Petition for Writ of Certiorari — E. I. du Pont de Nemours & Co. v. Environmental Protection Agency

Supreme Court brief1976

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LiBRAnyY °F. FiuirD

SUPREME GOURT; VU. B MAY 3 1976

No.G 5 o} 6 0 2 MICHAEL ROBAX, IR, cLénx

IN THE f

Supreme Court of the United States

Ocrover Term, 1975 j

a 7

;

E. I. Du Pont pe Nemours ann Company, AND f

PPG Ixpustrries, Inc, Petitioners,

Ue ¢

ENVIRONMENTAL PROTECTION AGENCY, Respondent, i

PETITION FOR WRIT OF CERTIORARI TO THE :

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT 4

DANIEL M. Grippox :

ALLAN J. Topor

S88 Sixteenth Street, NW.

Washington, D.C. 20006

Attorneys for Petitioners

BI. Du Pont de Nemours and

Company, and PPG Tndus-

tric s, Ine. f

Of Counsel: i

COVINGTON & BURLING '

SSS Sixteenth Street. NW, :

Washington, DLC. 20006 '

EI EERE MARIE NR TNR. OR ERE TS

TABLE OF CONTENTS

Page

EN EEE Cielo ve cravat ua vawsunen<thetamn 1

SN stg ee nukes todas Gace aed cease aces 2

TINE IIIIOUI nak a vas cuban Su cnncaccdacdees 2

NN IN ic pin cy ac canerns Gas eke eee bek 3

Prenat Er We CAWOO kas sos in ide daw bccc vases 4

Proceedings Before MPA... 606s c icc ccccccccs 4)

Proceedings in the Court of Appeals .............. 9

Reasons for Granting the Writ .................... 13

I. The Administrator Violated the Requirements

of Due Process and the Administrative Proce-

WN Ps Oa ee a ene recs 14

II. Authority Has Not Been Delegated by Congress

to the Administrator to Make a Discretionary

Policy Judgment Based Upon Speculative and

Inconclusive Scientific and Medical Evidence.. 19

III. Judicial Review of Agency Rulemaking That

Is Based Upon Scientific and Medical Evidence

Requires a Thorough Examination by the Court

of the Evidence Relied Upon by the Agency To

Determine Whether There Has Been a Clear

PORE OR PO oan vik ks on cackscceccns 23

ee I Moran ip AR. 29

A Rte

TABLE OF AUTHORITIES

Page

CAsEs:

Amoco Oil Co. v. EPA, 163 U.S. App. D.C. 162, 501

Neen kan ans gesa sec 6

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

ee io naekawemennacveces 17

Buckeye Power Ine. v. Environmental Protection

Agency, 481 F.2d 162 (6th Cir. 1973) .......... 17

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

RE a lies ae ea ee 13, 23, 25, 26, 28

International Harvester Co. v. Ruckelshaus, 155 U.S.

App. D.C. 411, 478 F.2d 615 (1973) 2.22.2... 17, 26, 27

Industrial Union Department v. Hodgson, 162 U.S.

App. D.C. 351, 358-9, 499 F.2d 467, 474-5 (D.C.

NN ie argh hag a Wi ic ee s'n ba ain 26

National Tire Dealers and Retreaders Association v.

Brinegar, 160 U.S. App. D.C. 238, 244, 491 F.2d

a I ee ee ae. 26

Natural Resources Defense Council, Ine. v. Environ-

mental Protection Agency, 163 U.S. App. D.C. 111,

114, 512 F.2d 1351, 1354 (D.C. Cir. 1975) 2.2.2... 27

Natural Resources Defense Council, Ine. v. Environ-

mental Protection Agency (No. 72-2233

“I

“ee ee ewe

O*Donnelly v. Schatfer, 160 U.S. App. D.C. 266, 269,

oot P20 oo, GE (PA. Cir. 1974) ................ 27

Portland Cement Ass'n. v. Ruckelshaus, 158 U.S. App.

D.C. 308, 486 F.2d 375, 393 (1973), cert. denied 417

Os Se wd n wc coors 17, 26

Rodway v. United States Department of Agriculture,

168 U.S. App. D.C. 387, 514 F.2d 809 (D.C. Cir

1975)

Table of Authorities Continued iil

Statutes aND RuLgEs:

Federal Rules of Appellate Procedure Rule 41(b) ... 2

ae Re Sa Rega RE 4,16

Ce NE es 16

Be ee ND oo ine oh dwiew ca dndareasdansQewess 2

Oe re ee ha he a eae bacaua 27

ca nay Sed se wwe cos eur omasieres 5, 22

SS WIS, BIGGIE Role) (A) (A) ©. onc cvcccccccccccccs 22

eT Re ee 27

42 U.S.C. § 1857¢-6, 1857-7, 1857f-1, 1857f-6e, 1857f-9 27

NNN MN dig aes duiakw x Ohad whe dawn oeves 27

MISCELLANEOUS:

Hf. Rep. No. 91-1146, 91st Cong., 2d Sess. 13 (1970) .. 22

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No.

EK. I. Du Pont DE NEMouRS AND CoMPANY, AND

PPG Invustriks, Inc. Petitioners,

Vv.

IENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, E. I. Du Pont de Nemours and Company,

and PPG Industries, Inc., pray that a writ of certio-

rari issue to review the opinion and judgment of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The opinion en bane of the United States Court of

Appeals for the District of Columbia Circuit of March

19, 1976, is reported at 8 ERC 1785. It is also set

eet ARN TD ORES SPAS NI RENN

"HROUGH POOR COPY

‘

et ee a DRS COLE EAM gS

. Set at

forth in a volume separately submitted to the Court as

a Joint Appendix by these petitioners and other parties

who participated in the case below.’| The opinion of the

Administrator of the Environmental Protection Agen-

ey (hereinafter ‘‘EPA’’) in the form of a preamble to

the regulations challenged in this case appears at 38

Fed. Reg. 33734-33741. Pertinent portions of his opin-

ion are included in the Joint Appendix.

JURISDICTION

The judgment of the Court of Appeals was entered on

Mareh 19, 1976. Issuance of the mandate has been

stayed pending the filing of a petition to this Court for

a Writ of Certiorari, as provided in Rule 41(b) of the

Federal Rules of Appellate Procedure, by an order of

the Court of Appeals entered pursuant to a joint mo-

tion submitted by all petitioners and the EPA. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmen-

tal Protection Agency, acting under an order of the

Court of Appeals directing final action within thirty

days, satisfied the requirements of due process and the

Administrative Procedure Act where interested per-

! This Appendix represents the Court’s opinion in E. I. Du Pont

de Nemours and Company v. Environmental Protection Agency

(No, 73-2269), PPG Industries, Inc. v. Environmental Protection

Agency (No, 73-2268), Ethyl Corporation v. Environmental Pro-

tection Agency (No, 73-2205), Nalco Chemical Company vy. En-

vironmental Protection Agency (No. 73-2270), and National Petro-

leum Refiners Association vy. Environmental Protection Agency

(No. 74-1021), all of which involve judicial review of the same

EPA regulations. It is petitioners’ understanding that Ethyl,

Nalco and National Petroleum Refiners Association are separately

filing petitions for Writ of Certiorari.

sous were not provided notice of and an opportunity to

comment on new evidence that was importantly relied

on by the Administrator in deciding to regulate the lead

content of gasoline.

2. Whether Congress has delegated to the Adminis-

trator the authority to regulate the use of lead additives

in gasoline on the basis of a discretionary policy judg-

ment where the scientific and medical evidence as to the

effect on the publie health of emission products from

such additives is speculative and inconclusive.

3. Whether the court below engaged in proper

review of administrative agency rulemaking that pur-

ports to be based upon scientifie and medical evidence

where two members of the majority refused to examine

the evidence relied upon by the agency to determine

whether the ageney had made a clear error of judgment.

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

tion for the Administrator to impose nationally uni-

form limitations on the lead content of gasoline instead

of establishing ambient air quality standards, or pro-

viding for regional controls.

STATUTES INVOLVED

The regulations challenged in this case were promul-

gated by the Administrator of EPA pursuant to See-

tion 211(¢) of the Clean Air Act, 42 U.S.C. § 1857f-6e

(c), which provides in pertinent part:

‘*(¢) Control or prohibition of offending fuels and

fuel additives.

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

on the basis of information obtained under sub-

* This question is discussed in detail in the Petition for a

Writ of Certiorari filed on behalf of National Petroleum Re-

finers Association from the same Court of Appeals decision ;

these petitioners incorporate by reference the discussion on this

question in that petition.

sre Mer JR ARLENE MAL TD wD eee

we Fees et ees

section (b) of this section or other information

available to him, by regulation, control or prohibit

the manufacture, introduction into commerce, of-

fering for sale, or sale of any fuel or fuel additive

for use in a motor vehicle or motor vehicle engine

(A) if any emission products of such fuel or fuel

additive will endanger the public health or welfare,

or (B) if emission products of such fuel or fuel ad-

ditive will impair to a significant degree the per-

formance of any emission contro] device or system

which is in general use, or which the Administra-

tor finds has been developed to a point where in a

reasonable time it would be in general use were

such regulation to be promulgated.

‘¢(2)(A) No fuel, class of fuels, or fuel addi-

tive may be controlled or prohibited by the Admin-

istrator pursuant to clause (A) of paragraph (1)

except after consideration of all relevant medical

and scientific evidence available to him, including

consideration of other technologically or econom-

ically feasible means of achieving emission stand-

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

The pertinent portion of 5 U.S.C. §553 (c) provides:

‘¢ After notice required by this section, the agency

shall give interested persons an opportunity to par-

ticipate in the rule making through submission of

written data, views, or arguments with or without

opportunity for oral presentation. After consid-

eration of the relevant matter presented, the

agency shall....”

STATEMENT OF THE CASE

Section 211 (c)(1) of the Clean Air Act authorizes

the Administrator of EPA to ‘‘control or prohibit’’

the sale of any fuel or fuel additive ‘‘if any emission

products of such fuel or fuel additive will endanger

the public health or welfare.”’

Lead additives have been used by refiners of gasoline

for more than fifty years. EPA estimated that sales in

BLEED THROUG

1973 would exceed $400 million.* The use of lead addi-

tives rests upon the basie economies of the refining in-

dustry, which require that refiners blend the different

distil!ation preducts of crude cil to form gasoline with

the desired octane rating. Lead additives contribute

significantly to energy conservation and cost savings

by permitting refiners to increase the yield of gasoline

that can be produced from a given volume of crude oil.

If lead concentrations are reduced, refiners will be re-

quired to add extensive new equipment and to prozess

a significantly greater quantity of crude oil to produce

the same quantity of gasoline of a given octane.* The

emission products of lead additives are not a factor in

the photochemical air pollution or smog caused in part

by automobile emissions, which is the subject of a reg-

wlatory pregram developed under Section 202 of the

Clean Air Act.5

Procecdings Before EPA, Acting under Section

211(c)(1), the Administrator published on January

30, 1971, an advance notice of proposed rulemaking

relating to the use of lead additives in gasoline.® More

than a year later on February 23, 1972, the Adminis-

trator published proposed regulations requiring a sub-

stantial reduction in the lead content of gasoline over

% A. 1615. Record references ‘‘A’’ are to the Joint Appendix filed

with the Court of Appeals. In response to a request to transmit that

Appendix to this Court, the Clerk of the Court of Appeals advised

petitioners that the preferred practice was not to transmit any rec-

ords in connection with petitions for certiorari, but rather to

respond to requests from this Court for such records.

4See testimony on April 27 and 28, 1972, of William Burnap

(pp. 211-212); Allan V. Hoffman (p. 24); Fred L. Hartley (pp.

78-79, 113-114); and Walter Famariss (pp. 516-517). (A. 1998,

9005, 2008-2009, 2013-2014, 2017-2018, 2095-2096) See also testi-

mony on May 2, 1972, of Osborne Fremd (p. 202). (A. 1970, 1980)

542 U.S.C. § 1857-1.

636 Fed. Reg. 1486. (A. 26)

POOR COPY

Ph LLM LILES

the next four years, and mandating the general avail-

ability of lead-free gasoline by July 1, 1974.7 The re-

duction portion of the proposed regulations was based

upon a finding that air lead levels in some, but not all,

urban areas were excessive, that motor vehicles were

the predominant source of this airborne lead, and that

the proposed regulations would result in a reduction of

airborne lead to acceptable levels.* Interested persons

were invited to submit written comments, and public

hearings were held on the proposed regulations in the

spring of 1972.°

Taking into account the criticism that was received

from interested parties, including petitioners and gov-

ernmental agencies, in the comments and at the public

hearings, the Administrator decided not to promulgate

that portion of the regulations calling for a reduction

in the lead content of gasoline.” Instead, he reproposed

737 Fed. Reg. 3882-3884. (A. 22

‘These findings were described in the Federal Register state-

ment of February 23, 1972. 37 Fed. Reg. 3882 (A. 22) They

were described more fully in a position paper which accompanied

the proposed regulations and was entitled ‘‘Health Hazards of

Lead** (A. 292); as revised and corrected in A. 254 and A. 272.

® A. 1970; A. 1998; and A. 2107.

The Administrator did publish in final form on January

10, 1973, regulations requiring, infer alia, the general availability

of at least one grade of lead-free gasoline by July 1, 1974. These

regulations were not based on any determination as to the effect

of lead additives upon the public health. They were issued under

Section 211 (¢)(1)(B) on the basis of a finding that lead-free

gasoline was required to permit proper operation of pollution

reducing catalytic converters which were expected to appear in

1975 and later model antomobiles. 38 Fed. Reg. 1254-1256.

(A. 10) These regulations were sustained by the United States

Court of Appeals for the District of Columbia in Amoco Oil Co.

v. EPA, 163 U.S. App. D.C. 162. 501 F.2d 722 (1974), and are

not at issue in this case.

BLEED THROUGH

on January 10, 1973, regulations calling for a four-

stage reduction in the lead content of gasoline. The Ad-

ministrator stated that he had ‘‘reevaluated”’ his posi-

tion on the health effects of airborne lead, that ‘‘it is

difficult if not impossible’? to establish an acceptable

leve] for airborne lead, and that ‘‘the original health

position can no longfer] be considered sufficient.’’™

A *‘new health position’? was adopted based on his

opinion that ‘‘considerable numbers of urban residents

have abnormally elevated’’ blood lead levels, and that

emissions from automobiles contribute to these elevated

blood lead levels.”

In the January 10, 1973 notice, the Administrator in-

vited public comment for 60 days on the proposed regu-

lations. In response to the request, extensive comments

criticizing the Administrator’s new position and sup-

porting documents were again received from petition-

ers and other interested persons, including governmen-

tal agencies.

While the Administrator was cousidering these com-

ments, the Natural Resources Defense Council (NR

DC) sought an order from the United States Court of

Appeals for the District of Columbia Cireuit to compel

the Administrator to promulgate lead-limiting regula-

tions. Natural Resources Defense Council, Ine. v. En-

vironmental Protection Agency (No. 72-2233). The

Administrator opposed the NRDC_ request on the

1138 Fed. Reg. 1258-1261. (A. 14)

2 38 Fed. Reg. 1258. (A. 15) The reproposed regulations were

accompanied by a second position paper presenting the agency's

appraisal of the evidence on this subject. This second position

paper was entitled ‘‘EPA’s Position on the Health Effects of

Airborne Lead,’’ November 29, 1972. (A. 158)

POOR COPY

ground that very extensive medical and scientifie data

had been presented and that he was attempting to

‘**make a good faith evaluation of the materials pre-

sented to determine the nature of the medical problem

of airborne lead, if any, and the most cost effective

method of dealing with this problem.’’* The Court of

Appeals denied the Administrator’s plea and on Oc-

tober 29, 1973, entered an order requiring the Adminis-

trator to make a final decision on the matter within

30 days.

In response to the Court’s order, the Administrator

announced on November 28, 1975, and published in the

Federal Register of December 6, 1973, his decision to

promulgate regulations calling for a phased reduction

in the lead content of gasoline."* The regulations were

accompanied by a lengthy preamble in which the Ad-

ministrator, in justifying his decision, relied to a

substantial extent upon ‘‘new evidence’’ consisting of

scientifie and medical studies that had only recently

become available to the Administrator and that had

not been cited in any previous statement on the sub-

ject." According to the Administrator, these new

studies established in the ease of adults that ‘‘airborne

lead does contribute significantly to lead exposure in

SEPA Opposition to Petitioners ‘‘Renewal of Motion for

Summary Judgment’’, pp. 2-3, filed on July 3, 1973 in No. 72-2233.

438 Fed. Reg. 33734-33741. (A. 1) The regulations were ae-

companied by still a third position paper, entitled ‘‘EPA’s Posi-

tion on the Health Implications of Airborne Lead.”’ (A. 27) The

first position paper was entitled “‘Ilealth Hazards of Lead”’ (A.

292), and the second was ‘*‘EPA‘s Position on the Health Effects

of Airborne Lead,"’ November 29, 1972 (A. 158). The shift in

titles is indicative of the general weakening in the Administra-

tor’s position in response to criticism by the scientifie community.

% A. 3-5.

BLEED THROLIGH

the general population,’’*® and that children present a

special problem because they may ingest non-food

items subject to contamination with lead.”

Prior to the promulgation of the final regulations,

the Adminstrator did not provide interested parties

with notice of or an opportunity to comment on the new

scientific and medical evidence relied upon or the new

position paper which accompanied the regulations."

This occurred despite the fact that the Administrator

had received, prior to promulgation, a request from

one of the petitioners for an opportunity to comment

in the event that the final regulations were based upon

different scientific and technical information.”

