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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 941

## Text

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
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

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y IN THE
Supreme Court of the United States
Ocroper Term, 1975
Kruyn Corporation, Petitioner
v,
NVIRONMENTAL PROTECTION Agency, Respondent
t PPG Ixpusrnirs, Ine. Petitioner
v.
NVIRONMENTAL Proreerion AGENcy, Respondent
KH. 1. DePoxr pe Nemours axp Company, Petitioner
’,
NVIRONMENTAL Proreerion Acency, Respondent
Nanco CHemMicaL Com PANY, Petitioner
v,
ENVIRONMENTAL Prorection AGENcy, Respondent
Nationa Perrouecm Rerixers Association, Petitioner
Y.
NVIRONMENTAL PRrorge rion AGENCY, Respondent
JOINT APPENDIX TO
PETITIONS FOR WRIT OF CERTIORARI
Press or Byron S. ADAMS Printinc, INc., WASHINGTON, D .
i

—

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

V.

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

a%

Oa ee ae Le eens

2
No. 73-2270
NALCO CHEMICAL COMPANY, PETITIONER
V.

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

3

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.

4
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v
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-
THAL.

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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.

7

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.

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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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9

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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11

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.

13

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

15

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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16

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]

serge monetilitinn

om EOL ORO ET ae LOA PRI ENN OL | Pe —_
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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

18

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
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19

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. |

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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

21

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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22

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

23

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

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24

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

*

g
:
pene EES LI HN

BLEED THROLI

25

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.

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26

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!

27

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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28

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.

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29

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. ,

31

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

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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

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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.

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36

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}:

37

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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38

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.

39

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

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40

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
(c) (2). With minor verbal changes and deletion of the

41

by the conference committee and ultimately enacted into
law.*® Although the legislative history does not expressly

health-welfare dichotomy the Senate version became § 211
(c) (1).

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

42

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.

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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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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.

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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

a

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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.

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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

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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).

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49

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.

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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 research. Biomedical data from all these
sources, taken in their entirety, should be used for
the prudent definition of air pollution control needs.

JA 582-583. The best biomedical evidence will be de-
rived from relating all three research approaches. This
EPA did. That petitioners, and their scientists, find a

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basis to disagree is hardly surprising, since the results
are still uncertain, and will be for some time. But if
the statute accords the regulator flexibility to assess risks
and make essentially legislative policy judgments, as we
believe it does, preventive regulation based on conflict-
ing and inconclusive evidence may be sustained. Recent
cases have recognized this flexibility in similar situations.

In Industrial Union Department, AFL-CIO v. Hodg-
son, supra, this court considered the Secretary of Labor’s
delegated power under the Occupational Safety and
Health Act (OSHA), 29 U.S.C. § 651 et seq., to protect
the health of industrial workers by setting standards
for exposure to industrial pollutants. Under review was
a standard for exposure to asbestos dust, thought to be
carcinogenic. Judge McGowan, writing for the division,
laid down the rule:

From extensive and often conflicting evidence, the
Secretary in this case made numerous factual de-
terminations. With respect to some of those ques-
tions, the evidence was such that the task consisted
primarily of evaluating the data and drawing con-
clusions from it. The court can review that data in
the record and determine whether it reflects sub-
Stantial support for the Secretary’s findings. But
some of the questions involved in the promulgation
of these standards are on the frontiers 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 analy-
sis."*

** Where existing methodology or research in a new era
of regulations is deficient, the agency necessarily enjoys
broad discretion to attempt to formulate a solution to
the best of its ability on the basis of available informa-
tion, Permian Basin Area Rate Cases, 390 U.S. 747, 811,
88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).

162 U.S.App.D.C. at 338, 499 F.2d at 474.

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This rule was likewise applied in The Society of the
Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d
Cir.), cert. denied, 421 U.S. 992 (1975), where the
Second Circuit reviewed regulations limiting industrial
exposure to vinyl chloride, also considered a carcinogen:

As in Industrial Union Department, AFL-CIO vy.
Hodgson, supra, the ultimate facts here in dispute
are “on the frontiers of scientific knowledge,” and,
though the factual finger points, it does not con-
clude. Under the command of OSHA, it remains
the duty of the Secretary to act to protect the work-
ingman, and to act even in circumstances where
existing methodology or research is deficient. The
Secretary, in extrapolating the MCA study’s finding
from mouse to man, has chosen to reduce the per-
missible level to the lowest detectable one. We find
no error in this respect.

