Appendix — General Motors Corp. v. Thomas

: ee ice - Supreme

84-1098 [77m]

No.

———— ———_

In THE CLERK

JAN 7 1985

ALEXANDER L STEVAS,

Supreme Court of the Gnited States

OcTOBER TERM, 1984

GENERAL Motors CORPORATION,

Petitioner,

V.

Lee M. THomAsS, ACTING ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

William L. Weber, Jr. Theodore Souris

George F. Ball James A. Smith

Thomas L. Arnett Terrence B. Larkin

GENERAL Morors Robert M. Spence

CORPORATION BopMAN, LONGLEY &

3044 West Grand Blvd. DAHLING

Detroit, Michigan 48202 34th Floor

(313) 556-4009 100 Renaissance Center

Detroit, Michigan 48243

(313) 259-7777

Edward W. Warren

(Counsel of Record)

David G. Norrell

Attorneys for Petitioner KIRKLAND & ELLis

General Motors 655 Fifteenth Street, N.W.

Corporation Washington, D.C. 20005

January 7, 1985 (202) 879-5018

I saaemneeneeseenieimeineimeenmsenimeneemmmminiee enim

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 g

WV

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

Appendix H:

INDEX TO APPENDIX

D. C. Circuit En Bane Opinions, Sep-

tember 7, 1984.

D. C. Circuit Panel Opinions, December

16, 1983.

D. C. Circuit Order Granting Rehearing

En Banc, March 22, 1984.

D. C. Circuit Supplemental Briefing

Order on Rehearing En Banc, April 3,

1984.

D. C. Circuit Judgment.

EPA “Interpretative Rule” Concerning

Motor Vehicle Recalls Under the Clean

Air Act, 45 Fed. Reg. 36396 (May 30,

1980).

EPA Final Action Letter on 1975 Cadil-

lac Recall (June 23, 1980).

Clean Air Act Sections 202(a), 202(d),

207, 301. 307(b)(e).

S. Rep. No. 1196, 91st Cong., 2d Sess.

29-31, reprinted in 1 1970 Legislative

History of the Clean Air Act 429-31.

Section 207 as provided in proposed S.

4358, 91st Cong., 2d Sess. (1970).

EPA Memorandum on Factual Back-

ground Supporting Need for Inter-

pretative Rule on Motor Vehicle Manu-

facturers’ Liability for Repair of Recall

Vehicles (May 9, 1980) (Attachments 1-7

omitted).

Page

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APPENDIX A

A-1

Notice: This opinion is subject to formal revision defore publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

Buited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1868

GENERAL MOTORS CORPORATION,

a Delaware Corporation, PETITIONER

v.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

No. 80-2027

GENERAL MOTORS CORPORATION,

a Delaware Corporation, PETITIONER

v.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

A-2

No. 81-1029

GENERAL MOTORS CORPORATION,

a Delaware Corporation, PETITIONER

Vv.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Petitions for Review of an Order of the

Environmental Protection Agency

Argued April 25, 1984

Decided September 7, 1984

Theodore Souris and George F. Ball, with whom

Michael B. Lewiston, James A. Smith, Terrance B.

Larkin, Frederick J. Dindoffer and William L. Weber,

Jr. were on the brief, for petitioner in Nos. 80-1868,

80-2027 and 81-1029.

Jose R. Allen, Attorney, Department of Justice, with

whom A. James Barnes, General Counsel, Gerald K.

Gleason, Assistant General Counsel, Robert A. Weissman,

Samuel I. Gutter, Attorneys, Environmental Protection

Agency, David E. Dearing and John Wittenborn, At-

torneys, Department of Justice, were on the brief, for

respondent. Angus MacBeth, Donald W. Stever, Jr. and

Rosanne Mayer, Attorneys, Department of Justice also

entered appearances for respondent.

Before: ROBINSON, Chief Judge, WRIGHT, TAM™M,

WILKEY, WALD, Mikva, EDWARDS, GINSBURG,

SCALIA and STARR, Circuit Judges, and BAZE-

LON, Senior Circuit Judge.

A-3

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Senior Circwt Judge

BAZELON in which Circuit Judges TAMM and WILKEY

join.

WALD, Circuit Judge: In this appeal, the General

Motors Corporation (GM) challenges the authority of the

Environmental Protection Agency (‘EPA or Agency) to

require manufacturers, as a part of a recall pursuant

to the Clean Air Act, to repair cars and engines, which

are members of the reca!! class, but which have exceeded

their statutory “useful lives” of five years or 50,600 miles

at the time of repair. In 1980, the EPA promulgated

what it termed an “interpretive rule,”embodying its con-

sistent regulatory practice since the enactment of the

Clean Air Act Amendments of 1970, requiring manu-

facturers to repair all members of a recall class, re-

gardless of their age or mileage at the time of repair.

Soon thereafter, in accordance with. the interpretative

rule, the agency ordered GM to submit a remedial plan

for a class of recalled Cadillacs that included all class

members regardless of age or mileage. In its petitions

to this court, GM contends that (1) the EPA rule is a

legislative, not interpretative, rule, and therefore the

rule is void for failure to comply with the notice and

comment procedures set down by the Administrative Pro-

cedure Act, and {2) in any event, the rule runs counter

to the recall provision of the Clean Air Act and therefore

is an invalid interpretation of the statute. GM conse-

quently challenges the validity of both the interpretative

rule and the agency order that applied the rule to the

recall of GM automobiles. For the reasons stated below.

we hold that the EPA rule is a valid interpretative rule,

supported by the language, purpose and legisiative his-

tory of section 207(c) of the Clean Air Act Amendments

of 1970. We accordingly deny GM’s petitions.

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I. BACKGROUND

On March 21, 1977, after an EPA investigation and

testing by both EPA and GM, the Administrator of the

EPA notified GM pursuant to section 207(c) (1) of the

Clean Air Act that the class of 1975 Cadillacs with

type 230-carburetors did not conform with federal stand-

ards for carbon monoxide emission, and ordered GM to

“submit a plan for recalling and remedying the noncon-

formity of the vehicles.”' At the same time, the Ad-

ministrator expressed concern that another set of 1975

Cadillacs—with type 193-carburetors—also exhibited non-

conformity with the carbon monoxide standards, but he

refrained from initiating 2 formal recall of that class in

order to give GM an opportunity to sustantiate its

“strong protestations” that this latter class did not vio-

late the standards. See Letter from Douglas M. Costle.

EPA Administrator, to E.M. Estes, President of GM

(March 21, 1977), reprinted in Joint Appendix (J.A.)

at 122-24.

Five weeks later, GM filed a proposed remedial pian

for the 230-carburetor Cadillacs, and as a part of the

plan offered to recall the 193-carburetor Cadillacs volun-

tarily.* See J.A. at 126-27. EPA did not approve the

1 Letter from Douglas M. Costle, EPA Administrator, to

E.M. Estes, President of GM (March 21, 1977), reprinted in

Joint Appendix (J.A.) at 122-24. While it was and is the

agency’s policy to encourage voluntary recalls, the Adminis-

trator “fe[lt] compelled to issue th[e] order’ because “Gen-

eral Motors’ acquiescence to recall comes at the end of more

than two years of EPA investigation and GM opposition, and

after assemblage of the most convincing case yet for recail.”

Id. Moreover, the Administrator expressed “some concern

over the likelihood of actual implementation by dealers of the

remedy proposed by General Motors and wish[ed] to preserve

[the] right to approve the remedy to be actually pursued.” /d.

2 The remedial plan initially submitted by GM covered “all

1975 Cadillac models except those built with California Emis-

sion Controls.” Remedial Plan for 1975 Cadillacs (April 27,

A-5

plan, however, and negotiations continued for two years

between the agency and GM over the effectiveness of the

proposed repairs and the manufacturer’s obligation to

audit the performance of completed repairs. Finally, on

December 26, 1979, the EPA withdrew its demand that

GM conduct an audit, deciding instead to conduct the

audit itself, and approved GM’s amended remedial plan.°

At that time, however, GM urged the EPA to cancel

the recall, arguing that “as a direct result of the delays

incurred since our first remedial plan was submitted,

a point of drastically diminished returns has been

reached.” Letter from T.M. Fisher, Automotive Emis-

sion Control Director for GM, to Benjamin R. Jackson,

EPA Deputy Assistant Administrator for Mobile Source

and Noise Enforcement (Feb. 5, 1980), reprinted in J.A.

at 258. More specifically, GM contended for the first

time that “only those vehicles within the lesser of five

years or 50,000 miles of operation at the time of pre-

sentation to the dealer for repairs will receive the [re

medial repairs] at General Motors [sic] expense.” ‘ Jd.,

reprinted in J.A. at 259. GM thus believed that so few

Cadillacs in the class would be subject to recall because

of their age or mileage that the recall should not be

implemented at all.

1977), reprinted in J.A. at 129. The plan specifically provided

that “[{a] vehicle affected will be eligible for repair under the

remedial plan, regardless of vehicle age, mileage, or owner.”

Id., reprinted in J.A. at 181.

3 See Letter from Benjamin R. Jackson, Deputy Assistant

Administrator for Mobile Source and Noise Enforcement, to

T.M. Fisher, Director of GM Automotive Emission Control

(Dec. 26, 1979), reprinted in J.A. at 252-55.

* GM contends that its 1980 letter merely restated a position

it had taken a year earlier in negotiations with the EPA. See

GM Brief at 5. EPA, however, asserts that the letter repre-

sents “the first time that GM had proposed to impose a 5,50

{useful life] limitation on a remedial pian.” EPA Brief at 11.

Nothing in the record shows that GM presented this limitation

prior to its 1980 letter.

On May 30, 1980, the EPA promulgated the rule at

the center of dispute in this case. See 45 Fed.

36,396 (May 30, 1980). Under the rule, all remedial

plans filed under section 207(c) of the Clean Air Act

“shall provide that the manufacturer will remedy, at the

manufacturer's expense, all properly maintained and

used vehicles which experienced the nonconformity during

their useful lives regardless of their age or mileage at

the time of repair.” 40 C.F.R. Subpart S App. A ‘em-

t

added). Applying this rule to the recall of the

5 Cadillacs, the EPA on June 23, 1980 approved GM's

Cadillac remedial plan insofar as it applied to vehicles

within their useful lives at the time of repair, and or-

dered GM to submit a plan for the repair of automobiles

within the recall class “which failed or will fail to con-

form to applicable emission standards during their use-

ful lives but will be beyond their useful lives at the

time of repair.” Letter from Charlies N. Freed, EPA

Acting Assistant Deputy Administrator for Mobile

Source, Noise and Radiation Enforcement, to T.M.

Fisher, Director of Automotive Emission Control for GM

(June 23, 1980), reprinted in J.A. at 263.

GM then petitioned this court, challenging both the

May 30 rule and the June 30 recall determinations.’

GM argues that ‘1) the May 30 rule constituted a legis-

lative rulemaking, despite EPA’s characterization of the

rule as “interpretive,” and therefore the EPA failed to

foilow the notice and comment procedures required be-

fore such rules may be promulgated, and (2) by requir-

ing the repair of automobiles beyond their useful lives,

the rule exceeds the EPA’s authority under section

&

*On November 26, 1980, the EPA published a notice in the

Federal Register declaring ite partial approval and partial

disapproval of GM’s remedial plan to be “final.” See 45 Fed.

Reg. 78798 (Nov. 26, 1980). GM subsequently filed a protec-

tive petition, consolidated with its previous appeals, seeking

review of this Federal Register notice.

A-7

207(c) of the Clean Air Act. For the reasons explained

below, we disagree with both of GM’s contentions.

Il. Tse EPA Rute Is AN INTERPRETATIVE RULE

EPA styled its May 30 rule as an “interpretive

rule.” See 45 Fed. Rez. 36,396 (May 30, 1980). As a

preliminary matter, GM challenges this characterization.

that the May 30 rule is, on the contrary, a

“legislative rule” and is consequently void for failure

to follow the notice and comment procedures required

for the promulgation of such rules. See 5 U.S.C. § 553.

Because we find that EPA properly categorized the Ma’

30 rule, we conclude that notice and comment procedures

were not required. See id. § 553(b) (A).*

In a turn of phrase particularly apt in this case. the

distinction between legislative and nonlegislative rules

has been described as “enshrouded in considerable smog.”

American Bus Association v. ICC, 627 F.2d 525, 529

(D.C. Cir. 1980) ‘quoting Noel v. Chapman, 508 F.2d

1023, 1030 (2d Cir. 1975) ‘discussing definition of “gen-

eral statement of policy”)!. Nonetheless, there are cer-

tain general principles that aid reviewing courts in

making the determination whether a given rule is

legislative or interpretative. First. the agency's own

label, while relevant, is not dispositive. See, ¢.g., Cham-

ber of Commerce v. Occupational Safety and Health

Administration, 636 F.2d 464, 468 (D.C. Cir. 1980);

Citizens to Save Spencer County v. EPA, 600 F.2d 84-41,

879 n.171 (D.C. Cir. 1979). An interpretative rule

* The APA exempts from its notice and comment procedures

“interpretative rules, general statements of policy, or rules of

agency organization, procedure, or practice.” 5 U.S.C. £ 553

(b) (A). Similarly, the Clean Air Act exempts from its special

rulemaking procedures “any rule or circumstance, referred to

in subparagraphs (A) or (B) of subsection 553(b) of title 5.”

42 U.S.C. § 7607(d) (1). Accordingly, interpretative rules are

not subject to the procedural requirements set down by either

the APA or the Clean Air Act.

A-8

simply states what the administrative agency thinks the

statute means, and only “ ‘reminds’ affected parties of

existing duties.” Citizens to Save Spencer County, 600

F.2d at 876 & n.153; see also Chamber of Commerce, 636

F.2d at 469. On the other hand, if by its action the

agency intends to create new law, rights or duties, the

rule is properly considered to be a legislative rule. See,

¢.g., American Postal Workers Union v. United States

Postal Service, 707 F.2d 548, 568-59 (D.C. Cir. 1983);

Citizens to Save Spencer County, 600 F.2d at 876.

In light of these general principles, we find that the

May 30 rule constitutes an interpretative rule. We note,

to begin with, that the agency regarded its rule as in-

terpretative. See 45 Fed. Reg. 36,2396 (May 30, 1980)

(“Action: Interpretive Rule’). Moreover, EPA’s entire

justification for the rule is comprised of reasoned statu-

tory interpretation, with reference to the language, pur-

pose and legislative history of section 207(c). See id.

at 36397-98. Indeed, the language of the rule itself in-

dicates its interpretative nature. See 40 C.F.R. Subpart

S App. A (“The purpose of this rule is to set forth

EPA’s interpretation ... under wction 207(c) (1) of the

Clean Air Act... .”) Finally, and most importantly,

the rule did not create any new rights cr duties; instead,

it simply restated the consistent practice of the agency

in conducting recalls pursuant to section 207 (c).’

’ The dissent contests this proposition, and calls it “a propo-

sition upon which the majority places substantial weicht.”

Diss. Op. at 3. At the outset, it should be made clear that this

proposition is significant primarily in support of the conclu-

sion that the EPA rule is interpretative, and not legislative.

& proposition with which the dissent agrees. See Diss. Op.

at 1 &n.3.

In its attempt to make light of the EPA’s historical ad-

herence to its current interpretation, the dissent asserts that

the EPA interpretation has only “a lifespan barely exceeding

one year” because the sole controversy over the interpretation

occurred in 1979. See Diss. Op. at 3 n.11. However, as the

EPA observed when it issued its interpretative rule “[i]n

|

A-9

Accordingly, we hold that the May 30 rule was an in-

rule. The EPA therefore was not required

to follow notice and comment procedures prior to the

adoption of the rule. See 5 U.S.C. § 553/b) (A). We now

the past, manufacturers have not conditioned a vehicle’s eligi-

bility for recall repair . . . on the basis of the vehicle’s age or

mileage.” 45 Fed. Reg. at 36,397. Rather than diminishing

the rule’s status as a longstanding EPA interpretation, the

absence of any prior controversy over the repair of cars ex-

ceeding their useful lives demonstrates the reasonableness of

the EPA’s interpretation of its own regulatory scheme. See,

¢.g., Esquire, Inc. v. Ringer, 591 F.2d 796, 801 (D.C. Cir.

1978) (Bazelon, J.) (administrative interpretation deserves

“controlling weight,” particularly when it “has been con-

sistently followed for a significant period of time”), cert.

denied, 440 U.S. 908 (1979); DeLano v. United States, 393

F.2d 517, 521 (Ct Cl. 1968) (“A strong indication of the

reasonableness of that [administrative] construction is the

fact that (the regulated parties] never challenged it” even

though it was “consistently maintained by the agency.”).

Apparently, virtually every manufacturer engaging in a recall

has voluntarily included older cars in its own remedia! plans.

The dissent mistakenly speculates that “manufacturers in

previous recalls have failed to raise the question of liability for

repair of cars beyond their useful lives because the involve-

ment of such vehicles in the recalls has been de minimis.”

Diss. Op. at 4112. The dissert here loses sight of the facts.

