Petition — Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.

IN THE

Supreme Court of the Uuited

CLERK

a5

Office - Supreme Court, U.S.

FILED

AUG 30 1982

ALEXANDER L. STEVAS

OCTOBER TERM, 1982

MoTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., et al.,

Petitioners,

STATE FARM MUTUAL AUTOMOBILE INSURANCE

COMPANY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

—

PETITION FOR WRIT OF CERTIORAR

Of Counsel:

WILLIAM H. CRABTREE

Vice President and General

Counsel

Epwarp P. Goop

Senior Attorney

Motor Vehicle Manufacturers

Association of the United

States, Inc.

Forrest A. HAINLINE, JR.

Vice President and General

Counsel

DANIEL P. GiIMMY

Senior Attorney

American Motors Corporation

August 30, 1982

LLoyp N. CUTLER

JOUN H. PICKERING

WILLIAM R. PERLIK *

ANDREW B. WEISSMAN

WILLIAM R. RICHARDSON, JR.

JONATHAN I. FEIL

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Counsel for Petitioners

Motor Vehicle Manufacturers

Association of the United States,

Inc, American Motors

Corporation, Checker Motors

Corporation, Chrysler Motors

Corporation, Ford Motor

Company, General Motors

Corporation, and Volkswagen

of America, Ine.

* Counsel of Record

[Additional Counsel Listed on Inside Cover]

ee

RICHARD GOODYEAR

Vice President, General

Counsel and Secretary

MICHAEL W. Grice

Attorney

Chrysler Corporation

Henry R. Noite, In.

Vice President—General

Counsel

JAMES M. MAcNer, III

Associate General Counsel

DONALD G. MCGUIGAN

Counsel

Ford Motor Company

Oris M. Surru

Vice President and General

Counsel

CHARLES R. SHARP

Assistant General Counsel

WiLuuM L. Weer, JR.

J. DouGLas HAND

General Motors Corporation

N. RICHARD SKIPPER, JR.

General Counsel

GERHARD P. RIECHEL

Associate Counsel

Volkswagen of America, Inc.

MILToN D. ANDREWS

RICHARD A. PENNA *

DONALD M. SCHWENTKER

RIVKIN SHERMAN AND LEVY

900 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 347-6007

Counsel for Petitioner

Automobile Importers of

America, Inc.

* Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

1. May a court of appeals, when reviewing the exercise

of the Secretary of Transportation’s discretion under the

National Traffic and Motor Vehicle Safety Act of 1966

to determine the content of “appropriate” safety stand-

ards, invalidate as arbitrary and capricious the Secre-

tary’s decision to rescind his earlier regulation setting

prospective passive restraint requirements because the

court finds that decision to violate a congressional “man-

date” the court divines from congressional rejection of

bills that would have required or prohibited passive re-

straints and rejection of resolutions that would have

vetoed the earlier regulation?

2. When a court of appeals concedes that an agency’s

reasons for rescinding prospective passive restraint re-

quirements would justify declining to adopt such require-

ments in the first instance, may the court reject these

same reasons as arbitrary and capricious when used to

support the agency’s decision to rescind the requirements

it had previously issued?

3. When an agency finds that changed circumstances

create “substantial uncertainty” whether a previously is-

sued regulation will achieve its purpose, may the court

declare the agency’s decision to rescind that prospective

regulation arbitrary and capricious solely because the

agency could not find that the regulation would not

achieve its purpose?

4. May a court of appeals invalidate an agency’s re-

scission of its own prospective regulation as arbitrary and

capricious because the agency failed to consider regula-

tory alternatives that were neither raised by the agency’s

notice of proposed rulemaking nor foreclosed by the

agency’s rescission order under review?

5. Is it an unlawful invasion of the primary jurisdic-

tion of an agency for a court of appeals, after remanding

(i)

ii

an agency’s rescission of its own regulation for further

agency consideration, to reverse its own order and rein-

state the regulation by a date certain, regardless of

whether the further agency proceedings have been com-

pleted, and regardless of how the agency might resolve

the issues remanded?

LIST OF PARTIES BELOW

State Farm Mutual Automobile Insurance Co., Kent

Mason, Patricia Warren, Leorlin Boyd, National Associa-

tion of Independent Insurers, Automobile Owners Action

Council, and Eugene J. Meyung were petitioners in the

proceedings below. The Department of Transportation,

Drew Lewis, the National Highway Traffic Safety Ad-

ministration, and Raymond A. Peck, Jr. were respond-

ents below. Motor Vehicle Manufacturers Association

of the United States, Inc., American Motors Corporation,

Checker Motors Corporation, Chrysler Motors Corpora-

tion, Ford Motor Company, General Motors Corporation,

Volkswagen of America, Inc., Automobile Importers of

America, Inc., Consumer Alert, Pacific Legal Foundation,

and Albert B. Lewis, Superintendent of Insurance for the

State of New York, were intervenors below.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FCR REVIEW ................ i

LIST OF PARTIES BELOW . . ii

TABLE OF CONTENTS * iii

TABLE OF AUTHORTITIES . iv

— 2

-- 2

STATUTORY PROVISIONS INVOLVED .......... W 2

STATEMENT OF THE CASES. 2

A. Summary History of Standard 200 3

B. NHTSA’s Decision in This Case .......................... 6

C. The Decisions of the Court of Appeals 9

REASONS FOR GRANTING THE WRIT ................... 11

I. Through Its Admittedly “Unusual” and Unprec-

edented Use of Post-Enactment Legislative

Events, the Court Below Ignored the Preroga-

tive of Congress To Delegate Discretion To Issue

Appropriate Safety Standards to the Secretary

and Improperly Broadened the Limits of Arbi-

trary and Capricious Review ...................000.......... 11

II. By Imposing Its Own Policy Preference That

Regulations Must Remain in Place Unless They

Can Be Proven Ineffective, the Court Below Has

Posed a Serious Challenge to the Continued Abil-

ity of Administrative Agencies To Exercise

Their Delegated Statutory Authority 17

III. The Court’s August 4 Order Impermissibly Pre-

empted the Agency’s Primary Jurisdiction To

Make the Further Determinations Required by

eee —

6—

iv

TABLE OF AUTHORITIES

Cases: Page

American Textile Manufacturers Institute, Inc. v.

Donovan, 452 U.S. 490 (1981) 22

American Trucking Associations, Inc. v. Atchison,

Topeka & Santa Fe Ry., 387 U.S. 397 (1967)...... 18

Arlington Oil Mills, Inc. v. Knebel, 543 F.2d 1092

r eee 28

Atchison, Topeka & Santa Fe Ry. v. Wichita

Board of Trade, 412 U.S. 800 (1973 19, 27, 28

Automotive Parts & Accessories Association v.

Boyd, 407 F.2d 330 (D.C. Cir. 1969) 12

Bowman Transportation, Inc. v. Arkansas-Best

Freight Systems, Inc., 419 U.S. 281 (1974 14

Center for Science in the Public Interest v. Depart-

ment of the Treasury, Civil Action No. 82-0610

( 25

Chadha v. INS, 634 F.2d 408 (9th Cir. 1980),

cert. granted, 50 U.S.L.W. 3244 (U.S. October 5,

1981), restored for reargument, 50 U.S.L.W.

II.. | } Fae 15

Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).. 19

Chrysler Corp. v. DOT, 472 F.2d 659 (6th Cir.

—— . 4, 23, 27

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

401 U.S. 402 (1971) ...... — 14, 16

City of San Antonio v. CAB, 874 F.2d 326 (D. C.

/ / / 22

Consolidated Rail Corp. v. National Association of

Recycling Industries, Inc., 449 U.S. 609 (1981) 28

CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980) 16

Environmental Defense Fund, Inc. v. Ruckelshaus,

480 F.2d 664 (D.C. Cir. 1971) ...................-..0220-.-. 16

FCC v. National Citizens Committee for Broad-

casting, 486 U.S. 775 (197) 14

FCC v. WNCN Listeners Guild, 450 U.S. 582

r 21, 22

FPC v. Transcontinental Gas Pipe Line Corp.,

as Se TE etncrreticnreintiiieninccianninniais 27

FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir.),

cert. denied, 431 U.S. 974 (19777) 19, 20

*

TABLE OF AUTHORITIES—Continued

Geller v. FCC, 610 F.2d 973 (D.C. Cir. 19799 19

Greater Boston Television Corp. v. FCC, 444 F.2d

841 (D.C. Cir.), cert. denied, 402 U.S. 923

ES Ae 16

Industrial Union Department v. American Petro-

leum Institute, 448 U.S. 607 (1980))0v0U᷑: 14, 22

International Ladies’ Garment Workers Union v.

