further, we argued that EPA’s fail-

ure to consider alternative means of limiting auto-

mobile emissions rendered these regulations invalid.

A divided panel of the court of appeals issued its

decision setting aside the regulations on January 28,

1975, The majority opinion by Judge Wilkey, in which

Judge Tamm joined, found the regulations defective

'738 Fed. Reg. 33734 (1973) (R. 1).

'S““EPA’s Position on the Health Implications of Airborne

Lead,’’ November 28, 1973 (R. 27).

9

on the independent grounds that EPA incorrectly in-

terpreted Section 211(¢)(1)(A) of the Act, and that

the Administrator’s decision ‘‘reflected a clear error

of judgment upon the available evidence.’’ (Panel Op.

69). Judge Wright filed a lengthy dissent which criti-

cized the ‘‘rigor of the majority’s review,’’ and what

he viewed as its undue sensitivity to ‘‘the energy

crisis.’? (Wright Diss. 94). *

EPA thereafter successfully petitioned for rehear-

ing en banc. The court ordered that supplemental

briefs be filed, the case was argued in May 1975, and

on March 19, 1976 the court rendered a deeply divided

(5 to 4) decision affirming the regulations. This time

Judge Wright wrote the principal opinion for the ma-

jority, and Judge Wilkey wrote a dissenting opinion

in which Judges Tamm and Robb joined. In addition,

separate concurring opinions were filed by Judges

Bazelon and Leventhal, and a separate dissent was

filed by Judge MacKinnon.

Judge Wright’s opinion held (1) that the Adminis-

trator properly interpreted Section 211(¢)(1)(A) to

allow him to make ‘‘an essentially legislative policy

judgment, rather than a factual determination”’

(Wright Op. 37, 46); (2) that the court need not de-

cide whether the Administrator’s decision is supported

by substantial evidence, but only whether it has a ra-

tional basis in evidence (id. at 74-75); and (3) that

EPA’s procedures in failing to provide for comments

prior to issuing the final regulations did not violate the

APA or due process. (Jd. at 98, 110)."°

% Judge Wright’s opinion also rejected other arguments raised

by petitioners in challenging the validity of the regulations.

(Wright Op. 110, n. 24).

10

In a separate opinion in which Judge McGowan

joined, Judge Bazelon stated that substantive review

of scientific issues by the courts ‘‘is dangerously un-

reliable,’’ but coneurred ouly because in his view the

majority’s ‘‘legislative policy’’ holding would bar a

‘‘elose analysis of the evidence.’’ (Bazelon Op. 4).

The principal dissenting opinion by Judge Wilkey

concluded, contrary to the majority, (1) that even ac-

cepting EPA’s interpretation of the statute, the

agency’s ‘‘analysis reflected a clear error of judgment

upon the available evidence’? (Wilkey Op. 85), (2)

that the requirements of the APA and due process

were not satisfied because EPA did not bring to the

pubiie’s attention the new scientifie data upon which

it relied in a manner that made informed public com-

ments possible (id. at 32, 86), and (3) that a review-

ing court cannot supply reasons absent from the

agency’s formal explanation, and must engage in a

‘‘substantial inquiry” to consider whether the agency’s

decision was based upon a consideration of relevant

factors and whether there was a ‘‘clear error of judg-

ment.’’ (Jd. at 58, 65).

REASONS FOR GRANTING THE WRIT

The granting of the petition for certiorari in this

case is supported by several of the grounds that are

traditionally deemed sufficient by this Court to justify

plenary review. The majority opinion expressly rec-

ognized the ‘‘importance of the issues raised’’ (Wright

Op. 113), and it is clear that the questions presented

by the deeply divided opinions in this case raise issues

of national and continuing importance concerning the

*’ Judge Wilkey did not find it necessary to reach the other

arguments presented by petitioners. (Wilkey Op. 85, n. 194).

11

procedures for public participation in agency rule-

making, the role of the courts in reviewing agency ac-

tion, and the implementation of the Clean Air Act.

This case also raises important questions concerning

the use of the nation’s limited petroleum supplies.