Despite its view that “virtually all” of the recalls involved tiny

percentages of older cars, in six out of the fifteen recalls

described in detail in the record, see J.A. at 278-96, the EPA

issued a recall notice to the manufacturer 34-55 months after

the cars were on the market. Under EPA’s method of cal-

culating the percentage of cars recalled that were beyond

their useful lives, see J.A. at 275, these recalls involved large

quantities of older cars. For example, the Pontiac recall.

initiated in 1979, involved 1975 model year cars, 547 of

which were beyond their useful lives. See J.A. at 293. More-

over, almost 30% of the 1976 Pontiacs involved in that recall

had exceeded their useful lives at the time of manufacturer

notice. Similarly, in 1978 EPA initiated a recall that included

1975 Fords, approximately 28° of which had exceeded their

useful lives. See J.A. at 289. Also, in 1978 the EPA began a

recall that included 1974 AMC cars sold in California, approxi-

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consider whether the interpretative rule is valid under

section 207(c) of the Clean Air Act. -

mately 56% of which were beyond their useful lives. See J.A.

at 291-92. Any manufacturer who “prophetically foresaw”

the dissent’s position, Diss. Op. at 4 n.12, believing these re-

calls exceeded the legal scope of coverage, could reasonably

have been expected to make an objection.

Moreover, at least three other recalls included substantial

numbers of olders cars. See J.A. at 280 (1974 Pontiacs: ap-

proximately 22% beyond useful lives); J.A. at 288 (1975

Fords; approximately 16% beyond useful lives); J.A. at 296

(1977 Buicks ; approximately 28.5% beyond useful lives).

The dissent obfuscates the issue by claiming that the above

discussion “neglect{s] the fact” that some of these recalls in-

cluded younger cars in addition to older cars, and that the

“AMC recall was complicated by the more stringent emissions

standards” applicable only in California. Diss. Op. at 4 n.12.

However interesting, these details are irrelevant to the dis-

sent’s assertion that the manufacturers “failed to raise the

question of liability for repair of cars beyond their useful

lives because the involvement of such vehicles in the recalls

has been de minimis.” Id. The recall of younger cars in addi-

tion to older cars in no way detracts from the fact that there

were substantial numbers of older cars involved in these

recalls. The relevance of the California air emission stand-

ards to the dissent’s position is at best obscure.

In a final aside, the dissent invokes the fact that “owner

responses to recalls drop dramatically with the age of the

vehicle.” Jd. Such statistical sport, however, ignores the fact

that the manufacturer incurs heavy costs—both financial and

good will—simply by issuing its notice to owners. Moreover,

while the response rate declines as time goes by, the per-

centage of older cars in the recall sales rises commensurately.

See J.A. at 275, 298. Therefore, whatever the age of the recal!

class, the manufacturer would still have a substantial stake

and ample incentive to raise the useful life issue.

In sum, the dissent fails in its attempts to transmogrify the

absence of controversy over the EPA’s policy into the absence

of any EPA policy on the useful life limitation. Taken indi-

vidually or cumulatively, the dissent’s efforts to invent post

hoc rationalizations for the manufacturers’ failure to chal-

lenge the EPA’s policy are similarly unconvincing. The EPA

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III. THe EPA Rute Is A PERMISSIBLE INTERPRETATION

OF SECTION 207 :

The EPA’s May 30 rule finds substantial support, and

no contradiction, in the language and legislative history

of section 207 of the Clean Air Act. Moreover, the May

30 rule effectuates important public policy goals em-

bodied in the Act. Accordingly, we uphold the validity

of the EPA rule at issue in this case.

The Supreme Court has recently outlined our proper

task in reviewing an administrative construction of a

statute that the agency administers. First, we must de-

termine whether Congress “has directly spoken to the

precise question at issue.” Chevron, U.S.A. v. National

Resources Defense Council, No. 82-1005, slip op. at 4

(June 25, 1984). If the administrative construction runs

counter to clear congressional intent, then the reviewing

court must reject it. See id. at 4 n.9; see also FEC v.

Democratic Senatorial Campaign Committee, 454 U.S.

27, 32 (1981). On the other hand, if the administra-

tive construction does not contravene clearly discernible

legislative intent, then the reviewing court “does not

simply impose its own construction on the statute.”

Chevron, slip op. at 5. Instead, we then must conduct

the “narrower inquiry into whether the [agency’s] con-

struction was ‘sufficiently reasonable’ to be accepted by

a reviewing court.”* Democratic Senatorial Campaign

Committee, 454 U.S. at 39; see Chevron, slip op. at 5.

has consistently approved only those remedial plans that in-

cluded all cars and engines in the recall] class, regardless of

their age or mileage. It therefore constitutes a longstanding

administrative policy.

*It is difficult to square the dissent’s position with these

recent pronouncements by the Supreme Court. Although the

dissent attempts to invoke the “plain meaning of the statute,”

Diss. Op. at 8, in truth it argues only that the useful life

limitation should be imported into the recall provision. See

id. at 7-8. However, nothing in the language or legislative

history of the recall provision compels this result. See infra

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We begin our review with an examination of the stat-

ute. Section 207(c) (1) provides, in pertinent part:

If the Administrator determines that a substantial

number of any class or category of vehicles or en-

gines, although properly maintained and used. do

not conform to the [EPA emission standards],

when in actual use throughout their useful life (as

determined under section 7521(d) of this title), he

shall immediately notify the manufacturer thereof

of such nonconformity, and he shall require the man-

ufacturer to submit a plan for remedying the non-

conformity of the vehicles or engines with respect

to which such notification is given.

42 U.S.C. § 7541(c) (1). The EPA interprets this pro-

vision to authorize the recall of all members of a non-

conforming class, except those not “properly maintained

and used,” regardless of the age or mileage of any given

member. We think the statute provides ample support

for such an interpretation.

The statute requires manufacturers to submit remedial

plans for “vehicles or engines with respect to which...

notification is given,” and directs the EPA Administra-

tor to give such notification with respect to a “class or

at pp. 13-16. The absence of a useful life limitation in the recall

provision should be compared with the express limitation of

the manufacturer’s liability under the warranty provision to

emissions violations occurring during a vehicle's “useful life.”

Compare 42 U.S.C. § 7541(c) (1) (recall provision) with id.

§ 7541(a) (warranty provision). See infra at pp. 19-20.

Similarly, the dissent’s extensive dicta, setting out what it

dubs “some reascus le alternatives,” see Diss. Op. at 20-24, is

particularly inappropriate in light of the Supreme Court’s

recent warning that reviewing courts should respect the

policy choices of administrative agencies. See Chevron, slip

op. at 27-28. The question presented today is whether the

agency’s action is a reasonable one in light of the existing

statutory constraints, and it is not the job of the courts to

propose rules that they would prefer the agency to adopt.

A-13

category of vehicles or engines,” a substantial number

of which exhibited nonconformity durmg their useful

lives. The statute thus provides for notice on a class-

wide basis and further requires the manufacturer to

remedy all cars with respect to which such notice is

given. In light of this class-based orientation of section

207(c) (1), we think the EPA reasonably mandated that

remedial plans be designed to cover all members of a

recall class. The agency reasonably required the manu-

facturers to include a car or engine in their remedial

plans if (1) a substantial number of cars within a given

class exhibited nonconformity during their useful lives,

and (2) the car is a member of that class. Section 207

(c) affords an ample basis for this requirement.

GM nevertheless argues that individual vehicles and

engines that have exceeded their useful lives cannot pos-

sibly exhibit a “nonconformity,” because the Clean Air

Act’s emission standards apply only to vehicles and en-

gines within their useful lives. See 42 U.S.C. § 7521

fa) (1). Since section 207(c) requires manufacturers to

devise remedial plans so that a recall will “remedy the

nonconformity” cf the class, GM concludes that its re-

medial obligations extend only to those members of a

recall class that are within their useful lives at the

time of repair.

However, while it is true that the emission standards

apply only to individual cars and engines during their

useful lives, it does not follow that only those cars and

engines within their useful lives may be recalled. [n-

deed, the question presented by this case is whether a

member vehicle or engine of a recall class that has ex-

ceeded its useful life should nevertheless be repaired un-

der section 207/c! at the manufacturer’s expense. That

question is not settled by the definition of “useful life”;

rather, it turns on the intended scope and purpose of the

recall provision. As we have explained above, section 207

(ec) provides for classwide remedies of classwide defects.

A-14

Accordingly, :’PA reasonably reads the section to require

the manufacturers to submit plans to “remedy the non-

conformity” of the recall class. After all, a defective

class—the members of which do not satisfy the emission

standards during their useful lives—can be considered

“nonconforming.” Hence the May 30 rule is not pre

cluded by the statute’s definition of “useful life.”

Moreover, assuming arguendo that only individual cars

and vehicles within their useful lives could exhibit a “non-

conformity,” a plan “for remedying the nonconformity”

could still include cars or engines beyond their useful

lives at the time of repair. Through the recall scheme,

Congress obviously intended the EPA to conduct tests on

representative samplings of cars and engines, and to base

its decision to recall on such tests.? Unless Congress

*The dissent erroneously concludes that the EPA rule

“would expose the manufacturer to liability for repair vir-

tually indefinitely.” Diss. Op. at 13. The statute, however,

authorizes the Administrator to institute a recall. only after

determining that a substantial number of vehicles or engines

in the class “do not conform to the [emission .tandards] when —

in actual use throughout their useful life.” 42 U.S.C. § 7541

(c) (1) (emphasis added). Since cars and engines oldvr than

five years of age are no longer within their useful! lives, this

statutory condition cannot be met “indefinitely.” There is, at

the very least, this definite time limitation on the Administra-

tor: he must conclude his testing before the entire recall

class has exceeded five years of age.

Moreover, special problems might arise when a proposed

recall class includes nurnerous model years of a particular car

or engine, some of which have entirely exceeded their useful

lives at the time the EPA conducts its testing. See Diss. Op.

at 14-15 (hypothesizing such a class). The design of some

features of a class of cars or engines might be a!tered from

one model year to another. If these changes could affect the

level of auto emissions, then the EPA’s testing of only the

models within their useful lives might not be conclusive as to

the nonconformity of the entire class proposed for recall.

However, since the recall class presented in this case does not

raise this problem, we need not decide this hypothetical.

Suffice it to say that our reading of the statute amply permits

A-15

wanted the EPA to test every car in a class—an absurd

prospect—it was willing to allow a statistical inference

from representative testing that all members of the class

exhibit a nonconformity during their useful lives. Once

it is established that a car was out of compliance with

emission standards during its useful life, a reasonable

remedy could include the repair of the car to compensate

for the pollution caused during the time of its violation.

Therefore, once the EPA establishes that members of a

recall class were generally nonconforming during their

useful lives, a reasonable method of “remedying the non-

conformity” includes the repair of all members of the

class, even if some had exceeded their useful lives.'°° We

note that under the EPA rule, if a certain car or sub-

class of cars were in compliance during the five year

or 50,000 mile period. then the manufacturer need not

repair that car or subclass of cars."1 See 45 Fed. Reg.

the EPA to recall cars and engines regardless of their age at

the time of recall. We do not address today the possible

contraints upon the EPA in defining the reasonable scope of

a recall class.

10 At oral argument and in its supplemental brief, the EPA

attested to its flexibility in devising appropriate and reason-

able remedial schemes for older cars and engines. We do not

find, and GM does not contend, that the remedy proposed for

the Cadillacs in this case is unreasonable.

12 The dissent complains that “the EPA’s rule establishes an

absolute and irrebutable presumption that all older cars were

among the precentage failing to meet standards during their

useful lives.” Diss. Op. at 19-20. However, it is the statute

that establishes the presumption that the cars and engines

within a class exhibiting substantial nonconformity are in-

dividually nonconforming. Moreover, this presumption is not

“absolute and irrebuttable”; the manufacturer is free tc come

forward with evidence that an individual car or engine, or 2

particular subclass of cars and engines, were in fact conform-

ing during their useful lives. The results of on-the-road

testing would be particularly relevant to this inquiry.

This same proof problem, of course, would be present in the

implementation of the dissent’s proposal to permit the Ad-

A-16

36,397 n.2 (May 30, 1950) (“the manufacturer is not

responsible to remedy the nonconformity of a vehicle

which, although part of the recall class, experienced the

nonconformity only after expiration of the vehicle’s use-

ful life’’).

The legislative history similarly supports EPA’s in-

terpretative rule. The Report of the Senate Public Works

Committee—upon which GM heavily relies, see infra at

p. 18—refers to the recall of an entire “model or class”

of vehicles or engines. S. Rep. No. 1196, 91st Cong., 2d

Sess. 29 (1970). The Senate Committee bill designed

two methods for EPA to assure in-use compliance with

emission standards. First, after the development of 2

“quick test” method, the EPA could test the continuing

compliance of “individual vehicles on the road.” Jd. Al-

ternatively, the EPA could conduct more intensive ex-

aminations of “representative sample{s] of a model or

class,” and, after a finding of classwide noncompliance,

EPA “could require the manufacturer to recal] that

model or class.” Jd.; see id. at 111 (section 207 of S.

4358) (if EPA finds that “statistically representative

samples of any class or category of vehicles or vehicle

engines . . . do not conform,” then all “vehicle enzines

included within the class or category” should be noti-

fied) ; id. at 62-63 (section-by-section analysis) after the

EPA “discovers defects through testing’ of a class of

' vehicles or engines, it “shall order the manufacturer to

notify . . . purchasers of the defect’) (emphasis added).

ministrator to recall cars and engines that were within their

useful lives at the time of the notice of nonconformity.. Under

this proposal, manufacturers would be required to repair

cars and engines exceeding their useful lives without any

showing that the particular cars or engines had violated the

emission standards during their useful lives. The dissent’s

proposal, to be practical, must also follow the statutory pre-

sumption that members of the recall class were nonconform-

ing during their useful lives.

A-17

Furthermore, when Congress revisited section 207/c)

in 1977, the discussion assumed that the recall provi-

sion extended to all member vehicles or engines of the

nonconforming classes. See, ¢.g., H. Rep. No. 294, 95th

Cong., 1st Sess. 497 (“if a substantial number of sys-

tems fail during their on-the-road operation, the EPA

can recall the entire lot for repair at the manufacturer’s

expense”) ; id. at 498 (noting the possibility of ‘“‘a recall

of all of that model vehicle or engine type”) ; 6 Environ-

mental Policy Division of the Congressional Research

Service of the Library for the Comm. on Environment

and Public Works, 95th Cong.. 2d Sess. 4540 (1978)

(preliminary statement of Sen. Bentsen) (“section 207

(ec) authorizes the Agency to require the automaker to

recall a given model run for needed repairs if the Agency

determines that a substantial number of that model or

engine type do not conform to the standards when in

actual use”) (emphasis added) ; id. at 1220 (preliminary

statement of Sen. Riegle) (“If a substantia] number

of systems fail during their on-the-road operation, the

EPA can recall the entire lot for repair at the manu-

facturer’s expense”). Given these indicia of the congres-

sional understanding of section 207/c), and the contem-

poraneous administrative policy (as evidenced by manu-

facturers’ remedial plans, see supra at p. 4', it is rea-

sonable to assume that Congress reaffirmed the EPA’s

understanding of its recall authority when it revisited

and ratified the recall provision in 1977. There is not a

shred of evidence to the contrary.”

12 In addition, EPA’s class-based interpretation of section

207 enjoys precedential support. This court, in one of the few

judicial cases to construe the recall provision, observed that

“Cu]nlike the discovery and cure of nonconformity of indi-

vidual vehicles under the warranty provisions, the remedy at

this stage is recall of the entire class of vehicles in order to

correct the design, material, or workmanship defect.” Chrysler

Corp. v. EPA, 631 F.2d 865, 868 (D.C. Cir.) (emphasis in

original), cert. denied, 449 U.S. 1021 (1980).

A-18

Nonetheless, GM contends that one bit of legislative

history contradicts the EPA’s interpretation. Specifically,

GM heavily relies upon one passage from the Report

of the Senate Public Works Committee. In discussing

a provision that was the precursor to section 207 as

finally enacted, the Report said:

The Committee also recognizes the difficulty in any

recall provision of notifying the owners of vehicles.

The Committee expects that the manufacturer would

not only depend on the files of the franchise dealer,

but would, to the extent practicable, use State motor

vehicle department registration files to obtain the

names and addresses of subsequent purchasers of

ears. By establishing a 50,000 mile, no year life-

time for the purpose of warranty, the Committee

did not intend to relieve the automobile manufac-

turers of their responsibility to notify owners of

older cars. The 50,000-mile period cun be assumed

to be 4 to 5 years and the manufacturer should be

expected to notify any owner of a vehicle that is

five years old or less as to failure to continue to

perform to the standard. A decision not to re-

' quire the manufacturer to repair the vehicle could

be made after notice and after finding that the ve-

hicle had exceeded the 50,000-mile warranty period.

S. Rep. No. 1196, supra, at 31. GM believes that this

passage constitutes a clear indication that Congress in-

tended to limit the manufacturers’ recall obligations to

exclude cars and engines beyond their useful lives.

We disagree. In the first place, we would be very

hesitant to overrule a reasonable agency interpretation,

which enjoys support in the statutory language and other

portions of legislative history, on the basis of a single,

and rather ambiguous, passage from a committee re-

port.“ Furthermore, as explained below. we find that

13 As this court, sitting en banc, observed:

[I]t must be remembered that committee reports are not

the law; they are only aids in interpreting statutory

A-19

this passage in no way undermines the EPA’s interpre-

tation of section 207, because the Senate bill under con-

sideration at the time the Committee wrote its report

did not contain a recall provision similar to the pro-

vision finally embodied in section 207. Accordingly, we

conclude that nothing in the legislative history runs coun-

ter to the EPA’s May 30 rule.

The Senate bill did not impose upon manufacturers

any recall repair obligation; it provided only for the

warranty repair obligation. Section 207(d)(2) of the

bill merely directed the EPA to “order the manufacturer

to provide prompt notification . . . [to] purchasers of

all . . . vehicles or vehicle engines included in the class

or category” that the EPA found to be in noncompliance

with emission standards. See S. Rep. 1196, supra, at 111.

