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

Supreme Court brief1976

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In The

Supreme Court of the United States

October Term, 1975

ETHYL CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Josern C. Carter, Jr.

Of Counsel:

Davin F. PETERS

F cee Hunton & WILLIAMS

330 South Fourth Stree 700 East Main Street

Richmond, Virginia 23219 Richmond, Virginia 23212

General Counsel Joun J. Avams

Hunton & WILLiAMs

1730 Pennsylvania Avenue, N.W.

Washington, D. C. 20006

Counsel for Petitioner

}

DU HIE a ate eet rt CREM RELL ORAL OA VEN Tr GOST We Wy IS ee |

BLEED THROUGE

TABLE OF CONTENTS

Page

OPINIONS BELOW .........2.20-0<..0060.0-- l

UII Sachets oni cos pr onidetencene Chapin enntoercameionsayreannepanecencelsisbibtcienias 2

ari UNI I ina see caper castes pence mid Peep at ee a

STATUTES AND REGULATIONS INVOLVED ............-...-..--+- eae 3

STATEMENT OP Tae OAS. oo. 2 oc ndcivcncccnchveess tdtieeticiees Riera eh eee el 4

Reasons For GRANTING THE WRIT .........-.. Roe eee Netee Pa e aet et es 8

A. The Majority Below Has Accorded the Respondent A

Broad Policy Making Authority ‘That Far Exceeds the

Specific Power Congress Has Delegated to Respondent

under Section 211 of the Clean Air Act. -..0..20.002...... ese ]

B. ‘The Majority Below Has So Narrowed the Scope of Judicial

Review of Environinental Regulatory Actions As To Place

Defcrence To Supposed Administrative Expertise Above ‘The

Standard of Reasoned Decision-Making. 2.000.000.0000. 22... 15

C. By Sanctioning Regulations Based Principally Upon Pre-

liminary, Untested Data Never Subjected to Scrutiny by the

Scientific Community Or Made Available “To The Public

For Meaningful Comment, The Majority Below Has Frus-

trated The Policy of The Administrative Procedure Act,

And Further Reduced The Due Process Accountability of

Administrative Agencies For Their Rule-Making Decisions. .. 2]

CONCLUSION .............--- 27

CerTIFICATE OF SERVICE . 28

APPENDIX

A. Statutes and Regulations Involved . aN

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TABLE OF AUTHORITIES

; Cases Pag

é Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974)... >

Bowman Transp., Inc, v. Arkansas-Best Freight Sys... Inc., 419

OR I aceteerersncinctnatnins SE TEES pe a) a OOS OD 15, 19

Calvert Cliffs’ Coord. Comm., Inc. v. AEC, 449 F.2d 1109

D.C. Cir. 1971) ~.----------------n-n----en-nnn-nsesneenesenenens soceentecnccttnenenenens 26

§ Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

: PO ite 15

] Environmental Defense Fund, Inc. v. EPA, 465 F.2d 528 (D.C.

j CS, TO canna nnn nanan nnn nee etn tc enone 20

4 Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C, Cir.

i 1970), cert. denied, 403 U.S. 923 (1971)... 15

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

; | a meas Lite AO ORO OR 15

‘ Natural Resources Defense Council v. EPA, D.C. Cir. No

; no entecnaeseinshinateenninanncncasnnsinnticrnses Shasmenamenansueeneite Salas 6, 22

4 Mis. Been, 900015. 278 (1965) 14

; Powhatan Mining Co. v. Ickes, 118 F.2d 105 \ 6th te. 91) ...... ZZ

3 )

;

3 South Terminal Corp. v. EPA, 50+ F.2d 646 (Ist Cie. 1974) ....... 21

; Stark v. Weinberger, 497 F.2d 1092 (7th Cir. SRR

emacdar oe raliek

Other Authorities

Administrative Procedure Act. 5 U.S.C. § 593 -........-----------

Federal Judicial Code, 28 U.S.C. § 1254, 1) ne

Clean Air Act:

108, 42 U.S.C. § 1857¢-5

109, 42 U.S.C. § 1857-4 |... Points et Pee

ws Ge

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Pe ey We NIN CY aes ccseesentin tests seis ctcorceseasevnseiens 9

Hee tg Oe men, PL) ainsi tcc estes scedeened 4

eee Tee ke TRS B= 2 | | nce ae eee 5

§ 211(c) (2) (A), 42 U.S.C. § 1857f-6c(c) (2) (A) oececeeeeeeeeeeeeee 9

§ 307(b) (1), 42 U.S.C. § 1857h-5(b) (1) ne... ceeeceeeeeeeeeees 4, 7

Safe Drinking Water Act, 42 U.S.C. § 300f(1) (B) 0.0.0. eee en. 12

EPA Regulations:

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ny ERIE ERS Ea eon ee 5

I I I cola coaad cies shebcuaeanpplomeiaccaions 6

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GPR I cas ca sh sae dileandeiaie 6

I SI I a cnininlnscaind 6

See cle en ee 7, 14

i Ee). | ea eee 4

I I I soca cia 23

H. Rep. No. 93-1185, 93d Cong., 2d Sess., U.S. Code Cong. &

Pe I I OD 12

mm. SEG, Diets Come, Be Dew. 6G ct BG nancies cccccccccscenss 13

WessTer’s New Dictionary Or SynonyMs 639 (1968) ................ 10

WesstTer’s THirp New INTERNATIONAL Dictionary 748 (1971) .. 10

Wright, The Courts and the Rulemaking Process: The Limits of

Judicial Review, 59 Cornell L. Rev. 375 (1974) o.....ccceccceecesceeee-s 17

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IROUGH

In The

Supreme Court of the United States

October Term, 1975

ETHYL CORPORATION,

Petitioner,

ENVIRONMENTAL PROTECTION AGEN CY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Petitioner, Ethyl Corporation (a Virginia corpora-

tion), respectfully prays that a Writ of Certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the District of Columbia Circuit

entered in this proceeding on March 19, 1976.

OPINIONS BELOW

The majority and dissenting opinions of the Court of

Appeals are contained in the Joint Appendix being sepa-

rately filed with the Court on behalf of all of the petitioners

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;

at oe

Re, aes a

in the proceeding below.* The opinions have not yet been

published in the official reports, but they have been pub-

lished at 8 ERC 1785.