Id. at 1308. And in Reserve Mining the Eighth Cir-
cuit agreed. Although reviewing the determination of a
District Court, not an expert Administrator, the court
recognized that it must nonetheless apply the test of the
preventive statute before it:

[W]e note that many of the issues in this case do
not involve “historical” facts subject to the ordinary
means of judicial resolution. Indeed, a number of
the disputes involve conflicting theories and experi-
mental results, about which it would be judicially
presumptuous to offer conclusive findings [quoting
Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 181, 501
F.2d at 741, which relied on Industrial Union]. In
such circumstances, the finder of fact must accept
certain areas of uncertainty, and the findings them-
selves cannot extend further than attempting to as-
sess or characterize the strengths and weaknesses
of the opposing arguments.

514 F.2d at 507 n.20. See also id. at 529.

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53

These cases, recognizing as they do the developing
nature of environmental medicine, fortify our analysis
of the “will endanger” language of Section 211.*° Where
a statute is precautionary in nature,” the evidence dif-

°° Ethyl argues that Industrial Union and Society of the
Plastics Industry are distinguishable from this case in that
under OSHA the Secretary is directed to set standards for in-
dustrial exposure to toxic substances, 29 U.S.C. § 655 (b) (5),
while action under § 211 is discretionary with the Adminis-
trator. Ethyl Supp. Br. at 28-30. Ethyl] has merely identified
the source of the flexibility granted the Secretary, while
failing to set the cited cases apart from this one. Under the
Clean Air Act the Administrator’s flexibility is derived
not from a command to act, but from a precautionary statute
that necessarily includes risk assessment if its preventive
purpose is to be achieved. Since there is reason to accord
flexibility to the regulator under both acts, the cited cases
are good support for the way in which that flexibility is to
be exercised.

Nalco asserts that the cases are distinguishable in that
Industrial Union and Society of the Plastics Industry involve
the manner in which standards are set under OSHA, rather
than the Secretary’s power to set standards at all. Nalco Supp.
Br. at 12. This purported distinction is no more than a
factual difference between the cases. Flexibility is necessary
under OSHA only in the manner of setting standards, since
the command to set standards is clear. Under the Clean Air
Act, on the other hand, flexibility is necessary both in
standard-setting and in deciding whether to regulate. The
teaching of the cases is nonetheless applicable.

Reserve Mining shows the spurious nature of both asserted
distinctions. In that case, as here, there was no command to
regulate, only a statutory term of a precautionary nature—
“endangering”—to justify flexibile decision-making (in Re-
serve Mining by a court rather than by an agency). Like-
wise, that case involved not only the manner of standard-
setting, but the threshold decision to regulate as well. None-
theless, Reserve Mining is fully consistent with Industrial
Union and Society of the Plastics Industry, and all three
cases support our conclusion here.

Or, as with OSHA, mandatory in its command to act.
See note 56 supra.

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ficult to come by, uncertain, or conflicting because it is
on the frontiers of scientific knowledge, the regulations
designed to protect the public health, and the decision
that of an expert administrator, we will not demand
rigorous step-by-step proof of cause and effect. Such
proof may be impossible to obtain if the precautionary
purpose of the statute is to be served. Of course, we
are not suggesting that the Administrator has the power
to act on hunches or wild guesses. Amoco makes it quite
clear that his conclusions must be rationally justified.
Amoco Oil Co. v. EPA, supra, 163 U.S.App.D.C. at 180-
181, 501 F.2d at 740-741. However, we do hold that in
such cases the Administrator may assess risks. He must
take account of available facts, of course, but his in-
quiry does not end there. The Administrator may apply
his expertise to draw conclusions from suspected, but
not completely substantiated, relationships between facts,
from trends among facts, from theoretical projections
from imperfect data, from probative preliminary data
not yet certifiable as “fact,” and the like. We believe
that a conclusion so drawn—a risk assessment—may,
if rational, form the basis for health-related regulations
under the “will endanger” language of Section 211.”