Proceedings in the Court of Appeals. Petitioners

sought judicial review of the Administrator’s action,

contending that the regulations should be invalidated

for three basic reasons. First petitioners argued that

the evidence does not establish that the emission prod-

ucts of lead additives will endanger public health. In

support of this argument they contended that blood

a |

at |

“The ‘‘new’’ evidence relied on by the Administrator did

nothing to eliminate the uncertainties that had been exposed in

his first two attempts to ascertain whether the use of lead additives

in gasoline endangers the public health. The studies were largely

inconclusive and were conceded by their authors to be preliminary.

Nowhere, in the new evidence or in the old evidence, is there any

study comparable to the Surgeon General’s report on the effect of

cigarette smoking on health. (A. 3-5)

™ See the request from E. I. Du Pont de Nemours and Company,

(A. 1965) and EPA’s response (A. 1967).

IR SO PP tee a

CR fo SRR Bey Dean Py

Omer

lead levels in the general adult population are not cle-

vated above the limit that the Administrator conceded

to be free of adverse health effects... That limit is 40

micrograms of lead per 100 grams of whole blood,

referred to as 40 ug.*’ Petitioners argued that lead in

the air in community environments dees not make a

significant contribution to blood lead levels.” In the

ease of children, petitioners argued that, although

some children suffer from lead poisoning and elevated

blood lead levels, the clear cause is the ingestion of

20 A. 27, 64 and 97.

*! There is only one recent comprehensive study which has de-

termined blood lead levels of the general population using sub-

jects throughout the United States. That is the Seven Cities

Study which was supported and direeted in part by EPA and

completed in 1972 (A. 840). Only three of the entire 1,935

people whose blood lead levels were measured in that study

(0.15% )had blood lead levels of 40 ug. or greater, and when the

original blood samples drawn from these three people were later

reanalyzed by the same laboratory, the results were 31 ug, 9 ug,

and 36 ug. (A. 2368, 2381) A statistical analysis of the Seven

Cities data showed that the number of people having blood lead

levels above 40 ug was ‘‘zero to four decimal places.’’ (A. 2322,

2351)

*? This point is well illustrated by data relied upon by Dr.

Edward E. David, Jr., then Director of the White Honse Office

of Science and Technology, in criticizing EPA’s proposed regu-

lations. (A. 2470-72) The data were as follows:

Table I

Air Lead Blood Lead Level

(micrograms/M3) (micrograms/100m1)

Pasadena 3.4 17.5

Ardmore (a Philadelphia

suburb) 1.15 18.

Los Alamos 0.2 15.

PS PEER OG ARIE Se MS MES SPEIRS TPS RE LE BES EERE RL RIF EE BEI III

rm rwereT™ ~—f res XE treet

leaded house paint and not lead from automobile emis-

sions in dust and dirt.”

Second, petitioners argued that Congress had not

delegated to the Administrator the authority to limit

the use of lead additives in gasoline where the evi-

dence of their effect on health was speculative and

inconclusive.

Third, petitioners argued that the Administrator had

not provided an opportunity for interested persons to

comment on the recent medical and scientific studies

and the position paper which formed the basis for the

Administrator’s promulgation of the regulations, and

that the Administrator had abused his discretion in

failing to publish ambient air quality standards for

lead.

On December 20, 1974, the Court entered an order

setting aside the Administrator’s order and regula-

tions. The majority (Judges Wilkey and Tamm)

found that the regulations promulgated by the Ad-

ministrator were invalid on the ground that the Ad-

ministrator incorrectly interpreted Section 211 (c)

(1)(A) of the Clean Air Act, and that, ‘‘even assum-

ing the incorrect statutory standard employed by the

ageney,’’ the Administrator’s analysis reflected ‘‘a

clear error of judgment upon the available evidence.’’

23 For example, the Administrator’s hypothesis that children in-

gest lead from automobile emissions in dust and dirt was rejected

by Dr. Henrietta Sachs, a pediatrician who established the City of

Chicago lead poisoning clinic and directed the screening of ap-

proximately 200,000 children in the period from October 1966

to July 1972. Dr. Sachs stated: ‘*I consider the danger from

eating dirt infinitesimal unless broken plaster has been thrown

into the yard from buildings under repair.’’ (A. 2444, 2448)

SE RET RE NTL AO Ae EGET

DAND CODYV

SSC NINE Ne Weir ae iene east Areas pese|

STAN

SOOO CANE CEE

aa”. eee See

(Panel Op. at 69-70) <A dissenting opinion was filed

by Judge Wright.

On March 17, 1975, the Court granted EPA’s peti-

tion for rehearing en bane, and vacated the opinion of

the panel. The case was argued before eight of the

nine judges of the Court on May 30, 1975. (Chief

Judge Bazelon was not present at the oral argument. )

On March 19, 1976, the Court handed down a five to

four decision affirming the Administrator’s order and

regulations. Five separate opinions were filed, re-

flecting sharp disagreement about the major issues in

this case.

The primary opinion for the majority, which was

written by Judge Wright,* concluded that petitioners

were not deprived of administrative due process by the

procedures employed by the Administrator, that the

Administrator had properly interpreted Section 211 (c)

(1) of the statute, that the Administrator’s determina-

tion had support in the evidence, but that, in any event,

the court was not required to examine carefully the

scientific evidence relied on by the Administrator. A

separate opinion was filed by Chief Judge Bazelon

and Judge MeGowan,*” who coneurred in the result

reached by the majority but refused to examine

the scientific and technical evidence relied upon by the

Administrator in reaching his decision. Judge Leven-

thal filed a separate coneurring opinion, asserting that

the court was required to conduct a significant review

*4 Judge Wright was one of the two judges who had entered the

order of October 29, 1973 compelling the Administrator to make

a final decision in thirty days.

* Judge MeGowan was the second judge who joined in the

court’s thirty day order of October 29, 1973.

ROLES: ALD SELL I ENT AT RE

BLEED THROUGI

of the factual evidence which was before the Admin-

istrator.

The primary dissenting opinion was written by

Judge Wilkey with whom Judges Tamm and Robb

joined. They concluded that the action of the Admin-

istrator was both procedurally and substantively de-

ficient and could not be sustained. A separate dissent-

ing opinion was filed by Judge MacKinnon, who con-

cluded that the Administrator, acting under the im-

petus of the court’s thirty-day order, had failed to com-

ply with the requirements of the Administrative Pro-

cedure Act.

REASONS FOR GRANTING THE WRIT

This case raises important questions of federal law

which have not been, but should be, settled by this

Court. It presents fundamental issues involving the

obligations and responsibilities of administrative agen-

cies and reviewing courts in rulemaking proceedings,

particularly those that involve assessment of medical

and other scientifie evidence. The action of the Ad-

ministrator and the opinions of the Court of Appeals

make imperative the need for clarification of the pro-

cedures for publie participation and comment to be

followed by agencies during rulemaking proceedings

involving such evidence and the statutory requirement

that agencies rest their actions upon factual evidence.

In addition, the majority decision of the Court below

is in conflict with the decision of this Court in Citizens

to Preserve Overton Park vy. Volpe, 401 U.S. 402

(1971) as to the role that the reviewing courts should

play in environmental regulation.

The lengthy and sharply divided opinions of the

Court of Appeals demonstrate the clear need for guid-

RSIS 22 SEG OREN

POOR COPY

NTR GFN IRONS SHE iD: Malate ed tem al

ALORA

Fgh SORTER =

ance from this Court. Nine experienced appellate

judges differed widely as to whether the Administrator

had given due process and otherwise acted in aeccord-

ance with the mandate of Congress, and as to their own

proper function in reviewing the action of the Admin-

istrator. The majority opinion expressly recognized

‘‘the importance of the issues raised.’? (Wright Op.

p. 113)

In concluding that EPA’s action should be sustained,

the majority fashioned novel theories of administrative

law. It swept aside the well-settled right of interested

parties to comment on evidence critical to the ageney’s

decision, the established requirement that an agency

make a determination based upon factual evidence, and

the safeguard of effective and meaningful judicial re-

view. A determination by this Court is thus essential

to clarify for administrative agencies, reviewing courts

and the increasingly numerous affected parties, the

guidelines for the imposition of pervasive environmen-

tal and public health regulations under the Constitu-

tion and the mandate of Congress.

I. The Administrator Violated the Requirements of Due

Process and the Administrative Procedure Act.

Six members of the Court of Appeals, including two

who joined in the majority, seriously questioned the

procedure followed by the Administrator. The Ad-

ministrator had twice before attempted and failed to

ascertain, even to his own satisfaction, whether emis-

sion products of lead additives in gasoline endangered

the public health. He was in the process of evaluating

new evidence precisely at the moment when the Court

of Appeals, over the Administrator’s objection, entered

an order requiring final action in 30 days. Faced with

RNS PRET NT AOE ST NE AT RIN 5 BE TERE PY LTE LTO NIE ST TEE MI LOR TT ETE PEP GI IES NTE TED

RI EFEN THWROITIC

RS LLL ORI AMIS IE SE ERIC i EIS BEN I

such an order, the Adminisrator did not give interested

persons notice of and an opportunity to comment on

the new evidence. Instead, he rushed to judgment in

response to the order of the Court entered at the behest

of a group that demanded a limitation on lead addi-

tives, and he promulgated regulations that were based

to a substantial extent upon this new evidence.”*

Two of the requisite members of the majority (Chief

Judge Bazelon and Judge MeGowan concurring), con-

ceded that the 30-day order may have ‘interfered

with’’ deliberate consideration by the agency (Bazelon

Op. p. 5), acknowledged that the reviewing court was

able only *‘by inference and surmise’’ to determine the

procedural steps followed by the Administrator, and

observed that ‘‘ordinarily’’ a case in this procedural

posture ‘would require a remand for clarification.”

(Bazelon Op. p. 5) The four dissenting judges were

in agreement that the Administrator had violated the

requirements of the Administrative Procedure Act by

failing to give interested persons, including petition-

ers and other governmental agencies, notice of and an

opportunity to comment upon the new evidence which

played an important role in the Administrator’s delib-

erations and upon which the Administrator ‘relied

materially”’ in promulgating the regulations. (Wilkey

Op. pp. 19, 32; MacKinnon Op. p. 1)

The extent to which the Administrator relied upon

evidence that he did not make available for publie

comment is set forth in Judge Wilkey’s dissenting

opinion: five of the six studies relied wpon by the Ad-

ministrator as indicating that lead additives are a

26 As to the inconclusive character of the evidence, see footnote

18, supra.

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SEIS LADLE A af ADRS bn de tan

hazard to the adult population—the two lead isotope

studies, the unpublished Japanese study, the chambers

study, and the reanalysis of the Seven Cities study

(Wilkey Op. pp. 20-23); and, all five of the studies

(two from Newark and one from Philadelphia, Chi-

‘ago and Rochester) which ‘were absolutely crucial...

to the Administrator’s entire conclusions in regard to

the lead danger to urban children.’’ (Wilkey Op. p.

95) 27

The majority decision on this issue was contrary to

the requirements of the APA, to the teachings of nu-

merous decisions of this Court and even to other de-

cisions of the Court of Appeals—all of which recognize

the right of interested persons to participate in rule-

making by commenting upon important evidence

relied upon by the ageney.* This conclusion follows

from Section 553(c) of the APA, which provides:

‘After notice required by this section, the agency

shall give interested persons an opportunity to

participate in the rule making through submisssion

of written data, views, or arguments with or with-

out opportunity for oral presentation. After con-

sideration of the relevant matter presented, the

agency shall... .’’ 5 U.S.C. § 553(e).

Unless interested persons are given notice of and an

opportunity to comment upon the evidence critical to

an administrative agency’s decision, they obviously

27 Indeed the Administrator characterized this new evidence as

‘‘significant new information received since the regulations were re-

proposed ....’’ (A. 3)

*°The APA provides that a reviewing court ‘‘shall hold un-

lawful and set aside’? agency action taken ‘‘without observance

of procedure required by law.’’ 5 U.S.C. § 706(2)(D).

PANEL Ae ERNIE ELENA RPT IN PR YUN PES TH ORT LL ET RINE TT HDI Wee oN BEN

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‘cannot ‘‘ participate’? meaningfully in rulemaking pro-

ceedings.

Only two years ago, this Court stressed the impor-

tance of the right to comment on evidence in an admin-

istrative procecding in Bowman Trausp. Inc. v. Arkan-

sas-Best Freight Sys., 419 U.S. 281 (1974). The Court

stated:

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

which decision will turn and to be apprised of the

factual material on which the ageney relies for

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

Process Clause forbids an agency to use evidence

in a way that forecloses an opportunity to offer

a contrary presentation.’? 419 U.S. at 288, n. 4.°

“9 Tn International Harvester Co. v. Ruckelshaus, 155 U.S. App.

D.C. 411, 478 F.2d 615 (1973), the United States Court of Ap-

peals for the District of Columbia Circuit remanded regulations

under the Clean Air Act to EPA where the agency had not given

interested persons an opportunity to comment upon the. reli-

ability of the methodology which formed the basis for EPA’s

regulations. Similarly in Portland Cement Ass‘n. v. Ruckelshaus,

158 U.S. App. D.C. 308, 486 F.2d 375 (1973), cert. denied 417

U.S. 921 (1974) it held that EPA rulemaking under the Clean

Air Act was defective where the ageney had failed to make

available for comment the test results and methodology which

formed the basis for the emission control level adopted in the

regulations. The Court observed that ‘‘it is not consonant with

the purpose of a rule-making proceeding’? to promulgate rules

on the basis of data which to a ‘‘critical degree, is known only

to the agency.’’ 158 U.S. App. D.C. at 326, 486 F.2d at 393.

See also Rodway vy. United States Department of Agriculture,

168 U.S. App. D.C. 387, 514 F.2d 809 (D.C. Cir. 1975) (holding

that USDA’s reliance upon ageney expertise rather than soliciting

comments from interested persons on the basis for the promul-

gation of food stamp regulations was a violation of See, 553(e)

of the APA); and Buckeye Power Ine. vy. Environmental Protee-

tion Agency, 481 F.2d 162 (6th Cir. 1973) (holding that See. 553

parties an opportunity to comment in a rulemaking procedure

under the Clean Air Act.)

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The right to comment on the new evidence in this

case involves very significant substantative issues, On

the two previous occasions that the Administrator had

exposed to public and scientific scrutiny his appraisal

of the evidence bearing on the effect of lead additives

in gasoline upon the public health, that appraisal was

severely criticized by numerous persons, including

other responsible governmental agencies. The new

evidence that the Administrator finally relied upon

should have been subject to the same public serutiny.

That evidence, as the Administrator and the majority

of the Court of Appeals acknowledged, is at best speeu-

lative and inconclusive; it deserved more deliberate and

complete consideration.

Consideration by this Court of the Administrator’s

procedure is all the more necessary because it was an

order of the Court below that made it difficult, if not

impossible, for the Administrator to grant the right of

comment assured by the Administrative Procedure

Act.” As Judge MacKinnon noted, ‘tit was patently

unrealistic’? for the Court of Appeals ‘‘to believe that

the agency could sift through its accumulated data,

afford the publie and other agencies an opportunity

to review any evidence contributed since the end of

the last comment period on March 11, 1973, reach a

proper decision based on all the evidence and draft

the complicated regulations within the required 30

%° Prior to the promulgation of these regulations, on November

19, 1973, E. 1. Du Pont de Nemours and Company requested an op-

portunity for further comment in the event that the final regu-

lations differed from the previously proposed regulations or were

based upon different scientifie and technical arguments and data

than those previously announced. (A. 1965) This request was

denied on December 4, 1973—after the regulations were promul-

gated. (A, 1967)

Pe RRP VET

PRT HARE NIL RAEI EIN IM HLH IMRT Keys RNR RM RO PPD

days.’’ (MacKinnon Op. p. 1)“ The Administrator

was faced with time constraints imposed by the court

that made it ‘‘impossible ... to comply with the no-

tice and comment requirements of the Administrative

Procedure Act.’? (MacKinnon Op. p. 1)

Review by this Court is thus appropriate to make

clear to administrative agencies and reviewing courts

that the right to comment on critical evidence cannot

be short-circuited in rulemaking proceedings—even

under the pressure of a court order. As the dissent

noted, the approach taken by the majority in this case

permits the agency to ‘‘keep secret information im-

portant to its decision’’ and ‘‘affords no opportunity

for informed publie comment.’ (Wilkey Op. pp. 32-

03) This approach should not be permitted to stand.

Agencies cannot be permitted to maintain critical evi-

dence in secret, divulging it only when rules are pro-

mulgated.

II. Authority Has Not Been Delegated by Congress to the

Administrator to Make a Discretionary Policy Judgment

Based Upon Speculative and Inconclusive Scientific and

Medical Evidence.

In promulgating these regulations, the Administra-

tor never claimed in the preamble or in the accom-

panying position paper that the evidence bearing on

the effect of lead additives on the public health is

definitive or that further information is not required.

31 According to Judge MacKinnon, the result of the court’s

order was to force ‘‘a hasty decision’’ from the agency on a

“highly complicated matter.’ (MacKinnon Op. p. 2) The

anomaly here is that two members of the majority felt that the

facts in this case were too complex for them to review meaning-

fully; and yet the Court did not believe that the complexity of

the matter precluded an order requiring final agency action

within an arbitrary 30 days.

ee, bees EV A ETI PATI RAS NSE OIE

ra Ar SAAS

Instead, the Administrator acknowledged that he was

acting upon the basis of ‘ta hypothesis,’ that ‘‘not

all links in the argument have been established beyond

dispute,’ and that ‘[f]urther information is re-

quired,”*** Similar expressions of uncertainty oceur

throughout the preamble to the regulations and in the

position paper. In short, the Administrator has con-

ceded the speculative nature of his determination that

the emission products from lead in gasoline will endan-

ger the public health. Even the majority opinion noted

that “hard proof of any danger caused by lead auto-

motive emissions has been hard to come by.” (Wright

Op. p. 9)

The majority concluded that the Administrator was

warranted in acting under Section 211(¢) notwith-

standing the state of the evidence because the deter-

mination under that section is ‘‘necessarily a question

of policy that is to be based on an assessment of risks

and that should not be bound by either the procedural

or the substantive rigor proper for questions of fact.”’