JURISDICTION

In Opinions issued January 28, 1975 (7 ERC 1353), a

panel of the Court of Appeals for the District of Columbia

Circuit ruled by a vote of two to one that the Respondent's

regulations, the subject of review in this proceeding, should

be set aside. On March 17, 1975, the Court of Appeals

granted Respondent’s petition for a rehearing en banc and

vacated the panel opinions. The final judgment of the Court

of Appeals, affirming Respondent’s regulations by a five

to four vote, was entered on March 19, 1976. Upon joint

motion of all of the petitioners in this proceeding and the

Respondent, the Court of Appeals entered an order on April

7, 1S76, staying its mandate through May 6, 1976, pending

the filing of a petition for a writ of certiorari and a final

determination thereon by this Court.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

This case involves a challenge by Petitioner and others to

the validity of regulations issued by Respondent under Sec-

tion 211(c)(1)(A) of the Clean Air Act requiring the

phased reduction of lead additives (“lead antiknocks”) in

* The Joint Appendix contains the final opinions of the Court of

Appeals in the cases of Ethyl Corp. v. EPA_(No. 73-2205), PPG

Industries, Inc. v. EPA (No. 73-2268), E. I. DuPont de Nemours &

Co. v. EPA (No, 73-2269), Nalco Chemical Co. v. EPA (No.

73-2270), and National Petroleum Refiners Ass’n v. EPA (No.

74-1021). The Petitioner understands that separate petitions for a writ

of certiorari are being filed by PPG Industries, DuPont, Nalco and

the National Petroleum Refiners Association.

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motor gasoline. The case raises difficult and complex issues

of national significance that were decided by a closely di-

vided Court of Appeals whose lengthy and sharply con-

flicting opinions demonstrate the need for review and final

decision by this Court. Specifically, the questions presented

are:

1. Whether the Administrator of the Environmental Pro-

tection Agency has been empowered by Section 211 of the

Clean Air Act to assess hypothetical and speculative risks

and make “essentially legislative policy judgments,” as the

majority of the Court of Appeals held, even where the

available medical and scientific evidence (which is volu-

minous) is admittedly inconclusive and fails to establish

that the emission products of lead antiknocks in gasoline

cause any harm to the public health.

2. Whether, in reviewing agency rule-making in the area

of environmental control, the courts should be limited toa

finding of minimal rationality on the part of the agency, as

held by the majority below, without inquiry into the pro-

priety of the methodology employed by the agency in

assessing the evidence or the reasonableness of the pro-

cedures it followed in formulating its regulatory program.

3. Whether, notwithstanding the requirements of due

process and the Administrative Procedure Act, the Admin-

istrator may issue regulations based in large part upon pre-

liminary, untested studies and new data as to which inter-

ested parties have not been given notice or the opportunity

for meaningful comment.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the Clean Air Act (42 U.S.C.

§§ 1857c-3, 1857c-4, 1857f-1, 1857f-6c(c)), the Adminis-

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te CAD

le a Rates eau e eas

trative Procedure Act (5 U.S.C. § 553), and the regulations

involved (40 C.F.R. §§ 80.1, 80.2(c), 80.20, 80.25, 80.26)

are set forth in Appendix A to this petition.

STATEMENT OF THE CASE

Background of Lead Antiknocks

The regulations under review' were promulgated by the

Respondent, the Environmental Protection Agency, under

Section 211(c)(1)(A) of the Clean Air Act, 42 U.S.C.

§ 1857f-6c(c). The Regulations require the phased reduc-

tion over five years by 60-65% of lead antiknocks used in all

motor gasoline sold in the United States. 40 C.F.R. §§ 80.1,

.2, .20, .25, .26, 38 Fed. Reg. 33734-33741 (1973) (A. at

1-9).

Lead antiknocks have been added to motor gasoline since

1923 to increase the octane rating of gasoline for use in high

compression engines that operate with greater efficiency. A

large industry, providing thousands of jobs and owned by

thousands of private investors, has grown up to supply lead

antiknocks to gasoline refiners.

Lead antiknocks serve as “energy extenders,” enabling

the refiner to produce more gasoline of a higher octane from

a given amount of crude oil at a lower cost. The saving of

crude oil from the use of lead antiknocks is 5-6°7. The use

of lead antiknocks over the years has resulted in the saving

of billions of barrels of essential crude oil and billions of

dollars by the motoring public in the United States. Today,

in the face of continuing energy problems, the substantial

elimination of lead antiknocks will greatly increase the use

of crude oil and the cost of gasoline (placing substantial re-

liance upon imported supplies and further draining our bal-

* Judicial review is expressly authorized under Section 307(b) (1 ) of

the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1)

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ance of payments), require the substitution of aromatic

compounds which result in the emission of carcinogens and

compel the expenditure of billions of dollars by the refining

industry to make the changes in equipment necessary to

manufacture commercial gasoline without lead antiknocks.

The effects on the public health of the use of lead anti-

knocks in gasoline have been the subject of continued study

and monitoring for more than fifty years, much of it planned,

sponsored, financed and supervised by governmental agen-

cies. From all this study, not one person has been found to

have any identifiable adverse health effects from lead emit-

ted from motor vehicle exhausts. Neither the Respondent

nor the majority of the Court of Appeals have shown other-

wise.

Background of Regulations

The Respondent issued the regulations in question under

Section 211(c) (1)? of the Clean Air Act Amendments of

1970, which in precise terms authorizes the EPA Adminis-

trator to:

“control or prohibit the manufacture. introduction

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

fucl additive for use in a motor vehicle or motor ve-

hicle engine (A) if any emission products of such fuel

or fuel additive will endanger the public health or wel-

fare....” (Emphasis added. )*

242 U.S.C. § 1857f-6¢/c¢) (1 i

* Section 211 also authorizes the regulation of fuel additives upon a

finding that the additive significantly impairs the performance of an

emission control device on general use. Regulations based on that

ground requiring the general availability of at least one grade of un-

leaded gasoline were issued in early 1973, 40 C.F.R. §§ 80.1-.24. and

were upheld by the D. C. Circuit in Amoco Oil Co. v. EPA, 501 F.2d

722 (D.C. Cir. 1974). Those regulations are not in issue in this

proceeding.

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BBR A

Within a month after Section 211 was enacted by Con-

gress, the Respondent publicly announced that it was re-

viewing the medical and scientific data applicable to the

health effects of lead, and that regulations to reduce the

lead content of motor fuel were “anticipated.’* Proposed

regulations were first published on February 23, 1972,° ac-

companied by a document purporting to summarize the

medical and scientific basis for the proposal.° EPA invited

comments on the proposal and conducted public hearings

on the subject during the Spring of 1972 in Washington,

Dallas, and Los Angeles.