Once the purchaser received such a notice, he could have

sought repair at the manufacturer’s expense only under

the warranty mandated by section 207/c) of the bill.

See id. at 110. As in the final Act, the bill expressly

limited the life of the warranty to the useful life of the

vehicle or engine. See id. (section 207(c) or S. 4358) ;

see also 42 U.S.C. $7541(a) (“the manufacturer...

shall warrant ... that such vehicle or engine is... .

_ free from defects in materials and workmanship which

cause such vehicle or engine to fail to conform with ap-

plicable regulations for its useful life”) (emphasis sup-

plied). Thus, the Senate bill’s so-called “recall” provision-

merely required manufacturers to notify purchasers of

a class of vehicles of a defect, and relied on the war-

ranty repair obligation—-which was expressly limited in

language and are useful only to the extent they fairly

reflect congressional intent. Sometimes committee re-

ports are not reliable guides to legislative intent. as, for

example, where they contain statements that contradict

the plain meaning of the statutory language or that con-

flict with the expressed purpose of the statute.

Jordan v. United States Dep’t of Justice, 591 F.2d 753, 767

(D.C. Cir. 1978) (en banc) (footnotes omitted).

A-20

duration to the useful life of the vehicle or engine—to

require the manufacturers to pay for repairs. Under this

scheme, it might well have been reasonable to limit the

“recall” repair obligation to include only cars and en-

gines within their useful lives.

standards “for [the individual vehicle or engine's) use-

ful life,” 42 U.S.C. § 7541/a), the recall repair obliga-

tion contains no such limitation. and can reasonably be

The EPA's rule also furthers the purposes of the

Congress. The Clean Air Act’s unequivocal! directive is

“to protect and enhance the quality of the Nation's air

resources so as to promote the public health and wel-

fare and the productive capacity of its population.” 42

S 7401(bi (1). The May 30 rule obviously effectu-

ates this purpose. When the EPA discovers a defect that

. that the manufacturey must fash-

ion a remedy to fit the violation: the remedial plan must

include “all properly used and maintained nonconforming

vehicles in the subject class regardless of their age or

mileage at the time of repair.” 45 Fed. Reg. 36,397

(May 30, 1980).

AHERN GEN EPS

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“The EPA explained with specificity the purposes of sec-

tion 207 when it promulgated the interpretative rule and

wamek Gat Chess parpeses could be undermined ie the abeenee

The recall program has two objectives: 1) To assure

that manufacturers repair vehicles which are exceeding

the emission standards if maintained and used and the

non-conformity occurs within the useful life of the ve-

hicles, and 2) to encourage manufacturers to build dur-

able emission-related components to assure that vehicles

will not manifest excessive emissions during their usefu!

lives. Both of these objectives are frustrated by an inter-

pretation of useful life which limits manufacturers’ lia-

bility only to vehicles which are within their useful life

at the time of repair.

45 Fed. Reg. at 36,397. As this court stressed only recently,

“(we cannot interpret section 207 ‘in a manner which runs

counter to the broad goals which Congress intended it to

effectuate.” Chrysler Corp. v. EPA, 631 F.2d at 888 (quoting

FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) ).

* As the EPA emphasized when issuing the interpretative

rule, “interpreting section 207(c) (1) as imposing a useful life

limitation on vehicles eligible for repair under a remedial plan

could severely limit the number of nonconforming vehicles

repaired pursuant to recal] orders, could seriously impact

ambient air quality, and would frustrate the intent of Con-

gress.” 45 Fed. Reg. 36,398.

The dissent argues that the EPA could have devised an

alternative administrative scheme, using its legislative rule-

making powers, to “toll” the useful life of vehicles either at

the time the EPA initiates the recall] or during any period

of delay that could be attributed to manufacturer failure to

A-23

IV. CONCLUSION

For the reasons stated above, we hold that the EPA’s

May 30 rule is am interpretative rule. This rule enjoys

support in the language, purpose and legisla-

tive history of the Clean Air Act. GM’s petitions are

therefore denied.

So ordered.

comply in a timely manner with its statutory or regulatory

obligations. See Diss. Op. at 21-22. Under such a scheme, only

those cars within their useful lives at the time of the initial

EPA notice of recall] would be repaired at the manufacturer’s

expense. However, under the scheme, manufacturers could

not cause attrition in the class size by engaging in dilatory

We decline to enter into the inquiry of which regulatory

scheme would best balance all the interests in this field. Our

task here is merely to determine whether the agency’s inter-

pretation is “sufficiently reasonable,” and we conclude that it

certainly is. See FEC v. Democratic Senatorial Campaign

Comm., 454 U.S. 27, 39 (1981). Regardless of whether such

interpretations as the dissent suggests would be permissibie—

an issue we need not reach today—they are in fact not the

interpretation that has been adopted by the agency. More-

over, courts should pay special deference to an agency’s

interpretation when, as here, (a) the agency is interpreting

a statute it is charged with administering, (b) the interpreta-

tion has been consistently adhered to, (c) Congress has ac-

quiesced to the administrative interpretation, and (d) the

statute gives the agency substantial discretion in adminis-

tering and designing an enforcement scheme. See National

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 166-69 (D.C. Cir.

1982).

A-24

BAZELON, Senior Circuit Judge, with whom Tamm

and WILKEY, Circuit Judges, join, dissenting: The in-

terpretative rule upheld by the court today enjoys the

virtues of simplicity, administerability, and apparent con-

gruence with powerfully attractive ideals of public pol-

icy Regrettably, however, it suffers from the vices of

administrative overreaching and a marked incongruence

with the language and history of the statute it purports

to interpret. Because the “principal dispute relates to

the meaning of the statutory term” and “does not sig-

nificantly engage the agency’s expertise,”* and because

the EPA in this case promulgated an interpretative rule

with far-reaching implications for the fair administra-

tion of the Clean Air Act without sufficient statutory

grounds for so doing, I am troubled by the majority’s _

extreme deference to the EPA’s actions. Therefore, I

respectfully dissent.

I. “USEFUL LIFE” AND THE LImMITs OF INTERPRETATION

A. The Standard of Review

We are called upon in this case to review an interpre-

tative, not a legislative rule.* The distinction between the

‘Through the Clean Air Act, Congress sought “to protect

and enhance the quality of the Nation’s air resources so as

to promote the public health and welfare and the productive

capacity of its population... .” Clean Air Act § 101(b) (1),

42 U.S.C. §7401(b)(1) (Supp. V 1981) [hereinafter cited

as the Act].

2 Wilderness Soc’y v. Morton, 479 F.2d 842, 866 (D.C.

Cir.), cert. denied, 411 U.S. 917 (1973) (quoting Barlow v.

Collins, 397 U.S. 159, 166 (1970); see also Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).

+ From the outset, as the majority notes, EPA characterized

the rule as “interpretive.” See 45 Fed. Reg. 36,396 (May 30,

1980); Majority opinion at 7, 8 [hereinafter cited as Maj.

op.]. For the reasons cited by the majority cpinion and

based upon those same authorities, I agree. Jd.

A-25

two can be of great moment, since one of the distinguish-

ing features of an interpretative rule is its lack of bind-

ing force upon courts; such rules are always subject to

challenge in later judicial proceedings. Even though

courts often properly defer to an agency’s interpretation

of a statute for which it has been assigned enforcement

responsibility, a court clearly has the power to substitute

its judgment for that of the agency in the case of an

interpretative rule*® But “neither this court nor the

agency is free to ignore the plain meaning of the statute

and to substitute its policy judgment for that of Con-

gress.”* I fear that in this instance the EPA has done

precisely that.

The Supreme Court has pointed out that “(o] rdinarily,

administrative interpretations are given important but

not controlling significance.”* The precise weight to be

accorded an interpretative rule promulgated by an

agency “in a particular case will depend upon the

thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later pro-

nouncements, and all those factors which give it power

* See, ¢.g., Batterton v. Francis, 432 U.S. 416, 425 n.9

(1977) (“({A] court is not required to give effect to an inter-

pretative regulation.”) ; Citizens to Save Spencer County v.

EPA, 600 F.2d 844, 876 (D.C. Cir. 1979): Joseph v. United

States Civil Serv. Comm’n, 554 F.2d 1140, 1153 n24, 1154

n.26 (D.C. Cir. 1977) ; Gibson Wine Co. v. Snyder, 194 F.2d

329, 331-32 (D.C. Cir. 1952): see generally 2 K. Davis. AD-

MINISTRATIVE LAW TREATISE §§ 7:8, 7:13 (2d ed. 1979 &

Supp. 1982).

5 See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977);

General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976);

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); 2 K.

DAVIS, supra, at § 7:8, 7:13.

* Alabama Power Co. v. Costle, 636 F.2d 323, 365 (D.C.

Cir. 1979).

’ Batterton, 432 U.S. at 424.

A-26

to persuade, if lacking power to control.”* A court must

consider “such factors as the timing and consistency of

the agency’s position and the nature of its expertise.” °

The EPA rule does not “receive high marks when

judged by [these] standards... .” The rule was not

a contemporaneous interpretation of the Clean Air Act,

and there is no evidence that it reflects a longstanding

interpretation of the Act by the agency." Nor, in my

view, did the rule “simply restate[] the consistent prac-

tice of the agency in conducting recalls pursuant to sec-

tion 207(c)”—a proposition upon which the majority

places substantial weight.“ Finally—and this point can

® General Elec. Co., 429 U.S. at 142 (quoting Skidmore, 323

U.S. at 140).

* Batterton, 432 U.S. at 424 19.

10 General Elec. Co., 429 U.S. at 143.

11 EPA argues, and the majority agrees, that its interpre-

tation is “longstanding.” Maj. op. at 11 n.7. Yet, with the

exception of the dispute with GM leading to the promulgation

of the May 30 rule, the agency can point to only one contro-

versy, a Chrysler recall] in 1979, during which the “useful life”

issue arose. See EPA Brief at 5 & n5. In that case, by

EPA’s own admission, the agency did not press the issue

with Chrysler, because the question of nonconformity was

itself being litigated. See id. Thus, even assuming that a

lifespan barely exceeding one year suffices to render an inter-

pretation longstanding, it would appear that the public was

never placed on notice with respect to EPA’s interpretation.

To the extent to which the Supreme Court has required that

courts scrutinize the timing of an agency’s interpretative

rulemaking, EPA’s promulgation of the May 30 rule while in

the heat of regulatory battle with GM deserves close and

critical attention.

12 Maj. op. at 8; see also id. at 3; 8 n.7; 17 n.12. This con-

clusion lacks sufficient specific support in the record. Outside

of the instant dispute, as noted supra, the EPA can point to

only the Chrysler recall in February 1979, and there the use-

ful life issue was conceded by the EPA. See EPA Brief at 5

& n.5. Thus, in the only two specific instances in which the

useful life limitations were at issue, the EPA ultimately ac-

A-27

scarcely be overemphasized—the interpretative rule at

issue in this case does not involve the kind of fact-

intensive questions concerning which great deference need

be given the agency’s technical expertise; rather, as the

ceded to the limitation in the Chrysler recall, choosing for the

first time to contest the limitation in this present Cadillac

The majority also speculates that the EPA’s practice must

have been consistent because the “manufacturers have not

conditioned a vehicle’s eligibility for recall repair ... on the

basis of the vehicle’s age or mileage.” Maj. op. at 9 n.7

(citing 45 Fed. Reg. at 36,397). The record simply fails to

substantiate directly that the manufacturers’ behavior was

the result of the imposition of the EPA’s practice. The ma-

jority’s speculation in fact appears to presume that manu-

facturers (1) somehow foresaw EPA’s heretofore unannounced

interpretation of their liability for repair of vehicles beyond

their useful lives; (2) conceded the “reasonableness” of EPA’s

position ; and (3) therefore, “voluntarily” included older ve-

hicles in their remedial plans, refraining from challenging

this manifestly “reasonable” interpretation.

A more plausible explanation suggests itself. With the « ex-

ception of the Chrysler and Cadillac recalls in which the use-

ful life disputes did arise, virtually all completed emission

recalls have involved vehicle classes less than three years of

age at the time of owner notification of nonconformity by the

manufacturer. See J.A. 278-96. The owner response rates

drop substantially for vehicles more than four years old.

See id. at 298. This information forms a strong basis for the

inference that both the EPA and manufacturers in previous

recalls have failed to raise the question of liability for repair

of cars beyond their useful lives because the involvement of

such vehicles in the recalls has been de minimis. It would

not have been economical for manufacturers to have expended

the resources necessary to identify those vehicles beyond their

useful lives or to risk owner alienation by refusing to repair

the smal] percentage of older cars which might have found

their ways to dealerships in response to a recall.

When the “six out of fifteen recalls described in detail] in

the record” and cited by the majority, Maj. op. at 9 n.7, are

closely examined, this conclusion is reinforced. The percent-

ages relied upon neglect the fact, for example, that the recalls

of 1975 and 1976 Pontiacs, 1975 Fords, and 1974 AMCs in-

A-28

agency itself concedes. “[sJince the rule simply ex-

preases an interpretation of the law based on the lan-

guage, legislative history and policy of the Clean Air

Act, no factual data need be analyzed or commented

volved vehicles that were part of a much larger (and younger)

recall class ; that the AMC recall was complicated by the more

stringent emissions standards applicable uniquely to vehicles

sold in California; that the manufacturers included older

vehicles voluntarily; that owner responses to recalls drop

dramatically with the age of the vehicle; and that the idio-

syncracies of particular recalls and of negotiations between

EPA and manufacturers on a case-by-case basis render the

statistics relied upon by the majority unrepresentative and

misleading. See J.A. at 278-96.

For example, the majority writes that “in 1978 the EPA

began a recall that included 1974 AMC cars sold in California,

approximately 56% of which were beyond their useful lives.”

Maj. op. at 9 m7 (emphasis in original). A close look at the

facts of that recall, however, is illuminating. EPA ordered

the recall of all 1976 AMC cars in May 1978. At that point,

the model was approximately two-and-a-half years old and

fewer than 20° of the vehicles could have been expected to

have exceeded their useful lives. We are told that AMC

“indicate{d] it [would] include 1974, 1975, and 1976 AMC

cars sold in California in its plan.” J.A. 291. The exact motive

for this inclusion is not disclosed by the record, but it is clear

that AMC included these vehicles voluntarily, perhaps out of

a concern for their ability to meet more stringent California

state emissions requirements. However, the majority points

to the 1974 AMCs included in this recall] as evidence of a class

involving large numbers of cars beyond their useful lives for

which the manufacturers did not impose a five year or 50,000

mile limitation. I would suggest, with respect, that such use

of data is inappropriate because (1) only California vehicles

from the 1974 and 1975 AMC model-years were included in

the recal], thus making them a relatively small proportion of

the recall class which was overwhelmingly composed of 1976

AMCs, and (2) these vehicles were included voluntarily, thus

indicating the manufacturer's willingness to go beyond EPA’s

requirements.

The majority’s reliance upon a few other recalls involving

some percentage of olders cars is similarly misplaced, but no

constructive purpose would be served by here disputing the

_—~

A-29

on.” * Conseouently, although some deference is to be

accorded the May 30 rule, our inquiry must focus on

whether EFA’s interpretation is reasonable and sup-

portable in light of the statutory language and legisla-

tive history. And our final determination should reflect,

if required by that language and history, the Supreme

Court’s reminder that “{a] court is not required to give

effect to an interpretative regulation.” “*

B. Statutory Language

In reviewing an agency’s interpretation of a statute,

a court should first examine the language of that statute

to determine whether the interpretation falls within the

numbers offered by the majority or by enumerating the special

circumstances involved in each case. The fact remains that

nine of the fifteen recalls involved no older vehicles, J.A. at

278-96, and that only the Chrysler and Cadillac recails mean-

ingfully presented the useful life issue, an issue which, in the

Chrysler case, was not pursued by EPA. See supra note 11.

Such a history hardly “constitutes a longstanding adminis-

trative policy.” Maj. op. at 11 17.

Judicial deference to an agency’s “consistent” interpreta-

tion should not be based on the fact that the issue at stake

simply has not previously arisen. Such deference is appropri-

ate if an administrative interpretation has been consistently

asserted in the face of a long series of challenges, see, e.g.,

Esquire, Inc. v. Ringer, 591 F.2d 796, 801 (D.C. Cir. 1978),

or if the policy had been publicly announced and implemented

for a long time, see, e.g., DeLano v. United States, 393 F.2d

517, 521-22 (Ct. Cl. 1968). In the instant case, however, the

EPA has previously announced its position only once and, in

that instance, “did not proceed” on behalf of that position.

EPA Brief at 5 1.5. We are pointed to no other occasion on

which the EPA affirmatively required manufacturers to in-

clude vehicles beyond their useful lives in their remedial plans;

the issue simply was never raised by either party.

13 EPA Brief at 41.

4 Batterton, 432 U.S. at 425 n.9.

A-30

statute’s plain meaning.’* Section 207(c) of the Clean

Air Act reads in relevant part as follows: _

If the Administrator determines that a substan-

tial number of any class or category of vehicles or

engines, although properly maintained and used, do

not conform to the regulations prescribed under sec-

tion 7521 of this title [emissions standards} when

in actual use throughout their useful life (as deter-

mined under section 7521(d) of this title), he shall

immediately notify the manufacturer thereof of such

nonconformity, and he shall require the manufac-

turer to submit a plan for remedying the noncon-

formity of the vehicles or engines with respect to

which such notification is given. The plan shall pro-

vide that the nonconformity of any such vehicles or

engines which are properly used and maintained will

be remedied at the expense of the manufacturer."*

The majority relies upon “this class-based orientation

of section 207(c)(1)” in concluding that “the EPA rea-

sonably mandated that remedial plans be designed to

cover all members of a recal! class,” regardless of the

age or mileage of any individual vehicle at the time it is

brought in for repair, “if (1) a substantial number of

cars within a given class exhibited nonconformity during

their useful lives, and (2) the car is a member of that

class.” '7 GM focuses instead upon the concept of non-

conformity, arguing essentially that although classes of

vehicles can be recalled, and remedial plans can be pre-

pared on a class-wide basis, a manufacturer can be liable

18 See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102, 108 (1980); Touche Ross & Co. v. Redington,

442 U.S. 560, 568 (1979); Caminetti v. United States, 242

U.S. 470, 485 (1917) ; Symons v. Chrysler Corp. Loan Guar-

antee Bd., 670 F.2d 238, 241 (D.C. Cir. 1981); Higgins v.