Donovan, Civil Action No. 81-2606 (D.D.C.

I ce 25

Long Island R.R. v. Aberdeen & Rockfish R.R.,

r 3 28

NAACP v. FCC, No. 80-2416 (D.C. Cir. June 29,

tt 19

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) 19

NLRB v. Iron Workers Local 103, 434 U.S. 335

r 18

NLRB v. Pipefitters Local 638, 429 U. 8. 507

. enn iaicenatecaiees 27

National Petroleum Refiners Association v. FTC,

482 F.2d 672 (D.C. Cir. 1973), cert. denied, 415

ST ...... 18

National Small Shipments Traffic Conference, Inc.

v. CAB, 618 F.2d 819 (D.C. Cir. 1980) 13

Natural Resources Defense Council, Inc. v. EPA,

No. 81-2068 (3d Cir. July 8, 19827 24, 25

Natural Resources Defense Council, Inc. v.

Gorsuch, No. 81-2208 (D.C. Cir. August 17,

————————————5ðv5rðriv 18, 24

Office of Communication of the United Church of

Christ v. FCC, Nos. 81-1082 et al. (D.C. Cir.) 24

Pacific Legal Foundation v. DOT, 593 F.2d 1338

(D.C. Cir.), cert. denied, 444 U.S. 830 (1979) 4, 6, 20

Permian Basin Area Rate Cases, 390 U.S. 747

an 18

REA Express, Inc. v. United States, 568 F.2d 940

(2d Cir. 1977), cert. denied, 435 U.S. 923

S a a 22

Regional Rail —n Act Cases, 419 U.S.

102 (1974) I 16

vi

TABLE OF AUTHORITIES—Continued

Page

SEC v. Chenery Corp., 382 U.S. 194 (1947) 19

TVA v. Hill, 487 U.S. 153 (1978) „ 16

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 485 U.S. 519

— oe 13, 16, 22, 27

Washington Association for Television and Chil-

dren v. FCC, 665 F.2d 1264 (D.C. Cir. 1981) 28

a he Co. v. Costle, 590 F.2d 1011 (D.C.

Cir. 1978) e = 13

Constitutional Provisions:

D . ee 19

Statutes:

Administrative Procedure Act, ch. 324, 60 Stat.

237 passim

Section 10(e) (B) (1), 5 U 3706 (2) (A). 12, 18,

14, 16

Section 10 (e) (B) (3), 5 U.S.C. § 706 (2) (C) 13,14

Section 10(e) (B) (4), 5 U.S.C. § 706(2)(D).. 13

Airline Deregulation Act of 1978, Pub. L. No. 95-

504, 92 Stat. 1705 24

Federal Trade Commission Improvements Act of

1980, Pub. L. No. 96-252, 94 Stat. 374 ................ 24

Motor Carrier Act of 1980, Pub. L. No. 96-296, 94

ccc 24

Motor Vehicle and Schoolbus Safety Amendments

of 1974, Pub. L. No. 98-492, 88 Stat. 1470 5. 14, 15

Section 106, 15 U.S.C. § 1410a 3 23

Section 109, 15 U.S.C. 5 141000 5, 11. 15

National Traffic and Motor Vehicle Safety Act of

1966, Pub. L. No. 89-563, 80 Stat. 718 passim

Section 102, 15 U.S.C. § 181111 3. 23. 26

Section 108, 15 U.S.C. § 13922 3. 11, 26

Section 105, 15 U.S.C. § 1894 2,3

Natural Gas Policy Act of 1978, Pub. L. No. 95-

LS aaa 24

Reduction Act of 1980, Pub. L. No. 96-

511, 94 Stat. 2812 24

vil

TABLE OF AUTHORITIES—Continued

Regulatory Flexibility Act, Pub. L. No. 96-354,

. 11— —— 24

2

Legislative Materials:

H.R. Rep. No. 435, 97th Cong., 2d Sess. (1982) 13

Administrative Regulations:

lk Laas 5

SP a ND crcererenrscenssscsnetenreecnsrnncenel passim

Administrative Orders and Decisions:

Deregulation of Radio, 84 F.C.C.2d 968 (1981) 24, 25

DOT, The Secretary’s Decision Concerning Motor

Vehicle Occupant Crash Protection (December

1 — m

Executive Order No. 12291, 46 Fed. Reg. 13193

— Ronee ce een a

IL. I. I. (O00) ...................................

pee. Bap. 82068 00555

00 meee

4 — —

1—

=

a

Foowvaarnah & &

21205 (1981) 1 passim

58419 (1981) nn passim

aS 24

ERREEERRER

FEREEEREEEEE

3

3888888888882

IN THE

Supreme Couri of the United States

OCTOBER TERM, 1982

No. 82-

MoToR VEHICLE MANUFACTURERS ASSOCIATION

OF THE UNITED STATES, INC., et al.,

4 Petitioners,

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners, the Motor Vehicle Manufacturers Associa-

tion of the United States, Inc., the Automobile Importers

of America, Inc., and six leading manufacturers of pas-

senger ears, respectfully pray that a Writ of Certiorari

issue to review the Judgment and Opinion of the United

States Court of Appeals for the District of Columbia Cir-

cuit entered June 1, 1982, and the subsequent Order and

Memorandum of that court issued August 4, 1982.

The manufacturer petitioners are American Motors Corpora-

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit in this case, State Farm

Mutual Automobile Insurance Co. v. DOT, 680 F.2d 206

(D.C. Cir. 1982), is reproduced at App. la. The court’s

subsequent unpublished Order and Memorandum of Au-

gust 4, 1982 are reproduced at App. 79a. The decision

of the National Highway Traffic Safety Administration

(“NHTSA”), 46 Fed. Reg. 53419 (1981), is reproduced

at App. 88a.

JURISDICTION

Jurisdiction to review the court of appeals’ June 1

judgment and its subsequent August 4 order is vested

in this Court by 28 U.S.C. § 1254(1), as further provided

in 15 U.S.C. § 1394 (a) (4).

STATUTORY PPOVISIONS INVOLVED

The pertinent provisions of the Administrative Proce-

dure Act, 5 U.S.C. § 706, and the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. 1381 et

seq. (“Safety Act“), are set forth at App. 162a, 163a.

STATEMENT OF THE CASE

Federal Motor Vehicle Safety Standard 208 (“Stand-

ard 208”) currently requires that motor vehicle manu-

facturers install “active” seatbelt restraints in all pas-

senger cars. This case arises out of an October 1981

decision by NHTSA to rescind those prospective provi-

sions of Standard 208 that would have required installa-

tion of “passive” restraints beginning in September

1982. NHTSA’s decision was based on its determina-

tion that new circumstances arising after the stand-

2 Passive“ restraints are defined by NHTSA as those occupant

restraint systems that afford protection in frontal crashes “by

means that require no action by vehicle occupants.” 49 C.F.R.

§ 571.208 (S4.1.3(a)) (1981). The terms “passive” and “automatic”

are sometimes use interchangeably. The seatbelts presently re-

quired by Standard 208 as standard equipment in all passenger cars

are referred to as “active” restraints.

ard was issued created substantial uncertainty about

the probable usage rates of passive restraints and that

because of this uncertainty a standard requiring their

installation in all cars was not justified under the statu-

tory mandate that safety standards be reasonable, prac-

ticable, and meet the need for motor vehicle safety. On

the petition of certain automobile insurance companies

and others under 15 U.S.C. § 1394(a) (1), NHTSA’s de-

cision was invalidated by the United States Court of Ap-

peals for the District of Columbia Circuit as “arbitrary

and capricious,” and remanded for further consideration of

certain issues before any final agency decision to maintain,

amend, suspend, or rescind the passive restraint require-

ments. In a subsequent order of August 4, 1982, the

court of appeals sua sponte made those requirements

effective on September 1, 1983, subject to further con-

sideration of any request by NHTSA to extend that effec-

tive date. App. 79a.