I. The Decision Below Which Upheld EPA Regulations Based

Upon New Evidence Which Was Never Brought to the

Public’s Attention So as To Allow for Informed Public

Participation Is Contrary to This Court's Decision in Bow-

man Transportation and Inconsistent with the Require-

ments of the APA and Fundamental Requirements of Due

Process.

The absence of an opportunity for comment on the

data which formed the basis for the f final regulations,

and the resulting due process and APA issues raised

thereby, deeply divided the court below. The regula-

tions involved here were twice proposed, and were

twice the subject of extensive criticism by other gov-

ernment agencies and the public which persuaded EPA

that its hypotheses could not be supported. Despite

the fact that these uncertainties were expressed by the

agency itself in promulgating the final regulations, as

the dissent notes, EPA ‘‘did not risk the same fate

with the Third Health Document.’’ (Wilkey Op. 16).

Instead, in response to a court order that KPA act

within thirty days, the agency rushed into_an_ ill con-

sidered ‘decision based upon a new health document

and 1 new scientific data.

Ne ee ee

The ‘‘majority’’ opinion by Judge Wright (one of

the judges who had ordered action within thirty days)

held that the requirements of the APA and due proc-

ess were satisfied because, as reconstructed by the ma-

jority, the agency’s general ‘‘theories’’ (but not the

data relied upon) were the same in the Third Health

12

Document, because some of the underlying scientific

data were placed in the agency’s public information

file, and because the remaining data (according to the

majority) were not needed to support EPA’s conclu-

tion or were merely a reexamination of earlier data.

(Wright Op. 98-99, 104-08). In contrast, two con-

curring judges (Bazelon and McGowan) felt that there

was a ‘failure of the record to clearly disclose the

procedural steps followed by EPA,”’ and stated that

‘‘ordinarily’’ there should have been ‘‘a remand for

clarification’’ except for the possibility that the court

of appeals’ ‘‘thirty-day order interfered with the op-

portunity to do so.’’ (Bazelon Op. 4-5).

The four dissenting judges concluded that the re-

quirements of the APA and due process were not com-

plied with, and that the majority was guilty of sane-

tioning a departure from ‘‘the usual rules’’ because

‘this is an environmental ecase.’’ (Wilkey Op. 50).

The dissent specifically concluded that making certain

information available to a party as a result of a FOIA

suit, and placing information in a publie file without

providing any notice as to which data would be relied

upon rendered the opportunity to comment effectively

‘*farcical.”? (Id. at 47).

The lack of an opportunity to comment on EPA’s

new health documents and supporting data is totally

inconsistent with an orderly administrative proceeding.

The Administrative Procedure Act requires that an

Agency provide notice of and ‘tan opportunity to par-

ticipate in the rule making through submission of

written data, views, or arguments ...”° 5 U.S.C. § 553

(©). The importance of the right to comment on evi-

dence in an administrative proceeding was empha-

sized by this Court in Bowman Transportation Ine. v.

13

Arkansas-Best Freight System, 419 U.S. 281, 288 n. 4

(1974) :

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

which decision will turn and to be apprised of

the factual material on which the agency relies for

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

Process Clause forbids an agency to use evidence

- in any way that forecloses an opportunity to offer

a contrary presentation.”’

The decision below is in conflict not only with this

Court’s decision in Bowman Transportation, supra,

but also with previous stated positions of the court of

appeals, and decisions in other cirenits.*'

In this case, a request for an opportunity to comment

on the new basis for the regulations by one of the peti-

tioners was denied by EPA in a letter dated after the

regulations were promulgated. (See Wilkey Op. 37).

Perhaps, as Judge MachKinnon noted, given the time

constraints imposed on the agency by the thirty-day

order, ‘‘it was impossible for it to comply with the no-

tice and comment requirements of the Administrative

Procedure Act....’’ (MacKinnon Op. 1). If allowed

to stand, however, this case would sanction a wide de-

parture from this Court’s decision in Bowman Trans-

portation and previous cases interpreting the require-

ments of the Administrative Procedure Act. As noted

by the dissent, ‘‘|i]n no previous case, environmntal

or otherwise, has this court tolerated sueh ‘publie no-

21 See International Harvester Company v. Ruckelshaus, 478

F.2d 615 (D.C. Cir. 1973) ; Portland Cement Association v. Ruckel-

shaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1974); Buckeye Power Ine. v. EPA, 481 F.2d 162 (6th Cir.