Marshall, 584 F.2d 1035, 1037 (D.C. Cir. 1978), cert. denied.

441 U.S. 931 (1979).

16 As amended, 42 U.S.C. § 7541(c) (1) (Supp. V 1981).

17 Maj. op. at 13.

A-31

to “remedy” only those nonconforming members of a re-

call class that are within their useful lives at the time

of repair.“ Each of these approaches to the statute has

a superficial appeal, but neither constitutes a “sufficiently

reasonable” interpretation of the legislation to which this

court must look for guidance.’®

To some extent, of course, the plain language of a

statute and the legislative history which resulted in that

language are inextricable; 7° but even a casual reader of

the Clean Air Act’s text, without reference to legislative

intent, could not help but be struck by the significance

of the concept of “useful life.” At the outset, the Act

makes clear that emissions standards prescribed by the

Administrator are applicable to the vehicles throughout

their “useful lives.”= It explicitly defines the useful

life of automobiles as “a period of use of five years or

fifty thousand miles (or the equivalent), whichever first

occurs... .”*™ In the recall and remedy provision at

the heart of the instant controversy, the statute not only

refers to “useful life’ but directs readers to the statu-

tory definition of the term by section number.* More-

over, without resort to the term or definition, the Act

utilizes the five year or fifty thousand mile “useful life”

concept in no fewer than four different statutory enforce-

18GM Brief at 20, 23-26; Petitioner's Supplemental Brief

on Rehearing En Banc, April 12, 1984 at 5 [hereinafter cited

as GM Supp. Br.; (“Because no emissions standard applies to

a vehicle beyond 5 years or 50,000 miles, there can be no non-

conformity which the manufacturer can be required to remedy

under § 207(c) (1).”) * see Maj. op. at 13.

1® See FEC v. Democratic Senatorial Campaign Comm.,

454 U.S. 27, 39 (1981).

*° The legislative history is explored infra pp. 11-19.

21 42 U.S.C. § 7521(a) (1) (Supp. V 1981).

22 42 U.S.C. § 7521(d) (1) (Supp. V 1981).

3 42 U.S.C. § 7521(c) (1) (Supp. V 1981); see szpra note

16 and accompanying text.

A-32

ment provisions.* To interpret section 207(c) in such a

way as to eliminate, for all practical purposes, any “use-

ful life” limitation on the EPA’s authority to require

manufacturers to remedy nonconforming vehicles, would

be manifestly unreasonable, an evident attempt to cir-

cumvent the plain meaning of the statutory language.

Yet, it is precisely such an interpretation that the ma-

jority today condones, emphasizing that the question pre-

sented by this case “is not settled by the definition of

‘useful life’; it turns on the intended scope and purpose

of the recall provision.” *

But if defining the concept of “useful life’ cannot

settle this question, neither will minimizing that concept’s

- obvious importance contribute to the correct resolution

of this case. Indeed, it is likely that the “intended scope

and purpose of the recall provision” can only be arrived

*% For example:

1. Section 206(a) requires EPA to certify, on the basis of

extensive testing of prototypes, that each new vehicle pro-

duced will conform to emissions standards for five years or

50,000 miles. No manufacturer may produce or market ve-

hicles not covered by such a certificate. 42 U.S.C. § 7525(a)

(Supp. V 198).

2. Section 206(b) authorizes the EPA to conduct pro-

duction line testing to determine whether vehicles being manu-

factured will conform to emissions standards for 50,000 miles.

Suspension of the certificate of conformity is authorized if

vehicles fail such tests. 42 U.S.C. § 7525(b) (Supp. V 1981).

3. Section 207(a) requires a manufacturer to warrant that

each vehicle sold is designed and built to conform to emissions

standards and that its materials and workmanship are free

from any defect which will cause it to fail to conform to

emissions standards during its useful life. 42 U.S.C. § 7541 (a)

(Supp. V 1981).

4. Section 207(b) further requires a manufacturer to war-

rant that performance of major emissions components of

each vehicle will conform to emissions standards for five years

or 50,000 miles. 42 U.S.C. $ 7541(b) (Supp. V 1981).

3 Maj. op. at 13.

A-33

at and fully appreciated by attempting to define, under-

stand, and reasonably apply that critical statutory term.

A good place to begin is with the argument urged upon

this court by GM, the bulk of which the majority prop-

erly rejects.

In asserting that “the statute does not authorize EPA

to order recall and repair of vehicles beyond their use-

ful lives, ignoring their age and mileage at the time of

repair,” ** GM confusingly intermingles the EPA’s au-

thority “to order recall and repair” of vehicles with its

own duty to perform any necessary repair, implying that

the time and mileage parameters of “useful life’ are

somehow to be applied “at the time of repair.” There

is no support for such an interpretation in the statutory

language. Indeed, that language suggests, if anything,

that the definition of useful life applies when “the Ad-

ministrator determines” that a nonconformity exists and

notifies the manufacturer “immediately.” In addition,

36 GM Supp. Br. at 5.

27 GM essentially ignores the language of section 207(c)

itself, which plainly invokes the “useful life’ concept in con-

nection with the EPA’s pre-notice determination of noncon-

formity. The company argues instead that vehicles beyond

their useful lives when brought in for repair cannot be, at

that time, “nonconforming,” since emissions standards can

only apply to vehicles during their useful lives. GM Brief at

19-20, 23-26. If accepted as a reasonable interpretation of the

statute, EPA would be required, before issuing a notice of non-

conformity to a manufacturer, to estimate and take into

account potentially long lag times between that notice and the

date tha* ‘+. entire class of vehicles would be brought in for

inspection. .nd repair. In practical administrative terms, the

five year element of “useful life’ might mean 4!. years in

some cases, two years or less in others. Section 207(c) would

become an uncertain and inconsistent mechanism at best, a

nullity at worst. Reading the statute, instead, to mean what

it plainly seems to mean—i.e., that a manufacturer must recall

and repair vehicles that are within their useful lives at the

time that the agency’s notice of nonconformity first issues—

would be at once administerable and reasonable. See infra

pp. 21-22.

A-34

to accept GM’s interpretation would be, in practice, to

undercut the central point of section 207(c', even as to

accept EPA’s and the majority's interpretation would

be to destroy its explicitly delineated outer boundaries.

If the nonconformity of a class of vehicles were dis-

covered relatively late in a vehicle’s useful life, or if

protracted negotiations, litigation, and appeals combined

to place all or most vehicles involved in a recall beyond

their useful lives by the time members of the recall

class were brought in for necessary service, GM’s inter-

pretation could regularly, even totally, frustrate the pur-

pose of the recall provision. On the other hand, the in-

terpretation offered by the EPA and accepted by the ma-

jority flies just as surely in the face of the statute’s

plain meaning and similarly frustrates the intent of Con-

gress. Somewhere between these two extreme readings

of the statutory language, the path of reasonableness

lies.

C. The Legislative History

Even where. as here, the statutory language appears

clear, the plain meaning rule is only a primary and not

a conclusive source of understanding and must yield on

occasion to other indicia of legislative intent, including

legislative history.** The majority rightly looks to such

history for guidance, but looks, I believe, in the wrong

places and with the wrong emphasis. The crucial point

to be made about the recall provision is not that Congress’

intended it to apniy to a “model” or “class” or “cate-

gory” of vehicles or engines. but that it intended any

delineation of a “given model run” or an “entire lot” to

*8 See Chesapeake & Ohio Ry. Co. v. United States, 571 F.2d

1190, 1194 (D.C. Cir. 1977) ; see also Watt v. Alaska, 451 U.S.

259, 266 & n.9 (1981); Aaron v. SEC, 446 U.S. 680, 705-08

(1980) (Blackmun, J., concurring in part and dissenting in

part).

A-35

depend upon its deliberately created concept of “useful

life.” *

If little else is crystal clear from the complex legisla-

tive history of the Clean Air Act, one thing is: despite

evidence that the actual life of an automobile is closer

to ten years or one hundred thousand miles than it is

to five years or fifty thousand miles, Congress inten-

tionally limited the duration of a manufacturer’s /iabil-

ity for a vehicle’s nonconformity with emissions stand-

ards to a five-year/fifty-thousand mile period. For ex-

ample, Senator Muskie, one of the bill’s prime sponsors,

remarked that “({flifty thousand miles is not all their

life, 100,000 miles being nearer to a measure of the life

of a motor vehicle, but we have taken 50,000 miles.” ”

During the debate on the 1977 Clean Air Act Amend-

ments, Senator Muskie reemphasized this conscious choice:

The actual life of a car is more than 50,0Uu miles.

We all know that. It approaches 100,000 miles, I

think, increasingly, but it was our feeling that a

50,000-mile warranty would put sufficient pressure

on the manufacturers to meet the standards so that

if they met them for 50,000 miles, the chances were

that the standards would be met pretty closely .. .

even... beyond 50,000 miles.”

The considerations underlying the “useful life” limi-

tations were equally straightforward. As the Senate

Committee Report noted in 1970:

2 The majority devotes much effort to establishing that

recalls must be class-wide, but sheds no light on the role of

“useful life’ in defining the “class” to be recalled. See Maj.

op. at 12-14.

116 CONG. REC. 33,094 (1970), reprinted in 1 SENATE

ComMM. ON Pus. Works, 93rd CONG., 2d SEssS., A LEGISLATIVE

HISTORY OF THE CLEAN AIR AMENDMENTS OF 1970, at 430

(1974) (hereinafter cited as 1979 Levislative History).

31 122 Conc. REC. 24,302 (1976), reprinted in 6 SENATE

COMM. ON ENVIRONMENT & Pus. Works, 95th CONG., 2d

Sess., A LEGISLATIVE HISTORY OF THE CLEAN AIR AMEND-

MENTS OF 1977, at 5145 (1978).

A-36

The manufacturers informed the Committee that

they would not be able to guarantee conformity with

emissions standards for the anticipated 10-year life

of a vehicle. The committee bill provides that 50,000

miles would be the maximum that a vehicle would

be required to conform to the standards for which

it was certified.

Where Congress has so explicitly and deliberately consid-

ered, and then rejected, a more expansive requirement

than that ultimately enacted, it is not for the agency to

exceed the statutory limits under the guise of “inter-

pretation.” *

Nevertheless, the majority argues at considerable

length that some of the 1970 legislative history is “ir-

relevant” because

the law as finally enacted, in contrast to the Senate

bill, creates an independent recall repair obligation

in addition to the warranty ovligation. Section 7541

(ce) of title 42 requires the manufacturer of a re-

called class to submit and comply with a remedial

plan for that class. Unlike the warranty repair ob-

ligation, which covers only failure to conform with

emission standards “for [the individual vehicle or

engine’s] useful life.” 42 U.S.C. §$ 7541/a), the re-

call repair obligation contains no such limitation,

@S. Rep. No. 1196, 91st Cong., 2d Sess. 30 (1970). re-

printed in 1 1970 Legislative History, supra note 30, at 430.

33 The Supreme Court has recently reaffirmed that “{[w]hen

@ court reviews an acency’s construction of the statute which

it administers, .. . the court, as well as the acency, must

give effect to the unambicuously expressed intent of Conzress.”

This is so because “[t]he judiciary is the final authority on

issues of statutory construction and must reject administra-

tive constructions which are contrary to ciesr concressional

intent ....If a court, employing traditional tools of statutory

construction, ascertains that Congress had an intention on the

precise question at issue, that intention is the law and must be

given effect.” Chevron U.S.A. v. Natural Res. Ref. Council,

52 U.S.L.W. 4845, 4847 & n.9 (U.S. June 26, 1984).

tet.

A-37

and can reasonably be considered to extend to all

vehicles or engines in the recall class.*

With respect, such exertions in response to GM’s reliance

upon a particular passage from a committee report

hardly seems worth the candle.= Ultimately, the ma-

jority’s dismissal of the Senate Committee Repor' rests

on the dubious assumption that the Conference Commit-

tee, without comment or explanation, added to the recail

provision of the Senate bill an “independent” recall re-

pair obligation in addition to the warranty obligation.

Any such new recall repair obligation, however, vould

expose the manufacturer to liability for repair virtually

indefinitely, in dramatic ‘and unexplained) contrast to

the warranty repair obligation, which limited the manu-

facturer’s liability for repair to a vehicle’s useful life.

Unlike the majority. I do not see, try as I might. how

the recall repair obligation “can reasonably be extended”

so far.**

* Maj. op. at 20 (emphasis in original).

33 See Maj. op. at 18. I do not find this particular passage

either as ambiguous as the majority appears to believe or as

dispositive as GM claims on the issue of congressional intent.

Most importantly. I find it completely consistent with “the

plain meaning of the statutory language” and “the expressed

purpose of the statute” insofar as it reinforces the evident

desire of Congress to place some reasonable limitation upon

the liability of manufacturers. See id. at 15 n.10: Jordan v.

Department of Justice, 591 F.2d 753, 767 (D.C. Cir. 1978)

(en banc) (footnotes omitted).

36 At one point the majority appears to modify its own

“classwide” analysis, arguing that “[(t]here is, at the very

least, this definite time limitation on the Administrator: he

must conclude his testing before the entire recall class has

exceeded five years of age.” Maj. op. at 14n.9. While I agree

that this would be a slightly more reasonable interpretation

of the EPA’s statutory authority, it is not the authority

asserted by the EPA in this case, and no hint of such a limi-

tation is contained in the plain language of the interpretative

rule, the validity of which is here at issue. Additionally, it

A-38

To appreciate how unreasonable such an interpreta-

tion would be, it is important to bear in mind that a

recall class may include vehicles or engines of more than

one model year. For example, the same carburetor or

engine component may be used in vehicles over the course

of four or five model years. Under the interpretation

espoused by EPA and the majority, the manufacturer

would be liable for the repair of all vehicles ever pro-

duced with that component, provided a sample of defec-

tive vehicles or engines still within their useful lives

could be assembled for testing. If the processes of the

initial EPA investigation and of approving a remedial

plan were to require as much time as they did in the

present case, that liability would be extended even fur-

ther.” And taking the process of owner notification into

account, compounded not infrequently by appeals to the

agency or the courts, manufacturers could and certainly

would be compelled to remedy at their own expense the

“nonconformity’” of vehicles that were more than a dec-

does not avoid the unreasonable result illustated infra notes

37-41 and accompanying text.

7 Ser, e.g., J.A. 293 (recall of 1975-1978 Pontiacs with

EGR back pressure transducers).

*8 Thus, if the Pontiac engine defect, supra, for instance,

had been discovered during the fourth year of the useful lives

of the 1978 model Pontiacs, ail Pontiacs manufactured with

the suspect transducer would be subject to recall. The manu-

facturer would have been required to repair not only the

four-year old 1978 but also the 1975 Pontiacs, which, at the

time the EPA would have issued its notification of noncon-

formity, would have been between nine and ten years old.

39 Months may be consumed in testing and investigating a

potentially nonconforming class prior to the issuance of a re-

cail order. EPA approximates the average time spent in such

investigations as nine months. See J.A. 268 & n.d. In this case

the EPA investigation began in May 1975, issued its notice

of nonconformity in March 1977, and negotiated the details

of GM’s remedial plan through December 1979. See J.A. 1,

123, 137, 142, 145, 170, 182, 203, 224, 226, 230, 236, 247,

252.

A-39

ade old.” The emissions standards to which those ten-

year old vehicles would be required to conform, moreover,

would be standards that Congress explicitly intended to

apply exclusively to vehicles half that age or younger.*

“EPA estimates that the “average time from recall order

to owner notification is 814 months.” EPA Brief at 28 n.33;

J.A. 268 & n.6. As to appeals, EPA found “the recall of cer-

tain 1975 Chryslers ordered recalled on December 8, 1976”

to be “[o]f particular note” :

Although the recall was ordered relatively early in the

life of the vehicles, Chrysier requested an administrative

hearing on the Administrator's determination of noncon-

formity. The Administrative Law Judge upheld the deter-

mination in a decision filed on February 10, 1978. Sub-

sequent appeals to the Administrator and this Court also

resulted in decisions favorable to EPA. Chrysler Corp. v.

EPA, (631 F.2d 865 (D.C. Cir. 1980)] .... Certiorari

was denied by the U.S. Supreme Court on December 1,

1980 ..., when few, if any, of the 208,000 vehicles sub-

ject to the recall order were still within their useful lives.

EPA Brief at 28 n.35.

*1 If the EPA and this court had interpreted the statute to

require the manufacturer to recall and bring into conformity

with “useful life” standards all cars which were within their

useful lives at the time the notice of nonconformity issued to

manufacturers, or even on the date the manufacturer and EPA

agreed on an appropriate remedial plan, that interpretation

would, I believe, have been a reasonable one. This is so even

though, as developed infra note 58 and accompanying text,

such an interpretation might require sonw vehicles to be

brought into conformity with such standards despite their

having exceeded their useful lives at the time of repair. By

limiting, ab initio, the recall authority to the class of vehicles

within their useful lives at the time the nonconformity is first

established by the agency and communicated to the manu-

facturer, the agency would have been acting, in my opinion,

within its reasonable discretion under the statute. See infra

pp. 21-23.