A. Summary History of Standard 208

The agency’s October 1981 decision followed a long and

sharply disputed regulatory debate about the measures

appropriate, under NHTSA’s statutory authority to issue

federal motor vehicle safety standards,“ to reduce the

The Safety Act authorizes the Secretary of Transportation to

issue “appropriate” federal motor vehicle safety standards. 15

U.S.C. §1392(a). The Act requires that any safety standard

“shall be practicable, shall meet the need for motor vehicle safety,

and shall be stated in objective terms,” id., and defines motor vehi-

cle safety in terms of protection against “unreasonable risk,” id.

§ 1391(1) (emphasis supplied). The Act further requires that, “[i}n

prescribing [such] standards,” the Secretary shall consider whether

any such proposed standard is reasonable, practicable and appropri-

ate for the particular type of motor vehicle for which it is pre-

scribed” as well as “the extent to which such standards will con-

tribute to carrying out the purposes” of the Act. Id. § 1392(f) (em-

phasis supplied). The Act empowers the Secretary to “amend or

revoke” any such standard previously issued. Id. § 1392(e).

4

risk of deaths and injuries in the event of a collision.

Originally, Standard 208 simply required manufacturers

to install seatbelts.‘ This requirement, which is unaf-

fected by the decision under review, affords roughly

the same level of protection as passive restraints

for those motorists who “buckle up” their seatbelts.”

However, because historically “only a very low per-

centage of the motoring population” has actually used

seatbelts,“ the agency commenced a series of further ac-

tions to bring about the use of passive restraints. In

1969, the agency proposed to make installation of passive

restraints mandatory by specified future dates. Subse-

quently the dates were postponed, and ultimately the pas-

sive restraint requirement was rescinded.’

Three major events marked the last eight years of this

history.“ To encourage the use of “active” seatbelts be-

* 32 Fed. Reg. 2408, 2415 (1967).

541 Fed. Reg. 24070, 24071 (1976). See also Pacific Legal Foun-

dation v. DOT, 593 F.2d 1338, 1345 n.53 (D.C. Cir.), cert. denied,

444 U.S. 830 (1979).

34 Fed. Reg. 11148 (1969).

The principal passive restraint technologies developed to date

are airbags and passive belts that are detachable. Passive belts

that are detachable are those that may be separated once buckled

up, usually by a conventional push-button that separates the con-

tinuity of belt webbing, as in the “active” belts currently installed

in passenger cars. In 1974, NHTSA adopted a rule mandating

detachable belts, in light of concerns out emergency egress in

a crash. 3° Fed. Reg. 14593 (1974). Later, NHTSA permitted

passive belts to include a release feature allowing the belt to “play

out” in an emergency, 43 Fed. Reg. 52493 (1978), and one such belt

is currently being offered on one line of cars by one manufacturer.

The principal event in the earlier years was the Sixth Circuit's

decision in Chrysler Curp. v. DOT, 472 F.2d 659 (6th Cir. 1972),

upholding the agency's authority to issue a passive restraint stand-

ard, and its discretion to require passive over active restraints, but

remanding the standard because the compliance testing procedures

did not meet the Safety Act’s requirement that standards provide

“objective criteria.”

fore the dates when passive restraints were to become

mandatory, NHTSA required the installation of ignition

interlocks and continuous buzzers. Because of strong

public objection to these devices, Congress amended the

Safety Act in 1974 to prohibit any standard that would

permit compliance by use of any such device. Congress

also provided that any passive restraint requirement that

would permit compliance by means of an airbag would

be subject to a legislative veto procedure. 15 U.S.C.

§§ 1410b(c)-(d). See App. 38a-35a.

After enactment of the 1974 amendments, NHTSA

thoroughly reviewed its passive restraint policy, noting

that [a] decision has not yet been made on the long-

term requirements for occupant crash protection.“ In

December 1976, Secretary of Transportation Coleman de-

cided to continue the existing active restraint require-

ments “for the indefinite future.” 42 Fed. Reg. 5071

(1977)."" He postponed indefinitely the phased effec-

tive dates of the passive restraint requirements, and ini-

tiated a voluntary large-scale demonstration program “to

exhibit the effectiveness of passive restraint{s]” before

they were made mandatory for all new cars. Jd." A

number of the principal manufacturers agreed to produce

and offer for sale sufficient cars equipped with passive

restraints to carry out the program.

40 Fed. Reg. 16217 (1975). See also 40 Fed. Reg. 18330 (1978);

40 Fed. Reg. 21063 (1975) ; 41 Fed. Reg. 24070 (1976).

The Secretary has delegated his statutory authority under the

Safety Act to the Administrator of NHTSA, 49 C. F.R. § 501.2(a)

(1981), but from time to time the Secretary has personally made

decisions concerning passive restraints.

The Coleman decision was premised on the belief that NHTSA

should not risk a “poisoning of popular sentiment” toward future

regulation by imposing a passive restraint requirement over the

clear opposition of most of the driving public, and on the hope

that a demonstration program could foster greater public familiar-

ity with and acceptance of passive restraints. DOT, The Secre-

tary’s Decision Concerning Motor Vehicle Occupant Crash Protec-

tion 6-7 (December 6, 1976).

The Coleman demonstration program never material-

ized. Shortly after succeeding Coleman, Secretary Adams

abrogated this program by reproposing passive restraints.

42 Fed. Reg. 15935 (1977). Retracing Coleman’s steps,

Adams endorsed the Coleman findings on the feasibility,

practicability, costs, and life-saving potential of passive

restraints as “in all substantial respects correct.“ 42

Fed. Reg. 34289, 34291 (1977). But Adams concluded

that imposing passive restraints by regulatory mandate

“is the logical result of those findings.” Id. Like Cole-

man, Adams assumed that the principal method of com-

pliance would be by means of airbags, and made no

finding concerning whether the detachable passive belts

also permitted under his order would actually be used.

Id. at 34298 & nn. 6-7."

B. NHTSA’s Decision in This Case

In April 1981, Secretary Lewis issued a notice of pro-

posed rulemaking initiating the action presently under

review. 46 Fed. Reg. 21205 (1981) (App. 147a). Lewis

observed that the Adams decision “was based on a

variety of key assumptions which, in the light of sub-

sequent events, are no longer valid.” App. 150a. The

foremost of these was that the agency had “assumed”

that consumers would voluntarily use either airbags or

passive belts, whichever the manufacturer elected to in-

stall. The Adams decision had predicted that 60 percent

of passive restraint systems to be installed by manufac-

turers would be airbag systems; yet Lewis concluded in

1981 that as a result of consumer wariness concerning

airbags and reluctance to pay their high costs, [el urrent

manufacturer plans contemplate almost no installation

of airbags, only about 1 percent of the total fleet of new

cars.“ Id.”

12 Adams’ decision was upheld in Pacific Legal Foundation v.

DOT, 593 F.2d 1338 (D.C. Cir.), cert. denied, 444 U.S. 830 (1979).

Lewis further noted that NHTSA had not “anticipate[d]

that the switch [from large to small cars] would occur as rapidly

as it has, due in large measure to the subsequent oil cut-off of

7

Because of a concern about “the unlikelihood of pub-

lie acceptability” of the planned passive restraints (App.

154a), Lewis proposed three possible alternatives, in-

cluding rescission of the mandatory requirement. The

agency also decided to “undertake an intensive public

education campaign to induce the public to use their |ac-

tive] safety belts.” App. 152a.

After considering public comments on these proposals,

NHTSA elected to rescind the passive restraint require-

ments. 46 Fed. Reg. 53419 (1981) (“Notice 25“ (App.

88a). The agency concluded that “the post-1977 events

have rendered it incapable of finding now, as it was able

to do in 1977,” that passive restraints “would meet all

of the applicable criteria” imposed by the Safety Act.

App. 93a. It found that 1977 calculations of the benefits

of passive restraint requirements “have been substantially

if not wholly undermined by drastic changes” in the regu-

latory environment. App. 96a. Because in 1977 Adams

had expected airbags to be the principal method of

compliance, he had simply “assumed”—without any

proof or findings—that the automatic belts installed in

the remaining minority of cars “would be used by 60 to

70 percent of the occupants of those cars.” App. 95a.

But since compliance with the passive restraint require-

ments now appeared almost surely to be in the form not

of airbags but of passive belts that were detachable, pub-

lic reaction to and usage rate of detachable automatic

belts” had now become “the most important issue.” App.