1973).

~

14

tice’ and ‘opportunity to comment’ as it sanctions

here.”’ (Wilkey Op. 50).

There is a related aspect of the decision below which

warrants review by this Court. As noted by Judges

Bazelon and McGowan, there is a ‘‘failure of the ree-

ord to clearly disclose the procedural steps followed

by EPA.” (Bazelon Op. 5). It is clear that the ma-

jority’s conclusions as to the procedure followed by

KPA were not set forth by EPA, but were rather re-

constructed by the court.“ This reconstruction not

only cousisted of examining the factual record, but of

evaluating the scientific significance of data to deter-

mine whether its unavailability was prejudicial,” and

filling in gaps in the reeord and EPA’s explanation

thereof, far beyond any reasonable discernment there-

of, as the dissent makes clear.** In doing so, the

majority violated this Court’s admonition that the

courts cannot supply post hoc rationalizations for

ageney action. SEC v. Chenery Corp., 332 U.S. 194,

196 (1947).”

Review by this Court is essential to make it clear to

administrative agencies and reviewing courts that

agencies cannot be permitted to base regulations upon

material that was never brought to the publie’s atten-

tion ina manner that makes informed public comment

possible.

22 See Wright Op. 97-110.

* See e.g. Wright Op. 104 n. 112; compare Wilkey Op. 28, n. 62.

*4 See Wilkey Op. 17-50.

* See alsu cases cited in Wilkey Op. 65, n. 140.

15

II. The Decision Below Is Contrary to the Mandate of Con-

gress in Holding that the Administrator Has Quasi-Legisla-

tive Power To Reach a Determination Which “Is Nec-

essarily A Question of Policy” and Which Need Not Be

Based Upon the Facts.

In promulgating the lead health regulations the Ad-

ministrator has not purported to base them upon a fac-

tual determination that the emission products of leaded

gasoline ‘will endanger the public health or welfare.”’

Indeed, EPA expressly concludes that the percentage

of total lead exposure from automobile emissions can-

not be determined, that the primary causes of lead ex-

posure are not automotive emissions but rather are

ingestion of lead-based paint im the case of urban

children and ingestion of food in the case of the general

population, and that ‘‘the contention that lead con-

tamination of dust and dirt by automotive emissions

is a significant source of lead exposure’’ is simply ‘ta

hypothesis’”’ which is not supported by data ‘‘to con-

clusively prove or disprove the hypothesis.’ IPA

admits that it is ‘‘difficult to determine what impact

would be achieved by partial or total reduction of lead

from any one souree.’’ At best, EPA’s action is prem-

ised on its puzzling conclusion that ‘tit would be pru-

dent to reduce preventable lead exposure’’ and that

since leaded gasoline is a source of lead which ean be

2638 Fed. Reg. 33735-36 (1973) (R. 3-4) (emphasis added).

Neither the Administrator nor the EPA health document has taken

the position that the evidence relating lead in gasoline to human

health is reasonably definitive or that further information is

not required. Explanations such as ‘‘a hypothesis’, ’ preliminary

data show’’, ‘‘not all links in the argument have been established

beyond dispute,’’ ‘‘failure to find consistent correlations’’ and

‘further information is required’’ over throughout the preamble

to the regulations and the final health document. (R. 2, 3, 1478,

4, 123).

16

‘treadily’’ controlled by EPA ‘‘in comparison to other

sources”’ the agency felt obligated to do so.”

