Amicus Curiae Brief — E. I. du Pont de Nemours & Co. v. Environmental Protection Agency

455 Capitol Mall, Suite 465,

~Y Sacramento, California 95814,

Telephone: (916) 444-0154,

_ . Gienn E. Davis,

Associate Counsel, Pacific Legal Foundation,

1030 - 15th Street, N.W., Suite 342,

Weshington, D:C. 20005,

Telephone: (202) 465-2686,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

PERNAU- WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO - CA 94105

Subject Index

Page

Motion for leave to file brief of amicus curiae Pacific

Legal Foundation in support of petitions for writ of

certiorari to the United States Court of Appeals for the

District of Cobumibblan Cleeult ... 2.2... ccccccccccccccecs

Brief of amicus curiae Pacifie Legal Foundation in support

of petitions for writ of certiorari to the United States

Court of Appeals for the District of Columbia Cireuit ...

SO EN on cucnwkauct c0eglébhewseuncbabunces

SN aiid bso Wals6bea6eecendbaccteicvbabubaces

Reasons for granting the writ ......................00.

DT Sader wacnukh 0endeuwsdinese 6a%e paeieroke

Legislative policy questions require more rather than

less rigorous scrutiny by the courts ...............

II

The standard of review used in this case conflicts with

the standard set by this court and followed in other

Dt tekvivescdiskuse ukdacaeekard tk son kak aace

EEE ENE So nO Eire Ree Ee aa agi

" ESA Oa ee ee

SEM re ee a itiaal .

ee a ee ee ee

Table of Authorities Cited

Cases Pages

AL.A. Schechter Poultry Corp. v. United States, 295 U.S.

BBB (IDB) .nccccccccescccnccccccccccsccccccesscescs 9

Appalachian Power Co. v. Environmental Pro. Agey., 477

F.2d 495 (4th Cir. 1973) ..........- eee cece e eee eeeee 14

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

GER (IDTR) onc ccccccccccccccccssecesccess 9, 11, 12, 13, 14, 15

Environmental Defense Fund, Inc. v. Ruekelshaus, 439 F.2d

584 (D.C. Cir. 1971) 2.2.2... eee cece ee eee eee rene eens 7,8

Friends of the Earth v. U.S. Environmental Pro. Agey.,

499 F.2d 1118 (2d Cir. 1974) ........ cece eee eee eees 14

International Harvester v. Ruckelshaus, 478 F.2d 615 (D.C.

Che, BIER) on ccc ccc scccccccccccccccccecceccccsoscecs 12

Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) .........- 9

South Terminal Corp. v. Environmental Protection Agey.,

504 F.2d GAG (Ast Cir. 1974) ........cccccceeecnecees 12,13

State of Texas v. Environmental Protection Agency, 499

F.2d 289 (Sth Cir. 1974) .......... 2. eee eee e een eee 12

Union Electrie Co. v. Environmental Pro. Agey., 515 F.2d

206 (8th Cir. 1975) ....... 2. - cece cece eee eee ee eeeee 12

United States v. Rock Royal Co-Op, 307 U.S. 533 (1938) .. 9,10

United States v. Shreveport Grain & Elevator Co., 287 U.S.

et. PPpererrerrrerrerrrrreri titi 9

Rules

Supreme Court Rules:

Dien BOTDD oon vccwcncc ca ctaseetiecsseessncsencccces 6

PE MED incu dckeecsbeddebest<cengeneqenssetenss 2

Statutes

5 USC., § TOG ..... 2c nec cc eee ceccncncccccccccccccecs ll

2 U.S.C., § I857F-6C(e) (1) (A)... 66. eee eee eee eee eee 9

Texts

M. Forkoseh, Administrative Law, 103-104 (1956) ....... 10

. mang:

AR EEE TT

BLEED THROUGH

IN THE

Supreme Court of the United States

OctToBer TERM, 1975

No. 75-1602

E. I. DuPont Dr Nemours & Company and PPG

Inpustries, INc., Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1612

Eruy. Corporation, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1613

Natco CuHemicat Company, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1614

NaTIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC.,

CuarkK Om & Rerisine Corporation, KERR-MCGEE CoRPORATION,

Mowawk PerroieuM CorporaTion, Inc., Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

PACIFIC LEGAL FOUNDATION IN SUPPORT OF

PETITIONS FOR WRIT OF CERTIORARI

to the United States Court of Appeals for

the District of Columbia Circuit

This motion of Pacifie Legal Foundation (PLF)

for leave to file the annexed brief amicus curiae in

Er ie a ee aa

POOR COPY

in ORK NG UEP aa RNP Se Han MN EH

2

support of petitions for writ of certiorari is respect-

fully made pursuant to Rule 42 of the Supreme Court

Rules. Consent to the filing of this brief has been ob-

tained from counsel for all parties with the exception

of the Solicitor General, counsel for respondent En-

vironmental Protection Agency, and such consents

have been lodged with the clerk of this Court.