Taken on its face, however, the EPA rule simply goes too

far, and does raise the specter of a manufacturer being re-

quired to remedy decade-old cars at its own expense, a

result that Congress clearly intended to avoid. The EPA

A-40

One would have expected such a drastic extension of

the manufacturer's repair obligztion to have attracted at

least some debate. Certainly there were those in the

Senate who believed even the limited five-year liability

imposed by the warranty provision to have been exces-

sive.* Particularly in the House, where the original bill

to amend the Clean Air Act contained neither a recall

nor a warranty repair obligation, some comment on such

a sweeping new imposition of repair liability would

surely have arisen.* Yet, no such comment was made

attempted at oral argument to salvage the rule from this

conspicuous defect by asserting that the agency will not in

fact require such vehicles to be brought into compliance with

inapplicable standards but will instead require the same “re-

pair’ to be made on older and younger vehicles. The difficulty

with this approach is that the Act requires not that a “repair”

be performed but that a nonconformity be remedied.

Similarly, the majority’s attempt to save this interpreta-

tive rule by reading a modest limitation into its facially

limitles: language, Maj. op. at 14 n.9, ought to be unavailing.

Even if the recall action in this case can and should be uphe'd,

see infra at p. 25, the rule itself, as promulgated, is clearly

and unambiguously contrary to the statute’s language and

history.

Under our cases, if the agency wishes to fill in interstices

created by a possible congressional failure to anticipate all the

possible consequences of the statutory scheme, the proper

recourse is a legislative, not an interpretative rule. See

Chamber of Commerce v. OSHA, 636 F.2d 464, 469-70 (D.C.

Cir. 1980).

42 See, e.g., 116 CONG. REC. 33,083, 33,093 (1970), reprinted

in 11970 Legislative History, swpra note 29, at 307-08, 330-31

(remarks of Senator Griffin); id. at 33,097, reprinted in 1

1970 Legislative History, swpra note 29 at 338 (remarks of

Senator Cooper) : sce also Administration’s Letter to Confer-

ence Committee Recommending Certain Provisions (Nov. 17,

1970), reprinted in 1 1970 Legislative History, swpra note 29,

at 212-13 (expressing view of executive branch that 50,000-

mile warranty was “inappropriate and unrealistic in the light

of known technology and experience”).

43 See H.R. REP. No. 1146, 91st Cong., 2d Sess. 11-13, 38-40

(1970).

A-41

during either the House or the Senate debates on the

Conference Committee Report; instead, the only discus-

sion of amendments to § 207 of the Act focused exclu-

sively on the House’s acquiesence in the Senate’s pro-

posed warranty repair obligation, which as the majority

admits, was limited to the five-year/50,000-mile useful

life of the recalled vehicle.

My own reading of the legislative history leads me

to conclude that any alterations made in the Senate bill

by the Conference Committee were merely “technical,

clarifying, and conforming changes,” and that the

warranty repair obligation and the recall repair obliga-

tion are essentially coterminous.** Although they do dif-

fer in their triggering agents—the individual consumer

in the case of warranty repairs or the agency in the

case of recalls—both obligations are limited in duration

to the five years or 50,000 miles of a vehicle’s useful

life.

If this reading of the legislative history (and, as dem-

onstrated earlier, of the plain meaning of the statutory

* See 116 CONG. REC. 42,520 (1970), reprinted in 1 1970

Legislative History, supra note 29, at 112 (House debate)

(remarks of Representative Staggers) ; id. at 42,382, 42,385,

reprinted in 1 1970 Legislative History, supra note 29, at 126,

134-35 (Senate debate) (remarks of Senator Muskie).

46 H.R. REP. No. 1783, 91st Cong., 2d Sess. 42 (1970),

reprinted in 1 1970 Legislative History, supra note 29, at 192.

No mention of any extension of a manufacturer’s liability for

repair of nonconforming vehicles beyond the five-year, 50,000-

mile limits of the warranty period is made anywhere in the

Conference Committee Report.

46 As the Supreme Court has recently reaffirmed in another

context: “Had Congress intended so fundamental a dis:inc-

tion, it would have expressed that intent cleariy in the svatu-

tory language or the legislative history.” Securities Indus.

Ass’n v. Board of Governors of the Fed. Reserve Sys., 52

U.S.L.W. 4943, 4948 (U.S. June 26, 1984) (quoting American

Tobacco Co. v. Patterson, 456 U.S. 63, 72 0.6 (1982) ).

A-42

language with which the history is thoroughly consistent,

is correct, just one task remains: the determination ot

the precise point in the recall process at which the all-

important “useful life” limitation should apply. That

determination, of course, is for the agency, so long as

its action is “sufficiently reasonable.” **7 In this case,

the majority concludes that “it certainly is.” Reluc-

tantly, as sympathetic as I am with the EPA’s chafing

at the bit of its statutory authority in promulgating the

instant rule, I cannot agree.”

II. THE REASONABLENESS INQUIRY

A. The Language of the May 30 Rule and its

Implications

By requiring “manufacturers to submit a plan to

remedy all vehicles within the class or category of ve-

hicles subject to an ordered recall which experienced the

nonconformity during their useful lives regardless of

their age or mileage at the time of repair,” * the agency

did at least use the words “useful life.” But it did so in

such a way as, in practice, to read the useful life limita-

tion out of the statute. As the foregoing discussion has

demonstrated, Congress clearly contemplated some in-

crease in a car’s emissions once a vehicle has surpassed

its useful life. Correspondingly, and just as clearly, Con-

gress provided for a limitation on a manufacturer’s ob-

*7 FEC v. Democratic Senatorial Campaign Comm., 454 U.S.

27, 39 (1981).

48 Maj. op. at 23 n.16.

“© Nor can I agree, as noted supra pp. 10-11, with the

interpretation of the recall provision offered by GM. As this

opinion goes on to suggest, EPA’s enforcement authority need

not.be constrained significantly, if at all, by my reading of the

Clean Air Act’s recall provisions. See infra pp. 21-25.

53°45 Fed. Reg. 36,396-97 (May 30, 1980) (presently codi-

fied at 40 C.F.R. § 85.1803, App. A to subpart S (1982) ).

A-43

ligation to recall and repair nonconforming cars that had

exceeded their useful lives. The question presented by

this case is thus whether, as the majority asserts, the

recall repair obligation “can reasonably be considered to

extend to all vehicles or engines in the recall class’ *

which, in the language of the rule, “experienced the non-

conformity during their useful lives.” To my mind, what

is unreasonable about the EPA rule is not that some

vehicles may be compulsorily repaired at a manufac-

turer’s expense “regardless of their age or mileage at the

time of repair’ (GM’s position), but that in many cases

a manufacturer will be unable reasonably to determine

whether a particular vehicle became noncomplying dur-

ing its useful life or long after.”

Under the May 30 rule as promulgated, whenever a

car brought in for repair has exceeded its useful life, the

manufacturer will be unable to demonstrate whether a

present emissions excess is attributable to the sanctioned

erosion of performance after 5 years or 50,000 miles,

which Congress so clearly acknowledged as likely and

explicitly provided for through the concept of useful life.

or to a nonconformity which did in fact exist during the

vehicle’s useful life.** In essence, the EPA’s rule estab-

lishes an absolute and irrebuttable presumption that all

older cars were among the percentage failing to meet

standards during their useful lives. In practice, the lan-

guage of the statute—“If the Administrator determines

that a substantial number . . . do not conform”—would

be rewritten to read “did not conform” or “might not

have conformed.” Even if the establishment of such a

presumption or the enforcement of such a construction

51 Maj. op. at 20.

52 See supra pp. 15-16.

SS At best, manufacturers would be forced to indulge in

expensive, unwieldy, customer-alienating, fact-specific contro-

versies concerning when a given car, beyond its useful life

when presented for repair, first exhibited excessive emissions.

A-44

were within the EPA’s authority, such actions go beyond

mere statutory interpretation. Even if, 4s the majority

suggests, the May 30 rule “makes good practical sense”

and is “sensible” in light of the Clean Air Act’s pur-

pose, its evident disparity with the plain meaning of the

statutory language and legislative history would seem to

require, at a minimum, legislative rulemaking with at-

tendant notice and comment procedures.”

B. Some Reasonable Alternatives

In concluding that the agency acted unreasonably in

promulgating its May 30 interpretative rule, I wish to

emphasize that the interpretation urged upon this court

by GM seems to me at least equally unreasonable, and

that EPA could, in my view, readily remedy the defect

by one of three alternative approaches.*

First, EPA might reword its interpretative rule in

such a way as to reasonably interpret the language and

history of the recall provision. If, for example, the rule

were to provide for the recall and repair of vehicles

within their useful lives at the time the notice of non-

% Maj. op. at 21.

55 See supra pp. 10-11.

56 The majority has, in a sense, suggested a fourth. See

supra note 36; Maj. op. at 14 n.9. In so doing, however, the

majority opinion insists that “it is not the job of the courts

to propose rules that they would prefer the agency to adopt.”

Maj. op. at 12 n.8. That is true, of course, but it is equally true,

and this court has recently reemphasized, that where the

adoption of a particular rule is beyond the agency’s statutory

authority, it is our obligation to vacate the rule in question.

Cf. Union of Concerned Scientists v. Nuclear Regulatory

Comm’n, 735 F.2d 1437, 1451 (D.C. Cir. 1984) (Wald, J.)

(little deference accorded agency’s interpretation of pro-

cedural requirements, normally the area in which an agency

deserves the most deference, because “Congress did not grant

. the Commission discretion to remove so material an issue

era |

|

RM aesintA is Hectic srs We oh on A

A-t9

conformity issued to manufacturers, the intent of Con-

gress would be vindicated, and manufacturers would have

little or no incentive to delay a valid recall by means of

strategic lawyering. Quite to the contrary, any frivolous

or bad-faith delay would be penalized not only by its

inherent expense but by the fact that any nonconforming

vehicles ultimately requiring repair would be older and,

presumably, more expensive to bring into conformity with

emissions standards.

The reasonableness of such an interpretative rule would

be underscored by an important passage of the Act’s

legislative history. The comments of the House managers

of the 1970 bill, included in the Conference Committee

Report, explicitly state:

The Senate [bill] . . . authorized the Administra-

tor, if he determined that any class or category of

vehicles or engines did not conform with applicable

emission standards, to require manufacturers to

notify purchasers of such nonconformity. Moreover.

if a manufacturer discovered such noneomfornity

during the term of any warranty required under the

Senate [bill], he was required to notify purchasers

of the nonconformity and to remedy such noncon-

formity at no cost to the owner.”

Even as to the warranty provision, then, and a fortion

as to the recall provision ‘if, as the majority believes,

there is any distinction between the two!, Congress con-

templated that the notion of “useful life’ was to be ap-

plied at the time the manufacturer became aware of a

nonconformity.*

37H. Rep. No. 1783, 91st Cong., 2d Sess. 50 (1970), re-

printed in 1 1970 Legislative History, supra note 30, at 200

(emphasis added).

58 If, as suggested here, the manufacturer’s obligation to

recall and repair a nonconforming vehicle attaches at the time

the agency makes a determination of nonconfcrmity and gives

notice, some cars may be beyond their useful iives by the time

A-46

A second alternative open to the agency, as noted,

would be a full legislative rulemaking. [f,- after hearing

all sides and making a record, the agency believed that

the language of its May 30 rule remained justifiable, it

would be sustained on judicial review unless it were

found to be “a: >itrary, capricious, or manifestly con-

trary to the statute.” Any rule promulgated in the

wake of such full procedural safeguards would, of course,

be entitled to more weight than the interpretative rule

to which the majority—inappropriately, I believe—tuday

defers.

In this context I would note, as well, that the Ad-

ministrator has substantial discretion in defining by reg-

ulation the useful lives of vehicles under the Act. Sec-

tion 202(d) defines the useful lives of “light duty ve-

hicles” as “a period of use of five years or fifty thou-

sand miles for the equivalent), whichever first occurs

...’® The parenthetical phrase, “or the equivalent, ta

surely authorizes the Administrator to establish, in es-

sence, a “constructive useful life,” by promulgating legis-

lative regulations prescribing how the five-year/50,000

mile useful life will be measured for recall purposes. For

example, a vehicle’s age and mileage could be “tolled”

whenever the EPA issues a recall order for vehicles of its

class. Such a tolling provision would protect the recall

system from manufacturer-induced delays. The majority

acknowledges this possibility but “decline[s] to enter into

the inquiry of which regulatory scheme would best bal-

they are repaired. If a particular vehicle’s status at the time

of the determination were contested, however, its age could

be easily ascertained by reference to the bill of sale, and its

mileage could be rebuttably presumed to have increased uni-

formly throughout its period of ownership. Such a presump-

tion would need to be resorted to only rarely, and would be

reasonable under the circumstances.

5° Chevron U.S.A. v. Natural Res. Def. Council, 52 U.S.L.W.

4845, 4847 (U.S. June 26, 1984).

42 U.S.C. § 7521(d) ‘1) (Supp. V 1981).

A-47

ance all the interests on this field.” I agree that it is

the role of the agency, and not of the courts, to make

such a determination. But it is the role of the courts to

“reject administrative constructions which are contrary

to clear congressional intent.”@ Especially where, as

here, an agency promulgates an interpretative, rather

than a legislative, rule, and where it relies not on its

technical expertise but on statutory interpretation alone,

the Supreme Court has made it abundantly “clear...

that deference is not to be a device that emasculates the

significance of judicial review.” *

Finally, of course, the EPA and other advocates of a

more far-reaching recall authority than that provided by

Congress in the Act as amended may seek fresh con-

gressional attention to the issues raised by this case.

A more reasonable interpretative rule, crafted along the

lines suggested in this opinion, may be deemed inade-

quate; similarly, the alternative of legislative rulemaking

may prove somehow unsatisfactory. If so, those who

would impose a more far-reaching burden upon auto-

mobile manufacturers to ensure the purity of our na-

tion’s air will have recourse to our nation’s legislators.

It may well be desirable to hold manufacturers liable to

recall and repair every vehicle ever produced that may

have violated emissions standards many years before in

order “to compensate for the pollution caused during the

time of its violation.” I fear, however, that in this

case the majority has forgotten that “[i]t is not for an

administrative agency . . . to preempt congressional ac-

tion or to ‘fill in’ where it believes some federal action

is needed.” ©

#1 Maj. op. at 23 n.16.

6 Chevron, 52 U.S.L.W. at 4847 n.9.

83 Securities Indus. Ass’n v. Board of Governors of the Fed.

Reserve Sys., 52 U.S.L.W. 49438, 4945 (U.S. June 25, 1984).

* Maj. op. at 15.

6 Office of Consumers’ Counsel v. Federal Enerzy Regula-

tory Comm’n, 655 F.2d 1132, 1152 (D.C. Cir. 1980).

A-48

III. CONCLUSION

For the reasons discussed in this opinion, I would va-

cate EPA’s May 30, 1980 interpretative rule. I would

affirm, however, that part of the June 23, 1980 order

finding that GM had failed to submit a satisfactory re-

medial plan with respect to certain 1975 Cadillacs within

their useful lives as of March 21, 1977, the date on

which the Administrator officially notified GM of the non-

conformity of a substantial number of those vehicles.

APPENDIX B

EDITOR'S NOTE

PAGES 8] +hau BG] ERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED,

b-1

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1868

GENERAL MOTORS CORPORATION,

A DELAWARE CORPORATION, PETITIONER

Vv.

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

No. 80-2027

GENERAL MOTORS CORPORATION,

A DELAWARE CORPORATION, PETITIONER

Vs

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

No. 81-1029

GENERAL MOTORS CORPORATION,

A DELAWARE CORPORATION, PETITIONER

Ve

WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

B-2

Petitions for Keview of an Order of the

Environmental Protection Agency

Argued January 13, 1983

Decided December 16, 1983

George F. Ball and Theodore Souris, with whom Wu-

liam L. Weber, Jr., Michael B. Lewiston, James A. Smith,

Terrence B. Larkin, and Frederick J. Dindoffer, were on

the brief, for petitioner.

Samuel I. Gutter, Attorney, Environmental Protection

Agency, with whom Angus MacBeth, Acting Assistant

Attorney General, Gerald K. Gleason, Assistant General

Counsel, Robert A. Weissman, Attorney, Environmental

Protection Agency, Donald W. Stever, Jr., and Rosanne

Mayer, Attorneys, Department of Justice, were on the

brief, for respondent.

Before: WILKEY and WALD, Circuit Judges, and BAZE-

LON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

BAZELON.

Concurring opinion filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge WALD.

BAZELON, Senior Circuit Judge: Petitioner General

Motors Corporation (GM) brings three consolidated peti-

tions for review of final actions of the Environmental

Protection Agency (EPA) under the Clean Air Act, as

amended.! In these petitions we are asked to decide

whether the recall provision of section 207(c) (1) of the

Act? permits the EPA to require automobile manufac-

1 42 U.S.C. §§ 7401 et seg. (Supp. V 1981) [hereinafter “the

Act’).

2 42 U.S.C. § 7541(c) (1) (Supp. V 1981).

B-3

turers to recall and repair at their own expense all mem-

bers of a class of vehicles—a substantial number of which

have been found to be in nonconformity with applicable

emissions standards during their useful lives—regardless

of the age or mileage of any individual vehicle when

presented for repair. We take jurisdiction under section

307(b) (1) of the Act.* For reasons detailed below, we

reverse the actions of the Administrator.