(Wright Op. p. 46) The majority expressly stated

that it would ‘‘not demand rigorous step-by-step proof

of cause and effect’? because questions ‘‘involving the

environment are particularly prone to uncertainty.”’

(Wright Op. pp. 54, 46) The majority tolerated

‘speculation, conflicts in evidence, and theoretical

ae ee ee eee

3238 Fed. Reg. 33735. (A. 3)

3338 Fed. Reg. 33736. (A. 4)

*# EPA’s Position on the Health Implications of Airborne Lead,

p. VI-13. (A. 123) See also, an EPA internal memorandum of

August 3, 1973, in which two officials of EPA’s Office of Planning &

Evaluation stated that ‘‘no concrete link has been established be-

tween lead from automotive exhausts and harmful health effects.”’

(A. 1053, 1057)

- eT sewem, see Be: PAPI eons . a ie Ee “ See: ae Ae oe LETS APOE 2 4

RES PO BE RS I ae i he ~y = ~ ERAS Seat e rs

extrapolation”? because the agency is “‘given a man-

date to protect the public health but only a slight or

nonexistent data base upon which to draw.’’ (Wright

Op. p. 47)

In contrast, the dissenting opinion rejected the view

that Section 211(¢)(1)(A) is a “delegation of quasi-

legislative power to the Administrator and not a re-

quirement that he reach a reasoned determination

purely on the scientific and medical data.’’? (Wilkey

Op. p. 55) It emphasized that the majority's view is

directly inconsistent with the intention of Congress

as shown by the legislative history and the language of

Section 211, particularly when compared with other

sections of the statute. From its analysis of the legis-

lative history and the statute, the dissent concluded

that the threshold determination of whether lead addi-

tives ‘twill endanger’’ the public health turns ‘‘eru-

cially on factual issues and not upon choices of policy.”

(Wilkey Op. p. 57) *

It is respectfully suggested that the view of the dis-

sent is correct. The legislative history makes clear

that Congress, in enacting Section 211(¢), realized

that the regulation of gasoline and its additives poses

complex and important questions coneerning this eoun-

try’s use of a vital natural and eeonomie resource.

Accordingly Congress, despite strong urgings from

* The dissenting opinion reached an alternative conclusion that.

even assuming the correctness of the Administrator’s interpretation

of the statute, ‘“‘his analysis reflected a clear error of judgment

upon the available evidence.’’ (Wilkey Op. p. 85) According to

the dissenting opinion, the Administrator’s ‘‘choice here is only a

guess, not an expert judgement drawn from conflicting evidence’’;

‘the logic of his conclusion has great gaps in the chain’’: and “the

evidence to support his conelusion is totally insufficient.’ (Wilkey

Op. p. 16, n.28)

aiden tee eat

ume

environmental groups, refused to ban lead additives

in gasoline as a matter of legislative policy. Instead,

it required that before the Administrator exercises the

authority delegated to him he must find on the basis

of scientific and medical evidence that the use of the

additive involved ‘‘will endanger the public health;”’

and it specified that no fuel additive may be controlled

or prohibited by the Administrator except upon the

basis of such evidence. Congress did not contem-

plate action on the basis of surmise, or apprehension

on the part of environmental groups, of which it was

fully aware when it delegated limited authority to

the Administrator.”

If the Court of Appeals decision is permitted to

stand, administrative regulations in many enviren-

mental and public health areas could be justified as a

‘legislative policy judgment’? despite the lack of a

solid factual basis or even with a ‘‘nonexistent data

base.”’ (Wright Op. p. 47) Relieved of the necessity

of being responsible to reviewing courts, administra-

tive agencies would then be encouraged to act without

% Section 211(e¢)(2)(A). 42 U.S.C. § 1857f-6e(e) (2) (A).

7H. Rep. No. 91-1146, 91st Cong., 2d Sess. 13 (1970). The

Chairman of the House Committee which reported the Act, Rep.

Staggers, stated that the Administrator could control additives

**[i]f he has the facts, and he has proven this by facts, that they

are a danger and poisonous.’’ 116 Cong. Ree. 19230. The Adminis-

trator does have authority under different provisions of the Act, to

adopt regulations dealing with indirect or inadequately proven

health effects of auto emissions. See, e.g. Section 202 (a) of the

Clean Air Act, 42 U.S.C. § 1857f-1, which gives the Administrator

authority to control the emission of a pollutant which ‘‘in his judg-

ment causes or contributes to, or is likely to cause or to contribute

to, air pollution which endangers the public health or welfare.’’

(Emphasis added.)

BLEED THROUGH

a careful or thorough analysis of the relevant scientific

and medical evidence.

III. Judicial Review of Agency Rulemaking That Is Based

Upon Scientific and Medical Evidence Requires a Thor-

ough Examination by the Court of the Evidence Relied

Upon by the Agency To Determine Whether There Has

Been a Clear Error of Judgment.

The opinions of the members of the Court of Ap-

peals reflect quite different understandings of, and

sharp disagreement as to, the scope of judicial review

of agency rulemaking based upon scientific and tech-

nieal evidence. (See Wright Op. pp. 66-74; Bazelon

Op. pp. 1-4; Leventhal Op. pp. 1-4; and Wilkey Op.

pp. 57-64)

The opinion of Judge Wright found confusion in

the language of this Court in Citizens to Preserve

Overton Park vy. Volpe, 401 U.S. 402 (1971), observ-

ing that ‘‘the Court’s intent in Overton Park [is]

somewhat difficult to plumb and its standard even

more uncertain of application.’”?” (Wright Op. p. 70,

n.74) Beeause Judge Wright thought that the lan-

guage in Overton Park ‘‘may unintentionally prompt

judicial distortion of the ‘arbitrary and capricious’

standard,’’ he acknowledged that the Court was re-

quired to engage in a ‘‘close scrutiny of the evidence’’;

indeed ‘‘the more technical the case, the more intensive

must be the court’s effort to understand the evidence.”’

(Wright Op. pp. 70-72)

Judge Wright’s analysis of the evidence, however,

was not the basis for the majority opinion. Rather

he coneluded that ‘‘the ultimate standard of [judi-

cial] review is a narrow one,’ and that the

Court’s obligation to review was fully satisfied by a

determination that ‘‘the agency decision was rational

and based on consideration of the relevant factors.”’

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a at |

POMEL SPEIER Lire

a ee ee ee |

(Wright Op. pp. 72-73) Thus, in sustaining what it

regarded as the Administrator’s determination of pol-

icy, the majority declined to let judicial review ‘‘be

bound by either the procedural or the substantive

rigor proper for questions of fact.’’ (Wright Op.

p. 46)

The concurring opinion of Judges Bazelon and

McGowan, whose votes were necessary to sustain the

Administrator’s action, not only subseribed to the lim-

ited concept of review actually applied by the majority,

but refused to make any examination of the underlying

evidence. Their concept of judicial review, as perceived

by Judge Leventhal in a separate concurrence, ‘‘advo-

cates engaging in no substantive review at all, when-

ever the substantive issues at stake involve technical

matters that the judges involved consider beyond their

individual technical competence.’’ (Leventhal Op. p. 1)

; Indeed, the concurring opinion of Judges Bazelon and

McGowan candidly recognizes that the extended dis-

cussion of the evidence in Judge Wright’s opinion is

unnecessary and distracting in light of the standard

of review that ultimately governed the action of the

majority. They concurred in the Court’s opinion only

because it would ‘tbar’’ a ‘‘close analysis of the evi-

denee,’’ and they rejected the majority’s ‘exhaustive

analysis of the scientific evidence’’ as ‘“‘unnecessary.”’

(Bazelon Op. p. 4)** This conclusion followed from

their expressed view that ‘‘substantive review of math-

: ematical and scientifie evidence by technically illiter-

aa SiS et st i A

Si iehenitig tapes!

: 8 Chief Judge Bazelon and Judge McGowan also observed that

: they concurred in the opinion of Judge Wright only because it

“severely limits judicial weighing of the evidence by construing the

Administrator’s decision to be a matter of ‘legislative policy’, and

consequently not subject to review with the ‘substantive rigor

proper for questions of fact.’’’ (Bazelon Op. p. 4)

PLAT N AT TER TS ee RET “ SEER EES PLONE IO OES |

NIRS ae SP TATE CPN TIN Ie SPEER EEO OPEN GES Ss

BLEED THROIIGH

ate judges is dangerously unreliable.’’ (Bazelon Op.

p. 3) 39

Nowhere in the concurring opinion of Judges Ba-

zelon and McGowan is there any attempt to show by

reference either to statutory language or legislative his-

tory why judicial review of the Administrator’s action

in this case should differ so substantially from judi-

cial review of agency action in other situations. Cer-

tainly the language of the Clean Air Act contains no

suggestion that the review envisaged by Congress is

to be any less rigorous than the review Congress has

traditionally provided for in numerous regulatory stat-

utes passed over the years. In the course of the argu-

ment Judge McGowan questioned whether substantive

judicial review might unconstitutionally involve the

courts in what he characterized as essentially legislative

activity. Any uncertainty as to the permissibility, in-

deed perhaps necessity, under the Constitution of pro-

viding for meaningful judicial review of agency action

in health and scientific matters should certainly be dis-

pelled by this Court.

Judge Leventhal disagreed with Judges Bazelon and

MeGowan as to the proper scope of judicial review of

agency action in cases of this kind and asserted the pro-

priety of ‘‘substantive review of administrative action”’

under this Court’s decision in Overton Park, which

‘“‘requires the reviewing court to scrutinize the facts.”’

*° As Judge Leventhal noted, courts are frequently called upon

to decide cases involving scientific and technical facts in a number

of substantive areas including of course patent infringement. Con-

gress obviously could have created specialized courts to review

such actions, but by not doing so, Congress intended that the

Courts of Appeal would attempt to educate themselves on the

issues involved. (See Leventhal Op. p. 2)

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bald

“ey:

HRI EWI PL PAC Ry a RR ra tL tee RN ot

(Leventhal Op. pp. 2-3) In his view ‘‘if there is some

factual support for the challenge, there must be either

evidence or judicial notice available explicating the

agency’s result, or a remand to supply the gap.”’

(Leventhal Op. p. 3) The dissenting opinion by Judge

Wilkey found no confusion or uneertainty in this

Court’s decision in Overton Park and stated that it

meant that reviewing courts are ‘obligated to engage in

a ‘substantial inquiry’ ’’ into the facts to determine if

the agency had made a ‘‘clear error of judgment.”

(Wilkey Op. p. 58)

These sharp differences among the members of the

Court of Appeals reflect widespread uneertainty on

their part as to the proper scope of judicial review in

light of Overton Park. The same difficulties have been

expressed in numerous other decisions of that court.*°

See e.4.. the following decisions holding that judicial review

of agency action requires a thorough examination of the scien-

tifie facts and evidence relied upon by administrative agencies:

International Harvester Company v. Ruckelshans. 155 U.S. App.

D.C. 411. 478 F.24 615 (D.C. Cir. 1973) (opinion by Judge Leven-

thal, exhaustively reviewing the scientific evidence relied upon

by EPA and concluding that the technical facts require ‘‘a

different approach”’ from that taken by the agency); National

Tire Dealers and Retreaders Association v. Brinegar, 160 U.S. App.

D.C. 238, 244, 491 F.2d 31, 35 (D.C. Cir. 1974) (opinion by Judge

Wilkey, holding invalid Department of Transportation regu-

lations on the ground that the agency’s conclusions were cast into

doubt by specifie technical! comments in the record); Portland

Cement Association vy. Ruckelshaus, 158 U.S. App. D.C. 308,

486 F.2d 375, 402 (1972), cert. denied 417 U.S. 921 (1974)

(opinion by Jndze Leventhal observing that judicial review

of agency decisions requires ‘‘steeping in technical matters.’’)

In contrast, see e.g., the following decisions holding that the

court’s responsibility is not to examine in detail the scientific facts

and evidence relied wpon by agencies: Industrial Union Depart-

ment v. Hodgson, 162 U.S. App. D.C. 331, 338-9, 499 F.2d 467,

474-5 (D.C. Cir. 1975) (opinion by Judge McGowan characterizing

BLEED THROUGI

hi a a Co

27 ;

Tius, depending upon the panel assigned to a given

case, 1 Court May engage in an analysis of the agency’s ‘

evidence, or it may merely limit itself to determining

whether the agency gave consideration to the evidence

ina formal sense. These uncertainties are particularly

unsettling because the Court of Appeals for the District :

of Columbia Circuit has been entrusted with exclusive

review of administrative agency action under numerous

statutory provisions, including Section 211 of the Clean

Air Act." In view of the exclusive judicial review

SOP RRP AnerT NR

the promulgation of regulations ‘‘on the frontiers of scientific

knowledge’’ as questions of ‘‘policy’’ not subject to the same re-

view as questions of fact); O’Donnelly v. Schaffer, 160 U.S.

App. D.C. 266, 269, 491 F.2d 59, 62 (D.C. Cir. 1974) (opin-

ion by Chief Jndee Bazelon, giving great deference to the decision F

of the agency where ‘‘complex technical issues are involved’’) ; :

and see also the concurring opinion of Chief Judge Bazelon in

International Harvester Company v. Ruckelshaus, 155 U.S. App.

D.C, 411, 478 F.2d 615 (D.C. Cir. 1973), observing that ‘‘in

cases of great technological complexity, the best way for courts

to guard against unreasonable or erroneous administrative deci-

sions is not for the judges themselves to scrutinize the technical

merits of each decision.’’ :

OKIE 6 PERN

MARRS EN

4149 U.S.C. §1857h-5(b)(1) provides that judicial review of

EPA action under Section 211 shall be available exclusively

in the United States Court of Appeals for the District of Co-

lumbia Circuit. See also 42 U.S.C. $4915 (promulgation of noise

control regulations by EPA); 42 U.S.C. § 300j-6 (promulgation ‘

of national primary drinking water regulations under the Safe

Drinking Water Act). Similarly other provisions of the Clean

Air Act involving nationwide regulatory programs vest exclu-

sive jurisdiction for judicial review in the United States Court

of Appeals for the District of Columbia Circuit. See Sections

1857¢-6, 1857e-7, 1857f-1, 18457f-6e, 1857f-9. As the Court of

Appeals for the District of Columbia Circuit pointed out in Nat-

ural Resources Defense Council, Ine. v. Environmental Protection

Agency, 168 U.S. App. D.C. 111, 114, 512 F.2d 1351, 1354 (D.C. ‘

Cir. 1975), Congress considered such exclusive judicial review :

“necessary to preserve the ‘even and consistent national applica- ;

tion of standards .. .’ (citing S. Rep. No. 91-1196, 91st Cong.,

2d Sess. 40-41 (1970)).”? 5

th ie .:-00 il i i ee a a ae eee |

POOR COPY

vested in that court, the disagreement among the mem-

bers of the court as to the nature of their review func-

tion has an effect comparable to a conflict between cir-

cuit courts of appeals and affords a further reason for

granting a writ in this case.

Only this Court can remove the ambiguity found by

the majority of the Court of Appeals to be inherent in

Overton Park, as that decision applies to agency action

based upon scientific and technical evidence. The Court

should make clear that reviewing courts have an obliga-

tion to make a searching and careful inquiry into the

facts in reviewing such action, and that on the basis of

such an inquiry the reviewing court must determine

whether the agency has made a clear error of judgment.

Such review is essential if the courts are to perform the

j important role that Congress has entrusted to them.

Congress expected reviewing courts to provide balance

and proportion to the process of administrative regula-

tion in environmental and other technical areas. Ad-

ministrators by their nature are the subject of intense

political pressures. <All too often the most vocal or most

persistent group ultimately prevails; the most popular

i at OR 0 dit th!

cause is adopted. The reviewing court can scrutinize

: agency action free of such pressures, and Congress

: meant that it should.

It is particularly important for the Supreme Court

4 to resolve this issue in this case. The concurring opin-

‘ ion of Judges Bazelon and McGowan indicates that

; they did not scrutinize the evidence relied upon by the

‘ Administrator as required by Overton Park. Indeed,

this was precisely Judge Leventhal’s interpretation of

their concurring opinion. As a result, only three of the

five majority judges were able to form any conclusion

as to the adequacy of the evidence relied upon by the

BLEED THROUC

Administrator. On the other hand, four dissenting

judges found that the evidence did not meet the re-

quired standard. A five to four decision affecting very

substantial rights should not be permitted to stand

where two members of the majority did not examine,

in the manner required by this Court, the evidence re-

lied upon by the Administrator.

CONCLUSION

Petitioners respectfully request that this Petition

for a Writ of Certiorari be granted.

Respectfully submitted,

DANIEL M. GRIBBON

ALLAN J. TOPOL

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

E. I. Du Pont de Nemours and

Company, and PPG Indus-

tries, Ine.

Of Counsel:

CovINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

POOR COPY

OE SAAN sia DR RE , — errno ‘

— “EIRAIT Mm FILE

a MRE ME GOULET U, Mm i

Ber: 4 3 1 6 () 2 } MAY 3 19

ae : os j

"e Nos. .7.9%%...>.

¢ . NE RODAK, JR.,

{

y IN THE

Supreme Court of the United States

Ocroper Term, 1975

Kruyn Corporation, Petitioner

NVIRONMENTAL PROTECTION Agency, Respondent

t PPG Ixpusrnirs, Ine. Petitioner

NVIRONMENTAL Proreerion AGENcy, Respondent

KH. 1. DePoxr pe Nemours axp Company, Petitioner

’,

NVIRONMENTAL Proreerion Acency, Respondent

Nanco CHemMicaL Com PANY, Petitioner

ENVIRONMENTAL Prorection AGENcy, Respondent

Nationa Perrouecm Rerixers Association, Petitioner

NVIRONMENTAL PRrorge rion AGENCY, Respondent

JOINT APPENDIX TO

PETITIONS FOR WRIT OF CERTIORARI

Press or Byron S. ADAMS Printinc, INc., WASHINGTON, D .