PLF is a nonprofit, tax-exempt corporation organ-

ized and existing under the laws of California for

the purpose of engaging in litigation in matters af-

fecting the public interest. Policy for PLF is set by

; a Board of Trustees composed of concerned citizens.

Twelve of the seventeen-member Board are attorneys.

The Board evaluates the merits of any contemplated

legal action and authorizes such legal action only

4 where the Foundation’s position has broad support

; within the general community. The Board has au-

5 . . . . . .

thorized the filing of a brief amicus curiae in support

of petitions for writ of certiorari in these cases.

PLF considers these cases to be of special signifi-

cance in that they raise the issue of the proper scope

of review of administrative agency decisions and pro-

cedures. Particularly, the decision of the court of ap-

peals for which review is sought raises the question

: whether legislative policy decisions of an administra-

tive agency are exempt from the rigorous review to

which findings of fact by administrative agencies are

subjected.

As a public interest law foundation, PLF fre-

quently finds itself engaged in litigation with federal

-dministrative agencies, and particularly the Environ-

ee ee re

4

.

ss ig REEL LIRICA ORE I REO hE IF BES neti

3

mental Protection Agency, in matters concerning such

policy decisions. Thus the seope of review of these

decisions is extremely important to PLF.

For this reason, Pacific Legal Foundation requests

that this motion to file the annexed brief amicus

curiae be granted.

Respectfully submitted,

Ronaup A. ZUMBRUN,

JOHN H. FINDLey,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Telephone: (916) 444-0154,

GLENN E. Davis,

Associate Counsel, Pacific Legal Foundation,

1030 - 15th Street, N.W., Suite 342.

Washington, D.C. 20005,

Telephone: (202) 466-2686,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

June, 1976

LER PRTG 5 SIE IS EOE RE IO GF LE BER Ee

THEREBY 7 PACT te TER ASI OUND, ADO MNTIRI, Neretile 8

ae ORES ORY RH, ope

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1602

E. I. DuPont DE Nemours & Company and PPG

INDUSTRIES, INc., Petitioners,

VS.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1612

EtHyL Corporation, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1613

Nauco CHEMICAL Company, Petitioner,

VS.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1614

NATIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC.,

Cxiark O1n & REFINING CORPORATION, KERR-MCGEE CORPORATION,

Mouawk PETROLEUM CorporRATION, INc., Petitioners,

VS.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

BRIEF OF AMICUS CURIAE PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI

to the United States Court of Appeals for

the District of Columbia Circuit

rmaAmpDp CmDY

Z

3

:

¥

7]

;

z

‘

|

3

4

x

=

a

SNR ALAC PRGA

| Ses

f-4

6

INTEREST OF AMICUS

The interest of amicus is set out in the preceding

motion for leave to file this brief.

OPINION BELOW

The opinion en bane of the United States Court of

Appeals for the District of Columbia Circuit of

March 19, 1976, is unofficially reported at 8 ERC

1785.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

In this brief amicus curiae, Pacific Legal Founda-

tion (PLF) proposes to address only the issue of the

scope of review utilized below by the court of ap-

peals. Amicus believes that the concept of scope of

review of administrative decisions there adopted re-

quires review by this Court under the considerations

governing review on certiorari set forth in Supreme

Court Rule 19(b) in that:

1. Such concept is in conflict with the decision of

other courts of appeals on the same matter;

2. Scope of review is an important question of

federal law which has been decided by the court. of

appeals in a way which is in conflict with applicable

decisions of this Court; and

3. The decision of the court of appeals has so far

sanctioned a departure from the accepted and usual

course of proceedings by an administrative agency

DI ocoeren THROILIG

7

as to call for the exercise of this Court’s power of

supervision.

rr

I

LEGISLATIVE POLICY QUESTIONS REQUIRE MORE RATHER

THAN LESS RIGOROUS SCRUTINY BY THE COURTS

The majority below (Maj. Op. at 46) has in this case

adopted a special rule for review of questions believed

by the court to be matters of legislative policy. Thus,

the court found in the applicable statute “a recog-

nition by Congress that a determination of endanger-

ment to public health is necessarily a question of

policy that is to be based on an assessment of risks

and that should not be bouna by either the procedural

or the substantive rigor proper for questions of fact.”