** It bears emphasis that what is herein described as “assess-
ment of risk” is neither unprecedented nor unique to this area
of law. To the contrary, assbssment of risk is a normal part
of judicial and administrative fact-finding. Thus EPA is not
attempting to expand its powers; rather, petitioners seek to
constrict the usual flexibility of the fact-finding process.
Petitioners argue that the Administrator must decide that
lead emissions “will endanger” the public health solely on
“facts,” or, in the words of the division majority, by a “chain
of scientific facts or reasoning leading [the Administrator]
ineluctably to this conclusion * * *,” Division op. at 59. Peti-
tioners demand sole reliance on scientific facts, on evidence
that reputable scientific techniques certify as certain. Typi-
cally, a scientist will not so certify evidence unless the prob-

55

All of this is not to say that Congress left the Ad-
ministrator free to set policy on his own terms. To the
contrary, the policy guidelines are largely set, both in
the statutory term “will endanger” and in the relation-

ability of error, by standard statistical measurement, is less
than 5%. That is, scientific fact is at least 95°% certain.

Such certainty has never characterized the judicial or the
administrative process. It may be that the “beyond a reason-
able doubt” standard of criminal law demands 95% cer-
tainty. Cf. McGill v. United States, 121 U.S.App.D.C. 179,
185 n.6, 348 F.2d 791, 797 n.6 (1965). But the standard of
ordinary civil litigation, a preponderance of the evidence, de-
mands only 51% certainty. A jury may weigh conflicting
evidence and certify as adjudicative (although not scientific)
fact that which it believes is more likely than not.
Since Reserve Mining was adjudicated in court, this standard
applied to the court’s fact-finding. Inherently, such a standard
is flexible; inherently, it allows the fact-finder to assess risks,
to measure probabilities, to make subjective judgments. None-
theless, the ultimate finding will be treated, at law, as fact
and will be affirmed if based on substantial evidence, or, if
made by a judge, not clearly erroneous.

The standard before administrative agencies is no less
flexible. Agencies are not limited to scientific fact, to 95%
certainties. Rather, they have at least the same fact-finding
powers as a jury, particularly when, as here, they are engaged
in rule-making.

Looking to the future, and commanded by Congress to
make policy, a rule-making agency necessarily deals less
with “evidentiary” disputes than with normative con-
flicts, projections from imperfect data, experiments and
simulations, educated predictions, differing assessments
of possible risks, and the like.

Amoco Oil Co. Vv. EPA, supra note 2, 163 U.S.App.D.C. at
175, 501 F.2d at 735. An agency’s finding of fact differs from
that of a jury or trial judge primarily in that it is accorded
more deference by a reviewing court. See note 74 in fra. Thus,
as a matter of administrative law, the Administrator found
as fact that lead emissions “will endanger” the public health.
That in so doing he did not have to rely solely on proved

56

ship of that term to other sections of the Clean Air Act.
These prescriptions direct the Administrator’s actions.
Operating within the prescribed guidelines, he must con-
sider all the information available to him. Some of the
information will be factual, but much of it will be more
speculative—scientific estimates and “guesstimates” of
probable harm, hypotheses based on still-developing data,
ete. Ultimately he must act, in part on “factual issues,”
but largely “on choices of policy, on an assessment of
risks, [and] on predictions dealing with matters on the
frontiers of scientific knowledge * * *.” Amoco Oil Co.
Vv. EPA, supra, 163 U.S.App.D.C. at 181, 501 F.2d at
741. A standard of danger—fear of uncertain or un-
known harm—contemplates no more.

3. Propriety of the Cumulative Impact Approach. In
addition to demanding that the Administrator act solely
on facts, petitioner Ethyl insists that those facts con-
vince him that the emission product of the additive to be
regulated “in and of itself,” i.e., considered in isolation,
I endangers health. The Administrator contends that the
: impact of lead emissions is properly considered together
with all other human exposure to lead. See page 18
supra. We agree.

f

4

4 First, Ethyl points to the language of Section 202
: allowing regulation of any automobile emission that
i “Causes or contributes to, or is likely to cause or con-

rs assertions of the need to rely on “fact”
ontuse tre two terminologies. We must deal with the termi-
holoeY Gr law, not science. At law, unless the administrative
or judi Me ‘ask is peculiarly factual in nature, or Congress
expressly commands a more rigorous finding, see 21 U.S.C.
3 555(d); ef. pages 43-45 supra, assessment of risks as herein
described typifies both the administrative and the judicial
fact-finding function, and is not the novel or unprecedented
theory that petitioners contend.