Thereafter, on January 10, 1973, EPA issued a new set

of proposed regulations’ as well as a completely revised

health document.* The Respondent again invited public

comment, citing the fact that the agency’s basis for the regu-

lations “has been substantially revised.” 38 Fed. Reg. 1254

(1973).

On October 28, 1973, a panel of the Court of Appeals

below (Judges Wright and McGowan), in an unreported

order entered in response to a motion filed in Natural

Resources Defense Council v. EPA, D.C. Cir. No. 72-

2233, directed the Respondent to reach a final decision

on whether to regulate the lead content of fuel for health

reasons within thirty days. The final regulations were pro-

mulgated on November 28, 1973, accompanied by a third

—and again substantially revised—review of the available

4 36 Fed. Reg. 1486 (Jan. 30, 1971) (A. at 26).

5 37 Fed. Reg. 3882 (1972) (A. at 22).

®R. Doc. No. 13 (A. at 292), revised with R. Doc. No. 10 (A.

at 254).

7 38 Fed. Reg. 1258 (1973) (A. at 14).

8 R. Doc. No. 9 (A. at 158).

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medical and scientific data (hereafter referred to as the

“Third Health Document” ) .*

Court of Appeals Review

On the day the final regulations were published in the

Federal Register.'" December 6. 1973, the Petitioner herein

promptly filed a petition to review the regulations with the

Court of Appeals for the District of Columbia Circuit."

Similar petitions were also filed by PPG Industries, Inc..

E. I. DuPont de Nemours & Co., Nalco Chemical Co. and

the National Petroleum Refiners Association.

The panel assigned to the case heard arguments on Sep-

tember 9, 1974, and on December 20, 1974, the panel, one

judge dissenting, ordered the regulations sect aside. Extensive

opinions (73 pages for the majority; 96 pages for the dis-

sent) were issued January 28, 1975.

On March 17, 1975, the Court of Appeals granted the

Respondent's petition for a rehearing en banc, and the panel

judgment and opinions were vacated. Reargument was held

May 30, 1975 before eight judges of the Court of Appeals.

Chief Judge Bazclon not being present. On March 19, 1976.

the Court decided by a vote of five to four to affirm the regu-

lations, issuing the five separate opinions contained in the

Joint Appendix.

*R. Doc. No. 7 (A. at 27).

1° 38 Fed. Reg. 33734 (Dec. 6, 1973) (A. at 1).

" Section 307(b) (1) of the Clean Air Act specifies the D. C. Circuit

as the exclusive forum for review of regulations issued under Section

211. 42 U.S.C. § 1857h-5(b) (1).

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REASONS FOR GRANTING THE WRIT

This case as no other before it calls into question the basic

accountability of a federal administrative agency for its

rule-making decisions in an area of environmental control

that results in major economic and social impacts. As

indicated by the vigorous opinions of the majority and the

dissent below, the medical and scientific considerations in-

volved in this case are complex and highly controversial.”

The final outcome of this case will vitally affect the future

of the entire lead additive industry, its employees and its

stockholders. It will also have a direct and substantial effect

on the refining industry and through it on our national

energy policy.

The case requires an assessment of the propriety of the

agency’s regulatory action at three distinct, but related,

levels: First, the statutory standard prescribed by Congress

as a precondition for regulatory action; second, the method-

ology employed by the agency in assessing the available evi-

dence; and third, the reasonableness of the procedures fol-

lowed by the agency in its formulation and issuance of the

regulations. At each of these levels the majority below ac-

corded the agency the broadest possible discretion, thus ef-

fectively abdicating the court’s role as an independent over-

seer of agency action. The majority was clearly motivated

by some feeling that environmental regulations are entitled

to special deference—indeed to virtual exemption from the

normal rules designed to uncover and reverse arbitrary

agency action. The majority has presented a “blank check”

to the EPA for the future exercise of standardless, irrevers-

ible discretion affecting all areas of our national life. The

iti

12 Former EPA Administrator, William D. Ruckelshaus, publicly

described the subject as “one of the most controversial complicated

problems that I have ever had to deal with.” R. Doc. No. 1094,

Transcript of press briefing, p. 28 (A. at 2585).

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Eg jain veer er I hae ee a eS ae ea en See ere a ee eee Ss)

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implications of this decision are so enormous as to require

this Court’s immediate attention.

A. The Majority Below Has Accorded the Respondent A Broad

Policy Making Authority that Far Exceeds the Specific Power

Congress Has Delegated to Respondent under Section 211 of the

Clean Air Act.

The Respondent's authority to regulate the content of

motor fuel derives solely from Section 211 of the Clean Air

Act. That section, as a precondition to regulatory action

against a fuel or fuel additive on health grounds, requires

the Administrator to consider “all relevant medical and sci-

entific evidence available to him.”’* Then, in unique lan-

guage found nowhere else in the Clean Air Act, Section

211 provides that the Administrator may control or prohibit

a fuel additive if the emission products of the additive “will

endanger” the public health or welfare.

The meaning of “will endanger” is central to the question

of Respondent's authority to issue the regulations. The Peti-

tioner’s position is that the “will endanger” standard, par-

ticularly when contrasted to the discretionary language of

the other operative sections of the Act,”* requires a threshold

™ Clean Air Act § 211(c) (2) (A). 42 U.S.C. § 1857f-6c(c) (2) (A).

That section also requires the Administrator to consider “other tech-

nological or economically feasible means of achieving emission stan-

dards under Section 202.”

** Section 108 authorizes the Administrator to issue air quality cri-

teria for air pollutants that—‘in his judgment”—adversely affect

public health. 42 U.S.C. § 1857c-3. Section 109, in turn, requires the

Administrator to prescribe national standards for such pollutants,

allowing “an adequate margin of safety” for the protection of health.

42 USC. §1857c-4. Section 112 authorizes the promulgation of

emission standards for air pollutants that—‘“in the judgment of the

Administrator”—“may cause, or contribute to”—death or irreversible

illness. 42 U.S.C. § 1857c-7. Section 202 authorizes the Administrator

to prescribe new motor vehicle emission standards for any emissions

which—“in his judgment”—are “likely to cause or to contribute to” air

pollution endangering the public health. 42 U.S.C. § 1857f-1(a) (1).