Maj. Op. at 46.

The court noted that the Administrator must be

accorded “a flexibility that recognizes the special ju-

dicial interest in favor of protection of the health and

welfare of people, even in areas where certainty does

not exist. Environmental Defense Fund, Inc. v. Ruck-

elshaus, 439 F.2d 584, 598 (D.C. Cir. 1971).” Maj. Op.

at 46.

This citation is puzzling in that the referenced

case espouses a view diametrically opposed to that

of the opinion at issue. There the court spoke of a

“new era” in judicial review of agency action. Ruck-

elshaus, supra at 597. The court reasoned that since

courts were increasingly asked to review “administra-

tive action that touches on fundamental interests in

life, health and liberty” there was a dire necessity to

DOOR COPY

wate 4 ¢ b cies

eral ihles 1 bak PR al, WAR Les . er ne

FAAS ee

8

protect these interests from “administrative arbitrari-

ness.” To do this, strict judicial scrutiny must be

applied. Id. at 598. That court stated:

“For judicial review alone can correct only the

most egregious abuses. Judicial review must op-

erate to ensure that the administrative process

itself will confine and control the exercise of dis-

cretion. [Footnote omitted.] Courts should re-

quire administrative officers to articulate the

standards and principles that govern their dis-

eretionary decisions in as much detail as pos-

sible. [Footnote omitted.] Rules and regulations

should be freely formulated by administrators,

and revised when necessary. [Footnote omitted. ]

Discretionary decisions should more often be sup-

ported with findings of fact and reasoned opin-

ions. [Footnote omitted.] When administrators

provide a framework for principled decision-

making, the result will be to diminish the im-

portance of judicial review by enhancing the

integrity of the administrative process, and to im-

prove the quality of judicial review in those cases

where judicial review is sought.” Id.

In the instant case, the court disregards this admon-

ition and finds that “if the statute accords the regu-

lator flexibility to assess risks and make essentially

legislative policy judgments, as we believe it does,

preventive regulation based on conflicting and incon-

clusive evidence may be sustained.” Maj. Op. at 51.

The majority found therefore that “[w]here a statute

is precautionary in nature [footnote omitted], the

evidence is difficult to come by, uncertain, or conflict-

ing because it is on the frontiers of scientifie knowl-

BLEED THROUG

9

edge, the regulations designed to protect. the public

health, and the decision that of an expert administra-

tor, we will not demand rigorous step-by-step proof

of cause and effect.” Maj. Op. at 53-54.

This new doctrine is at odds not only with the

mandate of Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971), to engage in a “search-

ing and substantial inquiry.” Jd. at 415. It is also

glaringly inconsistent with this Court’s decisions con-

cerning delegation of legislative policy making func-

tions to administrative agencies.

Legislative policy making is a Congressional func-

tion. Article I, Section 1, of the United States Con-

stitution provides that “[a]// legislative powers herein

granted shall be vested in a Congress of the United

States.” (Emphasis added.) Because of the language

of this section, it has been the traditional rule

in federal law that Congress cannot delegate its law-

making power to any other authority or body. United

States v. Shrevepoit Grain & Elevator Co., 287 U.S.

77 (1932); A.D.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935); Panama Ref. Co. v.

Ryan, 293 U.S. 388 (1935).

The Clean Air Act authorizes the Administrator to

prohibit, control, or regulate a fuel or fuel additive if

“the emission products will endanger the public

health or welfare... .” 42 U.S.C. § 1857F-6C(¢) (1)

(A).

Since United States v. Rock Royal Co-Op, 307

U.S. 533 (1938), the federal rule on delegation of

powers has been that:

POOR COPY

10

“each enactment must be considered to deter-

mine whether it states the purpose which the

Congress seeks to accomplish and the standards

by which that purpose is to be worked out with

sufficient exactness to enable those affected to un-

derstand these limits, .. .” 307 U.S. at 574.