The majority opinion concedes that ‘‘hard proof of

any danger caused by lead automotive emissions has

been hard to come by”? (Wright Op. 9), but upheld

the Administrator’s action based upon its decision that

the determination of endangerment to public health

‘‘is necessarily a question of policy that is to be based

on an assessment of risks and that should not be bound

by either the procedural or the substantive rigor proper

for questions of fact.”” (/d. at 46). In support of this

conclusion, the majority attempts to make a virtue of

necessity by arguing that EPA action based on ‘‘spee-

ulation, conflicts in evidence and theoretical extrapola-

tion’’ should be upheld. *‘* How else can they act, given

a mandate to protect the public health but only a slight

or nonexistent data base upon which to draw?”’ (Jd.

at 47).

The majority’s question is not a rhetorical one. As

the dissent persuasively demonstrates, the court’s hold-

ings flies in the face of the fact that the ‘‘will endan-

ger’ standard is not a delegation of quasi-legislative

power, and that Congress intended EPA’s determin-

ation under Section 211(¢)(1)(A) to ‘tbe a reasoned

factual determination based solely on the medical and

scientifie evidence.’” (Wilkey Op. 55).

When Congress enacted Section 211(e)(1) of the

Clean Air Act,” it realized that the authority to regu-

late gasoline and its additives posed complex and im-

portant questions concerning this country’s use of one

2738 Fed Reg. 33734 (R. 2).

42 U.S.C. § 1857f-Ge(c) (1).

17

of its most vital natural and economic resources, the

proper uses of which have become even more acute

with the recent energy crisis. Accordingly, Congress

expressly required that before the Administrator exer-

cise his authority under ‘ion 211(¢)(1) of the Act,

he would have to make mination based on *‘eon-

sideration of all relevai «edical and scientifie evi-

dence available to hini,’ that the use of an additive

‘‘will endanger the public health... .’’ Congress did

not have in mind the speculative and hypothetical

health effects which the Administrator relied upon in

the preamble to the regulations and in the new health

document. The Senate and House Reports empha-

sized that there would have to be ‘‘a direct endanger-

ment to the public health,’’ and that any standards

established would have to be based on a consideration

of all of the medical and scientific evidence.”

The split decision below has potential significance

because the agency felt that it was important to estab-

lish the principle that the Administrator not be re-

quired to act upon “‘the type of evidence”? required by

the original panel. (EPA Supp. Br. 6). Thedecision

27S. Rep. No. 91-1196, 91st Cong., 2d Sess. 34 (1970) (em-

phasis added); H. R. Rep. No. 91-1146, 91st Cong., 2d Sess. 13

(1970). The Chairman of the House Committee which reported

the bill, Representative Staggers, stated that the Administrator

could control additives **[i]f he has the facts, and he has proven

this by facts, that they are a danger and poisonous.’’ 116 Cong.

Ree. 19230 (1970) (emphasis added). And Senator Baker, rank-

ing minority member of the Conference Committee, stated that

controls could be adopted only if the Administrator found that

the combustion of a given fuel ‘‘was, in and of itself,’’ an en-

dangerment of the public health. 116 Cong. Ree. 32921 (1970)

(emphasis added).

18

below in accepting EPA’s argument raises the con-

verse issue, namely whether where Congress has ex-

pressly required, as it has in Section 211(¢)(1)(A),

that a determination be based on a ‘‘consideration of

all relevant medical and scientific evidence,’’ agency ac-

tion can validly be grounded upon a ‘nonexistent data

base” and vague considerations of “policy.” Con-

gress could have provided for an EPA determination

based upon ‘‘policy”’, but it did not do so. This Court |

should make it clear that the courts in reviewing

agency action cannot substitute their views for the

express mandate of Congress as to the weight to be

given policy considerations as opposed to*&cientifie

facts relating to health and safety.

III. The Decision Below Presents Important Questions as to

the Proper Role of the Judiciary in Reviewing Agency

Action and Conflicts with This Court’s Decision in Citizens

To Preserve Overton Park.