—

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.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

F No. 73-2205

| ETHYL CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 73-2268

PPG INbustriEs, INC., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 73-2269

E. I. DUPONT DE NEMourRsS & COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Oa ee ae Le eens

No. 73-2270

NALCO CHEMICAL COMPANY, PETITIONER

ENVIRONMENTAL PROTECTION AGEN CY, RESPONDENT

No. 74-1021

NATIONAL PETROLEUM REFINERS ASSOCIATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Petitions for Review of an Order of the

Environmental Protection Agency

On Rehearing En Banc

Argued En Bane May 30, 1975

Decided March 19, 1976

SYLLABUS

Section 211/c)(1)(A) of the Clean Air Act authorizes

the Administrator of the Environmental Protection Agency

to regulate gasoline additives whose emission products

“will endanger the public health or welfare * * Pa

42 U.S.C. § 1857f-6e(e)(1)(A) (1970). Acting pur-

RLEED THROILIGH

suant to that power in rule-making proceedings, the Ad-

ministrator determined that leaded gasoline automotive

emissions present “a significant risk of harm” to the

public health, thereby endangering it within the con-

templation of the statute. Based on this finding, the

Administrator issued regulations requiring annual re-

ductions in the lead content of leaded gasoline. Held:

1. The Administrator’s interpretation of the statutory

“will endanger” standard is entitled to great deference.

Train v. Natural Resources Defense Council, Inc., 421

U.S. 60, 75 (1975). We find no basis in the language

of the statute or in its legislative history to fault his

interpretation. In applying the “will endanger” stand-

ard, the Administrator is authorized to assess risks of

harm and, where the risk is found to be significant, to

act to prevent the harm from happening. Thus the regu-

latory action under this precautionary statute should pre-

cede, and hopefully prevent, the perceived harm. Pp. 17-

66.

a. Some of the questions involved in promulga-

tion of environmental regulations “are on the fron-

tiers of scientific knowledge, and consequently as to

them insufficient data is presently available to make

a fully informed factual determination. Decision

making must in that circumstance depend to a

greater extent upon policy judgments and less upon

purely factual analyses.” Industrial Union Depart-

ment, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331,

338, 499 F.2d 467, 474 (1974). Pp. 45-56.

b. In making his policy judgment by assessing

risks the Administrator is not required to limit his

consideration to the danger presented by lead ad-

ditives “in and of themselves.” He may consider

the cumulative impact of lead additives with other

sources of human exposure to lead. Pp. 56-61.

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2. The Administrator’s determination that lead emis-

sions “present a significant risk of harm to the health

of urban populations, particularly to the health of city

children,” is not “arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law * * *.”

5 U.S.C. § 706(2)(A) (1970). His determination has

a rational basis in the evidence. Pp. 66-97.

a. We must look at the Administrator’s decision

4 not as the chemist, biologist, or statistician that we

are qualified neither by training nor experience to

4 be, but as a reviewing court exercising our narrowly

defined duty of holding agency action to certain

minimal standards of rationality. Pp. 66-74.

b. We need not seek a single dispositive scientific

study that fully supports the Administrator’s de-

termination. Science does not work that way; nor

;

does agency fact-finding. Rather, the Administrator’s

decision may be fully supportable if it is based, as

it is here, on the inconclusive but suggestive results

of numerous studies. By its nature, scientific evi-

dence is often cumulative; the more supporting,

albeit inconclusive, evidence available, the more

likely the accuracy of the conclusion. Pp. 75-76.

ec. The vast bulk of the evidence before the Ad-

: ministrator provides inferences, no one of which

: is dispositive, which support the Administrator’s

findings. Particularly in light of the precautionary

nature of the “will endanger” standard, we can-

not find the Administrator’s conclusion that lead

automotive emissions present a significant risk of

4 harm to the public health arbitrary or capricious.

Pp. 77-97.

The order of the Environmental Protection Agency

; is

Affirmed.

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Joseph C. Carter, Jr., with whom John J. Adams and

David F. Peters were on the brief, for petitioner in

No. 73-2205. Arnold H. Quint also entered an appear-

ance for petitioner in No. 73-2205.

Daniel M. Gribbon, with whom Allan J. Topol and

Charles Lister were on the brief, for petitioners in Nos.

73-2268 and 73-2269.

Victor P. Kayser, with whom John C. Bergho ff, Jr.,

Robert E. Nord, David Machanic, and William H. Fitz

were on the brief, for petitioner in No. 73-2270.

H. Edward Dunkelberger, Jr.. with whom Theodore

L. Garrett was on the brief, for petitioner in No. 74-

1021.

Robert V. Zener, General Counsel, Environmental Pro-

tection Agency, and Leslie A. Carothers, Attorney, En-

vironmental Protection Agency, with whom Wallace H.

Johnson, Assistant Attorney General, and Edmund B.

Clark, Martin Green, and Edward J. Shawaker, Attor-

neys, Department of Justice, were on the brief, for re-

spondent. Raymond N. Zagone, Attorney, Department

of Justice, also entered an appearance for respondent in

No. 73-2268.

David Schoenbrod filed a brief on behalf of Natural

Resources Defense Council, Inc. et al. as amici curiae

urging affirmance.

Before BAZELON, Chief Judge, and WRIGHT, McGowan,

TAMM, LEVENTHAL, ROBINSON, MACKINNON, Ross, and

WILKEY, Circuit Judges, sitting en banc.

Opinion for the court, in which Chief Judge BAZELON

and Circuit Judges McGowan, LEVENTHAL, and RoBIN-

SON concur, filed by Circuit Judge WrRiGHT.

Concurring opinion, in which Circuit Judge McGowAN

joins, filed by Chief Judge BAZELON.

Concurring statement filed by Circuit Judge LEVEN-

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Dissenting opinion filed by Circuit Judge MACKINNON.

Dissenting opinion, in which Circuit Judges TAMM

and Ross join, filed by Circuit Judye WILKEY.

WRIGHT, Circuit Judge: Man’s ability to alter his

environment has developed far more rapidly than his

ability to foresee with certainty the effects of his altera-

tions. It is only recently that we have begun to ap-

preciate the danger posed by unregulated modification

of the world around us, and have created watchdog

agencies whose task it is to warn us, and protect us,

when technological “advances” present dangers unap-

preciated—or unrevealed—by their supporters. Such

agencies, unequipped with crystal balls and unable to

read the future, are nonetheless charged with evaluat-

ing the effects of unprecedented environmental modifica-

tions, often made on a massive scale. Necessarily, they

must deal with predictions and uncertainty, with de-

veloping evidence, with conflicting evidence, and, some-

times, with little or no evidence at all. Today we ad-

dress the scope of the power delegated one such watch-

dog, the Environmental Protection Agency (EPA). We

must determine the certainty required by the Clean Air

Act before EPA may act to protect the health of our

populace from the lead particulate emissions of auto-

mobiles.

Section 211(¢)(1)(A) of the Clean Air Act? autho-

rizes the Administrator of EPA to regulate gasoline ad-

ditives whose emission products “will endanger the pub-

lic health or welfare * * *.” 42 U.S.C. § 1857f-6e(e) (1)

(A). Acting pursuant to that power, the Administrator,

after notice and comment, determined that the automo-

tive emissions caused by leaded gasoline present “a signi-

‘ All sections of the Act pertinent to this case were added

by the Clean Air Amendments of 1970, Pub. L. 91-604, Dec.

51, 1970, 84 Stat. 1698-1700.

ficant risk of harm” to the public health. Accordingly,

he promulgated regulations that reduce, in step-wise

fashion, the lead content of leaded gasoline? We must

decide whether the Administrator properly interpreted

the meaning of Section 211(c) (1) (A) and the scope of

his power thereunder, and, if so, whether the evidence

adduced at the rule-making proceeding supports his final

determination. Finding in favor of the Administrator

on both grounds, and on all other grounds raised by

petitioners, we affirm his determination.

* The new regulations, together with regulations requiring

all gasoline refiners to market at least one line of lead-

free gasoline, are set out in 40 C.F.R. § 80 (1975). The lead-

free regulations serve a different purpose than the low-lead

regulations now before us. Leaded gasoline fouls the cata-

lytic converter emission control system developed by the major

automobile companies to meet the air pollutant emission

standards set by Congress in § 202 of the Clean Air

Act. 42 U.S.C. § 1857f-1. So as to allow implementation of

the catalytic converter, the Administrator ordered the market-

ing of lead-free gasoline pursuant to his authority under

§ 211(c) (1) (B), the sister section to §211(c)(1)(A) at

issue here. Section 211(c)(1)(B) gives EPA authority to

regulate gasoline additives whose emission products “will

impair to a significant degree the performance of any emis-

sion control device or system which is in general use * * *.”

42 U.S.C. § 1857f-6c(c) (1) (B). The lead-free regulations

were approved by this court in Amoco Oil Co. v. EPA, 163

U.S.App.D.C. 162, 501 F.2d 722 (1974).

On March 5, 1975, the Administrator suspended the 1977

statutory standards for automobile emissions of hydrocarbons

and carbon monoxide, establishing interim standards for that

model year equal to those now in effect. 40 FED. REG. 11900.

This action was taken to slow the emission reduction sched-

ule and thereby minimize a potential health hazard posed by

the gradual increase in sulfuric acid emissions produced by the

catalytic converter. So far as this decision is relevant to

this case, it bears noting that the lead-free gasoline regu-

lations will continue in effect and automobiles will continue

to be equipped with catalytic converters for the foreseeable

future. See note 68 infra.

DBAMND CDV

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EPEC IPEET TERE OO

I. THE FACTS, THE STATUTE, THE PROCEEDINGS

AND THE REGULATIONS

Hard on the introduction of the first gasoline-powered

automobiles came the discovery that lead “antiknock”

compounds, when added to gasoline, dramatically increase

the fuel’s octane rating. Increased octane allows for

higher compression engines, which operate with greater

efficiency. Since 1923 antiknocks have been regularly

added to gasoline, and a large industry has developed to

supply those compounds. Today, approximately 90 percent

of motor gasoline manufactured in the United States con-

tains lead additives, even though most 1975 and 1976

model automobiles are equipped with catalytic conver-

ters, which require lead-free gasoline. From the be-

ginning, however, scientists have questioned whether the

addition of lead to gasoline, and its consequent diffusion

into the atmosphere from the automobile emission, poses

a danger to the public health. As use of automobiles,

* The principal studies and symposia over the years on the

subject have included Sayers et al., “Experimental Studies

on the Effect of Ethyl Gasoline and Its Combustion Prod-

ucts,” Bureau of Mines, 1927; HEW, “Public Health Aspects

of Increasing Tetraethyl Lead Content in Motor Fuel,” Pub-

lic Health Service Pub. No. 712, 1959; Kehoe, “The Metabo-

lism of Lead in Man in Health and Disease,”” The Harben

Lectures, 1960, JA 500-579; HEW, “Survey of Lead in the

Atmosphere of Three Urban Communities,” JA 789-839;

HEW, “Symposium on Environmental Lead Contamination,”

Public Health Service Pub. No. 1440, 1966, JA 975-984;

Tepper & Levin, “A Survey of Air and Population Lead

Levels in Selected American Communities,” 1972, JA 840-

916; National Academy of Sciences, “Airborne Lead in Per-

spective,” 1972, JA 309-362: EPA and Commission of

European Communities, Proceedings of International Sym-

posium, “Environmental Health Aspects of Lead,” Luxem-

bourg, 1973, JA 676-677: EPA and National Institute of

Environmental Health Services, Conference on “Low-Level

Lead Toxicity,” Raleigh, N.C., 1973.

BLEED THROU(

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and emission of lead particulates, has accelerated in the

last quarter century, this concern has mounted. The rea-

sons for concern are obvious (and essentially undisputed

by petitioners): (1) lead in high concentrations in the

body is toxic; (2) lead can be absorbed into the body

from the ambient air; and (3) lead particulate emis-

sions from gasoline engines account for approximately

90 percent of the lead in our air. Despite these apparent

reasons for concern, hard proof of any danger caused

by lead automotive emissions has been hard to come by.

Part of the reason for this lies in the multiple sources

of human exposure to lead.

Lead is an ubiquitous element. It is found in the land,

in the sea, in plants, in animals, and, ultimately, in

humans. Traces of lead ranging from 10 to 40 micro-

grams per 100 grams of blood (10-40 ug/100g)* are

found in everyone, including those living in environments

with almost no atmospheric lead. NATIONAL ACADEMY OF

SCIENCES COMMITTEE ON BIOLOGIC EFFECTS OF ATMOS-

PHERIC POLLUTANTS, AIRBORNE LEAD IN PERSPECTIVE 118

(1972) (hereinafter NAS Report). Despite its uni-

versal presence, however, lead serves no known purpose

in the human body, and at higher concentrations is

toxic, causing anemia, severe intestinal cramps, paral-

ysis of nerves, fatigue, and even death. Clinical symp-

toms of lead poisoning appear at blood lead levels of

80-100 ug or higher, and symptomatic lead poisoning

may appear at levels of 50-60 ug, particularly in the

* Some of the data discussed herein speak of micrograms of

lead per 100 grams of blood, while other data report micro-

grams per 100 milliliters of blood. Since the density of blood

is close to 1.0, these figures are directly comparable. There-

fore, lead concentrations, unless otherwise indicated, will

hereafter simply be given in micrograms. See NATIONAL

ACADEMY OF SCIENCES COMMITTEE ON BIOLOGIC EFFECTS OF

ATMOSPHERIC POLLUTANTS, AIRBORNE LEAD IN PERSPECTIVE

61 n. * (1972) (hereinafter NAS Report).

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presence of anemia. EPA’s PosITION ON THE HEALTH

IMPLICATIONS OF AIRBORNE LEAD (hereinafter Third

Health Document) at III-1, Joint Appendix (hereinafter

JA) 54-55.

Human body lead comes from three major sources. In

most people, the largest source is the diet. EPA esti-

mates daily dietary lead intake for adults to average

200-300 ug per day, with a range of 100-500 ug a day.

Third Health Document at V-2, JA 82. Absorption of

dietary lead into the bloodstream is estimated at about

10 percent, although in children absorption may be as

high as 50 percent. Thus the average adult adds 20-30

ug of lead to his bloodstream daily from his diet alone.

This daily intake, which may be highly variable depend-

ing on individual diets, NAS Report at 50, is generally

regarded as, for all practical purposes, uncontrollable.°

A second major source of the body’s lead burden, at

least among urban children, is regarded as controllable,

although effective control may be both difficult and ex-

pensive to achieve. Ingestion of lead paint by children

with pica (the abnormal ingestion of non-food substances,

a relatively common trait in pre-school children, particu-

larly ages 1-3) is generally regarded as “the principal

environmental source in cases of severe acute lead poi-

soning in young children.” NAS Report at 140. Lead-

based paint was widely used in pre-1940 housing, for

both interiors and exteriors, so children living in older

housing, particularly in urban ghettos where such paint

is both present and peeling, are most susceptible to this

form of lead poisoning. Limited control has been

achieved in that lead paints are now rarely used, and

5 Lead in food and water ultimately can be traced to lead in

soil and this, of course, is uncontrollable. The NAS Report

concluded that “[t]here is no evidence that the amount of

lead in the diets of people has changed substantially since

1940.” NAS Report at 206.

RBRLEED THR

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are frequently banned by statute, for interior surfaces.

But while some local laws require removal of existing

peeling lead paints, and there is federal legislation to

aid states and municipalities in such efforts, Lead-Based

Paint Poisoning Prevention Act, 42 U.S.C. §§ 4801 et

seq., (1970), there is no concentrated national effort at

removal, and the danger to children living in dilapidated

housing will remain for some time.*

The last remaining major source of lead exposure for

humans is the ambient air. This source is easily the most

controllable, since approximately 90 percent of lead in

the air comes from automobile emissions,’ and can be

simply eliminated by removing lead from gasoline.* While

the extent to which such lead actually enters the body

is vigorously contested by petitioners and lies at the heart

of this appeal, all parties agree that, to some extent at

least, airborne lead can be absorbed through the lungs

as a person breathes lead-contaminated air and that it

can be eaten by children with pica after larger lead

particles fall to the ground and mix with dust. Once

the lead is in the body, however. its source becomes irre-

levant; all lead in the bloodstream, from whatever source,

is essentially fungible. Thus so long as there are multi-

° A list of local laws regarding control and/or removal of

lead-based paints can be found in NAS Report at 77.

* This is EPA’s figure, Third Health Document at II-4, JA

37, and Ethyl Corporation (hereinafter Ethyl), alone among

the petitioners, contests it. Supplemental brief of petitioner

Ethyl Corporation (hereinafter Ethyl Supp. Br.) at 40. We

cannot say that EPA’s estimate is unreasonable. It was de-

termined by discounting the NAS Panel’s conclusion that

“about 98° of the airborne lead that can be traced to its

source comes from combustion of gasoline.” NAS Report at

31. See also id. at 12-13.

* An alternative approach, considered and rejected by EPA,

is to trap and remove lead emissions from the exhausts of

automobiles using leaded gasoline. See note 66 infra.

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ple sources of lead exposure it is virtually impossible to

isolate one source and determine its particular effect on

the body. The effect of any one source is meaningful

only in cumulative terms.

