# Amicus Curiae Brief — E. I. du Pont de Nemours & Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0190%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 941 ## Text 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- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0190%3A4. Public record. Not legal advice.