94a. NHTSA’s concerns were heightened because of the

1979.“ In 1977, NHTSA had predicted an early 1980's size mix of

23 percent large cars, 53 percent mid-size cars, and 24 percent small

cars. “Now,” Lewis explained, “the expectation is that [the] new

car fleet will consist of 1 percent large cars, 58 percent mid-size

cars and 41 percent small cars.” App. 15la. These changes had

substantial impact on the production costs, and therefore the public

acceptability, of airbags.

great costs associated with mandatory passive restraints,“

and the risk “that adverse public reaction could under-

mine the effectiveness of both the standard itself and fu-

ture or related efforts.” App. 114a.

NHTSA carefully scrutinized the data on the issue of

incremental usage of detachable passive belts in certain

cars, and explained in detail why this data did not support

any reliable prediction about usage rates for mandatory

passive belts. App. 95a-104a. As a result, NHTSA

could not “reliably predict even a 5 percentage point in-

crease as the minimum level of expected usage increase.”

It concluded that It Ihe adoption of a few percentage

points increase as the minimum would, in the agency's

judgment, be more consistent with the substantial uncer-

tainty about the usage rate of detachable automatic

belts.” App. 104a.

NHTSA found that “{t]his uncertainty and the rela-

tively substantial cost of automatic restraints preclude

the agency from determining that the standard is at this

time reasonable and practicable” (App. 88a), or that the

prospective passive restraint requirements “in their pres-

ent form meet the need for safety” (App. 104a), as re-

quired by the Safety Act,“ particularly in light of the

need to foster public acceptability of the standard. App.

107a-109a. Accordingly, it determined to “rescind” the

prospective requirements for mandatory passive re-

„NH TSA noted that the average price increase per car expected

from passive restraints was $89. Given the total annual production

of more than 10 million cars, this increase would mean a price effect

of close to $1 billion, not all of which could be passed on to consum-

ers, who could not be expected to be compensated for those substan-

tial increases by decreased insurance premiums. The agency noted

that comments from insurance companies “state that they could not

now assure reductions in insurance premiums but would have to

first collect a considerable amount of claim data.” App. 105a-106a.

15 See note 3 supra.

straints. Like Secretary Coleman in 1976,“ the agency

observed that rescission “does not foreclose the option to

again reopen rulemaking if enhanced usage levels of both

manual and automatic belts do not materialize” (App.

115a) as a result of NHTSA’s planned educational cam-

paign to foster seatbelt usage.

C. The Decisions of the Court of Appeals

On June 1, 1982, the court of appeals set aside

NHTSA’s decision not to impose the mandatory passive

restraint requirements at this time. The court held that

the “arbitrary and capricious” standard of review ap-

plicable in this case “should be given different scope in

different contexts.” App. 29a. It cited two relevant “con-

texts” in this case. First, although it never suggested

that NHTSA’s decision violated the Safety Act itself

(App. 3la), the court divined from three later instances

of legislative refusal to ban or to require a passive re-

straint standard congressional “approval” of such a

standard. App. 32a, 33a-46a, 742. It then held that this

“approval” imposed a burden upon NHTSA to show by

“increasingly clear and convincing reasons” why it

“depart(ed] from the path marked by Congress.” App.

48a. Second, the court viewed the decision to rescind

a regulation once issued as requiring substantially

greater justification than a decision not to adopt it in the

first instance. Although it upheld each of NHTSA’s find-

ings about the factual changes that had occurred since

the regulation had been issued (App. 50a-51la), it re-

jected as insufficient the agency’s finding that these

changes created “substantial uncertainty” about in-

1% In postponing the effective date of the passive restraint re-

quirements in December 1976, Secretary Coleman emphasized that

“I have not in any way foreclosed a future Secretary . from

[determining] . . either to place a termination date on Standard

No. 208 or to mandate passive restraints on some or all passenger

cars.” 42 Fed. Reg. at 5071.

10

creased usage rates for detachable passive belts.

“NHTSA has some burden,” it held, “to show that a

regulation once considered to prevent deaths and in-

juries efficiently can no longer be expected to do so”;

this burden precluded rescission unless the agency relied

on evidence affirmatively showing that usage rates would

not “increase by the necessary amount... .” App. 51a.“

The court held that it was “arbitrary and illogical” to

rescind—rather than “to suspend or amend”—passive

restraint requirements without “evidence that seatbelt

usage will fail to increase as was expected” in 1977.

App. 49a, 54a. The majority also held that it was arbi-

trary to rescind while failing to “consider or analyze

obvious alternatives to reseission.“ App. 49a.“

In remanding, the court specifically deelin fed] the

suggestions” of petitioners below that it order the passive

restraint provisions into effect by September 1982 or

September 1983. App. 72a. The court said its remand

“d[id] not foreclose” rescission or suspension consistent

with its opinion. Id. See also App. 54a. The court re-

quired the agency to submit to the court within 30 days

“a schedule for resolving the questions raised in this

opinion.. App. 74a.

* In three separate parts of its opinion, the court mistakenly

stated that NHTSA had found that passive restraint requiremen:s

would fail to increase seatbelt usage by 13 percentage pointe. See

App. 17a, 51a, 58a-54a. NHTSA made no such findings. Its

actual finding on this question is quoted above. See page 8

supra. At a fourth point, the court similarly asserted that the

agency had “repeatedly emphasized” that any increase in usage

from detachable passive belts “would be ‘extremely small

App. 2la. The passage partially quoted by the court is actually

an agency finding that f the percentage increase is zero or ex-

tremely small data regarding manual belt usage would be

reliable as a guide.. App. 104a (emphasis supplied).

18In concurring with Judge Mikva’s majority opinion, Judge

Edwards dſid] not aceept“ the failure to consider these alterna-

tives “as a basis for decision in this case.” App. 75a.

11

NHTSA thereupon filed a proposed schedule for fur-

ther agency action on July 1, 1982. App. 130a."" On

August 4 the court denied motions for extension of time

to file rehearing petitions, directing that “the mandate

{for the June 1 judgment] of the Court will therefore

issue accordingly.” App. 85a. On August 4 the court also

held that NHTSA’s proposed schedule was “not inconsis-

tent with the Court’s order” of June 1. Nevertheless, in

spite of its previous rejection of a September 1, 1983

effective date, and its previous refusal to set any effective

date itself, it now held that “Standard 208 remains fully

in force,” and “stayed” the effective date of the standard’s

mandatory passive restraint requirements only until Sep-

tember 1983. App. 80a, 8la. It gave NHTSA until Oc-

tober 1, 1982 “to advise the Court . . . whether a longer

period is required, setting forth adequate reasons there-

for.” App. 80a.

REASONS FOR GRANTING THE WRIT

I, THROUGH ITS ADMITTEDLY “UNUSUAL” AND

UNPRECEDENTED USE OF POST-ENACTMENT

LEGISLATIVE EVENTS, THE COURT BELOW IG-

NORED THE PREROGATIVE OF CONGRESS TO

DELEGATE DISCRETION TO ISSUE APPROPRI-

ATE SAFETY STANDARDS TO THE SECRETARY

AND IMPROPERLY BROADENED THE LIMITS OF

ARBITRARY AND CAPRICIOUS REVIEW.

As the court of appeals stressed repeatedly,” the Safety

Act provides that the agency’s orders shall be subject to

1% The agency proposed to solicit comments on the issue of pre-

dicted usage, particularly of detachable passive belts, and pro-

posed guidelines for studies of this issue. It also solicited proposals

for other regulatory alternatives. Finally, the agency outlined steps

it was taking to develop a program for voluntary introduction of

airbag options in new car lines, including the possibility of par-

ticipation of federal government fleets in this demonstration pro-

gram. App. 132a-138a.

20 App. 4a, 25a, 26a, 28a, 32a, 49a, 56a, 62a, 68a. See 15 U.S.C.

§§ 1392(b), 1410b(c) (2).

12

judicial review under the “arbitrary and capricious”

standard of the Administrative Procedure Act, 5 U.S.C.

706 (2 (A) (“Section 706 (2) (A“. Despite this clear

mandate, the court of appeals concluded that “|{t]he ap-

propriate scope of judicial review remains the most trou-

blesome question in this case. App. 25a. The

court held that this same arbitrary and capricious stand-

ard of review “should be given different scope in differ-

ent contexts” (App. 29a), “depending in part on ‘the

nature of the particular problem faced by the agency.“

App. 26a. The court devoted 25 pages to an effort at

“formulating” the particular meaning it deemed to be

“appropriate” for the arbitrary and capricious standard

in this case. See App. 24a-49a. What it formulated was

a judicial license to intrude on the agency’s “essentially

legislative” *' discretion by interpreting congressional ac-

tivities that it conceded did not carry] the weight of

positive law” (App. 3la, 46a) as a basis for overruling

NHTSA’s determinations as “arbitrary and capricious.”