The multiple sources of human exposure to lead explain

in part why it has been difficult to pinpoint automobile

lead emissions as a danger to public health. Obviously,

any danger is caused only by the additive effect of lead

emissions on the other, largely uncontrollable, sources

of lead. For years the lead antiknock industry has re-

fused to accept the developing evidence that lead emis-

sions contribute significantly to the total human lead

body burden. In the Clean Air Act Amendments of 1970,

Pub. L. 91-604, December 31, 1970, 84 STAT. 1698-1700,

however, Congress finally set up a legal mechanism by

which that evidence could be weighed in a more objective

tribunal. It gave the newly-created EPA authority to

control or prohibit the sale or manufacture of any fuel

additive whose emission products “will endanger the pub-

lic health or welfare * * *.” 42 U.S.C. § 1857£-6e(c) (1)

(A) (1970). It is beyond question that the fuel additive

Congress had in mind was lead.”

Given this mandate, EPA published on January 31,

1971 advance notice of proposed rule-making. The Ad-

ministrator announced he was considering possible con-

trols on lead additives in gasolines, both because of their

possible danger to health and because of their incom-

patibility with the newly-developed catalytic converter

emission control system.’ 36 FED. REG. 1486 (1971).

* See, e.g., 116 CONG. REC. 19207 (1970) (remarks of Rep.

Skubitz) (“the Government can require that the oil com-

panies get the lead out”); id. at 19228-19230 (colloquy be-

tween Reps. Waggoner & Staggers); id. at 19234 (remarks

of Rep. Williams) ; id. at 19239 (remarks of Rep. Sebelius).

*° Regulations promulgated for the latter reason were ap-

proved in Amoco Oil Co. v. EPA, supra note 2. See note 2

supra.

Proposed regulations were issued a year later, Febru-

ary 23, 1972, supported by a document Health Hazards

of Lead" ‘hereinafter First Health Document), pre-

pared by the EPA scientific staff. Comments were in-

vited for a 90-day period, later reopened for an additional

30 days. 387 Feb. REG. 11786-11787 (1972). At the

same time public hearings were held in Washington,

D. C., Dallas, and Los Angeles.

On January 10, 1973 the Administrator, while issuing

final regulations requiring availability of some lead-free

gasoline to allow implementation of the catalytic con-

verter system, 38 FED. REG. 1254; approved in Amoco

Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722

(1974), reproposed the health-based regulations now at

issue. 38 FED. REG. 1258. The reproposal was supported

by a second health document, EPA’s Position on the

Health Effects of Airborne Lead (hereinafter Second

Health Document), JA 158, and was necessitated by a

modification of EPA’s analysis of the health effects of

lead emissions. The Agency concluded, after considering

the comments received, that it was virtually impossible

to identify the precise amount of airborne lead that will

endanger public health. Instead, the control strategy

would concentrate on evaluating the cumulative effect of

airborne lead .on total human lead exposure and the sig-

nificance of that contribution. 38 FED. REG. 1258. The

reproposed regulations themselves were similar to the

original proposal, requiring a phased cutback to 1.25

grams of lead per gallon of leaded gasoline, but, in

recognition of the industry’s lead-time problems, pushing

the timetable for reduction back one year. The Agency

again invited public comment, this time for a 60-day

period.

"JA 292. This document was subsequently revised by

HEALTH HAZARDS OF LEAD (rev. April 11, 1972), JA 254;

ATMOSPHERIC LEAD AND PUBLIC HEALTH, (April 11, 1972),

JA 276; and CORRECTIONS AND ADDITIONS TO HEALTH HAZARDS

OF LEAD (April 27, 1972), JA 272.

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On October 28, 1973, as a result of a motion filed in

Natural Resources Defense Council, Ine. v. EPA, D.C.

Cir. No. 72-2233, this court ordered EPA to reach within

30 days a final decision on whether lead additives should

be regulated for health reasons. EPA published its final

health document, entitled EPA’s Position on the Health

Implications of Airborne Lead, on November 28, 1973.

JA 27. This document, the Third Health Document, ex-

tensively details and reviews the state of knowledge of

the health effects of airborne lead. It candidly discusses

the various scientific studies, both pro and con, underly-

ing this information, and ultimately concludes that lead

from automobile emissions will endanger the public health.

The same day, based largely on the conclusions of the

Third Health Document, EPA promulgated its final

regulations, accompanied by a thorough discussion of its

health conclusions, the impact of the regulations, and

the alternative courses of action considered and _ re-

jected. 38 FED. REG. 33734. The final regulations re-

quire the same step-wise reduction of lead additives but,

in response to the comments of a majority of refiners,

calculate the reduction in a slightly different manner.

Whereas the original and reproposed regulations set

standards for permissible lead use by each refiner on

the basis of grams of lead per gallon of leaded gasoline

produced (leaded pool averaging), the final regulations

base the standards on grams of lead per gallon of all

gasoline produced (total pool averaging). The quantity of

lead emitted into the atmosphere is the same under both

systems; EPA simply converted its leaded poo] figures

into total pool figures. Under the final regulations, lead

in all gasoline would be reduced over a five-year period

to an average of 0.5 grams per gallon."

* The reduction would proceed in the following steps:

1.7 g/gal. after Jan. 1, 1975

1.4 g/gal. after Jan. 1, 1976

[continued]

RIFEN trupotiic

Petitioners, various manufacturers of lead additives

and refiners of gasoline, appealed the promulgation of

low-lead regulations to this court under Section 307 of

the Clean Air Act, 42 U.S.C. § 1857h-5. The appeal was

heard by a division of the court on September 9, 1974.

On December 20, 1974, the division, one judge dissent-

ing, ordered the regulations set aside. The majority and

dissenting opinions were published on January 28, 1975.”

Because of the importance of the issues presented, we

granted EPA’s petition for rehearing en bane on March

17, 1975, vacating the judgment and opinions of the

division and setting the case for reargument on May 30,

1975. All parties were invited to submit supplementary

briefs addressing the issues raised by the division

opinions.

The regulations are challenged by petitioners on a vari-

ety of grounds, all of which will be addressed below.

Their primary claims, and the ones on which the division

1.0 g/gal. after Jan. 1, 1977

0.8 g/gal. after Jan. 1, 1978

0.5 g/gal. after Jan. 1, 1979

40 C.F.R. § 80.20 (1975). According to EPA calculations,

when the overall lead content of both leaded and unleaded

gasoline averages 0.5 grams per gallon, leaded gasoline would

contain an average of 1.25 grams of lead per gallon, the same

as under the original regulations. See 38 FED. REG. at 33739

(1973).

*s Commentators have been uniformly critical of the ma-

jority opinion. See Gardner, Federal Courts and Agencies:

An Audit of the Partnership Books, 75 CoLuM. L. REV. 800,

801 & n.77 (1975); Note, Judicial Review of the Facts in In-

formal Rulemaking: A Proposed Standard, 84 YALE L.J. 1750,

1767-68 & nn. 81-82 (1975); Note, Reserve Mining—The

Standard of Proof Required to Enjoin an Environmental

Hazard to the Public Health, 58 MINN. L. REV. 893, 918-19

n.116 (1975). See also Reserve Mining Co. v. EPA, 514 F.2d

492, 519-520 (8th Cir. 1975) (en banc).

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majority based its reversal, are that the Administrator

misinterpreted the statutory standard of “will endanger”

and that his application of that standard is without

Support in the evidence and arbitrary and capricious.

II]. THE STATUTORY REQUIREMENTS

Under Section 211(¢) (1) (A) the Administrator may,

on the basis of all the information available to him,

promulgate regulations that

control or prohibit the manufacture, introduction

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

or fuel additive for use in a motor vehicle or motor

vehicle engine (A) if any emission products of such

fuel or fuel additive will endanger the public health

or welfare * * *,

42 U.S.C. § 1857-6e(a) (1) (A). The Administrator can-

not act under Section 211(c) (1) (A), however, until

after “consideration of all relevant medical and scientific

evidence available to him, including consideration of

other technologically or economically feasible means of

achieving emission standards under [Section 202].” See-

tion 211(¢) (2) (A), 42 U.S.C. § 1857f-6e(c) (2) (A). Sec-

tion 202 of the Act, 42 U.S.C. § 1857f-1, allows the Ad-

ministrator to set standards for emission of pollutants

from automobiles (as opposed to standards for the com-

position of the gasoline that produces the emissions), and

is thus the preferred—although not the mandatory—

alternative under the statutory scheme, presumably be-

cause it minimizes Agency interference with manufac-

turer prerogatives."

** When EPA acts under § 211(c) (1) (A) it is essentially

telling manufacturers how to make their fuels, a task Con-

gress felt the Agency should enter upon only with trepidation.

See, e.g., 116 Conc. REc. 32920 (1970) (remarks of Sen.

Baker) ; id. at 19229 (remarks of Reps. Rogers & Waggoner).

[continued]

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The Administrator is also required, before prohibiting

a fuel or fuel additive under Section 211(c) (1) (A), to

find, and publish the finding, that in his judgment any

fuel or fuel additive likely to replace the prohibited one

will not “endanger the public health or welfare to the

same or greater degree * * *.” Section 211(c) (2) (C), 42

U.S.C. § 1857f-6e(c) (2)(C). It is significant that this

is the only conclusion the Administrator is expressly re-

quired to “find” before regulating a fuel or fuel additive

for health reasons.

A. The Threshold Determination

In making his threshold determination that lead par-

ticulate emissions from motor vehicles “will endanger the

public health or welfare,” the Administrator provided

his interpretation of the statutory language by couch-

ing his conclusion in these words: such emissions “pre-

sent a significant risk of harm to the health of urban

populations, particularly to the health of city children.”

38 FED. REG. 33734. By way of further interpretation,

he added that it was his view

On the other hand, when the Agency acts under § 202, it is

only mandating an end product—regulated emissions. The

method for achieving the required result is entirely in the

hands of the manufacturers.

Nonetheless, deference to regulation under § 202 is not

mandatory. The Administrator is only required to “consider”

the possibility of regulating under that section instead of un-

der §211. This language is in sharp contrast to the version

of § 211 that was passed by the House. The House version

would have allowed regulation under § 211 only after the Ad-

ministrator made a specific finding “that it is not otherwise

technologically or economically feasible to achieve the emission

standards established pursuant to section 202 of this Act.”

H.R. 17255, 91st Cong., 2d Sess. § 210(g) (1) (1970). This

mandatory deference to § 202 regulation was removed in con-

ference and the present more flexible language was substi-

tuted. See pages 40-43 infra.

LOE LT ME FRU TE OM tt

that the statutory language * * * does not require

a determination that automobile emissions alone cre-

ate the endangerment on which controls may be

based. Rather, the Administrator believes that in

providing this authority, the Congress was aware

that the public’s exposure to harmful substances re-

sults from a number of sources which may have

varying degrees of susceptibility to control.

Id. It is petitioners’ first claim of error that the Admin-

istrator has erroneously interpreted Section 211(c) (1)

(A) by not sufficiently appreciating the rigor demanded

by Congress in establishing the “will endanger” stand-

ard. Therefore, petitioners argue, the Administrator’s

action is “short of statutory right,” in violation of Sec-

tion 10(e)(2)(C) of the Administrative Procedure Act

(APA), 5 U.S.C. § 706(2)1C) (1970).

Petitioners argue that the “will endanger” standard

requires a high quantum of factual proof, proof of ac-

tual harm rather than of a “significant risk of harm.”

See Supplemental brief of petitioner Ethyl Corporation

; (hereinafter Ethyl Supp. Br.) at 20. Since, according to

petitioners, regulation under Section 211(¢) (1) (A) must

be premised upon factual proof of actual harm, the Ad-

ministrator has, in their view, no power to assess risks

or make policy judgments in deciding to regulate lead

additives. Moreover, petitioners argue, regulation must

be based on the danger presented by lead additives “in

and of themselves,” so it is improper to consider, as the

Administrator did, the cumulative impact of lead addi-

tives on all other sources ef human exposure to lead.

We have considered these arguments with care and find

them to be without merit.’’ It is our view that the

dit Vit Pénntthe%.. die whe Me es see

** At oral argument, petitioners claimed the regulations

were void because the Administrator had failed to couch his

ultimate finding in the language of the statute itself. See also

: Supplemental brief of petitioner National Petroleum Refiners

an - ee einen te

; ITI NE ES me

Administrator’s interpretation of the standard is the cor-

rect one.”

1. The Precautionary Nature of “Will Endanger.”

Simply as a matter of plain meaning, we have difficulty

crediting petitioners’ reading of the “will endanger”

Association (hereinafter NPRA Supp. Br.) at 5. The short

answer to the argument is that petitioners’ view of the facts

is erroneous. While interpreting the “will endanger” standard

to mean “presents a significant risk of harm,” 33 FEp. REG.

33734, the Administrator ultimately did make his finding in

the language of the statute:

These regulations are based upon a determination by the

Administrator that the emission product of a fuel or

additive will endanger the public health * * *.

Id. at 33741. See 40 C.F.R. § 80.1 (1974).

In any case, however, the issue is spurious. It is well estab-

lished that ultimate findings do not have to be expressed at

all, let alone be expressed in the language of the statute.

Rather, absent compelling countervailing considerations, an

ultimate finding will be implied from the action taken. Pa-

cific States Bor & Basket Co. v. White, 296 U.S. 176, 186

(1935) ; Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32-33 (1827)

(Story, J.). Cf. Joseph v. FCC, 131 U.S.App.D.C. 207, 211-

212, 404 F.2d 207, 211-212 (1968). The law is fully developed

in 2 K. Davis, ADMINISTRATIVE LAW TREATISE § 16.07 at 455-

59 (1958).

** We note that even if we did not agree fully with the

Administrator’s interpretation of the Act, we would be obliged

to accord it considerable deference. As the Supreme Court

recently held in approving, despite the contrary views of

several circuits, the Administrator’s reading of another sec-

tion of the Clean Air Act:

Without going so far as to hold that the Agency’s con-

struction of the Act was the only one it permissibly

could have adopted, we conclude that it was at the very

least sufficiently reasonable that it should have been

accepted by the reviewing courts.

Train V. Natural Resources Defense Council, Inc., 421 U.S.

60, 75 (1975). See also id. at 87.

my LA in. |

afro eae!

DENCE th aR oN

standard. The meaning of “endanger” is not disputed.

Case law and dictionary definition agree that endanger

means something less than actual harm.’ When one is

endangered, harm is threatened; no actual injury need

ever occur. Thus, for example, a town may be “endan-

gered” by a threatening plague or hurricane and yet

emerge from the danger completely unscathed.’* A stat-

** It is linguistically clear, of course, that one can be “en-

dangered” without actually being harmed. Nonetheless, some

risk of harm is necessary. State v. Fine, 324 Mo. 194, 23

S.W.2d 7, 9 (1929). Webster defines “endanger” as “to bring

into danger or peril of probable harm or loss.” WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 748 (1961) (empha-

sis added).

Not all courts have agreed that “probability” of harm is the

proper determinant of danger. Where grounds for divorce

are few, for instance, courts have interpreted laws allowing

divorce because of inhuman treatment that “endangers the

life” to require only the slightest possibility of actual loss of

life. Thus action that endangers health has been held to

endanger life on the theory that the former cannot be en-

dangered without threatening the latter. See Cole v. Cole, 23

Iowa 433, 438 (1867); Beebe v. Beebe, 10 Iowa 133, 139

(1859). In one of the latest of these cases, mistreatment

that deprived a spouse of needed rest and peace of mind was

held to “endanger” life. Smith v. Smith, 258 Iowa 557, .

138 N.W.2d 453, 456 (1966). We need not decide here how

remote the possibility of actual harm could be under the

“will endanger” standard since we accept the Administrator’s

determination in this case that a “significant” risk to health

falls within the statutory language. See pages 31-36 infra.

*s Petitioner Ethyl suggests that while these may indeed be

examples of endangerment they differ from the threat from

automotive lead emissions in that

plagues do cause death and illness; violent storms do

cause damage—known facts that may be experienced by

the threatened community.

Ethyl Supp. Br. at 11 (footnote omitted). We may prelimi-

narily observe that the absorption of lead does cause lead

poisoning, a known fact that may be evaluated by the public

nmi cers Lire AA Eset

ute allowing for regulation in the face of danger is, nec-

essarily, a precautionary statute. Regulatory action may

be taken before the threatened harm occurs; indeed, the

very existence of such precautionary legislation would

seem to demand that regulatory action precede, and,

optimally, prevent, the perceived threat. As should be

apparent, the “will endanger” language of Section 211

(ec) (1) (A) makes it such a precautionary statute.

The Administrator read it as such, interpreting “will

endanger” to mean “presents a significant risk of harm.”

38 FED. REG. 33734. We agree with the Administrator’s

interpretation. This conclusion is reached not only by

reference to the plain meaning of the statute, but by

juxtaposition of Section 211(c)(1)(A) with other sec-

tions of the Clean Air Act and by analysis of pertinent

precedent.**

and the EPA. However, in so far as Ethy] is complaining

that the mechanism by which plagues and storms cause

damage is well known while the question of the relation be-

tween lead automobile emissions and the absorption of lead

is less certain, Ethyl’s observation only supports the reading

of §211(c) (1) (A) as a precautionary statute. The massive

diffusion of airborne lead is a gross environmental modi-

fication never before experienced. Of course, there are no

past disasters of the kind anticipated by the Administrator

on which the community’s experience may be based. This,

however, is inherent in such a threat and does not imply that

no danger is posed by it. We believe the precautionary lan-

guage of the Act indicates quite plainly Congress’ intent that

regulation should precede any threatened, albeit unprecedent-

ed, disaster. Ethyl is correct that we have not had the oppor-

tunity to learn from the consequences of an environmental

overdose of lead emissions; Congress, however, sought to

spare us that communal experience by enacting § 211(c)

(1) (A).

** Since Congress seemed to assume that the meaning of

the threshold determination required by § 211(c) (1) (A)

would be self-evident, there is a complete absence of

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YT EIT GE NS IIRL TY gr adr

SPR rey ae reg re

yea e OAT nny:

Petitioners support their view of the rigorous nature

of the “will endanger” standard by relying on two other

sections of the Clean Air Act that also allow for regula-

tion of air pollutants for health reasons. Ethyl Supp.