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determination by the Administrator on the basis of factual

data that the emission products are, to a high degree of

probability, in fact harmful to health.” A conclusion that

harm is merely possible, or even likely,"* is not sufficient.

Neither Respondent nor the majority below suggest that

Respondent has satisfied such a standard; they rather con-

tend that far less is required. The majority thus reads

Section 211 as conferring broad authority to assess the rela-

tive risks of underprotection against overprotection, and to

make a policy choice based on a “fear of uncertain or un-

known harm.” Maj. op. at 56."" According to the majority,

the Respondent has been given a “mandate to protect the

; public health,” and through “speculation, conflicts in evi-

dence, and theoretical extrapolation,” the agency may base

the regulations on a “slight or nonexistent data base.” Id.

: at 47. It is noteworthy that Congress could easily have

written such a “mandate” into the statute, but instead it

chose to condition its delegation of a power upon a thres-

hold factual determination by the agency that could be

; reviewed by the courts in the traditional way. As Judge

Wilkey aptly observed in his dissent:

“In essence, it is argued that the ‘will endanger the

q public health . . . standard is a delegation of quasi-

i legislative power to the Administrator and not a re-

15“Endanger” means “to bring into danger or peril of probable

harm or loss.” WeBsTER’s THiIrp New INTERNATIONAL DICTIONARY

’ 748 (1971) (emphasis added).

16 The distinction between “probable” and “likely” is clearly ex-

plained by Webster: “Something probable has so much evidence in

; its support or seems so reasonable that it commends itself to the mind

3 as worthy of belief . . . . [I]n contrast with probable, likely does not as

3 often or as definitely suggest grounds sufficient to warrant a presump-

8 tion of truth... .” Wepster’s New Dictionary Or Synonyms 639

q (1968) (emphasis in original).

4 17 References to the majority opinion are to the opinion authored by

Judge Wright contained in the Joint Appendix.

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quirement that he reach a reasoned determination pure-

ly on the scientific and medical data.” Dissenting op.

ac.

In the judgment of the dissenters, such a construction by the

majority “is to grant the plainest license for the wildest

speculation.” Dissenting op. at 53. It is also contrary to

the plain language used by the Congress in Section 211.

The Respondent has argued from the outset that, because

its role in protecting the environment is so important, the

agency should be released from the narrow confines of Sec-

tion 211 and given more discretion to regulate automotive

fuels (with fewer standards to meet). Amazingly, this re-

quest was not made to Congress, the sole constitutional

source of all Respondent’s authority, but to the Court of

Appeals. And the majority affirmatively responded with a

new judicial grant of authority, embodied in this broad

assertion:

“Regulators such as the Administrator must be ac-

corded flexibility, a flexibility 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.” Maj. op. at 46.

Then, as if to set a universal standard for all environmental

rule-making, the majority concluded:

“Where a statute is precautionary in nature, the evi-

dence difficult to come by, uncertain, or conflicting be-

18 References to the dissenting opinion are to the opinion authored

by Judge Wilkey contained in the Joint Appendix.

1® Judge MacKinnon, in a separate dissenting opinion, agreed. “In

my view the court’s opinion in a number of respects exaggerates the

Administrator’s ability to act in the policy field without an underlying

factual basis . . . . Thus I do not agree that Congress intended to vest

the Administrator with authority to act on a speculative basis to the

extent the court would allow.” Opinion by MacKinnon, J., at 3.

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cause 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.” Maj. op. at 53-54.

The Petitioner submits that the specific and limited grant

of statutory authority made by Congress, not a general ex-

pression by the courts of need for flexibility in areas affecting

the public health, should govern the validity of an agency’s

rule-making in a given case. In certain areas, Congress has

indeed conferred broad policy making discretion; in others,

such as Section 211, it has not. In every case, however, the

plain language employed by the Congress should control.”

Certainly the courts should not extend their deference to

administrative expertise to the point where the clear stand-

ards set by Congress may be ignored by the agency.

20 The significance of the particular language chosen for a statute

is well illustrated by a comparison of Section 211 to the language

and legislative history of the recently enacted Safe Drinking Water

Act. That Act empowers the Administrator of EPA to prescribe stand-

ards for drinking water contaminants, which “in the judgment of the

Administrator, may have any adverse effect on the health of per-

sons... .” 42 U.S.C. § 300f(1) (B). In drafting the language of the

Drinking Water Act, the House Interstate and Foreign Commerce

Committee, the same House Committee that reported out the Clean

Air Act Amendments of 1970, deliberately chose the word “may,”

rather than “will.” which appears in Section 211, with purpose. As

the Committee’s report explains: “The words used by the Committee

were carefully chosen. Because of the essentially preventive purpose of

the legislation, the vast number of contaminants which may need to

be regulated, and the limited amount of knowledge presently available

on the health effects of various contaminants in drinking water, the

Committee did not intend to require conclusive proof that any con-

taminant will cause adverse health effects as a condition for regulation

of a suspect contaminant. Rather, all that is required is that the Ad-

ministrator make a reasoned and plausible judgment that a contami-

nant may have such an effect.” H. Rep. No. 93-1185, 93d Cong., 2d

Sess., U.S. Code Cong. & Admin. News 6463 (1974) (emphasis in

original) .

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sachs. ERE NE Re

Where Congress intends for an agency to exercise broad

policy making discretion, to err on the side of overprotection

in an area “on the frontiers of scientific knowledge,” Con-

gress carefully selects words particularly suited to that pur-

pose—“may,” “likely,” “risk,” “in his judgment.” By con-

trast, where the subject matter has been thoroughly studied

for more than fifty years, as with lead antiknocks,”* Congress

understandably requires firm factual determinations, for

which “will endanger” is more appropriate.

The point is that, the majority below notwithstanding, no

generality is possible as to the standard to be applied in

environmental rule-making. Congress has prescribed vary-

ing degrees of accountability for agency rule-making, and

the appropriate standard in a given case can only be deter-

mined on the basis of the particular statutory language em-

ployed.* In the case of regulation of fuel content, which

the majority concedes Congress expected Respondent to

undertake only with trepidation,” Congress obviously con-

templated that the agency would be held to a high degree

of accountability.

The Respondent has not concluded that the evidence

supports a “will endanger” conclusion for lead antiknocks.

21 Maj. op. at 54.

*2 For example, the toxic substances legislation now pending in

Congress would authorize the Administrator of EPA to ban the use

of any chemical substance that he finds “presents or is likely to present

an unreasonable risk of injury to health or the environment.” S. 3149.