This admittedly “unusual” (App. 32a) expansion of the

“arbitrary and capricious” standard infects every aspect

of the court’s review.” It has no precedent in the deci-

21 Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330,

338 (D.C. Cir. 1968) (upholding Standard 202) .

22 Though recognizing that the provisions of the Safety Act itself

gave the agency discretion whether or not to issue a regulation

like Standard 208 (App. 3la), the court variously stated that

NHTSA’s decisions must be “in accordance with the purposes for

which power has been delegated” (App. 4a); that “an agency is not

a legislature” (App. 3la); that in this case there are ‘danger

signals’ that the will of Congress is being ignored” (App. 31a);

that agencies “have no authority to act inconsistently with their

statutory mandate” (App. 32a); that it was required to consider

“the extent to which NHTSA’s action may be inconsistent with the

congressional purpose” (id.); that searching review was essential

“lest the congressional will be ignored” (App. 46a); that “NHTSA

is not writing on a clean slate” (App. 47a); that scrutiny depended

upon the extent of deviation] from congressional expectations”

13

sions of this Court or any other court,” and if left un-

reviewed would substantially undermine the APA’s care-

ful division of responsibilities among Congress, agencies,

and the courts.

As a unanimous Court held in Vermont Yankee Nu-

clear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519, 523 (1978), the APA was “a legisla-

tive enactment which settled ‘long-continued and hard-

fought contentions, and enacts a formula upon which

opposing social and political forces have come to rest.“

The scope of review under the “arbitrary and capricious”

and “the path marked by Congress” (App. 48a) ; that NHTSA “vio-

lates its basic legislative mandate” (App. 49a); that “NHTSA lost

sight of its statutory obligation” (App. 56a); that “NHTSA errs

when it presumes that it knows how to speak more clearly than

Congress” (App. 60a); that “NHTSA may not confuse its role with

that of Congress” (App. 7la); and that “agencies may not ignore

the mandate they have received from Congress” (App. 74a).

23 A number of lower court opinions address the distinction be-

tween “arbitrary and capricious” and “substantia! evidence” review,

which latter standard the court held inapplicable in this case.

App. 26a-28a. See National Small Shipments Traffic Conference,

Ine. v. CAB, 618 F.2d 819, 829-30 & n.23 (D.C. Cir. 1980). Other

cases distinguish between the “cireumspection” required in sub-

stantive review of rules “in an area fraught with scientific uncer-

tainty” and the rigorous review in executing the traditional judi-

cial functions of “interpreting statutory directives and enforcing

procedural rectitude.” Weyerhaeuser Co. v. Costle, 590 F.2d 1011,

1024-28 (D.C. Cir. 1978). Compare 5 U.S.C. § 706(2)(A) with id.

§ 706(2)(C) and id. § 706(2)(D).

Here, the court of appeals upheld the agency’s factual findings.

App. 50a-5la. It recognized that “there is no claim that the agency

has exceeded its jurisdiction” under the Safety Act. App. 3la. And

it “d[id) not reach” any claim of procedural error. App. 60a n.34.

Changes in this formula are, of course, within the prerogative

of Congress, although efforts to alter Section 706(2)(A) to provide

for greater judicial scrutiny of agency rulemaking have met with

strong opposition. See, e.g., H.R. Rep. No. 435, 97th Cong., 2d Sess.

72-80 (1982) (rejecting Bumpers amendment) .

14

standard is in every case “a narrow one, because

when the agency acts “pursuant to the legislative »uthor-

ity delegated by Congress, [it] exercises the prer., ives

of the legislature.” Industria! Union Department v.

American Petroleum Institute, 448 U.S. 607, 663 (1980)

(Burger, C.J., concurring). The court’s use of legislative

materials postdating the agency’s governing statute to

label as arbitrary and capricious under Section 706 (2) (A)

what clearly was not “in excess of statutory . . . author-

ity” under Section 706(2)(C)* improperly expands the

established limits of the arbitrary and capricious stand-

ard of review.

As the court of appeals recognized, none of the three

instances of legislative activity during the years follow-

ing the Safety Act on which it relied to legitimize its ex-

panded scope of arbitrary and capricious review “carries

the weight of positive law.” App. 46a. The first instance

was Congress’ failure to prohibit a mandatory passive re-

straint standard in 1974, when it did prohibit compliance

by means of ignition interlocks or continuous buzzers for

seatbelts and did impose a congressional veto procedure for

any future airbag standard. See App. 33a-36a. Whatever

this failure may say about the intentions or motives of in-

dividual members of the House or Senate would be a haz-

ardous speculation for any eourt.“ But the only relevant

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

416 (1971); accord, Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 285 (1974); FCC ». National Citizens

Comm. for Broadcasting, 436 U.S. 775, 803 (1978).

26 See App. 3la: “Even when there is no claim that the agency

has exceeded its jurisdiction, as there is not in this case.

(citing 5 U.S.C. § 706(2) (C)).

27 The accuracy of the court’s measurement of the congressional

pulse is open to serious question. We believe it unnecessary to ad-

dress this issue in detail in this Petition; the point here is that Con-

gress did not alter the agency’s broad discretion under the Safety

15

fact on review of NHTSA’s action under the arbitrary and

capricious standard in this case is that in 1974 Congress

did not alter the agency’s statutory discretion to decide

whether to impose mandatory passive restraints in the

first instance. Nor did Congress do so in 1977, when leg-

islative veto resolutions disapproving the mandatory pas-

sive restraint standard were tabled in both houses. See

App. 36a-38a.“ The court’s further reliance upon a third

period of legislative activity—proposed amendments that

did not find their way into NHTSA’s 1980 authorization

bill—is equally novel. It would require courts to draw

inferences of “arbitrary” or “capricious” agency action

based solely on their own interpretations of the internal

parliamentary rules of the Senate and House of Repre-

sentatives.”

Act. It never directed NHTSA to enact any mandatory passive re-

straint requirement and never took any legislative action approving

NHTSA’s prior issuance of such a requirement.

28 The court’s negative inference from the failure of legislative

veto resolutions is particularly far-reaching. Even assuming its con-

stitutionality, see Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), cert.

granted, 50 U.S. L. W. 3244 (U.S. October 5, 1981), restored for rear-

gument, 50 U.S.L.W. 3998.27 (U.S. July 2, 1982), Congress expressly

provided that the veto procedure “shall not impair any right which

any person may have to obtain judicial review” of Standard 208

or any other safety standard. 15 U.S.C. § 1410b(e). While peti-

tioners do not seek review of Standard 208 in this case, the clear

purpose of Section 1410b(e) is to prevent precisely the sort of nega-

tive inference drawn by the court of appeals.

2° The court of appeals relied upon a conference report revision

that would have both prohibited NHTSA from barring fully detach-

able passive belts and required it to impose optional airbag re-

quirements on at least one car line per manufacturer. This confer-

ence report failed to pass the House by the two-thirds vote that the

of that body required under the circumstances. App. 38a-46a.

it not enacted, and did not !imit the agency’s discretion

ety Act—just as another House amendment to the

same bill, which would have prohibited mandatory passive restraints,

was not passed in the House when it, too, garnered only a majority

vote. App. 46a-46a.

16

Reliance on any of the foregoing activities would

be a highly questionable way of ascertaining the mean-

ing of the Safety Act.“ But the court’s unprecedented

use of them in this case to alter the meaning of arbi-

trary and capricious review was nothing short of an

exercise in “substitut[ing its] judgment” for that of the

agency delegated authority to resolve these essentially leg-

islative questions. The court’s decision thereby clearly

conflicts with this Court’s leading decision in Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

(1971).

The court’s fundamentally misguided view of the separa-

tion of powers incorporated in Section 706(2)(A) poses

serious consequences for the future of the court-agency

partnership.“ The court’s decision here is of special con-

cern, for, as this Court has acknowledged, “the vast ma-

jority of challenges to administrative agency action are

brought to the Court of Appeals for the District of Colum-

bia Circuit.” Because of its broad threat to the policy-

making functions of Congress and the administrative agen-

cies, the decision below warrants review by this Court.

% Even the legislative history of subsequent statutes carries

little if any weight in ascertaining the meaning of earlier statutes.

See CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 117-18 & n.13 (1980).

Post-enactment oversight activities are even less reliable for that

purpose. See TVA v. Hill, 437 U.S. 153, 189-91 (1978); Regional

Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974). In this

case, the court of appeals was using subsequent legislative events

(and non-events), not as aids to statutory interpretation, but to

“formulate” a new standard of judicial review under the APA.

31 See generally Greater Boston Television Corp. v. FCC, 444 F. 2d

841, 850-52 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971);

Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584,

597 (D.C. Cir. 1971).

32 Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 535 n.14 (1978).

17

II. BY IMPOSING ITS OWN POLICY PREFERENCE

THAT REGULATIONS MUST REMAIN IN PLACE

UNLESS THEY CAN BE PROVEN INEFFECTIVE,

THE COURT BELOW HAS POSED A SERIOUS

CHALLENGE TO THE CONTINUED ABILITY OF

ADMINISTRATIVE AGENCIES TO EXERCISE

THEIR DELEGATED STATUTORY AUTHORITY.

The court of appeals recognized that “the course of ad-

ministrative action is frequently and inevitably character-

ized by shifts and turns, as agencies continually reassess

what is in the public interest.” App. 48a. But here the

court held “arbitrary and illogical” (App. 49a) an

agency decision in 1981 to rescind a 1977 regulation before

its effective date for reasons the court conceded would

have been upheld as a basis for not adopting the regu-

lation in 1977. It accepted the agency’s view that compli-

ance would be achieved almost entirely by installation of

passive belts that are detachable, and agreed that t] here

may well be ‘substantial uncertainty’” about increased

occupant use of such belts. And it specifically held that,

had “substantial uncertainty” on this point existed in

1977, NHTSA could not have issued the rule in the first

instance. App. 50a-5la. But the court held that the

agency, having once issued the rule, had to meet a higher

standard of rationality in changing its regulatory policy

to meet the new circumstances that had arisen:

“[T]he question is not whether evidence shows

that usage rates will increase by the necessary

amount [if the standard takes effect], but sheer

there is evidence showing they will not. NHTSA has

some burden, in other words, to show that a regula-

tion once considered to prevent deaths and injuries

efficiently can no longer be expected to do so.” App.

51a.

The clear result is to impose a policy preference for

more rather than less regulation under the guise of the

arbitrary and capricious test. The court held that in

order to rescind a regulation (even one that had not yet

18

taken effect), the agency must establish more than a

reasonable basis for doubt, after notice and comment,

whether the regulation continued to meet the statutory

requirements. Rather, under the court’s decision the

agency must meet the higher burden of establishing

affirmatively that those statutory requirements are not

met. This unprecedented judicial presumption in favor

of continued regulation—which has already been followed

by the court of appeals in a more recent case *—is

plainly contrary to the language of the Administrative

Procedure Act and the decisions of this Court and

threatens the vitality of the entire administrative process.

As this Court has long held, “administrative authorities

must be permitted, consistently with the obligations of

due process, to adapt their rules and policies to the de-

mands of changing circumstances.” Permian Basin Area

Rate Cases, 390 U.S. 747, 784 (1968). See also NLRB v.

Iron Workers Local 108, 434 U.S. 335, 351 (1978).

Adaptability is the real genius of the modern administra-

tive process:

“Regulatory agencies do not establish rules of con-

duct to last forever; they are supposed, within the

limits of the law and of fair and prudent adminis-

tration, to adapt their rules and practices to the

Nation’s needs in a volatile, changing economy.”

American Trucking Associations, Inc. v. Atchison,

Topeka & Santa Fe Ry., 387 U.S. 397, 416 (1967).

This flexibility is especially appropriate and necessary in

the promulgation of rules of general applicability.* An

88 See Natural Resources Defense Council, Inc. v. Gorsuch, No.

81-2208 (D.C. Cir. August 17, 1982), slip. op. at 19 n.41 (quoting

State Farm) :

“EPA ‘has some burden to show that a regulation once

considered to [effectuate policy] efficiently can no longer be

expected to do so’” (brackets in original).

„ See generally National Petroleum Refiners Ass'n v. FTC, 482

F. ad 672, 680-84 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974).

Indeed, although not requiring gencies to formulate new policy

19

agency engaged in making the essentially legislative judg-

ments of rulemaking should be permitted to adapt its

policy not only to take account of “[c]hanges . . . in ob-

jective circumstances,” but also to provide for changes

“in the way the agency perceives the critical facts.”

FTC v. Texaco, Inc., 555 F.2d 862, 893-94 (D.C. Cir.)

(en bane) (Leventhal, J., concurring), cert. denied, 431

U.S. 974 (1977). In fact, where basic changes in the

regulatory environment have occurred, agencies may well

be required to alter past regulatory policies, by statute

or even by the requirements of the Constitution. Chastle-

ton Corp. v. Sinclair, 264 U.S. 548, 547-48 (1924)

(Holmes, J.) (upholding Fifth Amendment challenge to

post-war continuation of rent regulations). In Geller v.

FCC, 610 F.2d 973, 979 (D.C. Cir. 1979)—a decision

relied upon by the court below (App. 32a)—the FCC

was required to reconsider certain cable television copy-

right rules because the FCC was “plainly . . . unprepared

to say that the regulations were [still] consistent with

the public interest.”

This case, of course, does not raise the question whether,

if NHTSA had exercised its statutory discretion to con-

through rulemaking, this Court has suggested that rulemaking is

especially appropriate for undertaking this legislative task See SEC

v. Chenery Corp., 332 U.S. 194, 202-03 (1947); cf. NLRB v. Bell

Aerospace Co., 416 U.S. 267, 292-95 (1974) (failure to use rulemak-

ing in departing from prior decisions was not an abuse of agency

discretion ).

Of course, a “departure from prior norms” must be “clearly set

forth so that the reviewing court may understand the basis of the

agency’s action and so may judge the consistency of that action with

the agency’s mandate.” Atchison, T. & S. F. Ry. v. Wichita Bd. of

Trade, 412 U.S. 800, 808 (1973). See also NAACP v. FCC, No. 80-

2416 (D.C. Cir. June 29, 1982), slip op. at 7-8 (upholding FCC’s

rescission of top 50 policy where the agency adequately set forth its

view of changed circumstances). But here the court required far

more than that, because it conceded that an agency’s refusal to adopt

the passive restraint requirement would have been upheld in 1977

had the facts been then as the court agreed they were in 1981.

tinue rather than rescind the passive restraint require-

ment, such a decision would have violated the Safety Act.

The question here is whether NHTSA was entitled to

exercise its statutory discretion one way rather than

another. NHTSA’s decision was simply one further

stage of a novel and controversial regulatory program

that had already undergone dramatic “shifts and turns”

(App. 48a), as the agency reevaluated the requirements

originally proposed in 1969. Like Secretary Coleman in

1976, and like Secretary Adams in 1977, Secretary Lewis

reconsidered the need for passive restraints. Like Adams’

previous “departure from prior norms,” see note 35 supra

—which was upheld as a proper exercise of administra-

tive discretion though it reversed the course adopted by

Coleman only six months before *—this determination

was preceded by a full period of public comment and a

reasoned articulation of the basis for the agency’s deci-

sion. In fact, here—unlike the Adams decision—the

agency identified important changes in the regulatory

environment, changes that made critical for the first

time the accuracy of agency judgments regarding the

expected use of passive seatbelts.”

Despite these fundamental changes, the court causti-

cally rejected NHTSA’s reevaluation. In doing so, it

offered no reason why the discretion of agencies to alter

their regulatory policies upon “[c]hanges . . . in objec-

tive circumstances” or “in the way the agency perceives

the critical facts,” FTC v. Texaco, Inc., supra, 555 F.2d

at 893-94, should be any less applicable where the agency

seeks to suspend, rescind, or modify existing rules—espe-

cially prospective ones—than when it adopts, or decides

against adopting, entirely new rules. The court specifi-

cally recognized that this issue presented “a matter of

first impression” (App. 25a), but the only rationale of-

%¢ Pacific Legal Foundation v. DOT, 593 F.2d 1338, 1343-44, 1346

(D.C. Cir.), cert. denied, 444 U.S. 830 (1979).

* See pages 6-7 supra.

21

fered by the court was its own presumption that regula-

tions “can . . . be expected” to have continuing justifica-

tion.** Absent a specific direction by Congress, however,

it is certainly rational for an agency to decide, as NHTSA

did here,“ that major regulatory burdens should continue

only as long as they can be shown to be achieving an

identifiable statutory goal or purpose.