Br. at 18-23; supplemental brief of petitioner Nalco

Chemical Company (hereinafter Nalco Supp. Br.) at

20-25; NPRA Supp. Br. at 31-46. However, we find in the

Same sections relied upon by petitioners firm support for

our view of the precautionary nature of Section 211(c¢)

(1) (A). The provisions identified by petitioners are Sec-

tions 108 and 202 of the Act. Section 108 directs the Ad-

ministrator to list, for the purpose of establishing national

primary and secondary ambient air quality standards

pursuant to Section 109, each air pollutant “which in

his judgment has an adverse effect on public health or

welfare * * *.” Section 108(¢) (1) (A), 42 U.S.C. § 1857

e-3(a)(1)(A). Section 202 authorizes the Administrator

to set standards for each automobile emission “which

in his judgment causes or contributes to, or is likely to

cause or contribute to, air pollution which endangers

the public health or welfare.” Section 202(a) (1), 42

U.S.C. § 1857f-1(a) (1).

Petitioners suggest that the threshold decision to reg-

ulate under both Section 108 and Section 202 can be

based on less evidence than required under Section 211

and that, therefore, the proof necessary for action under

Section 211 must be particularly firm. Petitioners mis-

read both sections. Section 108 requires an actual “ad-

verse effect” on health before an air pollutant may be

listed for regulation; actual harm must result.*? This

helpful legislative history. What little there is of relevance

is discussed at pages 38-43 in fra. See also note 89 infra.

*° Should there be any doubt about this conclusion, it is

quickly resolved by reference to § 109. There Congress

BLEED THROU

firm threshold finding is reasonable in light of the con-

siderable disruption caused by action under Sections 108-

110. After a pollutant is listed under Section 108, the

Administrator must issue national ambient air quality

standards under Section 109 within a year. Promulga-

tion of standards begins the implementation plan process

of Section 110 under which the states must control, on

a mandatory timetable, the listed pollutants to the ex-

tent necessary to achieve the federal standards. Sec-

tion 110, 42 U.S.C. § 1857-5. Sections 108-110 are

“technology forcing” provisions; the attainment of the

primary, health-based standards takes precedence over

the cost and present technological feasibility of achieving

the requisite control. Union Electric Co. v. EPA, 515

F.2d 206, 215-16 (8th Cir.), cert. granted, —— USS.

» 44 US. L. WEEK 3200 (Oct. 6, 1975). Cf. Train

v. Natural Resources Defense Council, 421 U.S. 60, 90-

91 (1975). See also S. Rep. No. 91-1196, 91st Cong.,

2d Sess. 1-3 (1970).

Thus, before ordering this extensive chain of action

to begin, Congress demanded a threshold determination

that the pollutant causes actual harm.” In this sense

made it quite clear how it would refer to anything other than

actual harm. Section 109(b) (2) provides that national second-

ary ambient air quality standards for pollutants listed under

§ 108 be prescribed with a margin of safety; they should

be sufficient to protect against “any known or anticipated

adverse effects associated with the presence of such air

pollutant in the ambient air.” 42 U.S.C. § 1857c-4 (b) (2)

(emphasis added). When Congress uses the phrase in § 108

without the modifier “known or anticipated” it plainly

embraces only the usual meaning of adverse effects, i.e., known

adverse effects or actual harm.

*t The Administrator appears to have a measure of discre-

tion in determining whether to list a pollutant under § 108,

which, by its terms, speaks of the exercise of his “judg-

ment.” See 38 FED. REG. 33740 ( 1973). Amicus Natural Re-

sources Defense Council (NRDC) has argued that listing of

POOR COPY

Section 108 is not a precautionary statute at all, and so

differs sharply from Section 211. However, the effects

of such after-the-fact regulation are somewhat amelio-

rated by the Act; Congress did provide a precautionary

element in standard-setting under Sections 108-110. Sec-

tion 109 expressly requires that the ambient air stand-

ards ultimately issued provide for “an adequate margin

of safety.” 42 U.S.C. § 1857c-4(b) (1). Thus, while the

threshold decision to regulate under Sections 108-110

is not precautionary but rather requires proof of demon-

strable harm caused by the Suspect pollutant, once the

decision is made the standards promulgated must be

preventive in nature. Congress’ choice of this scheme

is in direct contrast to the procedures it established

under Section 211. Under that section the decision to

regulate is based on perceived danger. Unless we are

; to assume Congress chose its language carelessly, regula-

tion in the face of “danger” rather than in the face of

“adverse effects’ must mean that the threshold decision

to regulate under Section 211 is precautionary.** The

contrast between the standards of Sections 108-110 and

of Section 211 supports our view of the precautionary

nature of the “will endanger” standard.”*

ei ical chi:

air pollutants under § 108 is mandatory. Its petition for

review of these regulations raising that issue was dis-

missed by the division for want of jurisdiction, Natural Re-

sources Defense Council, Inc. v. EPA, No. 74-1023 (D.C. Cir.

September 11, 1974), and NRDC has since brought a success-

ful citizen’s suit under § 304 of the Act, 42 U.S.C. § 1857h-2, to

compel issuance of national ambient air standards for lead.

Natural Resources Defense Council, Inc. Vv. Train, No. 74-

Civ-4617 (S.D.N.Y. decided March 1, 1976).

** Thus we must reject amicus NRDC’s suggestion that the

standards for action under §§ 108 and 211 are the same.

RAS WRG ind da Mat Sand SS 3h OR ia tea

NE ORES IND TONG eee Lela

*® Petitioners’ arguments that the threshold determination

under the “adverse effect” standard is less rigorous than un-

der the “will endanger” standard are either spurious or mis-

Pe a ae ts tile

pene EES LI HN

BLEED THROLI

Petitioners also rely on Section 202 to support their

strict reading of Section 211. Ethyl suggests that Section

202 is more lenient than Section 211 in that it allows

regulation of “likely” dangers. Ethyl Supp. Br. at 18-19.

See also Naleo Supp. Br. at 20-21 ; NPRA Supp. Br.

directed. Nalco Chemical Company (Nalco) and Ethyl argue

that the presence of the phrase “in his judgment” in § 108,

and its absence in § 211, means the Administrator has greater

discretionary power under the former section. Ethyl Supp. Br.

at 21; Nalco Supp. Br. at 22. As we shall explain below, see

note 37 infra, the Administrator retains the same (if not

greater, see note 21 supra) discretionary power under § 211.

Nalco points to the “margin of safety” language of § 109

as proof of a “lower standard” under § 108, Nalco Supp. Br.

at 22, without recognizing that the margin of safety refers

only to the implementing requirement of formulating stand-

ards and not to the threshold decision to regulate. NPRA

likewise confuses this point by suggesting that the listing re-

quirement of § 108 is like the reporting requirements of

§ 211(a), so that the “margin of safety” language is com-

parable to § 211 (c) (1) (A), only more generous. NPRA Supp.

Br. at 42-43. This ignores the fact that once a pollutant is

listed under § 108 the decision to regulate is made; standards

under § 109 must follow. On the other hand, additives re-

ported under § 211(a) are not necessarily regulated; regula-

tions are premised only on a § 211(c) (1) (A) finding of en-

dangerment. Thus, as suggested in the text, the threshold

determination under §108 is properly compared to the

threshold determination under § 211(c) (1) (A).

Ethyl argues that an “adverse effect”? does not have as

severe a connotation as “endangerment.” Ethyl Supp. Br. at

19 n.27. Even if true, however, this argument has nothing

to do with whether the threshold determination to regulate

is, or is not, precautionary. Even if § 108 allowed regu-

lation of less severe effects than does § 211, regulations

could still be premised only on a finding of an actual effect,

while § 211 regulations could still be premised on a pre-

cautionary finding of threatened, albeit more severe, harm.

POOR COPY

at 31-36. Section 202 provides that the Administrator

may regulate

the emission of any air pollutant [from any new

motor vehicle] which in his judgment causes or con-

tributes to, or is likely to cause or contribute to,

air pollution which endangers the public health or

welfare.

42 U.S.C. §1857f-1(a)(1) (emphasis added). While

this language may be unnecessarily opaque, we think a

fair reading disproves petitioners’ suggestion. The itali-

cized language upon which petitioners rely refers not

to the causal relationship between air pollution and

health, but to the relationship between automobile emis-

sions and air pollution. Thus regulation may not be

premised on a threshold determination of likely danger;

rather regulation must be premised on a détermination

of danger, a finding that “air pollution which endangers

the public health” is the end product of the emission to

be regulated. This is essentially the same finding of

endangerment as under Section 211. “Likely” enters

the equation only in determining whether the emitted

air pollutant, which would be regulated, contributes to

the air pollution which is found dangerous. Here the

statute allows for a somewhat attenuated chain of causa-

tion. Regulation may be premised on a determination

that an air pollutant emitted from a new automobile is

likely to contribute to air pollution which endangers the

public health. In establishing this chain of causation

**In essence, petitioners are suggesting § 202 is more

properly read to provide for regulation of any automotive

emission

which in his judgment causes or contributes to, or is

likely to cause or contribute to, gir pollution which causes

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

the endangerment of the public health or welfare.

Quite obviously, this is not what Congress said.

BLEED THRO!

Section 202 is more lenient than Section 211,%* but in

making the threshold determination of danger both sec-

tions are the same:* air pollution must endanger the

public health before regulation is justified.*’

** Section 211 simply skips this chain of causation and re-

quires instead that the emission products of the fuel additive

to be regulated endanger the public health. This omission of

a step does not support petitioners’ “in and of itself” theory,

see pages 56-61 infra, but rather is responsive to the different

intendments of §§ 101 and 211. See note 27 infra. In any

case, it is plain that for regulation under § 211 the emission

products must directly (although not necessarily by them-

selves) endanger the public health; whether they contribute

to air pollution that in turn endangers the public health, as

required by § 202, is irrelevant. Since the Administrator

found that lead emissions directly endanger the public health,

whatever leniency § 202 provides is irrelevant to this case.

Nalco takes issue with the dismissal of this question and

asks sarcastically, “If causation is irrelevant to the regula-

tion of fuel additives, why is EPA concerned about meeting

any standard at all in these regulations.” Nalco Supp. Br.

at 20-21. Nalco is confusing two separate causation issues.

There is undoubtedly a causation issue about whether lead

emissions cause a danger to public health. On the other hand,

however, there is no causation issue about whether lead

emissions contribute to lead air pollution. There is no such

issue, first, because § 211, unlike § 202, does not demand such

a finding and, second, because in any case petitioners could

not, and do not, contest the validity of that assertion. It is

only this issue of causation, to which the “likely” language

of § 202 relates, that EPA argues, and we agree, is irrelevant

to this case. See EPA Supp. Br. at 17-18.

*° Thus while Congress preferred emission regulation un-

der § 202 to fuel content regulation under § 211, see note 14

supra, there is no reason to assume, as NPRA argues, NPRA

Supp. Br. at 31-35, that in situations where § 211 regulation

is proper, the Administrator must find greater potential harm

before acting. Cf. note 23 supra.

**NPRA recognizes that a literal reading of § 202 pro-

duces the result suggested above. Thus it argues that this

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Thus the two sections of the Clean Air Act presented

by petitioners in support of their stringent reading of

the threshold requirement for action under Section 211

turn out, upon analysis, to be of no support at all. Sec-

tion 108 only bolsters our reading of Section 211 as a

precautionary statute while Section 202 includes the

same standard as Section 211 and thus is of no guidance

one way or the other. While petitioners have little more

to offer to prove that the “will endanger” standard

demands proof of actual harm and is not precautionary

in nature, we may turn, in support of our interpretation,

to the relevant case law. While cases interpreting the

result is “meaningless, or at best tautological,” NPRA Supp.

Br. at 32, so that its “likely” danger theory emerges as an

acceptable, although linguistically incorrect, alternative. Jd.

at 33. NPRA argues that the above reading would require

the Administrator to determine whether “the emission

of any air pollutant .. . is likely to cause or to contribute

to, air pollution ....”

Id. at 32 (emphasis in original). Since under this reading,

NPRA argues, the Administrator would always reach a posi-

tive conclusion, this reading must be incorrect. We agree that

this reading is of little value, but we do not think it is the

proper result of our analysis above. Rather, we think that

to regulate under § 202 the Administrator must find that

emission of the air pollutant is likely to cause or contribute

to dangerous air pollution. This addition is important,

for not all air pollutants contribute to dangerous air pollution

and, more importantly, not all dangerous air pollution is

caused by air pollutants that are, themselves, dangerous. Thus

hydrocarbons, whose emission is regulated by § 202, are not

themselves always dangerous, but are properly regulated

because they react in sunlight to form smog, which is danger-

ous. See S. Rep. 89-192, 89th Cong., Ist Sess. 5-6 (1965) ;

EPA Supp. Br. at 18 n.15. Thus, far from stating a tautology,

§ 202 allows for tho regulation of such apparently innocent

pollutants, which indirectly cause dangerous pollution.

BLEED THROII

meaning of “endanger” are few in number,” at least one

recent case is directly on point and fully in accord

with our view.

In Reserve Mining Co. v. EPA, 514 F.2d 492 (8th

Cir. 1975) (en banc), the Eighth Circuit addressed,

among other issues, the meaning of the phrase “endanger-

ing the health or welfare of persons” under Section 1160

of the Federal Water Pollution Control Act of 1970

(FWPCA), 33 U.S.C. § 1160. FWPCA and the Clean

Air Act together constitute the bulk of this nation’s

substantive environmental protection legislation.** As

** See note 17 supra. See also Environmental Defense

Fund, Inc. v. EPA, 150 U.S.App.D.C. 348, 465 F.2d 528

(1972), where in interpreting the more rigorous statutory

language “imminent hazard” which must be found before the

registration for a pesticide may be suspended pending the

conclusion of cancellation proceedings, 7 U.S.C. § 136d (c)

(Supp. II 1972), we concluded, per Judge Leventhal:

It is enough if there is substantial likelihood that seri-

ous harm will be experienced during the year or two

required in any realistic projection of the administrative

process.

Id. at 360, 465 F.2d at 540 (emphasis added).

In another case interpreting the standards for cancellation

of a pesticide under the same statute, we held, per Judge

Wilkey, that a showing of “potentially great dangers from

DDT” sufficed as a basis for cancellation. Environmental De-

fense Fund, Inc. v. EPA (Coahoma), 160 U.S.App.D.C. 123,

128, 489 F.2d 1247, 1252 (1973).

** Cf. Environmental Education Act, 20 U.S.C. § 1531 et

seq.; Environmental Quality Improvement Act of 1970, 42

U.S.C. § 4371 et seq.; National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. § 4321 et seg. While initially the

procedural requirements of NEPA consumed judicial en-

ergies most conspiciously, see, e.g., Natural Resources Defense

Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972);

Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146

U.S.App.D.C. 33, 449 F.2d 1109 (1971), courts are increas-

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such, and because of their contemporaneous enactment,

interpretations of provisions of one Act have frequently

been applied to comparable provisions of the other. See,

e.g., Natural Resources Defense Council, Inc. vy. Train,

166 U.S.App.D.C. 312, 321-322, 510 F.2d 692, 701-702

(1975). Thus Reserve Mining’s interpretation of “en-

dangering” is relevant to the meaning of the term “en-

danger” in the Clean Air Act. Indeed, it is particularly

relevant because in construing the language before it the

provision, comparison with other sections of that Act,

and reference to our division’s dissent, the Eighth

Circuit’s unanimous conclusion fully supports our view

of the “will endanger” standard:

In the context of this environmental legislation, we

believe that Congress used the term “endangering”

in a precautionary or preventive sense, and, there-

fore, evidence of potential harm as well as actual

harm comes within the purview of that term.

Id. at 528.

In sum, based on the plain meaning of the statute, the

juxtaposition of Section 211 with Sections 108 and 202,

and the Reserve Mining precedent, we conclude that the

“will endanger” standard is precautionary in nature and

ingly according substantive weight to the NEPA language.

See Sierra Club vy. Morton, U.S.App.D.C. ,

does not require proof of actual harm before regulation

is appropriate.”

Perhaps because it realized that the above interpreta-

tion was the only possible reading of the statutory

language, petitioner Ethyl addresses this interpretation

and argues that even if actual harm is not required for

action under Section 211(c)(1)(A), the occurrence of

the threatened harm must be “probable” before regula-

tion is justified. Ethyl Supp. Br. 12. While the diction-

ary admittedly settles on “probable” as its measure of

danger,” we believe a more sophisticated case-by-case

analysis is appropriate. See note 17 supra. Danger, the

Administrator recognized, is set not by a fixed probability

of harm, but rather is composed of reciprocal elements

of risk and harm, or probability and severity. Cf.

Carolina Environmental Study Group v. United States,

166 U.S.App.D.C. 416, 419, 510 F.2d 796, 799 ( 1975) ;

Reserve Mining Co. v. EPA, supra, 514 F.2d at 519-520.

That is to say, the public health may properly be found

endangered both by a lesser risk of a greater harm and

by a greater risk of a lesser harm.” Danger depends

* See Green, The Risk-Benefit Calculus in Safety Deter-

minations, 43 Geo. WaSH. L. REV. 791 (1975); Handler, A

Rebuttal: The Need for a Sufficient Scientific Base for Gov-

ernment Regulation, id. at 808. Both authors agree that

government safety determinations should be preventive and

based on assessment of risks. Dr. Handler differs from Pro-

fessor Green in arguing that risks should be quantified be-

fore regulatory decistons are made. Professor Green believes

that quantification is not always necessary or possible, and

that the public health is better served by the making of value

judgments, however inexact.

" See note 17 supra.