94th Cong., 2d Sess., § 6, at 36.

*3'The majority argues that although lead additives have been

studied for 50 years, emissions at present levels have existed only for

the last 15-20 years. Maj. op. at 49. The record evidence shows that

in spite of increases in airborne lead levels in the past 20 years, blood

levels have not increased. R. Doc. No. 817, Fig. 1-1.

** For this reason, the majority’s reliance on other cases, involving

totally different statutes and different facts, is misplaced.

*5 Maj. op. at 16 n. 14.

hg tt SETS ET FR SF

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teh elastase abst

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Pescecicn.. Pegs int SOSA ie tse RICA tei BE

Indeed, Respondent has even conceded that the evidence

does not establish a “reasonably clear causal relation” be-

tween ambient lead levels and adverse health effects, which

according to Respondent precludes the setting of ambient

air standards for lead under Section 108-109. EPA Supp.

Brief at 15.2% All the Respondent has suggested is that lead

emissions from motor vehicles present a “significant risk of

harm to the health of urban populations, particularly the

health of city children .. . ,” and this only when lead emis-

sions from autos are combined with other sources of lead.”

Passing up the other, less rigorous options given to it

under the Clean Air Act (ambient air standards, emission

limitations), Respondent has taken the extreme action of

regulating fuel content, at enormous Costs to the petroleum

industry and the motoring public, without any real knowl-

edge that lead additives are a direct endangerment to public

health, or that their reduction will have any measurable,

beneficial effect.

Congress could take such action, perhaps; but Respon-

dent cannot, at least not under Section 211. For purposes

of this case and those that will inevitably follow, it is essen-

tial that this Court restrain administrative rule-making with-

in its proper limits and restore the statutory standard laid

down by Congress as the measure of regulatory power.”*

26 The reference is to the supplemental brief filed by Respondent

upon rehearing en banc in the Court of Appeals.

27 38 Fed. Reg. 33734 (Dec. 6, 1973) (A. at 1).

28 As this Court has often reminded: “The deference owed to an

expert tribunal cannot be allowed to slip into a judicial inertia which

results in the unauthorized assumption by an agency of major policy

decisions properly made by Congress.” NLRB v. Brown, 380 U.S. 278,

291 (1965).

BLEED THROUGI

B. The Majority Below Has So Narrowed The Scope of Judicial

Review of Environmental Regulatory Actions As To Place Def-

erence To Supposed Administrative Expertise Above The Stand-

ard of Reasoned Decision-Making.

Guided by the opinions of this Court in Citizens to Pre-

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

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

Inc., 419 U.S. 281 (1974),*° the dissenting judges below

carefully reviewed the record and concluded that Respond-

ent had not taken the objective, hard look at the evi-

dence that Section 211 and “reasoned decision-making” re-

quire,”’ and that the methodology employed by the agency in

assessing the evidence had been arbitrary and capricious.*

The record in this case abounds with danger signals that

Respondent had not been rational and principled in its

approach to the subject. The waffling of positions during

the three year rule-making through three separate health

documents—alleging health hazards of lead in the first,**

*® The reviewing court “must consider whether the decision was

based on a consideration of the relevant factors and whether there has

been a clear error of judgment.” Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971).

30“T]hough an agency’s finding may be supported by substantial

evidence . . . it may nonetheless reflect arbitrary and capricious action.

* * * The agency must articulate a ‘rational connection between the

facts found and the choice made.’ ” Bowman Transp., Inc. v. Arkansas-

Best Freight Sys., Inc., 419 U.S. 281, 284-85 (1974).

31 “Its supervisory function calls on the court to intervene . . . if

the court becomes aware, especially from a combination of danger

signals, that the agency has not really taken a hard look at the salient

problems, and has not genuinely engaged in reasoned decision-making.”

Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C, Cir.

1970), cert. denied, 403 U.S. 923 (1971).

%2The Administrator must sustain the burden of adducing a

reasoned presentation supporting the reliability of EPA’s methodology.”

International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 648 (D.C.

Cir. 1973).

83 R. Doc. No. 13, “Health Hazards of Lead,” EPA (Feb. 23, 1971)

(A. at 292).

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ee Or eT |

ect

Ne Sins Me eee

the health effects of lead in the second,” and finally the

health implications of lead in the third*’°—indicated a grasp-

ing at straws in the evidence. The dissent recognized Re-

spondent’s prolonged struggle with the evidence as signifi-

cant, saying:

“This extended gestation period has significance in

itself. Implicit in the administrative record generated

by this three-year delay is the recognition by EPA that

available scientific data did not provide a clear and

certain basis for reaching the statutorily mandated con-

clusion, i.e., that a ‘fuel additive will endanger the

public health or welfare.’

“* * * The history of the regulations is really the

history of the EPA Health Documents, a history of

EPA’s effort to discover somewhere, somehow, a scien-

tific rationale which would withstand the unanimous

criticism of the remainder of the government scientific

community.” Dissenting op. at 6-7.

The dissent was also struck by the fact that every other

agency of the Federal Government that had studied the

evidence—the Department of Health, Education and Wel-

fare, the Department of the Interior, the Department of

Commerce, the White House Office of Science and Tech-

nology, the National Institute for Occupational Safety and

Health of the United States Public Health Service—had

unanimously concluded that Respondent's position on the

health effects of lead antiknocks was without support in the

evidence.”®

34. Doc. No. 9, “EPA’s Position on the Health Effects of Airborne

Lead” (Nov. 29, 1972) (A. at 158).

85 R. Doc. No. 7, “EPA’s Position of the Health Implications of

Airborne Lead” (Nov. 28, 1973) (A. at 27).

36 See the review of the other agency criticisms at Dissenting op. pp.

8-15. “Our analysis of the flaws in the Administrator’s logic finds

powerful support in the unaminity of conclusion of the independent

scientific minds throughout the Government outside of EPA itself.”

Dissenting op. at 15-16.