BACKGROUND

Through the Clean Air Act, Congress sought “to pro-

tect and enhance the quality of the Nation’s air resources

so as to promote the public health and welfare and the

productive capacity of its population ....”* To this

end, Title II of the Act* establishes a comprehensive

program for the control of motor vehicle emissions. The

Act authorizes the Administrator to prescribe standards

for motor vehicle emissions within the broad guidelines

set out by the statute.* Such standards are applicable to

the vehicles throughout their “useful lives.’”’7 The useful

life of light duty vehicles, such as automobiles, is defined

by statute as “a period of use of five years or fifty thou-

sand miles (or the equivalent), whichever first oc-

Pe ae

342 U.S.C. § 7607(b) (1) (Supp. V 1981).

*Clean Air Act §101(b)(1), 42 U.S.C. § 7401(b) (1)

(Supp. V 1981).

542 U.S.C. §§ 7521-7574 (Supp. V 1981).

®*Clean Air Amendments of 1970 § 6(a), 84 Stat. 1676,

1690 (1970) (current version at 42 U.S.C. § 7521 (Supp. V

1981) ).

T Id. § 6(a) (1), 84 Stat. 1676, 1690 (1970) (current version

at 42 U.S.C. § 7521(a) (1) (Supp. V 1981)).

SId. §6(a), 84 Stat. 1676, 1692 (1970) (current version

at 42 U.S.C. § 7521(d) (1) (Supp. V 1981) ).

B-4

The Act also provides an elaborate enforcement sys-

tem designed to ensure that vehicles comply with emis-

sions standards, not only when they leave the assembly

line but also while in actual use.* Among the enforce-

ment mechanisms at the disposal of the EPA is the au-

thority to order manufacturers to recall and repair at

their own expense an entire class or model of vehicles

or engines should the Administrator determine that a

substantia! number of vehicles in that class, although

properly used and maintained, have failed to meet ap-

plicable emissions standards during their useful lives.'’

The precise scope and application of this recall authority

are at issue in this lawsuit.

In May 1975, the EPA began an investigation " of the

emissions performance of 1975 Cadillacs of the 60V42°

engine family.* On March 21, 1977, following a pro-

gram of testing fifteen sample vehicles by both EPA and

GM, the Administrator officially notified GM that he had

* Id. § 8(a), 84 Stat. 1676, 1694-98 (1970) (current version

at 42 U.S.C. §§ 7525, 7541 (Supp. V 1981) ).

10 Clean Air Act § 207(c) (1), 42 U.S.C. 7541(c) (1) (Supp.

V 1981).

Other aspects of the enforcement mechanism require pre-

sale and assembly line testing and certification, see id. § 206,

42 U.S.C. § 7525 (Supp. V 1981), and warranties for the

repair of isolated, individual vehicle failures, see id. § 207(a),

(b), 42 U.S.C. § 7541(a), (b) (Supp. V 1981).

11 The investigation was initiated in response to data from

state emissions inspections and GM assembly line audits indi-

cating significant hydrocarbon and carbon monoxide problems.

See Joint Appendix (J.A.) 1.

12 The 60V43 engine family consisted of approximately

220,000 vehicles equipped with carburetor part number 7045230

or 7045198 [hereinafter referred to as the 230-carburetor or

193-carburetor, respectively]. See EPA Brief at 5 n.6.

B-5

determined that a substantial number of 1975 Cadillacs

equipped with the 230-carburetor, although properly

maintained and used, failed to meet federal emissions

standards during their useful lives.‘* The Administrator

ordered GM to submit a plan for the recall and repair

of the 230-carburetor class.’* He also indicated that the

EPA staff would continue its investigation of emissions

problems in 193-carburetor Cadillacs and urged GM to

recall these vehicles voluntarily.*®

GM did not contest the finding of nonconformity and

“volunteered” to recall the 198-carburetor vehicles.'*

Nevertheless, negotiations concerning GM’s proposed re-

medial plan '*’ dragged on from May 1977 until December

18 See J.A. 123. This determination was based on EPA or-

dered testing of 15 sample vehicles, permitting the EPA to

project with 95 percent statistical confidence that at least 68

percent of the vehicles in the class were exceeding standards.

See id. at 122-23, 125. Earlier projections estimated a 43 per-

cent nonconformity rate. See J.A. 35.

14 See J.A. 123.

16 See J.A. 123-24.

16 See J.A. 126. GM’s agreement to recall! vehicles equipped

with 193-carburetors was not purely altruistic. Although GM

continued to contend that the 193-carburetor vehicles complied

with emissions standards, there was no practical method of

determining which of the carburetors was installed in a given

1975 Cadillac until it had been brought into the repair shop.

See id.

17 A manufacturer notified of a determination of noncorn-

formity is required to submit a remedial plan for the Admin-

istrator’s approval. See Clean Air Act § 207(c) (1), 42 U.S.C.

§ 7541(c) (1) (Supp. V 1981); 40 C.F.R. §§ 85.1803-85.1804

(1982). The manufacturer must demonstrate both that the

proposed remedy is technically sound and that it can and will

be properly implemented. See 40 C.F.R. §§ 85.1803-85.1804

(1982).

B-6

1979."* Finally, on December 26, 1979, EPA withdrew

one of its principal objections and agreed to approve a

1# See J.A. 137, 142, 145, 170, 182, 208, 224, 226, 280, 236,

247, 252.

Much has been made by both parties of the time lag between

initial notification of nonconformity and the EPA’s ultimate

approval of the remedial plan and of the appropriate alloca-

tion of blame for the delay. The EPA maintains that its origi-

nal refusal to approve GM’s proposed remedial plan was

premised on two principal concerns. First, GM had failed to

demonstrate that the repair proposed for the 198-carburetor

would actually remedy the nonconformity in those vehicles.

Second, the adjustment’s actual or perceived adverse effect on

the drivability of the Cadillacs might induce mechanics, fear-

ing customer dissatisfaction, to refuse to perform the repair

properly. See J.A. 137-38, 142. GM tested the 193-carburetor

vehicles and discovered that its proposed repair did not in fact

remedy the nonconformity, yet did not submit a revised

remedial plan until January 30, 1978. See J.A. 203. A few

minor modifications to this plan were made at the request

of the EPA and were incorporated in a new revised remedial

plan submitted on February 15, 1978. See J.A. 224. This is

the plan that was ultimately approved by the EPA. See J.A.

252-55, 261-64. GM attempts to excuse its delay on the ground

that the 193-carburetor recall was voluntary and did not re-

quire EPA approval. See GM Reply Brief at 12-13. However,

once GM’s own testing had revealed that half of the sampie

of eight vehicles failed to meet carbon monoxide emissions

standards and that the repair originally proposed failed to

remedy this problem, see J.A. 170, it seems fair to assume

that the EPA refrained from ordering a recall of the 193-

carburetor class only because the details of the “voluntary”

recali were currently being negotiated.

To alleviate its concerns with respect to mechanics’ motiva-

tion to perform the repairs properly, EPA proposed, among

other measures, that GM conduct a performance audit. See

J.A. 142-48. GM agreed to some of the measures but refused

to assume responsibility for an audit, arguing both that an

audit was unnecessary and that it would place GM in an ad-

versary relationship with its own dealers. See J.A. 203-06.

Although EPA continued to insist on its authority to require

GM to perform the audit, EPA ultimately dropped its demand

B-7

modified plan that had been submitted by GM on Feb-

ruary 15, 1978."*

At this point, however, GM informed: the EPA that

“Ta]bout forty percent of the subject vehicles are beyond

five years old and many more will have accumulated

more than 50,000 miles.” *? GM urged the Administrator

to cancel the recall and averred that, if the EPA were

to go forward with the recall, “only those vehicles within

the lesser of five years or 50,000 miles of operation at

the time of presentation to the dealer for repairs will re-

ceive the campaign adjustments at General Motors (sic)

expense.” *? EPA responded on May 30, 1980 by promul-

that GM conduct the audit and decided instead to conduct an

audit itself. See J.A. 254. GM argues that, because EPA’s

insistence on a GM-conducted audit which “it had no right to

demand and which it dropped in the final approval” was the

real cause of the delay, see GM Reply Brief at 12, “it is arbi-

trary and capricious for EPA to assert in 1980 that GM now

should repair vehicles which have exceeded their useful lives.”

GM Brief at 35.

Because of our disposition of EPA’s interpretative rule and

order on other grounds, we need not reach the question of

EPA’s authority to require manufacturers to conduct recall

audits nor need we assign to either party full responsibility

for the delay that resulted in the vast majority of the vehicles

having exceeded their useful lives by the time the recall plan

was approved. See J.A. 258, 261 (estimating only 52,000 of

the 220,000 vehicles remained within their useful lives at the

time of conditional approvai of the remedial pian). We do

note, however, that the audit issue was not a frivolous ques-

tion, that it was hotly contested by both parties for some time

in what we can presume to have been good faith, and that it

is illustrative of the type of controversy that can prolong ap-

proval negotiations despite the best intentions and cause the

“useful life’ problem to arise again in the future.

19 See J.A. 252-55. See supra note 18.

20 J.A. 257.

21 J.A. 259. GM maintains that this statement, contained in

a letter to the EPA dated February 5, 1980, merely reiterated

the position GM had first taken in January 1979. See GM

Brief at 5. EPA insists that the February 1980 letter “was

B-&

gating what it labelled an “interpretive rule” setting

out the EPA’s position that the Clean Air Act requires

the first time that GM had proposed to impose a 5/50 limita-

tion on a remedial plan.” EPA Brief at 11. Whether there

was verbal communication between GM and EPA on this is-

sue before February 1980 we cannot say; there is, however,

nothing in the record before this court to document any ex-

change between GM and EPA concerning the 5-year/50,000-

mile limitation prior to the February 1980 letter.

After the February letter, GM imposed but later withdrew

5-year /50,000-mile limitations in several other pending re-

calls. See EPA Brief at 11 & nn. 17-18. Consequently, the

1975 Cadillac recall] is the only situation which to the court’s

knowledge presently involves a dispute between the EPA and

@ manufacturer concerning the extent of a manufacturer's

liability to recall and repair vehicles beyond their useful lives.

% Section 307(d) (2)-(6) of the Clean Air Act, 42 U.S.C.

§ 7607 (d) (2)-(6) (Supp. V 1981), establishes certain proce-

dural requirements in connection with agency promulgation of

rules. The Act requires, inter alia, establishment of a rule-

making docket, publication of notice of proposed rulemaking

in the Federal Register, a specified period for receipt of pub-

lic comment, public access to the docket materials, and re-

sponse by EPA to each significant comment, criticism, and

submission of data. Jd. However, section 307(d)(1) of the

Act provides, in relevant part: “This subsection shall not

apply in the case of any rule or circumstance, referred to in

subparagraphs (A) or (B) of subsection 553(b) of title 5

{of the United States Code].” 42 U.S.C. § 7607(d) (1) (Supp.

V 1981). The relevant provision of title 5 provides in turn

that rulemaking procedures need not be applied “to inter-

pretative rules, general statements of policy, or rules of

agency organization, procedure, or practice... .” 5 U.S.C.

§ 553(b) (A) (1982). Thus, by casting the regulation as an

interpretative rule, the agency was able to circumvent most

of the rulemaking requirements of the Clean Air Act. The

EPA did create and provide access to a public docket in con-

nection with the promulgation of the May 30 rule (although

the utility of even that exercise must be questioned in light

of the absence of the public comments that would normally

arouse interest in the docket), but none of the other rule-

making procedures were observed. Sec 45 Fed. Reg. 36,396,

36,397 (May 30, 1980).

B-9

“manufacturers to submit a plan to remedy all vehicles

within the class or category of vehicles subject to an or-

dered recall which experienced the nonconformity during

their useful lives regardless of their age or mileage at

the time of repair.” * Shortly thereafter, the EPA wrote

to GM, refusing to withdraw the recall order.* The EPA

letter formally approved GM’s remedial plan of Febru-

ary 15, 1978 insofar as it applied to vehicles stil] within

their useful lives at the time of repair.* But, relying on

the May 30 rule, the agency disapproved the plan insofar

as it related to vehicles beyond their useful lives.** The

letter also reflected EPA’s finding that, at least with

respect to vehicles beyond their useful lives, GM had

“failed to submit a [remedial] plan as required by sec-

tion 207(c) (1) of the Act... .”*7 GM petitioned this

court, seeking review of both the May 30 rule and EPA’s

partial disapproval of GM’s remedial plan.**

= 45 Fed. Reg. 36,396, 36,396-97 (May 30, 1980) (presently

codified at 40 C.F.R. § 85.1803, app. A to subpart S (1982) ).

* See J.A. 261-64 (EPA Letter dated June 23, 1980).

% Id. GM agreed to proceed with the recall of these ve-

hicles. See J.A. 308.

* See J.A. 261-64.

37 J.A. 263. The Administrator warned GM that “[t]he

failure to submit a plan for these vehicles is considered to be

* separate offense under sections 203(a)(4)(B) and 205 of

the Act for each vehicle and can potentially subject GM to

fines of up to $10.000 per vehicle.” Jd.: see Clean Ai, Act

§§ 203(a)(4)(B), 205, 42 U.S.C. §§ 7522(a)(4)(B), 7524

(Supp. V 1981).

**On November 26, 1980, EPA published a notice in the

Federal Register declaring its partial approval and partial

disapproval of GM’s remedial plan to be “final.” See 45 Fed.

Reg. 78,798, 78,798 (Nov. 26, 1980). GM subsequently filed a

protective petition, consolidated with its previous appeals,

seeking review of this Federal Register notice.

B-10

ANALYSIS

A. Standard of Review

is tells tee atin ils Wo re aid upon in this case

to review an interpretative, not a legislative, rule. While

this observation may seem apparent, the nature of the

May 30 rule has been hotly contested by the parties. Al-

though EPA has from the start characterized the rule as

“interpretive,” * GM argues that, because the rule sub-

stantially expands the scope of a manufacturer’s liability

under the recall provisions of the Act, the rule should be

viewed instead as an improperly promulgated legislative

rule.”

® See 45 Fed. Reg. 36,396, 36,396-97 (May 30, 1980).

* GM Brief at 12-22.

GM also argues that the rule must be considered legislative

because of the limitations on judicial review imposed by the

Act. GM Brief at 21-22. One of the distinguishing features

of an interpretative rule is its lack of binding force upon

courts; such rules are always subject to challenge in later

judicial proceedings. See, ¢e.g., Batterton v. Francis, 432 U.S.

416, 425 n.9 (1977) (“[A] court is not required to give effect

to an interpretative regulation.”): Citizens to Save Spencer

County v. EPA, 600 F.2d 844, 876 (D.C. Cir. 1979); Joseph

v. United States Civil Serv. Comm'n, 554 F.2d 1140, 1153

n.24, 1154 n.26 (D.C. Cir. 1977) ; Gibson Wine Co. v. Snyder,

194 F.2d 329, 331-32 (D.C. Cir. 1952); see generally 2 K.

DAVIS, ADMINISTRATIVE LAW TREATISE §§ 7:8, 7:13 (2d ed.

1979 & Supp. 1982). However, section 307(b) (1) of the Act

provides in relevant part:

A petition for review of ... any other nationzlly ap-

plicable regulations promulgated, or final action taken,

by the Administrator under this chapter may be filed

only in the United States Court of Appeals for the Diz-

trict of Columbia .... Any petition for review under

this subsection shall be filed within sixty days from the

date notice of such promulgation, approval, or action ap-

pears in the Federal Register...

42 U.S.C. § 7607(b) (1) (Supp. V 1981) (emphasis supplied).

Section 307(b)(2) goes on to provide that any “[a]ction

of the Administrator with respect to which review could have

been obtained under paragraph (1) shall not be subject to

————— << LULU

B-11

Where, as here, an agency has the authority to issue

both legislative and interpretative rules,” the line be

judicial review in civil or criminal proceedings for enforce-

ment.” 42 U.S.C. § 7607(b) (2) (Supp. V 1981). Apparently,

both GM and EPA read this language as rendering any rule,

whether such rule was originally intended to be interpretative

or legislative in character, binding on the courts if not chal-

lenged within 60 days after its promulgation. Sce GM Brief

at 21-22; EPA Brief at 42-46; GM Reply Brief at 2-3, 14-19.

Consequently, GM argues, if the review provisions render

any nationally applicaple regulation binding on the courts

after 60 days, then all such regulations must by definition be

legislative and not interpretative. See GM Brief at 21-22;

GM Reply Brief at 14-19.

The Supreme Court has previously taken note of the con-

stitutional problems that review limitations such as section

307(b) may present. See, ¢.g., Harrison v. PPG Indus., Inc.,

446 U.S. 578, 592 n.9 (1980) (opinion of the Court) ; id. at

594-95 (Powell, J., concurring opinion); Adamo Wrecking

Co. v. United States, 434 U.S. 275, 289-91 (1978) (Powell, J.,

concurring opinion). The issue, however, has not thus far

arisen in a posture that would permit its resolution, nor does

it so arise in this case. Suffice it to say that a limitation on

judicial review does not lend to an interpretative rule any

binding force not already provided by the underlying statute.

See Citizens to Save Spencer County v. EPA, 600 F.2d 844,

876 (D.C. Cir. 1979). A court always has the power to sub-

stitute its judgment for that of the agency in the case of an

‘interpretative rule, even though courts customarily accord

some measure of deference to an agency’s interpretation of a

statute for which it has been assigned the responsibility for

enforcement. See Batterton v. Francis, 452 U.S. 416, 425 n.9

(1977) ; General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42

(1976) ; Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) ;

2 K. Davis, supra, at §§ 7:8, 7:13. Thus, in cases arising

after the 60-day review period has expired, the court may

undertake and enforce its own interpretation of the statute

without reviewing the interpretative rule as such. And, in

any event, the 60-day limitation period may not begin to run

with respect to interpretative rules until a fact-based contro-

versy is ripe for judicial review. See Baltimore Gas and Elec.