“ This proposition must be confined to reasonable limits,

however. In Carolina Environmental Study Group v. United

States, 166 U.S.App.D.C. 416, 510 F.2d 796 (1975), a division

of this court found the possibility of a Class 9 nuclear reactor

ee EMDR Saciahien |

—— Te + Ye

wba REO cel.

en © eed

upon the relation between the risk and harm presented

by each case, and cannot legitimately be pegged to “prob-

able” harm, regardless of whether that harm be great

or small. As the Eighth Circuit found in Reserve Min-

ing, these concepts “necessarily must apply in a de-

termination of whether any relief should be given in

cases of this kind in which proof with certainty is im-

possible.” * 514 F.2d at 520.

disaster, a disaster of ultimate severity and horrible conse-

quences, to be so low that the Atomic Energy Commission’s

minimal consideration of the effects of such a disaster in an

environmental impact statement prepared for a new reactor

was sufficient. Likewise, even the absolute certainty of de

minimis harm might not justify government action. Under

§ 211 the threatened harm must be sufficiently significant

to justify health-based regulation of national impact. Ulti-

mately, of course, whether a particular combination of slight

risk and great harm, or great risk and slight harm, consti-

tutes a danger must depend on the facts of each case.

* Naleo devotes several pages of its brief to arguing that

there is a distinction between “risk” and “danger” that EPA

fails to recognize. Nalco Supp. Br. at 9-11, citing Reserve

Mining Co. v. EPA, supra note 13, and Power Reactor Devrel-

opment Co. Vv. International Union of Electricians, 367 U.S.

396 (1961). To the extent Nalco argues that risk and danger

are not synonymous, Nalco battles with a straw man. EPA

recognizes that a risk to public health is not necessarily a

danger to public health; it only argues that a significant risk

of widespread lead poisoning constitutes such a danger. To

the extent Nalco argues there is no element of risk in danger,

it is plainly wrong, as the cases it cites demonstrate. In sup-

port of its position, Nalco quotes the following language from

Reserve Mining, in which the en banc court compares its

present opinion with the “stay” opinion of a division of the

court, Reserve Mining Co. v. United States, 498 F.2d 1073

(8th Cir. 1974), in which the division stayed the District

Court’s injunction ordering the immediate closing of the Re-

serve Mining plant:

As will be evident from the discussion that follows, we

adhere to our preliminary assessment that the evidence

In Reserve Mining the issue was whether asbestiform

wastes flushed into Lake Superior by the Reserve Min-

ing Company endangered health.“ The polluted lake

is insufficient to support the kind of demonstrable dan-

ger to the public health that would justify the immediate

closing of Reserve’s operations. We now address the

basic question of whether the discharges pose any risk

to the public health, and, if so, whether the risk is one

that is legally cognizable.

514 F.2d at 507. The Eighth Circuit is not drawing a sharp

line between “danger” and “risk,” but is only contrasting

degrees of danger. Nalco fails to note that the “legally cog-

nizable” risk ultimately found was that Reserve’s discharges

were “endangering” the public health within the meaning of

the Federal Water Pollution Control Act. See page 34

infra. Necessarily, “risk” is an element of “danger,” and the

Reserve Mining court explicitly recognized that fact. 514

F.2d at 520.

The Power Reactor case is likewise of no support to Nalco.

There the Supreme Court simply recognized that when regu-

lations juxtaposed, and ordered, findings of “undue risk” and

“endanger,” an “undue risk” was not intended to mean “en-

danger.” The Court did not say that risk was not an element

of danger, only that in the regulations before it an “undue”

risk was not necessarily a sufficient risk to constitute a “dan-

ger.”

“ Reserve Mining involved issues not only under FWPCA,

but under § 407 of the Rivers and Harbors Act of 1899, 33

U.S.C. § 401 ef seq., the federal common law of public nui-

sance, and various Minnesota air and water pollution laws,

Minn. Stat. Ann. § 116.081(1) : id. $ 115.07(1) ; id. § 105.41.

Finding the evidence of danger posed by Reserve Mining’s

waste emissions into the air more compelling than that of

the danger posed by the water emissions (since a correlation

between inhalation, but not ingestion, of asbestos fibers and

cancer could be found), the Eighth Circuit found the con-

tinued air emissions to be in violation of various Minnesota

regulations and ordered Reserve to “promptly take all steps

necessary to comply” with the law. Reserve Mining Co. v.

EPA, supra note 13, 514 F.2d at 538. With respect to the

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waters formed the drinking supply of several surround-

ing communities, while a medical theory, bolstered only

by inconclusive evidence, suggested that ingestion of the

wastes caused cancer. See pages 93-94 infra. Applying

the “endangering the health or welfare of persons” stand-

ard of the FWPCA, the court found the wastes to be a

danger cognizable under the Act. The court did not

find that the danger was probable; rather it found the

wastes to be “potentially harmful,” 514 F.2d at 528, and

potential harm to be embraced by the “endangering”

standard, id. See page 30 supra. The court concluded:

The record shows that Reserve is discharging a

substance into Lake Superior waters which under

an acceptable but unproved medical theory may be

considered as carcinogenic, As previously discussed,

this discharge gives rise to a reasonable medical

concern over the public health. We sustain the dis-

trict court’s determination that Reserve's discharge

into Lake Superior constitutes pollution of waters

“endangering the health or welfare of persons”

within the terms of §§ 1160(c) (5) and (g)(1) of

the Federal Water Pollution Control Act and is

subject to abatement.

514 F.2d at 529 (footnote omitted) (emphasis added).

The court thus allowed regulation of the effluent on only

a “reasonable” or “potential” showing of danger, hardly

the “probable” finding urged by Ethyl as the proper

reading of the “endanger” language in Section 211.

water pollution, as described in the text, the court found the

probabilities of danger to be

low for they do not rest on a history of past health

harm attributable to ingestion but on a medical theory

implicating the ingestion of asbestos fibers as a causa-

tive factor in increasing the rates of gastrointestinal

cancer among asbestos workers.

Id. at 536 (emphasis added). Thus the court only ordered

cessation of dumping within a “reasonable time.” Jd. at 538.

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The reason this relatively slight showing of probability

of risk justified regulation is clear: the harm to be

avoided, cancer, was particularly great. However, be-

cause the risk was somewhat remote, the court did not

order the immediate cessation of asbestiform dumping,

but rather ordered such cessation within “a reasonable

time.” Jd. at 538.

Reserve Mining convincingly demonstrates that the

magnitude of risk sufficient to justify regulation is in-

versely proportional to the harm to be avoided. Cf.

Carolina Environmental Study Group v. United States,

supra. It would be a bizarre exercise in balancing

horrors to determine whether cancer or lead poisoning

is a greater harm to be avoided,** but fortunately such

balancing is unnecessary in this case. Undoubtedly, the

harm caused by lead poisoning is severe; nonetheless,

the Administrator does not rely on a “potential” risk

or a “reasonable medical concern” to justify the regula-

* Petitioners properly point out that, unlike lead, there is

no known safe human exposure level for carcinogens. Nalco

Supp. Br. at 9; Ethy! Supp. Br. at 29. See The Society of the

Plastic Industry, Inc. v. OSHA, 509 F.2d 1301, 1307 (2d Cir.),

cert. denied, 421 U.S. 992 ( 1975) ; Industrial Union Depart-

ment, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d

467 (1974). This does not, however, imply that the harm

caused by lead poisoning is less significant than that caused

by cancer, only that safe human exposure levels to the causes

of the two diseases may differ. This the Administrator recog-

nized. Unlike the actions of the Secretary of Labor in the

above cited cases, he did not order the lead content of gaso-

line reduced to the lowest detectable levels, but rather directed

a phased cutback to what he deemed a safe level.

In any case, however, even if cancer is considered more

serious than lead poisoning, the Administrator acted based on

an assessment that the risk of lead poisoning from automobile

emissions was considerably greater than the cancer risk that

motivated the Reserve Mining court. Thus this greater risk

of an arguably lesser harm still constitutes endangerment.

SR ae E RA ON ELER NEUF Ue

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tions before us. Instead, he finds a “significant” risk

of harm to health. While this finding may be less than

the “probable” standard urged by Ethyl, it is con-

siderably more certain than the risk that justified regu-

lation in Reserve Mining of a comparably “fright-laden”

harm. Cf. Environmental Defense Fund, Inc. v. EPA,

150 U.S.App.D.C. 348, 358, 465 F.2d 528, 538 (1972).

Moreover, like the Reserve Mining court, in the face of

this still less than certain risk the Administrator did not

order the cessation of use of lead additives, but rather

directed a phased step-down to a plateau level. Thus we

conclude that however far the parameters of risk and

harm inherent in the “will endanger” standard might

reach in an appropriate case, they certainly present a

“danger” that can be regulated when the harm to be

avoided is widespread lead poisoning and the risk of that

occurrence is “significant.” “

* This conclusion that a “significant risk of harm” states

a sufficient probability of occurrence to fall within the “will

endanger” standard is bolstered by the fact that Congress

did not employ various modifiers frequently used (in the

Clean Air Act and elsewhere) to mandate more certain en-

dangerment. Thus Congress did not require that the lead

emissions “clearly endanger” the public health, cf. 21 U.S.C.

§ 454(c); id. § 661(c): 50 U.S.C. § 1517, or that the emis-

sions pose an “imminent and substantial endangerment” to

the public health, cf. 33 U.S.C. § 1364 (Supp. 1974); 42

U.S.C. §300i(a); id. § 1851¢-10(b); id. § 1857c-7(c) (1).

See Reserve Mining Co. v. EPA, supra note 13, 514 F.2d at

528. We find these omissions more significant than the use

of the modifier “will,” which Ethyl argues adds “a particular

degree of certainty to the probability that must be shown.”

Ethyl Supp. Br. at 12. To the contrary, “will” only makes

it clear that the standard is one of danger and nothing less,

a conclusion with which we agree.

Whether the evidence relied upon by the Administrator is

sufficient to support his finding of a “significant risk of harm”

is discussed below at pp. 66-97 infra.

RPIEFEnN rwpeo}:

2. The Administrator’s Power to Assess Risks. Pe-

titioners argue that Section 211 requires the Adminis-

trator to make a “threshold factual determination” that

automobile emissions “will endanger” the public health,

Nalco Supp. Br. at 15-20; Ethyl Supp. Br. at 24-26,

and dispute EPA’s claim that the Administrator may

make “an essentially legislative policy judgment, rather

than a factual determination, concerning the relative

risks of underprotection as compared to overprotection.”

Industrial Union Department, AFL-CIO v. Hodgson,

162 U.S.App.D.C. 331, 339, 499 F.2d 467, 475 (1974).

We must reject petitioners’ argument, since the power

to assess risks, without relying solely on facts, flows

inexorably from the nature of the “will danger” stand-

ard. We have already found that Section 211 allows

the Administrator to regulate fuel content when he finds

that emissions cause a significant risk of harm to the

public health. Yet, how can the Administrator deter-

mine that a risk is a significant risk if he cannot

assess risks? And how can he assess risks if he can-

not make policy judgments? Surely reliance on “facts”

as contemplated by petitioners will provide little guid-

ance. However, sole reliance on facts was not demanded

by Congress.*"

** Besides the arguments discussed below, petitioners sup-

port their claim that a “factual” not judgmental decision is

required by pointing to the absence in § 211 of a phrase ex-

pressly allowing the Administrator to use his “judgment,” in

contrast to the presence of such a phrase in $$ 108 and 202.

Nalco Supp. Br. at 21-22; Ethy] Supp. Br. at 21-22. The argu-

ment ignores an important difference between the cited sec-

tions and § 211. Sections 108 and 202 are mandatory in their

terms; under both sections the Administrator “shall” reru-

late if “in his judgment” the pollutants warrant regulation.

Because of the mandatory nature of the provisions, express

prevision for administrative discretion via the “judgment”

phrase is necessary. By contrast, §211 is permissive: the

Administrator “may” regulate if emissions “will endanger”

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AD AS ES Et i Leas Gt i DSS saps

Originally, it is true, it appeared that Congress would

severely restrict the Administrator’s ability to assess

risks and make policy judgments to protect public health.

The bill sent to the floor of the House, and eventually

passed by the House, would have allowed EPA to con-

trol fuels or fuel additives only if the determination that

their emission products would endanger the public health

were established

on the basis of specific findings derived from rele-

vant medical and scientific evidence, including * * *

a finding that it is not otherwise technologically or

economically feasible to achieve the emission stand-

ards established pursuant to section 202 of this Act.

H.R, 17255, 91st Cong., 2d Sess. § 210(g)(1) (1970)

(emphasis added). The specific findings requirement had

more than procedural significance. It limited the scope

of evidence on which the Administrator could proceed,

made alternative action under Section 202 mandatory

if possible, and was widely interpreted in the House, as

the extracts of debate relied upon by petitioners show,

Ethyl Supp. Br. at 24; NPRA Supp. Br. at 30; Nalco

Supp. Br. at 15, as requiring that any EPA action be

the public health. Since discretion is provided in the directive

to the Administrator, the safety valve of a “judgment” phrase

is unnecessary. On the other hand, since we find the exercise

of judgment to be implicit in a determination of “danger,”

there is no need for an express statement of that power and

no reason to ascribe significance to the omission of the phrase.

The irrelevancy of the omission is shown by the Amoco

decision, where the court construed § 211(c) (1) (B), which,

like its sister section at issue here, does not contain the phrase

“in his judgment.” Nonetheless, the court recognized the Ad-

ministrator must, necessarily, have the power to assess risks

and make policy decisions under that section whenever the

determinations called for are judgmental. Amoco Oil Co. V.

EPA, supra note 2, 163 U.S.App.D.C. at 180-181, 501 F.2d

at 740-741, quoted in text at pp. 43-44 infra.

based solely on facts.** See also H.R. Rep. No. 91-1146,

91st Cong., 2d Sess., at 13 (1970).

** Petitioner Nalco argues that if the specific requirement,

and its subsequent deletion, have substantive effect at all,

that effect relates not to the threshold decision to regulate,

but to the subsequent implementing decisions about how to

regulate. Nalco Supp. Br. at 17-20. It is true that a literal

reading of the House version, proposed § 210(g) (1), sug-

gests that specific findings are required in setting “stand-

ards” for fuel additives rather than for the threshold deci-

sion to regulate. Nonetheless, it is doubtful that the language

was intended to exempt the threshold decision to regulate

from the specific findings requirement, and equally doubtful

that a court would ever have so interpreted it. First, as a

practical matter it is questionable whether specific findings

on “standard” setting could be made without a specific find-

ing as to danger. The threshold finding would seem to be a

prerequisite to any subsequent specific findings. Second, the

legislative history makes it clear that the House intended the

specific findings requirement to apply to the threshold regu-

latory decision. In presenting the proposed bill to that cham-

ber Rep. Staggers, chairman of the committee that drafted

the bill, was confronted with questions about the basis on

which the Administrator could regulate fuel additives. Rep.

Staggers responded that the Administrator could regulate

only “[i]f he has the facts, and he has proven this by facts,

that they are a danger and poisonous * * *.” 116 CoNnG. REC.

19229 (1970). To confirm that regulation could proceed only

upon a threshold factual determination of danger, Rep. Stag-

gers then quoted the specific findings provision that Nalco

now argues is inapplicable to this question. Jd. at 19230.

Likewise, Rep. Rogers, a member of Rep. Staggers’ commit-

tee, made clear that the threshold determination—that the

gasoline additive endangers health—must be made on the

basis of facts and findings. Jd. at 19231. These are the only

specific comments on proposed § 210(g)(1), and as they

are made by knowledgeable committee members the legisla-

tive history is clear that specific findings were intended for

the threshold decision to regulate.

This conclusion is bolstered by § 211(c)(1)(B) and its

interpretation by the Amoco court. Section 211(c) (1) (B),

unlike § 211(c) (1) (A), retains the finding requirement and

ee ee ee

But the House bill did not become law. The Senate’s

preference for less restriction of EPA freedom in regu-

lating fuel additives for health reasons*’ was adopted

the requirement is phrased as ambiguously as the specific

findings requirement in the House version of § 211(c) (1)

(A). The Amoco court recognized that a literal reading of

this findings requirement (which it termed “awkwardly

drafted,” Amoco Oil Co. v. EPA, supra note 2, 163 U.S.App.

D.C. at 179, 501 F.2d at 739), would produce an anomalous

result, just as the literal reading now urged by Nalco of the

deleted findings requirement would produce an anomalous

result. “Thus in a literal sense the provision requires ‘find-

ings with respect to’ the actual items of data which the Ad-

ministrator must ‘consider.’” Jd., 163 U.S.App.D.C. at 176,

501 F.2d at 736 (emphasis in original). The court rejected

this literal, nonsensical, reading and instead read the statute

to require a threshold factual finding that regulation was

necessary under § 211(c)(1)(B). Jd., 168 U.S.App.D.C. at

176-178, 501 F.2d at 736-738.

Based on the legislative history of the House proposed

§ 210(g) and the Amoco precedent relating to the parallel

section, it is clear that had the proposed specific findings re-

quirement been enacted into law, it would have been inter-

preted, as suggested in the text, as requiring a specific fac-

tual finding for the threshold decision to regulate, and not

necessarily specific findings for all the subsequent implement-

ing decisions.

*° The original Senate version of the bill provided:

The Secretary may from time to time on the basis of in-

formation obtained under subsection (b) of this section

[which required fuel manufacturers to furnish various

information to the Secretary] or other information avail-

able to him, by regulation control or prohibit the intro-

duction into commerce of any fuel or fuels for use in

vehicle engines if the combustion or evaporation of such

fuel produces emissions which endanger the public

health or welfare * * *,

S. 4358, § 212(c) (1), 91st Cong., 2d Sess. (1970). The Sen-

ate bill drew a distinction between regulation on public health

and public welfare grounds and required that regulation for

the latter reason be preceded by public hearings. Jd. § 212

by the conference committee and ultimately enacted into

law.*® Although the legislative history does not expressly

health-welfare dichotomy the Senate version became § 211

Petitioners argue that the Senate as well as the House con-

templated a factual threshold determination. Nalco Supp.