BLEED THROUG

The record also contained numerous expressions of con-

cern from the independent scientific community highly criti-

cal of Respondent’s analysis and conclusions.** Within the

agency itself, serious questions had been expressed as to

the scientific soundness of any health basis for the regula-

tions.**

The majority dismisses the contrary evidence and critical

comment with the conclusion that “evidence may be isolated

that supports virtually any inference one might care to

draw.” Maj. op. at 74. In the majority’s view, “the problem

here is one of choosing among the items of evidence,” id.

at 80, and as to the basis employed in such choosing, the

majority would simply “defer to the Administrator's judg-

ment.” Jd. at 81. In environmental rule-making, where the

record evidence is conflicting and inconclusive, the majority

has thus held that the reviewing court must be “highly

deferential” toward the agency’s decision, id. at 68, and

affirm that decision if it reflects but minimal rationality. Jd.

at 73." Indeed, as interpreted by two members of the

majority (Judges Bazelon and McGowan), a reviewing

court must affirm on the basis of procedural regularity alone,

*7 Dr. Anna M. Baetjer, a member of the National Air Quality Crite-

ria Advisory Committee, critically challenged Respondent’s analysis in

the health documents, saying: “I think this document lacks scientific,

basic sound, scientific knowledge.” (A. at 1052). Similarly, Dr, Norton

Nelson, a consultant to EPA’s Hazardous Materials Advisory Com-

mittee, observed: “[W]hat I read here is such a tenuous argument

that it becomes, in some degree, self-destroying. And I find it complete-

ly deficient.” (A. at 998).

88 A. at 1057; A. at 960; A. at 1936.

*° Under the minimal rationality standard, as previously explained

by Judge Wright, an administrative regulation ‘“‘can be less than rea-

sonable and still survive the ‘arbitrary and capricious’ test”; all that is

required is that the agency satisfy “only the most rudimentary com-

mand of rationality.” Wright, The Courts and the Rule-Making Proc-

ess: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 392 (1974).

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SOSA AS

without regard to the substantive rationality of the agency’s

decision (opinion by Bazelon, C.J., at 1-4) —a position Judge

Leventhal recognized as advocating “no substantive review

at all.”” Opinion by Leventhal, J., at 1.,

The problem with the majority's suggested standard of

review (whether it be Judge Wright's or Chief Judge Baze-

lon’s) is that it virtually immunizes the regulatory agency

from substantive accountability, a result totally at odds

with the “clear error of judgment” test prescribed by this

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

401 U.S. 402, 416 (1971), a decision Judge Wright finds

“difficult to plumb.” Maj. op. at 70 n. 74. Where the evi-

dence is indeed conflicting, the agency would have no dif-

ficulty in reciting isolated bits and pieces of inferential

support in the record for its position, and thereby establish

the minimal rationality the majority says it must affirm..If

the majority’s analysis is correct, the exercise of judicial

review is but a charade.

As the dissent perceived, the question of rationality in

administrative rule-making cannot truly be determined by

automatically deferring to the agency’s judgment in select-

ing evidence from the record to support its position. Rather,

the crucial question to be asked is why the agency selected

the evidence it did and rejected others."” If, in answer to

that question, the agency’s basis for assessing the evidence is

found to be inconsistent and variable according to whether

40 In the words of the dissent, “(T]he court concludes that ‘[t]he

problem here is one of choosing among the items of evidence.” We

respectfully disagree. The problem here is really one of choosing among

the items of evidence and explaining why! The Administrator dis-

agreed with the negative conclusions of the Seven Cities study and

several other studies, but never said why he disagreed. This is why

we can fault his conclusion.” Dissenting op. at 72 (emphasis in orig-

inal).

RI FEH THe nIc

the particular study supports the agency’s position or op-

poses it, the rule-making can only be characterized as arbi-

trary and irrational.’

With disturbing frequency, the record reveals the use of

inconsistent criteria by Respondent in the assessment of

evidence. Where a study fails to support a basic premise

in Respondent’s position, such as, for example, that in-

creased levels of airborne lead correspond to increased

blood lead levels,** Respondent has rejected the study be-

cause of its failure to control dietary sources of lead. In the

case of studies supporting Respondent’s position, however,

the absence of dietary control is forgotten.** In response to

one of Respondent’s more blatant inconsistencies, the dissent

remarked:

“| []t passes our understanding how anyone can find

dietary control a problem in a comparison between

greater Philadelphia and greater New York (thus justi-

fying rejection of that data), but of no importance in

a comparison between Scarsdale and Harlem (thus

justifying reliance on urban-suburban data from great-

er New York). The art of reconciling total inconsis-

tencies has soared to new heights when this court can

seriously conclude (1) that ‘dietary lead [can] be

assumed relatively constant’ between the most affluent

41 This Court has recognized that even where evidence exists to sup-

port an agency rule, the rule “may nonetheless reflect arbitrary and

capricious action.” Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 284 (1974).

42 The Seven Cities Study (A. at 840), conducted under the joint

sponsorship of EPA and industry, is generally recognized as the most

extensive epidemiological study in the field. That study found no sig-

nificant correlation between airborne lead levels and blood lead levels.

43 As discovered by the dissent, “the record indicates that even the

studies relied upon by the Administrator failed in this same respect.”

Dissenting op. at 76 (emphasis in original) .

DmAMmD CODY

and the least affluent neighborhoods of greater New

York City and (2) that ‘[t]he Administrator treated

all the evidence in a consistent and rational manner.’

The Administrator has thus utterly failed to present us

with a reasoned and principled analysis of the evi-

dence.” Dissenting op. at 77-78 (footnotes omitted ) .

Further, where Respondent fails to provide any explana-

tion for its rejection of contrary data, the majority has filled

the gap with post hoc rationalizations as support for the

agency’s decision.* In so doing, the majority has over-

stepped its bounds as a reviewing court, and has merely

accentuated the inadequacies in Respondent's analysis.*”

In short, the record demonstrates that rather than engag-

ing in the objective, hard look at the evidence that Section

211 contemplates, Respondent has searched high and low

for bits and pieces of inferential support for the “get the

lead out” crusade that was predetermined by Respondent

even before the rule-making process began. In the process,

Respondent has functioned as an advocate, not the impartial

analyst of the evidence Congress clearly intended. Under

the majority’s “highly deferential” standard of review, such

single minded advocacy on the part of regulatory agencies

is wholly endorsed. That expert agencies are entitled to

some deference is not disputed, but there must come a point

at which the danger signals of arbitrariness are so clear that

44 Indeed it is highly significant that the majority, while protesting

that a substantive review of the evidence is unnecessary or even im-

proper, devotes 31 pages of its opinion to such a review, in which it

undertakes to explain away the shoddy analysis and biased conclusions

of the Respondent’s “health documents.”

45 “(The specific decision must be explained, not merely explainable,

in terms of the ingredients announced by the Administrator as com-

prising the Agency’s policies and standards.” Environmental Defense

Fund, Inc. v. EPA, 465 F.2d 528, 539 (D.C. Cir. 1972).