The absence in the record of any support for a

determination that lead emissions from automobiles

are a danger to publie health compels the conclusion

that the majority of the court below could not have

subjected that determination to the statutory standard

of judicial review required by the Administrative

Procedure Act and decisions of this Court. That

standard requires a reviewing court to hold unlawful

aud set aside ageney action which is ‘‘arbitrary, ca-

pricious, an abuse of discretion, or otherwise not in

accordance with law.’? 5 U.S.C. §706(2)(A). The

applicable test was discussed at length in this Court’s

decision in Citizens To Preserve Overton Park, Ine.

v. Volpe, 401 U.S. 402 (1971). There the Court em-

phasized that an agency’s determination must be sub-

jected to a ‘‘thorough, in-depth review”’ by ‘‘engag-

19

[ing] in a substantial inquiry’’ and ‘‘review[ing] the

whole record.’’ This Court made it clear that although

‘‘(t}he court is not empowered to substitute its judg-

ment for that of the agency,’’ the ‘‘inquiry into the

facts is to be searching and ecareful,’’ and in every ease

the court must determine whether ‘‘the decision was

based on a consideration of relevant factors.’’ Id. at

415, 419, 416.

The five-man majority in the court below was itself

deeply divided on this fundamental issue of the role

of the court in reviewing action of the Administrator

under the Clean Air Act. Judge Wright's definition

of this standard of review on pages 66-74 of his opin-

ion for the most part indicates that he at least under-

took a ‘‘elose serutiny of the evidence’? (Wright Op.

72), but his extensive discussion in footnote 74 at page

69 of his opinion appears to be nothing less than a

rejection of the ‘‘clear error of judgment’? langtiage

of this Court in its Overton Park decision. Further,

Judge Wright refused to give significance to the fact

that the Conference Committee on the Clean Air Aet

eliminated the provision in the Senate-passed version

which would have provided an express presumption

of validity for action of the Administrator in promul-

gating regulations.”

This uncertainty on the part of Judge Wright in

reconciling his approach to the administrative record

in the light of the Clean Air Act and its legislative

history, as well as the decision of this Court in Over-

ton Park, is eompnounded by the fact that two members

* Wright Op. 68 n. 72. See Cong. Reserach Service, A Legis-

lative Tlistory of the Clean Air Amendments of 1970 (1974),

Vol. 1 at 386, 149.

20

of the majority explicitly refused to accept even Judge

Wright’s approach in reviewing the record. The con-

curring opinions of Judges Bazelon and MeGowan,

expressly reject the notion that appellate judges should

steep themselves in technical matters ‘‘to determine

whether the agency has exercised a reason discretion.”’

(Bazelon Op. 1). Instead, these two Judges, which

were essential to the majority, coneurred in the deci-

sion only because as they ‘‘read the court’s opinion, it

severely limits judicial weighing of the evidence by

construing the Administrator’s decision to be a matter

of ‘legislative policy,’ and consequently not subject to

review with the ‘substantive rigor proper for questions

of fact’ ’’ since *‘this result would bar the panel’s close

analysis of the evidence....’’ (Id. at 4).

As a result of the confusion as to the proper scope

of substantive review of agency action under the Ad-

ministrative Procedure Act and this Court’s decision

in Overton Park, a_bizarre result has been reached.

The concurring opinion of Judges Bazelon and

MeGowan indicates that they did not find it necessary

to engage in a close analysis of the evidence. As a

result, only three of the five judges in the majority

were able to form any conclusion as to the adequacy of

the evidence relied upon by the Administrator. On

the ether hand, four dissenting judges found that ‘‘no

valid administrative procedure would countenance

launching an enterprise drastically affecting a sub-

stantial portion of our economy on such a shaky foun-

dation as that relied upon in this ease.’? (Wilkey Op.

39). Review by this Court is essential to eliminate the

uncertainty which the court of appeals found in apply-

ing this Court’s decision in Overton Park, as that deci-

21

sion applies to all agency action based upon scientific

and technical evidence. pees

IV. The Decision Below Is Inconsistent with Congressional

Policy Requiring EPA To Consider Alternative Means of

Limiting Lead Emissions.

In promulgating these regulations, the Administrator

attempted to deal with what he perceived to be a prob-

lem involving the emission products of lead additives in

gasoline by imposing national, uniform limitations on

the lead coutent of gasoline. In deciding on this course

of action, the Administrator expressly re ,ected an

alternative approach of providing for regulation on a

regional basis under Section 108 of the Clean Air Act.