screntite Jeet is inherent in the requirements of legal fact-
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tribute to, air pollution which endangers the public
health or welfare.” Section 202(a) (1), 42 U.S.C. § 1857
f-1(a)(1) (emphasis Ethyl’s in its brief at 18). This
is contrasted with Section 211’s language allowing regu-
lation of fuels or fuel additives whose “emission prod-
ucts * * * will endanger the public health or welfare.”
By italicizing the “contribute to” language of Section
202 Ethyl presumably suggests that Section 202 is more
lenient, allowing use of the cumulative impact theory
while Section 211 does not. This argument is but a
variant on Ethyl’s already rejected claim that Section
202 allows for regulation of “likely” dangers while Sec-
tion 211 does not. As with the earlier argument, this
reading of Section 202 must be rejected. While it is
possible that Section 202’s inclusion of emissions that
“cause or contribute to air pollution” is more encom-
passing than Section 211’s term “emission products,”
it is clear that whatever leniency Section 202 suggests
only concerns the makeup of air pollution. This is irrele-
vant to the cumulative impact theory. However they
differ, both Section 202 and Section 211 allow regulation
of lead additives only on a determination that the re-
sultant polluted air, however composed, endangers the
public health.” Both provisions leave open the question

°° As far as the cumulative impact theory is concerned, the
relevant portions of the two provisions are as follows:

[The Administrator may regulate any automobile emis-
sion that] 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) (emphasis
added).
(The Administrator may regulate a fuel or fuel additive]
if any emission products of such fuel or fuel additive
will endanger the public health or welfare * * *,
Section 211(c) (1) (A), 42 U.S.C. § 1857f-6c(c) (1) (A) (em-
phasis added).

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whether emissions or air pollution can be found to en-
danger the public health when the endangerment is not
caused by that pollution alone.”

While Ethyl’s comparison suggests no answer, the ques-
tion is directly raised here. The Administrator found
endangerment, but recognized that the national lead
exposure problem is caused, not by air pollution alone,
but by an aggregate of sources, including food, water,
leaded paint, and dust. He believed that regulation was
justified because the aggregate was dangerous, and be-
cause leaded gasoline was a significant source that was
particularly suited to ready reduction. 38 FED. REG.
33734. To the question whether the Administrator was
correct in his belief, comparison with the “contribute
to” language of Section 202 provides no guidance.

The only other evidence relied upon by Ethyl] for its
“in and of itself’ theory is a quotation, taken out of
context, from Senator Baker. When the context of Ethyl’s
partial quotation is revealed the irrelevance of his state-
ment to Ethyl’s theory becomes clear. Senator Baker
reviewed the Committee bill for the Senate:

The |Administrator] is authorized to either control
or prohibit the sale of any given fuel when he finds
one of two things:

First. That the combustion or evaporation of
such fuel produces emissions that, in and of them-
selves, endanger the public health or welfare; or

Second. That such emissions prevent the opera-
tion of a system that is necessary to reduce automo-

‘°° Since automobile emissions generate approximately 90%
of all airborne lead, see note 7 supra and accompanying
text, the danger posed by lead-polluted air is virtually
identical to that posed by lead automobile emissions. As the
text suggests, the non-automotive sources of lead with which
the cumulative impact theory is concerned are not airborne.

BLEED THROUG

JUGH

59

bile emissions to the levels required by standards
issued by the [Administrator] under section 202 of
the act.

116 Conc. Rec. 32920 (1970) (emphasis added). Ethyl
relies on the Senator’s subsequent repetition of the words
“in and of themselves,” italicized above. Ethyl brief at
16. But the second paragraph makes clear that Senator
Baker’s meaning is contrary to Ethyl’s implication. He
is simply emphasizing the different nature of the two
provisions and thus uses the words “in and of them-
selves” to show that under Section 211(c)(1)(A) the
Administrator may act only because of the direct effects
of lead additives on a legislative goal, protection of health,
while under Section 211(¢c)(1)(B) he may act because
of their indirect effects on another goal, implementation
of emission control] systems.”

Beyond these two points, Ethyl has nothing more to
offer in support of its “in and of itself’? reading. Thus
it has made out no case at all, particularly in light of
the realities of human exposure to lead and what Con-
gress knew about those realities. Such consideration dem-
onstrates both that, under Ethyl’s approach, EPA regula-
tion of lead on health grounds would be impossible and
that Congress could not possibly have intended the re-
strictive “by itself’ reading. As has been discussed more
extensively above, see pages 10-12 supra, lead enters the
human body from multiple sources, so that the effect

*1 Ethyl actually quotes Sen. Baker’s second use of the
phrase, a few sentences after t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0190%3A1. Public record. Not legal advice.