BLEED THROUGH

not even “scientific expertise” can shield an agency from

judicial intervention.**

The record here reveals a classic case of arbitrary rule-

making. If such arbitrariness is to be excused in this case,

then judicial review has been reduced to an exercise in form

only, totally devoid of substance. And when judicial review is

gone, there is no protection left against arbitrary procedures,

manipulation of data or even political misuse of agency

powers.

C. By Sanctioning Regulations Based Principally Upon Preliminary,

Untested Data Never Subjected to Scrutiny by the Scientific

Community Or Made Available To The Public For Meaningful

Comment, The Majority Below Has Frustrated The Policy of

The Administrative Procedure Act, And Further Reduced The

Due Process Accountability of Administrative Agencies For Their

Their Rule-Making Decisions.

Basic to all federal rule-making proceedings is the funda-

mental due process requirement that the public be advised

of the basis of the proposed action and be afforded a mean-

ingful opportunity to comment thereon prior to adoption

of the rule. This requirement, expressed in Section 4 of the

Administrative Procedure Act,*’ reflects a recognition by

Congress of the “essential canons of fairness.” Powhatan

Mining Co. v. Ickes, 118 F.2d 105, 109 (6th Cir. 1941).

46 Accord, South Terminal Corp. v. EPA, 504 F.2d 646. 665 (1st

Cir. 1974) (“A court would abdicate its function were it, when con-

fronted with important and seemingly plausible objections going to the

heart of a key technical determination, to presume that the agency

could never behave irrationally”); Stark v. Weinberger, 497 F.2d

1092, 1099 n. 14 (7th Cir. 1974) (Judicial review requires “more than

an uncritical rubber stamping of the administrative action”).

475 U.S.C. § 553.

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ALA NS ew oles ia hen ly BO Ae ae, at

ral neta

The double standard the decision below has established

for environmental rule-making is nowhere more pronounced

than in the majority’s assessment of Respondent’s com-

pliance with the notice and opportunity for comment re-

quirements. Public comments on the first two proposals of

the regulations (issued in February 1972 and January 1973,

respectively), pointed out the fundamental defects in Re-

spondent’s position and caused the agency to withdraw each

proposal. Under the unreported and unrealistic court order

of October, 1973, to reach a final decision in thirty days,“

however, Respondent issued the regulations and the Third

Health Document without the benefit of advance notice or

public comment.

Both the preamble to the final regulations and the Third

Health Document refer to numerous sources and studies

that had never been cited in the previous discredited

documents. The Third Health Document contains a total

of 190 citations to reference sources. Of that number,

a full 151 of them were not cited in the previous health

documents. Fifty-two of the references cited bear a date

subsequent to November 29, 1972, the date of the second

health document, indicating that they were not even in the

literature when that review of the evidence was issued.

The significance of the new citations is not so much their

numbers, but rather the importance Respondent has as-

signed to them in defending its position on the final regu-

lations. The dissenting judges have very carefully reviewed

the record in this case and have found, almost without ex-

ception, that the principal studies relied upon by Respond-

ent were developed after the close of the comment period

on the Second Health Document and were cited for the

48 Natural Resources Defense Council v. EPA, D.C. Cir. No.

72-2233 : see discussion page 6 supra.

BLEED THROUGH

first time in the preamble to the final regulations or the

Third Health Document.” Critical to Respondent’s conclu-

sion that concentrations of lead in the ambient air correlate

directly with lead levels in the blood, for example, were

two pilot isotope studies,” and an unpublished study from

Japan.” As explained in the preamble to the regulations,”

data from these studies were “preliminary” only and had

“not yet been completely analyzed” ; nevertheless, Respond-

ent weighed them against the mass of previous data to the

contrary and concluded that an air/blood correlation does

exist. As the dissent discovered, these studies did not become

available even to Respondent until October and July, re-

spectively, of 1973, and were never mentioned by Respond-

ent as important to its consideration until the final regula-

tions were issued in November, 1973.

Similarly, Respondent has cited a series of studies it

calls “persuasive evidence” in support of its hypothesis

that children eat dust and dirt contaminated by airborne

lead from auto exhausts. As the dissent found, these studies

were developed at the last minute, with no opportunity for

scrutiny by the general scientific community. A study from

Newark, New Jersey, of the effect of lead absorption of

proximity to high traffic density, for example, had not even

been published at the time the regulations were issued. Dis-

senting op. at 24. The scientific community thus had no

49 See dissenting op. at 17-50, where the dissent first isolates the new

studies heavily relied upon by Respondent, and then details their

availability (or lack thereof) to petitioners and the public for comment.

5 R. Doc. No. 113 (A. at 678, 704).

51 R. Doc. No. 462 (A. at 1092).

82 38 Fed. Reg. 33735 (Dec. 6, 1973) (A. at 3).

83 Third Health Doc. at VI-20 (A. at 130).

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Se ee means |

whe

opportunity to determine whether the study had taken into

account such important variables as condition of housing,

age or ethnic group. Likewise, studies from Chicago, Phila-

delphia and Rochester which Respondent has termed as

“persuasive” did not come to Respondent until after the

court below had ordered the agency to make a decision with-

in thirty days and shortly before the regulations were issued.

Dissenting op. at 25. Again, no opportunity for public

comment on these critical studies was afforded.

The majority below considers this objection to Respond-

ent’s procedure unimportant, stating that the agency had

invited and received public comment on the lead phase-

down proposal on three previous occasions. Maj. op. at 99.

What the majority refuses to recognize, however, is that the

basic documents upon which Respondent ultimately relied in

defending its position were effectively shielded from public

scrutiny by the timing of the court’s order and issuance of

the regulations. As the dissent noted:

“|B]y October-November 1973 he [the Adminis-

trator] was largely shifting his ground from the dis-

credited scientific data of the First and Second Health

Documents to new data embraced in the Third Health

Document. This is the crucial time at which informed

comment from the best scientific minds in other govern-

ment agencies and elsewhere should have been sought

—unless EPA was irrevocably resolved to promulgate

the restrictive regulations on lead which it had origi-

nally proposed years before, in spite of the barrage of

unanimous critical comment from other government

scientific minds, as well as interested outsiders.” Dis-

senting op. 26-27.