The court’s unprecedented holding is plainly inconsist-

ent with FCC v. WNCN Listeners Guild, 450 U.S. 582

(1981), in which this Court strongly counseled the lower

courts against substituting their policy preferences for

the considered judgments of agencies that prior regula-

tory policies have become outmoded. There, the FCC had

concluded that it “would have no assurance” that a con-

tinuation of its policy of regulating radio program for-

mats would provide any greater listener satisfaction than

that resulting from the marketplace incentives of

broadcasters. See id. at 595-96. The court of appeals

invalidated the FCC’s policy statement, reading into

the Communications Act an obligation to scrutinize

changes of format at the time of transfer or renewal.

This Court reversed, upholding the agency’s determina-

38 There is certainly no factual basis for the court’s presumption

in this case. The “regulation once considered [by the agency] to

prevent deaths and injuries efficiently” was based on the prediction

that 60% of all cars would have airbags, and the assumption that

some 60 to 70% of the occupants of cars equipped with passive belts

would use them. This 60-70% figure was purely an assumption—

not a finding—and was irrelevant to the decision to adopt a manda-

tory passive restraint requirement since the finding of 60% airbag

usage was sufficient to justify the safety benefits of the standard.

See page 6 supra. Before Notice 25 the agency never had occasion

to examine seriously the question of usage rate for passive belts.

0 Notice 25 stated that “NHTSA has a duty under the Vehicle

Safety Act and E.O. 12291 to review the automatic restraint re-

quireme ts in light of changing events and to ensure that the re-

quirements continue to meet the criteria which each Federal Motor

Vehicle Safety Standard must satisfy.” App. 93a.

tion to abandon format regulation as a judgment “en-

titled to substantial judicial deference.” Jd. at 596. In

doing so, it applied precisely the same deference to a

policy of not regulating in conditions of regulatory un-

certainty applicable to decisions to regulate under such

conditions.“

The court of appeals in this case intruded even fur-

ther into the realm of agency decisionmaking. In re-

manding the case, the majority emphasized that NHTSA

would have to consider a wide range of alternatives 20

rescission—including a number pressed by the court but

never proposed in rulemaking, most notably an “airbags

only” standard. App. 54a-68a. This requirement to can-

vass additional alternatives would certainly have been

inconsistent with this Court’s decision in Vermont Yankee

in the context of an original decision whether to issue a

standard,“ and the court did not suggest that such an

undertaking could have been required. It was no more

lawful to do so here simply because the agency deter-

mined to rescind its prior regulation. An agency need

not consider every alternative, or solve every regulatory

problem, before deciding upon a present course of ac-

tion.“ Here, as in 1976, the agency did not foreclose

1% See American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.

496, 528 n.52 (1981) ; Industrial Union Dep't v. American Petroleum

Inst., 448 U.S. 607, 699-701, 706, 722-23 (1980) (Marshall, J.,

dissenting).

In Vermont Yankee, this Court not only limited the power of

reviewing courts to impose additional procedures on an agency pro-

ceeding in conformity with the APA, but also specifically rejected a

challenge, under NEPA, to the failure to consider alternative regula-

tory policies. See 435 U.S. at 551.

42 See REA Express, Inc. v. United States, 568 F.2d 940, 950

(2d Cir. 1977), cert. denied, 435 U.S. 923 (1978) ; City of San An-

tonio v. CAB, 374 F.2d 326, 329 (D.C. Cir. 1967).

This freedom of the agency to control its own docket is particu-

larly essential in NHTSA’s case, for the Safety Act specifically con-

templates a procedure of readjustment of safety standards in light

23

further rulemaking to consider the policy alternatives set

forth by the majority in its opinion; it simply decided

that it could not at this time justify continuing the man-

datory passive restraint portion of the standard on the

present record. See pages 8-9 supra. The majority’s

determination that the agency must consider a wide

range of other regulatory alternatives because in their

view under conditions of uncertainty continued regula-

tion in some form is presumed to be better than none is

simply not a determination that the courts of appeals

are per tted to make.“

The error of the decision below has particular signifi-

cance today. There is now widespread agreement

throughout the American political spectrum with the view

that existing regulations must be carefully reexamined

to ensure that they do not pose undue regulatory burdens

upon economic efficiency. This “regulatory reform”

movement has received endorsement not only from Con-

of changes in the regulatory environment and advances in relevant

safety technology. Chrysler Corp., supra, 472 F.2d at 680. See also

15 U.S.C. § 1410a (statutory procedure for petitioning NHTSA to

issue an order in a standards proceeding) .

*8The court’s dominating preference for regulation shows up

elsewhere. At the outset of its opinion, the court quoted the Safety

Act’s requirement that standards must be “practicable” and “meet

the need for motor vehicle safety.” App. 5a; see note 3 supra.

From there on, the practicability requirement—and the agency’s

specific findings on this point—drop completely out of the court’s

analy... Balancing the “practicable” and “safety need” criteria is,

of course, one of the difficult but vital tasks delegated to the agency

by Congress, which specifically defined motor vehicle safety in terms

of “unreasonable” risk. 15 U.S.C. § 1891(1).

** NHTSA estimated that its action saved $1 billion annually in

variable manufacturing costs and consumer costs and an additional

$150 million annually in fuel costs saved by the continued installa-

tion of active belts. App. 117a.

gress “ but also from the Executive Branch and the inde-

pendent regulatory agencies. In Executive Order No.

12291, 46 Fed. Reg. 13193 (1981), the President estab-

lished a formal program for agency review of “major”

regulations, applicable to agencies other than independent

regulatory agencies, whose goal is to identify and elimi-

nate outmoded regulatory programs. The guiding premise

of the regulatory review program is that “the federal

government should not regulate unless there is a demon-

strated need.. A wide variety of major regulatory

programs have been in various stages of review and

reformulation, not only under this Executive Order“

but also by independent regulatory agencies under their

own initiatives.“ A number of actions taken as a result

of these reviews have already been challenged in the fed-

eral courts.“ The decision below raises a formidable

45 See, e.g., Airline Deregulation ct of 1978, Pub. L. No. 95-504,

92 Stat. 1705; Motor Carrier Act of 1980, Pub. L. No. 96-296, 94

Stat. 793; Natural Gas Policy Act of 1978, Pub. L. No. 95-621, 92

Stat. 3351; Federal Trade Commission Improvements Act of 1980

§§ 11, 15, Pub. L. No. 96-252, 94 Stat. 374; Regulatory Flexibility

Act, Pub. L. No. 96-354, 94 Stat. 1164; Paperwork Reduction Act of

1980, Pub. L. No. 96-511, 94 Stat. 2812.

% See Presidential Task Force on Regulatory Relief: Reagan

Administration Achievements in Regulatory Relief ii (August

1982).

47 Since January 1981, the Task Force has designated 111 exist-

ing regulatory programs for high-priority agency review. Already

51 of these programs have been revised or rescinded; 35 more are

currently subject to deregulation proposals, generally under notice-

and-comment procedures similar to that employed by NHTSA in

this case. See id. at 3-37.

40 F. g., Deregulation of Radio, 84 F.C.C.2d 968 (1981), appeal

pending sub nom. Office of Communication of the United Church

of Christ v. FCC, Nos. 81-1032 et al. (D.C. Cir.); 47 Fed. Reg.

36453 (1982) (proposing elimination of FCC program logging re-

quirements).

49 See Natural Resources Defense Council, Inc. v. Gorsuch, No.

81-2208 (D.C. Cir. August 17, 1982); Natural Resources Defense

25

judicial obstacle to these regulatory policy judgments in

favor of deregulation and should not go unreviewed by

this Court.

III. THE COURT’S AUGUST 4 ORDER IMPERMISSIBLY

PREEMPTED THE AGENCY’S PRIMARY JURIS-

DICTION TO MAKE THE FURTHER DETERMINA-

TIONS REQUIRED BY THE COURT’S OPINION.

In remanding this case, the court of appeals raised a

number of questions for NHTSA’s further considera-

tion,” noting that “[o]ur decision does not foreclose

rescission ....” App. 72a. Even on the present record,

the court apparently held, NHTSA “could reasonably

have decided to suspend or amend the regulation rather

than plunge ahead in the blind faith that the standard

would succeed.” App. 54a.“ The court asked that

NHTSA “recommend” to it a timetable for agency anal-

ysis of the issues raised in the court’s opinion. App. 72a.