As one authority has restated the rule:

“In other words, the delegator cannot just del-

egate and let the delegatee go off on a legal and

political bender; the delegatee must be curbed,

else his power would be unlimited. This curb is a

requirement of the Constitution, as judicially in-

terpreted in each case, so that every delegation

must contain standards as limitations. These

standards are for the purpose, as Chief Justice

Warren has stated in another connection, of

having the force of law, not the law of force,

apply.” M. Forkosch, Administrative Law, 103-

104 (1956).

It is clear that the decisions of this Court require

| that in any delegation of any legislative power—and

;

certainly in the area of legislative policy making—

the courts must give such delegation the strictest of

scrutiny. Thus, the court of appeals’ ruling that pre-

ventive regulation based on conflicting and inconclu-

sive evidence may he sustained if a statute may be

interpreted as according the regulator flexibility to

assess risks and make essentially legislative policy

judgments (Maj. Op. at 51) without being subjected

to either the procedural or substantive rigor proper

for questions of fact (Maj. Op. at 46) is in conflict

with the applicable decisions of this Court concerning

POR SO OO ene

SS ne aa os ie hat Ni Bl DET ONG EL IG LO I BE TEL ESN ORO ERS

BLEED THROL

11

review of delegated powers and should therefore be

reviewed by this Court.

II

THE STANDARD OF REVIEW USED IN THIS CASE CONFLICTS

WITH THE STANDARD SET BY THIS COURT AND FOL-

LOWED IN OTHER CIRCUITS

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

401 U.S. 402, 415-416 (1971), prescribes the standard

of review under the Administrative Procedure Act.

There this Court noted that 5 U.S.C. § 706 dictates

a “substantial inquiry,” a “thorough, probing, in-

depth review.” The court must first decide whether

the Administrator acted within the scope of his au-

thority. Then the court must go on to determine

whether the choice made was “arbitrary, capricious,

an abuse of discretion or otherwise not in accordance

with law.” To do this the court must “consider

whether the decision was hased on a consideration of

the relevant factors and whether there has been a

clear error of judgment.” The reviewing court is

specifically instructed to make an “inquiry into the

facts.” Id.

While the opinion of the court of appeals accepts

these requirements in theory (Maj. Op. at 69-71), it

does not follow them in practice in holding that the

standard of review is narrower in eases of legislative

policy making than it would be in others. Maj. Op.

at 4.

The concurring opinion of Judges Bazelon and Me-

Gowan, whose votes are necessary to the majority, says

POOR COPY

explicitly what the court seems to accept implicitly.

This opinion is based on the premise that courts

should not inquire into the technical details of admin-

istrative decisions. (Bazelon at 1.) This was not the

approach o* the District of Columbia Cireuit in /xter-

national Harvester v. Ruckelshaus, 478 F.2d 615 (D.C.

Cir. 1973). It has also been explicitly rejected by the

First Circuit in South Terminal Corp. v. Environ-

mental Protection Agcy., 04 F.2d 646 (1st Cir. 1974).

The Eighth Cireuit in Union Electric Co. v. En-

vironmental Pro. Agey., 515 F.2d 206, 214 (8th Cir.

1975), appeal pending, states that the one principle

upon which Clean Air Act cases are in agreement is

that the standard for review of agency decisions is

the arbitrary and capricious standard.

The Fifth Circuit in State of Teras v. Environ-

mental Protection Agency, 499 F.2d 289 (Sth Cir.

1974), appeal pending, heard a state challenge to

the Environmental Protection Agency’s (EPA) re-

jection of its plan. It held the standard of review was

that announced in Overton Park, supra, and went

on to say:

“In applying this standard, our review must be

hased not only upon the ageney’s explanation of

‘its course of inquiry, its analysis and reasoning,’

[citation omitted] but also upon the full record

before the agency [citation omitted]. Only by

our own study of the record can we resolve the

factual disputes hetween the parties, much less

hope to ‘engage in a substantial inquiry’ into

the agency's action.” Id. at 297.

ee ee eS

te Ml <egtet tm ee

In Sovth Terminal Corp., s“pra, the First Cireuit

Court of Appeals reviewed an EPA regional air qual-

ne

@--->- Re? Oey ee oe ee —-

oricrcn TrTHROOLIGH

y

13

ity control plan made in place of a state plan. Again,

the court applied Overton Park standards. The court

emphasized the “clear error of judgment” language

and stressed the need for a “searching and careful”

review to assure it “that the Ageney’s technical

conclusions no less than others are founded on :

supportable data and methodology and meet mini-

mal standards of rationality.” /d. at 655. Emphasis

added.