Co. v. ICC, 672 F.2d 146, 147-50 (D.C. Cir. 1982) (interpret-

ing an analogous 60-day review limitation).

31 See Citizens to Save Spencer County v. EPA, 600 F.2d

844, 873-74 (D.C. Cir. 1979).

B-12

tween the two is often blurred.™ Nevertheless, the deter-

mining factor is the agency’s authority and intent in

promulgating the rule.™ Although an agency’s own la-

belling of a rule is not dispositive of the question of in-

tent,™ it is indicative and is entitled to judicial defer-

ence.™ There is nothing in this record to suggest that

EPA ever intended this rule to carry any weight beyond

that ordinarily attending an agency’s interpretation of a

statute.”

= Chamber of Commerce v. Occupational Safety and Health

Admin., 636 F.2d 464, 468 (D.C. Cir. 1980) (opinion of the

court) ; id. at 471 (Bazelon, J., concurring opinion).

3 Id. at 468; Joseph v. United States Civil Serv. Comm’n,

564 F.2d 1140, 1153 n.24 (D.C. Cir. 1977); see generally 2

K. DAVIS, supra note 30, at §§ 7 :8-7:13, 7:15.

* See Columbia Broadcasting Sys., Inc. v. United States,

316 U.S. 407, 416 (1942); Chamber of Commerce, 636 F.2d

at 468; Citizens to Save Spencer County, 600 F.2d at 879

n.171.

% See Chamber of Commerce, 636 F.2d at 468; see also

Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Energy Reserves

‘Group, Inc. v. Department of Energy, 589 F.2d 1082, 1092

(Temp. Emer. Ct. App. 1978).

3° When the rule was first published it was classified as

“interpretive” and described as

set(ting] forth EPA’s interpretation regarding one as-

pect of a motor vehicle or motor vehicle engine manu-

facturer’s recall liability under section 207(c)(1) of the

Clean Air Act .... EPA interprets this section as re-

quiring manufacturers to submit a pian to remedy all

vehicles within the class or category of vehicles subject

to an ordered recall... regardless of their age or mile-

age at the time of repair. The interpretation set out in

this rule will provide guidance to vehicle and engine

manufacturers to better enable them to submit acceptable

remedial plans. .

45 Fed. Reg. 36,396, 36,396-97 (May 30, 1980) (2mphasis

supplied). Throughout this litigation, EPA has never claimed

any authority for its rule other than that conveyed by the

ee

B-13

The Supreme Court has pointed out that “[o]rdinarily,

administrative interpretations are given important but

not controlling significance.” *7 The precise weight to be

accorded an interpretative rule “in a particular case will

depend upon the thoroughness evident in its considera-

tion, the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to con-

trol.” ** The EPA rule does not receive “high marks

when judged by [these] standards... .”™* The rule

was not a contemporaneous interpretation of the Clean

Air Act, and there is no evidence that it reflects a long-

standing interpretation of the Act by the agency.” Nor

statute itself. Thus, there is no need to turn to the effect of

the rule in order to ascertain agency intent. If the effect of

the rule exceeds that of the statute itself, then the rule will

have surpassed the bounds of permissible statutory inter-

pretation.

37 Batterton v. Francis, 432 U.S. 416, 424 (1977).

%8 General Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) :

see id. at 141-42; 151-53; Batterton, 432 U.S. at 425 n.9 (“[A]

court is not required to give effect to an interpretative regula-

tion. Varying degrees of deference are accorded to adminis-

trative interpretations, based on such factors ~s the timing

and consistency of the agency’s position and the nature of its

expertise.”’).

%® General Elec. Co., 429 U.S. at 143.

4o EPA argues that its interpretation is longstanding. Yet,

with the exception of the dispute with GM leading to the

promulgation of the May 30 rule, the agency can point to only

one controversy, the Chrysler recall in February 1979, during

which the useful life issue arose. See EPA Brief at 5 & n.5.

However, by the EPA’s own admission, the agency did not

press the issue with Chrysler, because the question of non-

conformity was itself being litigated. See id. Thus, even

assuming that a lifespan barely exceeding one year suffices to

render an interpretation longstanding, it would appear that

B-14

the public was never placed on notice with respect to EPA’s

interpretation.

The dissent contends that, nevertheless, ‘the EPA interpre-

tation should be considered longstanding precisely because the

question of a manufacturer’s liability for repair of vehicles

beyond their useful lives has never previously arisen. See

Dissenting Opinion at 5 n.5. Yet, this novel approach to de-

fining “longstanding” interpretations is not supported by the

cases on which the dissent relies. In Esquire, Inc. v. Ringer,

591 F.2d 796, 801 (D.C. Cir. 1978), we did hold that an ad-

ministrative interpretation that “has been consistently fol-

lowed for a significant period of time” is entitled to judicial

deference. Yet we found that the administrative interpreta-

tion under review in that case was longstanding, because it

had been consistently asserted and followed by the agency

since 1909 in the face of a long series of challenges. Jd. at 802

& nn.19-20. Similarly, in DeLano v. United States, 393 F.2d

517, 521-22 (Ct. Cl. 1968), the railroad’s failure to challenge

overtime billing for customs inspections performed on board

trains was seen as indicative of the “reasonableness” (not the

longstanding nature) of the Immigration Service’s interpreta-

tion of its overtime regulations. There, the agency’s policy had

been publicly announced and implemented for over 15 years.

Id. at 521. Rai.roads had been affirmatively required to pay

on the basis of the agency’s overtime interpretation. In the

instant case, however, the EPA has previously announced its

position only once and, in that instance, recanted. We are

pointed to no other occasion on which the EPA required manu-

facturers to include vehicles beyond their useful lives in their

remedial plans; the issue simply was never raised by either

party.

Judge Wald’s view of the EPA’s position as “longstanding”

apparently presumes that manufacturers (1) prophetically

foresaw EPA’s heretofore unannounced interpretation of their

liability for repair of vehicles beyond their useful lives; (2)

conceded the “reasonableness” of EPA’s position ; and (3)

therefore, “voluntarily” included older vehicles in their re-

medial plans, refraining from challenging this manifestly

“reasonable” interpretation. A far more plausibie expiana-

tion for the lack of 5/50 controversies avails itself. The

statistical data supplied by the EPA indicates that, with the

exception of the Chrysler and Cadillac recalls in which useful

life disputes did arise, virtually all completed emissions recalls

have involved vehicle classes less than three years of age at the

=

B-15

time of owner notification of nonconformity by the manufac-

turer. See J.A. 278-96. The median class age is approximately

2.5 years; the mean, slightly less than 2.6 years, and the mode,

less than one year. EPA data also reveal that, at an age of one

year, only 2% of vehicles are likely to have exceeded 50,000

miles; at age 2, 6% ; at age 3, 20%; at age 4, 39%; and at age

5, 60%. J.A. 274. Finally, EPA statistics indicate that the

owner response rates drop substantially for vehicles more than

four-years old (median owner response for vehicles between

four and five years of age is between 20 and 30%, and no

owner response is indicated for vehicles more than five years

of age). See J.A. 298. This information forms a strong basis

for the inference that both the EPA and manufacturers in

previous recalls have failed to raise the question of liability for

repair of cars beyond their useful lives because the involve-

ment of such vehicles in the recalls has been de minimis. Few

vehicles beyond their useful lives were putatively subject to

recalls; of these, only a handful could have been expected

actually to have been presented for repair. It simply would

not have been economical for manufacturers to have ex-

pended the resources necessary to identify those vehicles be-

yond their useful lives or to risk owner alienation and possible

reaction from the EPA (although the EPA’s position con-

cerning such matters was at the time unknown) by refusing

to repair the tiny percentage of older cars which might have

found their ways to dealerships in response to a recall.

In contrast, in the two major recalls in which 5/50 limita-

tions were imposed, a substantial percentage of the vehicles

in the class were beyond their useful lives. The EPA recalled

1975 Chryslers in December 1976. J.A. 281. After a hotly con-

tested dispute over the existence of the emissions noncon-

formity, Chrysler imposed a 5/50 limitation in December 1978.

Id. At that point, the class was 51 months old and over 40

of the vehicles had exceeded their useful lives. Moreover, since

Chrysler’s appeal of the EPA’s recall order was still pending

in this court, virtually the entire class could have been ex-

pected to have exceeded their useful lives before owner naotifi-

cation took place. Similarly, in this case, the model was beyond

the five-year point by February 1980 when, after a prolonged

and often hostile negotiation process, GM finally imposed a

5/50 limitation on repair cf its 1975 Cadillacs. See J.A. 286.

The dissent responds that “in six out of the fifteen recalls

described in detail in the record, ... the EPA issued a recall

notice to the manufacturer 34-55 months after the cars were

B-16

on the market” Dissenting Opinion at 5 n5. However, we

believe that the dissent’s method of computation produces an

inflated picture of the average age of recall classes. For ex-

ample, the dissent includes two recalls which were incomplete

at the time the record in this case was submitted. However, it

is impossible to tell, until owner notification has begun,

whether a manufacturer will ultimately assert a 5/50 limita-

tion. For example, in this case GM submitted several remediai

plans without asserting such a limitation; indeed, the 5/50

limitation was not imposed until after the EPA had approved

GM’s remedial plan. Thus, incomplete recalls are useless for

purposes of discerning why manufacturers failed to impose

5/50 limitations prior to the Cadillac recall.

The dissent also presents figures on three recalls that “in-

volved” large numbers of older vehicles (1975 and 1976

Pontiacs, 1975 Fords, 1974 AMCs); yet, in each case, these

vehicles were part of a larger recall class, spanning severa!

model years, in which the majority of the cars involved were

younger. We respectfully suggest that employing the mean

age of the recall class as a whole would present a more ac-

curate picture of the proportion of older cars in a given recall

that the manufacturer might have had to fix without a 5/50

limitation. For example, 54% of the 1975 model Pontiacs

may have been beyond their useful lives in 1979, yet 1975

Pontiacs represented only one-quarter of the cars involved in

the Pontiac recall which included model years 1975-1978.

Similarly, the 1978 Ford recall to which the dissent refers

included 1975 and 1976 Fords, and the 1978 AMC recail

spanned the model-yezrs 1974 through 1976.

The AMC recall points to another flaw in the dissent’s

statistical formulation. In that recall, the EPA ordered the

recall of all 1976 AMC cars in May 1978. At that point, the

model was approximately two-and-a-half years old and fewer

than 20% of the vehicles could have been expected to have

exceeded their useful lives. We are told that AMC “‘indicate([d]

it [would] include 1974, 1975, and 1976 AMC cars sold in

California in its plan.” J.A. 291. The exact motive for this

inclusion is not disclosed by the record, but it is clear that

AMC included these vehicles voluntarily, perhaps out of a con-

cern for their ability to meet more stringent California state

emissions requirements. However, the dissent points to the

1974 AMCs included in this recal] as evidence of a class in-

volving large numbers of cars beyond their useful lives for

B-17

which the manufacturers did not impose a 5/50 limitation.

We would suggest, with all due deference, that such use of

data is inappropriate (1) because only California vehicles

from the 1974 and 1975 AMC model-years were included in

the recall, thus making them a relatively small proportion of

the recall class which was overwhelmingly composed of 1976

AMCs; and (2) these vehicles were included voluntarily, thus

indicating the manufacturer’s willingness to go beyond EPA’s

requirements.

Finally. the dissent presents its data only in terms of the

percentage of older cars it contends were present in the recall

class ; however, that figure must be multiplied by the projected

owner response rate to determine the percentage of cars the

manufacturer would have anticipated actually having to fix.

Thus, even if 20% of the cars in a given class were beyond

their useful lives at the time of owner notification, and a 207

owner response rate could be expected for those cars, only 4

of the cars presented for repair could be expected to be beyond

their useful lives. (This figure, of course, would have to be

adjusted by the response rates for vehicles of varying ages

within their useful lives.) In fact, as indicated above, the

response rate for vehicles beyond their useful lives approaches

zero. Therefore, even assuming the statistical validity of the

dissent’s calculations, manufacturers in past recalls would

have had to repair few, if any, vehicles beyond their useful

lives, whether or not 5/50 limitations had been imposed.

In the few recalls, other than the Chrysler and Cadillac re-

calls, in which significant numbers of vehicles beyond their

useful lives were involved, potent reasons existed for the

manufacturers to refrain from invoking 5/50 limitations. One

manufacturer “requested additional time to develop a durable

replacement component to use in a recall] campaign.” J.A. 268.

The manufacturer's failure to adhere to its own production

timetable resulted in approximately 70,000 vehicles (most of

them apparently from earlier model years voluntarily in-

cluded in the recall, see J.A. 291) having exceeded their useful

lives by the time owner notification began. J.A. 268. Simi-

larly, another manufacturer requested additional time to de-

velop a less expensive remedial repair part, resulting in sav-

ings to the manufacturer of $3.2 million. J.A. 269. A third

carmaker convinced the EPA to consent to two audited sample

recalls in an unsuccessful attempt to demonstrate that defec-

tive carburetors could be repaired instead of replaced; the

B-18

does the rule involve the kind or fact-intensive questions

concerning which great deference need be given the

agency’s technical expertise; rather, as-the agency itself

concedes, “[{sJince the rule simply expresses an inter-

pretation of the law based on the language, legislative

history and policy of the Clean Air Act, no factual data

need be analyzed or commented on.” *! Consequently, al-

though some deference is to be accorded to the May 30

rule, our inquiry will focus on whether EPA’s interpreta-

tion is reasonable and supportable in light of the statu-

tory language and legislative history.*

B. Statutory Language

In reviewing an agency’s interpretation of a statute, a

court should first examine the language of that statute to

determine whether the interpretation falls within the

statute’s plain meaning.** In the instant case, however,

delays consumed three years. Jd. Manufacturers who hope to

call upon the EPA’s good graces in the future are hardly in a

position to invoke 5/50 limitations when the delays they have

asked the EPA to tolerate in order to mitigate the expense of

a recal] result in large numbers of vehicles having exceeded

their useful lives when presented for repair.

Indeed, EPA provides information on only two completed

recalls in which large numbers of vehicles beyond their useful

lives could have been expected to have been presented for re-

pair and special circumstances militating against a manufac-

turer’s invocation of a 5/50 limitation were not involved.

These were the Chrysler and the Cadillac recalls. In both, the

manufacturers imposed 5/50 limitations. In the former, the

EPA ultimately acceded to the limitation: in the latter, obvi-

ously, it has not. Such a history does not a “longstanding”

interpretation make.

‘1 EPA Brief at 41.

42 Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980):

Southeastern Community College v. Davis, 442 U.S. 397, 411

(1979).

48 See Consumer Prod. Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102, 108 (1980); Touche Ross & Co. v. Reding-

ores

B-19

the statutory language is ambiguous at best. Section 207

{c) (1) of the Act provides in relevant part:

If the Administrator determines that a substantial

number of any class or category of vehicles or en-

gines, although properly maintained and used, do

not conform to... [emissions standards], when in

actual use throughout their useful life... , he shall

immediately notify the manufacturer thereof of such

nonconformity, and he shall require the manufac-

turer to submit a plan for remedying the noncon-

formity of the vehicles or engines with respect to

which such notification is given. The plan shall pro-

vide that the nonconformity of any such vehicles or

engines which are properly used and maintained

will be remedied at the expense of the manufac-

turer.“

EPA construes the requirements of the entire section

as “class-based.” Under the agency’s interpretation, once

the Administrator determines that a substantial number

of vehicles in the class fail to conform to standards dur-

ing their useful lives, the manufacturer is notified of the

nonconformity of the class. The manufacturer must then

submit a remedial plan for the entire class of vehicles.

providing for the repair at the manufacturer’s expense of

all vehicles or engines that are members of the class. The

only exception is for vehicles that have not been properly

used and maintained. Indeed, the very existence of this

exception for improperly used and maintained vehicles is

said to highlight the absence of an explicit exclusion of

vehicles beyond their useful lives.**

ton, 442 U.S. 560, 568 (1979); Caminetti v. United States,

242 U.S. 470, 485 (1917); Symons v. Chrysler Corp. Loan

Guar. Bd., 670 F.2d 238, 241 (D.C. Cir. 1981): Higgins v.

Marshall, 584 F.2d 1035, 10387 (D.C. Cir. 1978), cert. denied,

441 U.S. 931 (1979).

“Clean Air Act §207(c)(1), 42 U.S.C. § 7541(c) (1)

(Supp. V 1981).

“ See EPA Brief at 22 & n.26.

B-20

GM focuses instead on the concept of nonconformity.

Although the manufacturer is notified of: the nonconform-

ity of the class of vehicles on the basis of the failure of a

substantial number of its members to conform to stand-

ards during their useful lives, the remedial plan must

address the nonconformity of the individual vehicles in

the class, and it is the nonconformity of such vehicles that

is to be remedied at manufacturer expense. However,

“Cnjonconformity” is a word having meaning only

for vehicles for which the Act and EPA regulations

set emissions standards. The Act does not set nor

does it authorize EPA to prescribe emissions stand-

ards for any vehicle which has exceeded its 5 years

50,000 miles “useful life’. A vehicle which has

passed that limit cannot be in “nonconformity” with

any emissions standard and, therefore, the law can-

not require that any “remedy” be provided for a

nonexistent nonconformity.**

GM’s viewpoint is not without merit. Classes of vehi-

cles can be recalled, and remedial plans can be prepared,

on a classwide basis. Yet the actual remedy of the non-

conformity of a class of vehicles can only be accomplished

by the repair of individual vehicles. The repair of a vehi-

cle presupposes the existence of a defect or nonconformity

in that vehicle, but a vehicle cannot fail to conform to a

standard which does not apply to it. Thus, vehicles be-

yond their useful lives have no nonconformity to be rem-

edied. Indeed, their “repair” does not even contribute

to the remedy of the nonconformity of the class, since

vehicles beyond their useful lives are no longer part of

the nonconforming class.*?