42 U.S.C. § 1857e-3.

The Administrator’s failure to consider air quality

standards for lead has great significance. In the pre-

amble to the regulations the Administrator concededly

was concerned with air lead levels only in certain

urban areas. (R. 15-16). It is therefore impossible to

justify the Administrator’s adoption of nationwide

rather than regional controls. Under this statutorily

preferred approach, EPA would have published an

ambient air quality standard for lead, which would be

made effective by the adoption of implementation plans

by the states pursuant to Section 110 of the Act. In

those regions of a state where airborne lead could be

shown to result in ambient air levels in excess of the

standard, the state implementation plan could prescribe

emission limitations and ‘‘transportation control mea-

sures’? as necessary to achieve the standard in those

regions. Such measures can include limitations on ve-

hicle use, parking controls, emission limitations for

vehicles, requirement of lead traps on individual

22

vehicles, or even controls on the use of lead in gasoline

sold in the region or state.”

The failure of the Administrator adequately to con-

sider this alternative means of control renders his

decision to promulgate regulations under Section 211

an abuse of discretion in view of the admittedly specu-

lative and inconclusive nature of the available health

evidence, and the fact that the amount of lead in the

atmosphere concededly varies widely from region to

region.

No explanation was offered for the. Administrator’s

rejection of the air quality standard and regional ap-

proach under Sections 108-110, other than the Admin-

istrator’s assertion that the choice between these regu-

latory approaches is ‘‘discretionary with the Admin-

istrator.”’* The Administrator’s conclusion on this

point is inconsistent with both the language of Section

108, and the Congressional mandate that means other

than the control of fuel additives be given preference

by EPA. As recognized by the majority opinion be-

low, when EPA acts under Section 211(¢) (1) (A) ‘it

is essentially telling manufacturers how to make their

fuel, a task Congress felt the Agency should enter upon

only with trepidation.’ Congress made its prefer-

ence for alternate means of controls clear by expressly

providing that before EPA exercises its Section 211

wuthority, it must first consider ‘‘other technologically

or economically feasible means of achieving emission

standards’? under Section 202, 42 U.S.C. § 1857f-6e

(¢) (2) (A).

I See 42 U.S.C, §1857e-5(a)(2)(B). Seetion 211(¢)(4)(C)

provides that state fuel additive limitations can be approved (or

promulgated by the Administrator) only if ‘‘necessary’’ to meet a

national ambient standard. 42 U.S.C. § 1857f-6e(e) (4) (C).

8238 Fed. Reg. 33740 (R. 8).

“Wright Op. 16 n. 14; see 116 Cong. Ree. 32920 (1970).

23

The Administrator’s conclusion concerning Section

108 of the Act not only ignores this Congressional pref-

erence, but also is based on an erroneous legal premise.

According to the majority opinion, the Administrator

had claimed, ‘‘with some statutory support, that action

under Section 108 is discretionary with him.”’ (Wright

Op. at 110-11, n. 124). The Administrator’s conelusion

on this point is inconsistent with the language of Sec-

tion 108, which does not confer discretionary authority,

but which instead provides that if a substance has an

adverse effect on public health and the other criteria

of the statute are met, the Administrator ‘‘shall’’ issue

ambient air quality standards. The conclusion of the

majority below is directly in conflict with a recent de-

cision of the United States District Court for the South-

ern District of New York, which held that in view of

the Administrator’s health position, EPA was required

to take action under Sections 108-110 to deal with auto-

mobile lead, and that this was not a matter of disere-

tion.” Review by this Court is thus warranted to re-

%#NRDC v. Train, 8 E.R.C. 1695 (S.D.N.Y. 1976).

24

solve the conflicting positions taken in different cir-

cuits regarding this important matter.

CONCLUSION

For the reasons stated, the Petition for Certiorari

should be granted. |

Respectfully submitted,

H. Epwarp DUNKELBERGER, JR.

THEODORE L. GARRETT

COVINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

May 5, 1976 Attorneys for Petitioners