The court also upheld the arbitrary and capricious

standard for review of the controls selected by EPA,

but said it must bear in mind that Congress has

given EPA, not the courts, the discretion to choose

among alternative strategies. This may be similar to

the type of “policy” decision discussed by the ma-

jority here. But in Sonwth Terminal the court in-

sisted that the technical determination upon which

the policy is based be strictly reviewed and explained.

That court did not accept some of EPA’s technical

determinations in that case, but went on to review

the implementation plan controls. In reviewing a

regulation putting a freeze on new parking spaces, the

court indicated :

“We cannot say that such a freeze is arbitrary

and capricious assrming EPA is able to support

bu credible data its position as to the magnitude

of the need for carbon monoxide emission redue-

tions ... .” Id. at 671. Emphasis added.

rr ar per

The majority in the case at bar appeared reluctant

to question whether there is credible data to support

CDHOR COPY

I LIT IPO cn

14

the decision. While the court cannot substitute its

judgment for that of the Agency, the reviewing court

must require the Agency to demonstrate to the court

that its decision is based on credible data. Overton

Park, supra at 416.

In Appalachian Power Co. v. Environmental Pro.

Agey., 477 F.2d 495 (4th Cir. 1973), petitioners

sought review of EPA approval of a state plan for im-

plementation of federal ambient air quality standards.

The Administrator argued that the scope of review

should be limited solely to questioning whether a state

hearing was held and whether the mathematical de-

termination that the rational standards will be

achieved under the state plans were arbitrary and

capricious. He contended these were the only things

which he considered in his action. The court did not

accept this argument and reasoned that the Admini-

strator had considered much more than these factors

and that it needed to engage in a “substantial inquiry”

into all of his considerations to assure itself that all

relevant factors had been considered by the Agency.

The court therefore demanded the “full record” be-

fore the Administrator when he made his decision. The

emphasis of the “full record” in that ease and others

indicates that the court must examine all the bases for

the agency decisions whether termed technical or

policy.

In Friends of the Earth v. U.S. Environmental

Pro. Agcy., 499 F.2d 1118 (2d Cir. 1974), the Seeond

Cirenit Court of Appeals reviewed FEPA’s approval

of certain aspects of New York’s clean air implemen-

e

|

)

2 ae

15

tation plan. The court was primarily concerned with

whether the Administrator was correct in his factual

determinations. Again that court reiterated the Over-

ton Park standard that an inquiry into the facts

should be “searching and careful.” It indicated that

if the record does not reveal the basis of his determi-

nation, the court can ask the Administrator for a fur-

ther explanation and if the findings are not sustained

by the record the court can vacate the decision. Jd.

at 1123. While this inquiry of the court was limited

to a factual inquiry, it emphasizes that the Admini-

strator must present a full factual basis for his deci-

sion. Again, in this ease the court recognizes that

while it cannot substitute its judgment for that of

the Administrator, it must ask whether or not he had a

hasis for the decision he made.

The “arbitrary and capricious” standard is the one

which other courts of appeals have stressed. All these

eases require a full record indicating all factors con-

sidered and a thorough explanation of why the deci-

sion was made. These courts also stress that all

relevant factors be considered in the decision. This in-

dieates that even if a decision is termed one of “pol-

icy” it must be supported by facts which the court can

review to ascertain if they were properly considered

or determined. While a court cannot substitute its

decision for the Ageney’s, it ean require the Agency to

substantiate its decision at every step. The scope of

review in these courts, then, substantially conflicts

with the scope of review espoused by the majority

here.

Par ee ROS > ES Fs eRe ne Ev

Seiad a = SO RR TN Seen ere a — - aay 0 Se RG cielo | Te Tegewre?

16

CONCLUSION

Scope of review of administrative agency decisions

and procedures is an important question of federal law.

Because the standard adopted by the majority in the

case at bar conflicts with the standard specified by this

Court and implemented by other courts of appeals,

Pacifie Legal Foundation, as amicus curiae, urges

that the petitions for certiorari be granted.

Respectfully submitted,

Ronatp A. ZUMBRUN,

JoHN H. FINDLEY,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Telephone: (916) 444-0154,

GLENN E. Davis,

Associate Counsel, Pacific Legal Foundation,

1030 - 15th Street, N.W., Suite 342,

Washington, D.C. 20005,

Telephone: (202) 466-2686,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

June, 1976

Pe ee