It specifically rejected requests to set an effective date,

since the question of what if any passive restraint re-

quirement would be appropriate had not yet been deter-

mined by NHTSA. Id.

On August 4, however, the court made two funda-

mental changes in direction, without giving NHTSA (or

Council, Inc. v. EPA, No. 81-2068 (3d Cir. July 8, 1982) ; Deregu-

lation of Radio, supra; International Ladies’ Garment Workers

Union v. Donovan, Civil Action No. 81-2606 (D.D.C. July 23, 1982) ;

Center for Science in the Public Interest v. Department of the

Treasury, Civil Action No. 82-0610 (D.D.C.).

5 The court specifically acknowledged that changed factors

higher gasoline prices, smaller cars, an ailing automobile industry,

and the methods of compliance being pursued by that industry—

may fully justify reassessing, modifying, and even deferring the

effective date of the regulations. App. 74a.

51 Since Notice 25 expressly leaves open the possibility of future

rulemaking leading to a new passive restraint requirement (see

page 9 supra), the court’s distinction between suspension and

rescission is not apparent.

these petitioners) either notice or opportunity for com-

ment. First, although finding NHTSA’s recommended

timetable “not inconsistent” with its prior order, the

court neither adopted nor rejected that timetable, ap-

parently leaving the course of further proceedings to

NHTSA’s discretion. But the court reinstated Standard

208 and extended its effective date to September 1, 1983.

It thereby reversed its June 1 decision not to fix that or

ary other date but to leave the matter of effective dates

to NHTSA, as the statute expressly provides.“ Because

of this action manufacturers are faced with an insoluble

dilemma. Regardless of the amount of human and finan-

cial resources they may devote (assuming their avail-

ability in the necessary measure) to an effort to comply

with Standard 208, some or all of them may still find

themselves in a position where they may not lawfully sell

their cars because they do not comply with that standard

as it may emerge from the additional rulemaking fore-

shadowed in the June 1 opinion. The June 1 opinion rec-

ognized this dilemma, noting that manufacturers “would

justifiably feel uncertain about the technology that satis-

fies . . . Modified Standard 208.” App. 72a.

Second, by naming that effective date (or any other

date), the court cast aside its earlier commitment to an

orderly process in which the agency would first conduct

proceedings to resolve the issues raised in the court’s June

1 opinion and then determine any appropriate revised ef-

fective dates for whatever standard, if any, it might

adopt. While the court requested the agency to report by

October 1 whether the September 1, 1983 effective date

was “achievable,” it emphasized that the September 1,

1983 date is presently binding. App. 80a, Sla-S2a.

$2 15 U.S.C. § 1392 0c) provides NHTSA with authority to extend

the effective date of federal motor vehicle safety standards. See

Chrysler Corp., supra, 472 F. ad at 673.

58 The applicable statutory criterion-—“practicable”—delegates a

considerably different policy judgment to the agency. 15 U.S.C.

§§ 1391(2), 1392(a).

27

We respectfully submit that the court’s action unlaw-

fully invades the primary jurisdiction of the agency,

upon remand, to determine in the first instance whether,

when, and in what form any mandatory passive restraint

requirements should be adopted, and what procedures

should appropriately be used to answer these questions.

As this Court cautioned in Vermont Yankee:

At least in the absence of substantial justification

for doing otherwise, a reviewing court may not,

after determining that additional evidence is requi-

site for adequate review, proceed by dictating to the

agency the methods, procedures, and time dimen-

sion of the needed inquiry and ordering the results

to be reported to the court without opportunity for

further consideration on the basis of the new evi-

dence by the agency. Such a procedure clearly runs

the risk of “propel[ling) the court into the domain

which Congress has set aside exclusively for the ad-

ministrative agency.”’” 435 U.S. at 544-45, quoting

FPC v. Transcontinental Gas Pipe Line Corp., 423

U.S. 326, 333 (1976).

See also NLRB v. Pipefitters Local 638, 429 U.S. 507, 522

n.9 (1977).™

This Court has on numerous occasions strongly coun-

seled the courts of appeals not to assume such functions

delegated by Congress to the agency in the first instance.

In Atchison, Topeka & Santa Fe Ry. v. Wichita Board of

Trade, 412 U.S. 800, 817-26 (1973), the district court

had overturned an ICC rate increase and entered in-

The Sixth Circuit recognized these established guidelines when,

after invalidating the compliance procedures of NHTSA’s passive

restraint requirement, it delayed the effective date of that require-

ment “until a reasonable time [to be determined by the agency]

after [new] test specifications are issued.” Chrysler Corp., supra,

472 F.2d at 681.

junctive relief against the carriers, prohibiting the im-

position of increased rates pending remand. This Court

held such an injunction unlawful, and in disregard not

only of the particular statutory scheme involved in that

case but also of “the division of function which the legis-

lature has made between the administrative body and

the court of review.” Id. at 819. As the Court observed,

for the court of appeals to articulate its own beliefs

about such public policy questions “prior to an expression

by the Commission of its view” is “precisely what the

doctrine of primary jurisdiction is designed to avoid.”

Id. at 821. Failure to adhere to these principles is such

plain error that it has merited summary reversal. E. g.,

Consolidated Rail Corp. v. National Association of Re-

cycling Industries, Inc., 449 U.S. 609, 612 (1981); Long

Island R. R. v. Aberdeen & Rockfish R. R., 439 U.S. 1, 4-6

(1978).

Federal courts abuse their authority and venture out-

side their limited role in the administrative process when

they attempt to reinstate regulations sua sponte.” In

this case, the court of appeals’ disposition pending re-

mand apparently proceeded from its own policy view that

“(t]he implementation of a passive restraint standard

has already been delayed without acceptable reasons, per-

haps unconscionably so.” App. 72a. Whether that view

of a long and difficult rulemaking process is accurate

or not—and petitioners submit it is not—it did not jus-

% The Fifth Circuit recognized the dangers of such judicial

efforts in Arlington Oil Mille, Inc. v. Knebel, 543 F.2d 1092, 1101

(5th Cir. 1976), where it reversed a district court order mandating

immediate reinstitution of prior regulations held to have been

unlawfully revoked by USDA, as “total displacement . of the

Secretary's function” not warranted by the district court's equity

powers. See also Washington Ass'n for Television and Children v.

FCC, 665 F.2d 1264, 1268-69 & n.7 (D.C. Cir. 1981) (giving effect

to rescission of rule pending judicial review of rescission in court

of appeals and this Court).

tify the court’s arbitrary orders establishing effective

dates for rules that concededly remain within the agency’s

discretion to suspend, modify, or even rescind. Courts are

not legislatures, and they do not sit to enact regulatory

programs.

CONCLUSION

For the foregoing reasons, petitioners pray that a Writ

of Certiorari issue to review the orders of the United

States Court of Appeals for the District of Columbia

Circuit in this case.

Respectfully submitted,

Lioyp N. CUTLER

Joun H. PICKERING

WiuiaM R. PERLIK

ANDREW B. WEISSMAN

WLAN R. RICHARDSON, JR.

JONATHAN I. Fem

Wi urn, CUTLER & PICKERING

1666 K Street, N. W.

Washington, D.C. 20006

(202) 872-6000

Counsel for Petitioners

Motor Vehicle Manufacturers

Association of the United States,

Inc., American Motors

Corporation, Checker Motors

Corporation, Chrysler Motors

Corporation, Ford Motor

Company, General Motors

Corporation, and Volkswagen

of America, Inc.

Henry R. NouTe, In.

Vice

Counsel

Janus M. MACNEE, III

Associate General Counsel

DONALD G. MCGUIGAN

Counsel MILTON D. ANDREWS

Ford Motor Company RICHARD A. PE NA

DONALD M. SCHWENTKER

Oris M. SMITH RIVKIN SHERMAN AND LEVY

Vice President and Genera! 900 Seventeenth Street, N.W.

Counsel Washington, D.C. 20006

CHARLES R. SHARP (202) 347-6007

Assistant General Counsel Counsel for Petitioner

WILLiaM L. WEBER, JR. Automobile Importers of

J. DouGLas HAND America, Ine.

General Motors Corporation

N. RICHARD SKIPPER, JR.

General Counsel

GERHARD P. RIECHEL

Associate Counsel

Volkswagen of America, Inc.