46 GM Brief at 20; see id. at 19-20, 23-26.

‘7 The dissent. like the EPA, makes much of the classwide

nature of the manufacturer’s remedial obligation. See Dis-

senting Opinion at 4-9, 12, 14 nn.11&12, 18-19; see also infra

note 50. Yet, assuming arguendo that it is the nonconformity

of the class—and not the nonconformity of individual vehi-

B-21

EPA attempts to circumvent this reasoning by conced-

ing that the manufacturer is not required to repair vehi-

cles which first exceed standards after five years or

50,000 miles.*® Moreover, “for those vehicles [beyond

their useful lives] which are subject to repair at manu-

facturer expense, the manufacturer is only responsible to

carry out the remedy contained in the approved plan and

is not responsible to remedy any other nonconformities.” **

However, these concessions appear to generate more prob-

lems than they resolve.

First, EPA’s interpretation relies upon the assumption

that, because a “substantial number” of cars are found to

exceed vehicle emissions standards during their useful

lives, the entire class of cars of that engine-family and

model-year is suspect and ought to be subject to recall.

The function of this class-based analysis is to shift the

focus of attention away from the time-consuming and

expensive task of establishing the nonconformity of each

cles—that the statute requires manufacturers to remedy, see

Dissenting Opinion at 14 n.11: (“Congress intended to provide

classwide remedies for classwide . . . defects that showed up

during the useful life of the cars listed as representative sam-

ples of the class. A defective class—its members (sic)—can

therefore be deemed ‘nonconforming.’ ”), a manufacturer still

need not “repair” vehicles beyond their useful lives to effect a

remedy of the class. If a class is nonconforming when a

representative sample of its members demonstrates noncon-

formity with emissions standards during the useful lives of

the sample vehicles, then it follows that a class is restored to

conformity when the EPA can no longer muster such a sam-

ple. Since vehicles beyond their useful lives can never form

part of the sample upon which an inference of class con-

formity or nonconformity is founded, “repair’ of such vehi-

cles, as noted above, contributes nothing to the remedy of the

class.

#8 See 45 Fed. Reg. 36,396, 36,397 n.2 (May 30, 1980); EPA

Brief at 20 n.25.

*° 45 Fed. Reg. 36,596, 36,597 n.2 (May 30, 1980).

B-22

individual vehicle so that those resources may be devoted

to remedying the nonconformity of the ¢lass as a whole.

Yet EPA’s exception with respect to vehicles first exceed-

ing standards after the expiration of their useful lives

undermines its own class-based inquiry.” Instead, the

EPA invites manufacturers to indulge in fact-specific

controversies concerning whether a given car, beyond its

useful life when presented for repair, experienced non-

conformity during its useful life or first exhibited exces-

sive emissions after its useful life had expired.

* The dissent’s apparent approval of EPA’s concession, see

Dissnting Opinion at 14 n.12, is similarly inconsistent with

the dissent’s position that all vehicles which are part of a non-

conforming class are subject to repair at manufacturer ex-

pense, see id. at 4-9, 14 &n.12. If, as the dissent believes, the

“statute .. . require({s] the manufacturers to include a car

in their remedial plans if (1) a substantial number of cars

exhibit nonconformity during their useful lives, and (2) the

car is a member of that class,” id. at 4; see id. at 13 n.10,

then the time of the onset of nonconformity in a partic-

ular vehicle should be irrelevant to the manufacturer’s liabil-

ity for repair of that car. Indeed, the dissent’s analysis pro-

duces the “bizarre result,” id. at 4, that even the ezistence of

an individual vehicle’s conformity or nonconformity is beside

the point; class conformity is all that matters! /d. at 14 n.11

(“Congress intended to provide classwide remedies for class-

wide design ov performance defects that showed up during

the useful life of the cars listed as representative samples of

the class. A defective class—its members (sic)—<can there-

fore be deemed ‘nonconforming.’” (emphasis supplied) ); id.

at 18-19 (“The statute thus mandates classwide notice without

limitation, and requires the manufacturer to repair all cars

and engines ‘with respect to which [such] notice is given.’”

(emphasis and alteration in original)); id. at 19 (“The

statute may fairly be read to require classwide notice, regard-

less of whether some members of the class have exceeded

their useful lives.”) ; see generally id. at 4-9. Yet, pragmati-

cally, the only way to remedy class nonconformity is by re-

pairing individual vehicles. And, to paraphrase the familiar

adage, “if it ain’t broke, you can’t fix it.”

B-23

EPA’s concession not only erodes its own class-based

theory, but also offers little relief to manufacturers in

practice. If the car is not presented for repair until] it

has exceeded its useful life, how will the timing of the

onset of excessive emissions be established? On whom will

the burden of proof rest? This difficulty of proof is com-

pounded by the manner in which the recall system oper-

ates. The presumption of class nonconformity is based on

testing of a relatively small sample of cars." On the

basis of such sampling, an estimate of the percentage of

cars in nonconformity is made; this percentage will often

be substantially less than one hundred percent. In this

case, the EPA originally estimated that forty-three per-

cent of the class would exceed standards; ** this estimate

was later increased to sixty-eight percent.”

Thus, on the basis of the statistical evidence in this

case, it would appear that between thirty-two and fifty-

seven percent of the cars in the class—whether or not

they have exceeded their useful lives at the time that

notice of class nonconformity was given or at the time of

repair—are likely to have been in compliance with the

applicable emissions standards throughout their useful

lives.“ In the case of cars still in their useful lives, the

“In this case, the samples appear to have been 14 or 15

cars of the 230-carburetor family and 8 of the 193-carburetor

family. See J.A. 125, 170.

52 See J.A. 35.

% See J.A. 123.

“ Thus, contrary to the contention of the dissent, better

than half of the cars in the class may not “have been riding

the roads for years in violation of pollution standards.” Dis-

senting Opinion at 2. Moreover, whatever “public benefit”

might be derived from improving the emissions performance

of vehicles beyond their useful lives, see id. at 2-3, may not be

achieved by imposing on manufacturers a liability beyond that

which Congress has seen fit to prescribe.

B-24

manufacturer may establish, through testing once the

cars have been recalled, that a particular car is in com-

pliance and, therefore, no repair would be necessary for

that car. Under the EPA’s interpretation, however, such

a showing may be impossible with respect to cars that

have exceeded their useful lives when presented for re-

pair. Congress clearly has contemplated some increase in

a car’s emissions once the vehicle has surpassed its useful

life.” However, when a car brought in for repair has ex-

ceeded its useful life, the manufacturer will be unable to

demonstrate whether a present emissions excess is attrib-

utable to this sanctioned erosion in performance or to a

nonconformity existing during the vehicle’s useful life.

In essence, the May 30 rule establishes an absolute and

irrebuttable presumption that all older cars were among

the percentage failing to meet standards during their

useful lives. The establishment of such a presumption

might be within the agency’s authority, but it goes well

beyond simple statutory interpretation.

The agency’s answer to the problem posed by requiring

cars to be brought into conformity with a standard which

no longer applies to them is equally disingenuous. The

agency explains that manufacturers would not be re

quired to bring cars beyond their useful lives when pre-

sented for repair up to the same standards applicable to

“younger” cars. Instead, the manufacturer would only

be required to perform the same repair on older cars as

is mandated for younger vehicles by the remedial plan.

3 See S. REP. No. 1196, 91st Cong., 2d Sess. 30 (1970),

reprinted in 1 SENATE COMM. ON PuB. WORKS, 93RD CONG., 2D

Sess., A LEGISLATIVE HISTORY OF THE CLEAN AIR AMEND-

MENTS OF 1970, at 430 (1974) [hereinafter cited as 1970 Leg-

isiative History]. Indeed, Congress reduced the useful life to

which emissions standards would apply from 10 years to

50,000 miles in response to industry representations that

manufacturers could not guarantee conformity for a 10-year

useful life. See id.

B-25

This response is not entirely forthcoming. In this case,

the repair required under the remedial plan involves ad-

justment of the idle screw and the adjustable part

throttle plug to a specified RPM drop.* Thus, under the

precise facts of this case, there is a difference between

requiring the “same repair” to be made on all cars and

requiring all vehicles, regardless of age or mileage, to be

brought into conformity with emissions standards. How-

ever, in other recall situations the required repair is to

bring the car to a particular emissions ratio. In a recent

Chrysler recall, for example, the remedy required a me

chanic to attach an exhaust emissions analyzer to the

catalyst tap and then to adjust the mixture screws back

and forth until the idle carbon monoxide concentration

met specifications.*’ In cases in which the required re-

pair is not a “fixed” adjustment but rather a “fine-

tuning” process, the effectiveness of which is measured by

conformity to emissions standards, a blanket rule dis-

regarding the age of the car when presented for repair in

effect requires the manufacturer to make an older car

meet standards that Congress intentionally required only

younger cars to meet. By imposing such a requirement,

the EPA rule again exceeds the limits of permissible

statutory interpretation.™

* See J.A. 165-67.

%* See Chrysler Corp. v. EPA, 631 F.2d 865, 870-71 (D.C.

Cir. 1980).

** The dissent complains that the “majority, in hypothesiz-

ing about possible future problems in the implementation of

EPA’s rule, exceeds the proper scope of an inquiry into the

validity of a rule.” Dissenting Opinion at 16 n.13. The dis-

sent’s concern for limiting the scope of our inquiry to the

facts of this particular case might be well placed had the GM

recall order alone been brought before this court for review.

However, the dissent seems to have forgotten that we have

also been called upon to review the validity of EPA’s inter-

pretative rule itself. See supra text accompanying note 28. It

is clear beyond peradventure that the validity of a rule can be

B-26

Even if every recall involved remedies in which the

“repair” could be performed on older vehicles without

ripe for review whether or not it has actually been improperly

applied and enforced in a concrete factual setting. See, e.g.,

FCC v. WNCN Listeners Guild, 450 U.S. 582, 585-86 (1981)

(reviewing the validity of a Policy Statement not then ap-

plied to any particular set of facts) ; Babbitt v. United Farm

Workers Nat’] Union, 442 U.S. 289, 301-03 (1979) (statutory

procedures, restrictions, and penalties, though not invoked,

are ripe for review); Duke Power Co. v. Carolina Environ-

mental Study Group, Inc., 438 U.S. 59, 81-82 (1978) (con-

stitutionality of statutory limitation of liability for nuclear

accidents ripe for review before any nuclear disaster occurs) ;

National Wildlife Fed. v. Snow, 561 F.2d 227, 236-37 (D.C.

Cir. 1976) ; Continental Air Lines, Inc. v. CAB, 522 F.2d 107,

124-26, 128 (D.C. Cir. 1975) (en banc); see generally 4 K.

DAVIS, ADMINISTRATIVE LAW TREATISE §§ 25:6—25:10 (2d

ed. 1983).

Taken on its face, the EPA rule would require cars beyond

their useful lives to be brought into conformity with stand-

ards which do not apply to them. The EPA attempted at oral

argument to salvage the rule from this conspicuous defect by

asserting that the agency will not in fact require such vehicles

to be brought into compliance with inapplicable standards

but will instead require the same “repair” to be made on older

and younger vehicles. If we have in any way “exceed[ed] the

scope of [our] proper inquiry,” it has been by giving any con-

silderation to this post hoc rationalization of the agency’s

actions. Sec, e.g., Citizens To Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 419 (1971); Burlington Truck Lines,

Inc. v. United States, 371 U.S. 156, 168-69 (1962); SEC v.

Chenery Corp., 332 U.S. 194, 196-97 (1947); SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943); Tabor v. Joint Bd. For the

Enrollment Of Actuaries, 566 F.2d 705, 709-12 (D.C. Cir.

1977); KIRO, Inc. v. FCC, $45 F.2d 204, 208 (D.C. Cir.

1976). Nevertheless, out of deference to the agency we did

consider EPA’s extra-record gloss on its rule, but we found

the modification to be as fatally flawed as is the rule itself.

The fundamental difficulty with the “same repair” explana-

tion, as discussed in text below, is its inconsistency with the

statute: the Act requires not that a “repair” be performed,

but that a nonconformity be remedied. Nearly as compelling,

B-27

their having to be brought into compliance with stand-

ards no longer applicable to them, the EPA rule would

nevertheless be an unreasonable interpretation of the

statutory mandate. If the “repair” does not bring the

vehicle on which it is performed back into compliance

however, is the fact that EPA’s modification will not alter

the impermissible effect of the rule in many of the recalls to

which the rule can reasonably be expected to apply. We

have not had to “conjure up” or “hypothesize” situations in

which the EPA’s modified interpretation collapses. Indeed,

we have had to look no farther than the last major EPA

recall reviewed by this court, sce Chrysler Corp. v. EPA, 631

F.2d 865, 870-71 (D.C. Cir. 1980), to discover that requiring

older vehicles to conform to inapplicable standards and re-

quiring them to be subjected to “the same repair” as younger

vehicles may amount to the same thing. In situations in

which the required repair involves a fine-tuning process

rather than a “fixed number of turns of the screwdriver,” the

EPA’s modification represents, with respect to the rule itself,

a distinction without a difference.

The rule before us purports to require all manufacturers to

include cars beyond their useful lives in their remedial plans.

Were this court to uphold that rule, the rights of manufac-

turers would be “prejudiced »rior to judicial review ... of

some future recall.” See Dissenting Opinion at 16 n.13. The

age and mileage of a car would become irrelevant to the ques-

tion of a manufacturer’s liability for its repair in all future

recalls. The EPA asks us to affirm such a blanket imnosition

of liability on the pretext that the manufacturer will be able

to negotiate with the EPA the kind of repair for which lia-

bility may be imposed in the context of a particular recall.

This so-called “flexibility,” sec id., wiii be scant help to manu-

facturers who would be estopped from contesting their liah:l-

ity for makirg some kind of rzpair on older cars in future

recalls should this court approve EPA’s interpertation of the

recall provisions in this case.

The EPA’s interpretative rule, both on its face and as

subsecuently qualified hy the agency, is ciearly inconsistent

with the statute. We need not wait to see the precise repair

required in every future recal] to declare as a general prin-

ciple that the statute does not impose on manufacturers lia-

bility for repair of vehicles bevond their useful lives.

B-2

with emissions standards, it is not a “repair” at all. In

essence, the EPA rule requires a manipulation to be

performed on older vehicles at manufacturer expense.

But, by the EPA’s own admission, that manipulation

would not remedy a nonconformity as the statutory lan-

guage clearly contemplates.

C. Legislative History

Whatever doubt may remain concerning the legitimacy

of the EPA’s interpretation is laid to rest by a critical

passage of the Act’s legislative history.**° The passage

refers to a Senate version of the bill that at that time

established a 50,000-mile, but no age, limitation on vehi-

cle useful life. In discussing the recall provisions of the

bill, the Senate Committee said:

The 50,000-mile period can be assumed to be 4 to 5

years and the manufacturer should be expected to

notify any owner of a vehicle that is five years old

or less as to failure to continue to perform to the

standard. A decision not to require the manufac-

turer to repair the vehicle could be made after no-

tice and after finding that the vehicle had exceeded

the 50,000-mile warranty period.”

This language indicates the understanding of Congress

that manufacturers would not be required even to notify

owners of cars that had in all probability exceeded their

useful lives; i.e., cars ostensibly belonging to the noncon-

% Even if the statutory language appeared clear, the plain

meaning rule is only a primary and not a conclusive source of

understanding and must yield on occasion to other indicia of

legislative intent, including legislative history. See Chesapeake

& O. Ry. Co. v. United States, 571 F.2d 1190, 1194 (D.C. Cir.

1977); see also Watt v. Alaska, 451 U.S. 259, 266 & n.9

(1981); Aaron v. SEC, 446 U.S. 680, 705-08 (1980) (Black-

mun, J., concurring in part and dissenting in part).

©S. REP. No. 1196, 91st Cong., 2d Sess. 31 (1970), ve-

printed in 1 1970 Legislative History, supra note 55, at 431

(emphasis supplied).

ee) en ee er rey ee eee iia ashe

TE

B-29

forming class but more than five years of age at the time

the manufacturer was informed by the EPA of the non-

conformity would not be recalled in the first instance.

Furthermore, if a car less than five years of age were

recalled but found to have exceeded the 50,000-mile

limitation when presented for repair, the manufacturer

could be excused from liability for repair.

EPA attempts to downplay this evidence of congres-

sional intent with two responses. First, EPA contends

that the legislative history of the Senate bill is irrele-

vant * because the bill had a “fast track” recall system

“ The dissent also argues that the above-quoted language of

the Senate Committee Report is irrelevant, see Dissenting

Opinion at 12, but on grounds which EPA failed to raise and

to which, as a result, GM has been permitted no opportunity

to respond. However, the dissent’s discourse on the distinc-

tions between the Senate bill and the Act as finally adopted

falls far short of establishing the irrelevance of the Senate

Report. To the contrary, the extended legislative history ex-

humed by the dissent lends further support to the conclusion

that Congress did not intend that manufacturers be held liable

for repair of vehicles beyond their useful lives. Judge Wald

correctly observes that the Senate bill imposed no explicit

repair obligation in its class notification provi

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