Br. at 15-16; Ethyl Supp. Br. at 24-26; NPRA Supp. Br. at

30. Their arguments are without merit. While the House

debate contains several references to the need for such a de-

termination, always coupled with discussion of the “specific

findings” requirement, see notes 38 supra and 40 infra, peti-

tioners can point to no express reference in the Senate pro-

ceedings to the need for a factual threshold finding. Instead

they identify discussions of danger and suggest that these

somehow imply that the assessment of danger be factually

based. The implication is nonsensical; the cited discussions

do no more than reiterate the language of the statute, which

does not in terms require a factual finding. See S. Rep. No.

91-1196, 91st Cong., 2d Sess. 117 (1970) (“if the combustion

or evaporation of such fuel produces emissions which en-

danger the public health or welfare’’) ; id. at 33-34 (“emis-

sion that is a direct endangerment to the public health’)

(see notes 25 & 36 supra); 116 CoNG. REC. 32921 (1970)

(statement of Sen. Baker) (“emissions that, in and of them-

selves, endanger the public health or welfare”) (see page 58

infra). When compared with the explicit House discussion

of the need for a factual finding, these statements only show

that the Senate intended no such thing. Ethy] also cites this

excerpt from the Senate Report:

“The [Administrator] may prohibit the use of any fuel

in commerce which may provide emissions that, he finds,

would endanger the public health.” Sen. Rep. No. 91-

1196, 91st Cong., 2d Sess. 64 (1970).

Ethyl Supp. Br. at 25 (emphasis in original). Since the Senate

bill explicitly deleted the finding requirement for action un-

der § 211(c) (1) (A), this language can hardly be taken as

supporting its sub silentio inclusion. If anything, the lan-

guage, which uses “finds” in its colloquial, not legal, sense,

only demonstrates the judgmental nature of the Administra-

tor’s decision. See note 37 supra.

* For this reason, statements made in the House about the

bill should be used only with great care in any attempt to

discuss the reasons for the change,’ the contrast in lan-

guage is stark. As Section 211 now reads, the only

“finding” the Administrator is required to make is that

any fuel additive that might replace one that is pro-

hibited does not cause emissions that will pose the same

or greater danger to the public health.*? The substantive

assess legislative intent. House discussion centered on a

significantly more rigorous bill, and statements such as those

offered by petitioners from the House debate prove only the

effect of the ultimate deletion of the “specific findings” re-

quirement. See Ethyl Supp. Br. at 24; Nalco Supp. Br. at

15; NPRA Supp. Br. at 30. Rep. Staggers’ statement, for

instance, directly relates the need for a factual threshold

determination to the “specific findings” requirement. As

such, it is strong support for the conclusion that deletion of

the requirement was intended to do away with such a rigor-

ous threshold requirement. See note 38 supra,

AS Se

* Neither the House managers’ conference report nor the

summary of the conference agreement prepared for the Sen-

ate address directly the effect of the changes here at issue.

See Conference Agreement on the Clean Air Amendments of

1970, H.R. Rep. No. 91-1783, 91st Cong., 2d Sess. 52-53

(1970) ; Summary of the Provisions of Conference Agreement

on the Clean Air Amendments of 1970, 116 CoNG. REC. 42384,

42385-42386 (1970). The most relevant discussion, which is

only oblique, is in the Senate conference report, where the

need for flexibility in applying § 211 is made clear:

[T]he conference committee wishes to call the attention

of the Administrator to the broad environmental, esthe-

tic and health considerations underlying the enactment

of this legislation which should be kept in mind in mak-

ing these determinations [to control or prohibit a fuel

or fuel additive].

116 CONG. REC. 42386 (1970). See Amoco Oil Co. v. EPA,

supra note 2, 163 U.S.App.D.C. at 173-174, 501 F.2d at 733-

734. In the absence of legislative history discussing the

change, we must rely on the language of the present law and

its contrast to the rejected House version.

** Section 211(c) (2) (C), 42 U.S.C. § 1857f-6c (c) (2) (C),

quoted in text at p. 64 infra.

Nove Se NS A Pi CIN BET REE RS he WOE. SAR MEERA ode ein ca

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impact of the change is clear. All of the requirements

for specific findings quoted above are replaced by re-

quirements that the Administrator “consider” the speci-

fied evidence. The mandatory deference to Section 202

is removed.** And the Administrator may act based on

all information available to him.** As we recognized in

Amoco, construing a similar change in parallel Section

211(c) (1) (B), the conference committee’s decision “was

a deliberated one and was meant to have significance.”

Amoco Oil Co. v. EPA, supra, 163 U.S.App.D.C. at 173,

501 F.2d at 733.

In this case the decision has even more significance

than it did in Amoco, for under Section 211(c) (1) (B),

at issue in Amoco, the Administrator was still required

to make “findings.” All the conferees dropped was the

adjective “specific.” For regulation under Section 211

(c)(1)(A), at issue here, however, the entire require-

ment was dropped, and no greater restriction was placed

on the Administrator than that required by the “basis

and purpose” statement of Section 4(b) of the APA, 5

U.S.C. §553(c). We interpreted the meaning of the

limited findings requirement for acting under Section

211(c) (1) (B) in Amoco:

[W]e read Section 211(c)(2)(B) as incorporating

the commonsense approach which the courts have

*3 See note 14 supra.

**The House bill required the Administrator to act only

on the basis of the required specific findings. The Senate and

final bill allows him to act on the basis of information ob-

tained under § 211(b), which requires fuel and fuel additive

manufacturers to furnish the Administrator with information

about their products’ content and, at his request, to conduct

various tests on the compounds and furnish him with descrip-

tions of testing techniques. The Administrator is also free

to act on the basis of any “other information available to

him,” § 211(c) (1) (emphasis added), thus making the basis

for action under § 211(c) (1) (A) unlimited.

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we oe ia ae. yo

tee reel eet Ne ane ad

developed in applying Section 4(b)'**! of the APA.

Where EPA’s regulations turn crucially on factual

issues, we will demand sufficient attention to these

in the statement to allow the fundamental ration-

ality of the regulations to be ascertained. Where,

by contrast, the regulations turn on choices of pol-

icy, On an assessment of risks, or on predictions

dealing with matters on the frontiers of scientific

knowledge, we will demand adequate reasons and

explanations, but not “findings” of the sort familiar

from the world of adjudication.

Amoco Oil Co. v. EPA, supra, 163 U.S.App.D.C. at 180-

181, 501 F.2d at 740-741 (emphasis added). Thus the

Amoco court read the limited findings necessary for ac-

tion under Section 211(c)(1)(B) as a flexible require-

ment that demanded actual findings for questions of fact

and something less—‘adequate reasons and explanations”

—for questions of policy.

As petitioners correctly point out, the Amoco court

applied this approach by holding that the threshold

determination whether to regulate at all under Section

211(c)(1)(B) was essentially a question of fact, for

which a factual finding must be offered. In su gesting

that such a finding is necessary for action urfder Sec-

tion 211(c)(1)(A) as well, however, petitioners ¢om-

pletely ignore the fact that a finding is required for

action under Section 211(¢)(1)(B) and is not required

under Section 211(¢c)(1)(A). By so glossing over the

language of the statute, petitioners miss a vital differ-

ence between the threshold determinations under Sec-

tions 211(c)(1)(A) and (B). Recall what the Ad-

ministrator must find in order to act under Section 211

“ The opinion refers to § 4(c), but § 4(b), which requires

the agency to “incorporate in the rules adopted a concise

statement of their basis and purpose,” was obviously intended.

See § 4 of the APA, 60 Stat. 239 (1946), 5 U.S.C. § 553.

taeiiieiaitgisaliie an

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(c)(1)'B): that the emission products of the fuel or

additive to be regulated

will impair to a significant degree the performance

of any emission control device or system which is

in general use, or which the Administrator finds

has been developed to a point where in a reasonable

time it would be in general use were such regula-

tion to be promulgated.

42 U.S.C. § 1857f-6e(c) (1)(B). At its core, this is a

peculiarly factual finding. Will the emission impair

the performance of a control device? Is the device

in general use, or has it the potential to be? These

were the questions, highly suitable to factual proof, that

the Amoco court construed. Contrary to petitioners’

implication, the court did not hold that any threshold

determination to regulate must be based on factual

proof, but that this threshold determination must be

factually based. The Section 211(c)(1)(A) threshold

determination, however, is inherently unlike that of its

sister section. “Endanger,” as we have suggested above,

is not a standard prone to factual proof alone. Danger

is a risk, and so must be decided by assessment of risks

as well as by proof of facts.

Thus a reason emerges for the deletion of the findings

requirement for action under the “will endanger” stand-

ard. The Amoco court held the findings requirement of

Section 211‘¢)(1)(B) no more than reiterated the mini-

mal demands of the basis and purpose statement of the

APA. Amoco Oil Co. v. EPA, supra, 163 U.S.App.D.C.

at 179, 501 F.2d at 739. What Congress was doing,

then, was using the findings requirement to indicate

which section demanded a factual threshold determina-

tion and which section did not. While inclusion of the

phrase was unnecessary in that the APA would have

demanded a factual threshold determination under Sec-

tion 211(¢c)(1)(B) in any case, the selective use of the

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findings requirement served to emphasize to the Ad-

ministrator the demands of the APA and the intent of

the Congress. While Congress did not discuss the extent

of the Administrator’s power under the “will endanger”

standard, its actions—the statute it enacted and the one

it rejected—make the legislative intent clear. We find

that deletion of the findings requirement for action

under Section 211(c) (1) (A) was a recognition by Con-

gress that a determination of endangerment to public

health is necessarily a question of policy that is to be

based on an assessment of risks and that should not be

bound by either the procedural or the substantive rigor

proper for questions of fact.

This conclusion follows not only from the language

of Section 211(c)(1)(A) and its legislative history,

but from the nature of the Administrator’s charge:

to protect the public from danger. Regulators such as

the Administrator must be accorded flexibility, a flexi-

bility that recognizes the special judicial interest in

favor of protection of the health and welfare of people,

even in areas where certainty does not exist. Environ-

mental Defense Fund, Inc. v. Ruckelshaus, 142 US.

App.D.C. 74, 88, 439 F.2d 584, 598 (1971).

Questions involving the environment are particularly

prone to uncertainty. Technological man has altered

his world in ways never before experienced or antici-

pated. The health effects of such alterations are often

unknown, sometimes unknowable. While a concerned

Congress has passed legislation providing for protection

of the public health against gross environmental modifi-

cations,“ the regulators entrusted with the enforcement

“Clean Air Act, 42 U.S.C. § 1857 et seq.; Federal Water

Pollution Control Act, 33 U.S.C. § 1151 et seq.; Federal In-

secticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 135

et seq.

BLEED THROUGH

of such laws have not thereby been endowed with a

prescience that removes all doubt from their decision-

making. Rather, speculation, conflicts in evidence, and

theoretical extrapolation typify their every action. How

else can they act, given a mandate to protect the public

health but only a slight or nonexistent data base upon

which to draw? Never before have massive quantities

of asbestiform tailings been spewed into the water we

drink. Never before have our industrial workers been

occupationally exposed to vinyl chloride * or to asbestos

dust.** Never before has the food we eat been permeated

with DDT * or the pesticides aldrin and dieldrin.’ And

never before have hundreds of thousands of tons of

lead emissions been disgorged annually into the air we

breathe. Sometimes, of course, relatively certain proof

of danger or harm from such modifications can be

readily found. But, more commonly, “reasonable medi-

cal concerns” and theory long precede certainty. Yet the

statutes—and common sense—demand regulatory action

to prevent harm, even if the regulator is less than

certain that harm is otherwise inevitable.

Undoubtedly, certainty is the scientific ideal—to the

extent that even science can be certain of its truth.”

But certainty in the complexities of environmental medi-

cine may be achievable only after the fact, when scientists

*“* Reserve Mining Co. Vv. EPA, supra note 13.

“ The Society of the Plastics Industry, Inc. v. OSHA, su-

pra note 35.

* Industrial Union Department, AFL-CIO v. Hodgson,

supra note 35.

* Environmental Defense Fund, Inc. v. EPA (Coahoma),

supra note 28.

“ Environmental Defense Fund, Inc. v. EPA (Shell), 167

U.S.App.D.C. 71, 510 F.2d 1292 (1975).

= Even scientific “facts” are not certain, but only theories

with high probabilities of validity. Scientists typically speak

not of certainty, but of probability; they are trained to act

2 ORD EN MER Ey * (OPE AR 0 1 gen Har ae

Fee Pe GP Sy eT

a Batak ois aly

have the opportunity for leisurely and isolated scrutiny

of an entire mechanism. Awaiting certainty will often

allow for only reactive, not preventive, regulation.” Pe-

titioners suggest that anything less than certainty, that

any speculation, is irresponsible. But when statutes seek

to avoid environmental catastrophe, can preventive, albeit

uncertain, decisions legitimately be so labeled?

The problems faced by EPA in deciding whether lead

automotive emissions pose a threat to the public health

on probabilities that statistically constitute “certainties.” See

generally T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLU-

TIONS. While awaiting such statistical certainty may consti-

tute the typical mode of scientific behavior, its appropriate-

ness is questionable in environmental medicine, where regu-

lators seek to prevent harm that often cannot be labeled “cer-

tain” until after it occurs. See note 58 infra.

The uncertainty of scientific fact parallels the uncertainty

of all fact. Ina metaphysical sense, at least, facts are them-

selves nothing more than risks, or statistical probabilities.

See D. HUME, A TREATISE OF HUMAN NATURE, bk. I, pt. III,

§ 6, at 87 (L.A. Selby-Bigge ed. 1958).

** Thus this court, per Judge Wilkey, affirmed EPA’s gen-

eral ban on the use of DDT even though the evidence was

considerably less than certain:

[T]here is a great mass of often inconsistent evidence

which was developed at the hearing; this evidence is

substantial enough to support the conclusions of the Ad-

ministrator, although it possibly might support contrary

conclusions as well. Considering the evidence as a whole,

we cannot say that the Administrator’s decision was not

based on substantial evidence, even if the hazardous

nature of DDT has not been proved beyond a reasonable

doubt. Sufficient evidence has been adduced to show

potentially great dangers from DDT, and the Adminis-

trator’s decision to cancel the DDT registration is well

within his statutory authority.

Environmental Defense Fund, Inc. v. EPA (Coahoma), su-

pra note 28, 160 U.S.App.D.C. at 128, 489 F.2d at 1252 (em-

phasis added).

TAL ee LGR CO PRO ROBT = aot

highlight the limitations of awaiting certainty. First,

lead concentrations are, even to date, essentially low-

level, so that the feared adverse effects would not ma-

terialize until after a lifetime of exposure. Contrary

to petitioners’ suggestion, however, we have not yet suf-

fered a lifetime of exposure to lead emissions. At best,

emissions at present levels have been with us for no

more than 15-20 years.** Second, lead exposure from

the ambient air is pervasive, so that valid control groups

cannot be found against which the effects of lead on

our population can be measured. Third, the sources

of human exposure to lead are multiple, so that it is

difficult to isolate the effect of automobile emissions.

Lastly, significant exposure to lead is toxic, so that con-

siderations of decency and morality limit the flexibility

of experiments on humans that would otherwise accele-

rate lead exposure from years to months, and measure

those results. Cf. Environmental Defense Fund, Ine.

v. EPA (Shell), 167 U.S.App.D.C. 71, 78, 510 F.2d 1292,

1299 (1975).

The scientific techniques for attempting to overcome

these limitations are several: toxicology can study the

distribution and effect of lead in animals; epidemiological

techniques can analyze the effects of lead emissions on

entire populations; clinical studies can reproduce in

** According to the NAS Panel, present air lead concentra-

tions, which over the largest American cities are 2,000 times

greater than air lead concentrations over the mid-Pacific

Ocean, have existed for 15 years. NAS Report at 205, JA 356.

The Panel attributed these high concentrations primarily to

automotive emissions. /d.

*° It is for these reasons that, although lead additives have

been used for over 50 years, the danger posed by lead emis-

sions is still a question “on the frontiers of scientific knowl-

edge.” Industrial Union Department, AFL-CIO v. Hodgson,

supra note 49, 162 U.S.App.D.C. at 338, 499 F.2d at 474.

See note 97 infra.

Re eat dae ie eee ene ee |

laboratories atmospheric conditions and measure under

controlled circumstances the effects on humans. All of

these studies are of limited usefulness, however. Dr.

J. H. Knelson, Director of EPA’s Human Studies Lab-

oratory, has described, in the context of setting ambient

air standards, the limitations of these various investiga-

tive tools:

Each of these investigative approaches—classic

toxicology, epidemiology, and clinical research has

its advantages and disadvantages. The toxicologist

can control the dose and use invasive or destructive

techniques in measuring response in the animal, but

is always faced with the problem of extrapolating

results to humans. Epidemiology is most relevant

because it studies phenomena actually occurring in

humans under “natural” conditions, but can only

draw inference from observed correlations rather

than prove cause and effect relationships. Clinical

research can provide the most accurate dose-

response relationships in the species of interest.

Precisely because the study subjects are humans,

however, many experimental design problems are

encountered in assuring their safety. Although the

dose of an atmospheric pollutant can be carefully

controlled and measured in the clinical laboratory,

qualitative comparability to the multiplex variable

of atmospheric pollution cannot always be assured.

The best scientific criteria for establishing air

quality standards result from interactions between

these disciplines. Clinical studies must be preceded

by exhaustive toxicological assessment in other

species; observations from population studies should

play an important role in the experimental design

of clinical

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