Concerning the prior opportunities for comment, the dissent

recognized :

“It certainly, as a practical matter does no good for

an agency to propose an action, support it with data

which is severely criticized, abandon that data for new,

fail to subject the new data to informed comment, and

then promulgate the same proposed regulations on the

basis of new data.” Dissenting op. at 38.

The majority further suggests that the notice and op-

portunity for comment requirements of the Administrative

Procedure Act were fully satisfied when all the studies and

documents referred to in the preamble and the Third Health

Document were placed in the agency’s public information

file, Maj. op. at 100 & n. 102, and that in any event Peti-

tioner can have no complaint because it was furnished all

the record documents as a result of a Freedom of Informa-

tion Act suit. Maj. op. at 108 n. 118. The absurdity of this

position is obvious. As observed by the dissent:

{I]t is not enough under the Administrative Pro-

cedure Act merely to make the scientific data ‘a\ail-

able’ to the public and all interested parties. First, the

claimed ‘availability’ here boils down to a compelled

furnishing of data to one interested party under the

Freedom of Information Act and the placing of hun-

dreds of miscellaneous documents—scientific studies,

papers, published articles, etc.—in a poorly indexed

dust bin of a file in the public rooms of the Environ-

mental Protection Agency. Second, there was never any

notice—and our colleagues do not and can not contend

that there was—on which data out of the great miscel-

laney EPA would rely until the Third Health Docu-

ment was published simultaneously with the regula-

tions. Third, the opportunity to comment effectively on

the new data on which EPA ultimately relied was far-

cical, as our detailed discussion above nails down.”

Dissenting op. at 46-47 (emphasis in original).

Veh Re Ani A ee nats do Sie

The procedural irregularities sanctioned below have se-

rious implications for future regulatory actions. The majority

opinion blithely ignores (and indeed discounts by its overly

deferential approach) the growing public clamor for in-

dependent research bodies to advise the regulatory agencies

on highly complex technical issues like this (as was done

in the recent restructuring of the Atomic Energy Commis-

sion). The majority fails to take into account its own un-

realistic time limitation placed on the Respondent that

made it impossible for public comment to be solicited with

respect to the final regulations.* Finally, the majority puts

its stamp of approval on a procedure whereby an agency

avoids the public notice and comment requirements Con-

gress has imposed by simply dumping thousands of pages

of record material into a public information file (without

proper indices or classifications )—a procedure totally repug-

nant to traditional concepts of principled administrative

rule-making.” As the dissent perceived, “From the pages of

the court’s opinion there seeps the theme that this is an

environmental case; hence, the court like the agency need

not labor by the usual rules.” Dissenting op. at 50. In order

to assure the public the “most intelligent, optimally bene-

ficial decision” possible,** however, environmental agencies

54 Tt is perhaps of considerable importance that Judge Wright, who

wrote two lengthy opinions in this case to justify all the Respondent’s

actions, was the leading member of the panel that put the Respondent

under an unrealistic 30 day deadline to take final action against lead

antiknocks.

58 Judges Bazelon and McGowan, in their concurring opinion, like-

wise lamented the procedural inadequacies of Respondent’s rule-

making, observing that “Ordinarily . . . I think a record which so

burdens judicial review would require a remand for clarification.” Op.

by Bazelon, C.J., at 5. Indeed, a total of six judges of the court below

found significant irregularities in Respondent’s procedures.

56 Calvert Cliffs’ Coord. Comm., Inc. v. AEC, 449 F.2d 1109, 1114

(D.C. Cir. 1971).

BLEED THROUGH

can be no less accountable for their decisions than are other

administrative bodies.

The actions of the administrative agency in this case are

so difficult to justify that the majority below first had to go

to extremes to supply even “minimal rationality,” and then

had to be overly deferential to so-called administrative ex-

pertise to reach its final result. In so doing, the majority

has notified the Respondent that henceforth there will be no

meaningful judicial review of environmental regulations.

This will likely encourage the disregard of statutory stand-

ards, the performance of shoddy scientific analysis and even

the manipulation of data, and the avoidance of rules de-

signed to give the public advance notice and a meaningful

opportunity to comment on proposed regulations. Such a

momentous redefinition of the scope of judicial review in

the vitally important area of environmental controls re-

quires prompt review by this Court.

CONCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the Court of Appeals for

the District of Columbia Circuit.

Respectfully submitted,

JosepH C. CarTER, JR.

Davin F. PETERS

700 E. Main Street

Richmond, Virginia 23212

Joun J. ApaMs

1730 Pennsylvania Ave., N.W.

Washington, D. C. 20006

Counsel for Petitioner

May 5, 1976

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PODS PII DOB Asc VAN BRT LN

CERTIFICATE OF SERVICE

I, John J. Adams, counsel for the Petitioner, and a mem-

ber of the Bar of the Supreme Court of the United States,

hereby certify that I have served all parties required to be

served by depositing three copies of the foregoing Petition

for Writ of Certiorari in the United States Mail, first class

postage prepaid, this 5th day of May, 1976, addressed

to: The Solicitor General, Department of Justice, Washing-

ton, D. C., and to Robert V. Zener, Environmental Protec-

tion Agency, Waterside Mall Building, 4th and M Streets,

S.W., Washington, D. C. 20460.

Joun J. ApaMs

Counsel for Petitioner

APPENDIX A

Clean Air Act

42 U.S.C. §§ 1857c-3, 1857c-4, 1857-1, 1857f-6e

Administrative Procedure Act

5 U.S.C, § 553

Environmental Protection Agency Regulations

40 C.F.R. §§ 80.1, 80.2, 80.20, 80.25, 80.26

42 U.S.C. § 1857¢-3

Air Quality Criteria And Control Techniques

Sec. 108. (a) (1) For the purpose of establishing national

primary and secondary ambient air quality standards, the

Administrator shall within 30 days after the date of enact-

ment of the Clean Air Amendments of 1970 publish, and

shall from time to time thereafter revise, a list which in-

cludes each air pollutant—

(A) which in h‘s judgment has an adverse effect on

public health or welfare;

(B) the presence of which in the ambient air results from

numerous or diverse mobile or stationary sources ; and

fore the date of enactment of the Clean Air Amendments

of 1970, but for which he plans to issue air quality criteria

under this section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included such

pollutant in a list under paragraph (1). Air quality criteria

for an air pollutant shall accurately reflect the latest scien-

tific knowledge useful in indicating the kind and extent of

all identifiable effects on public health or welfare which may

be expected from the presence of such pollutant in the

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App. 2

ambient air in varying quantities. The criteria for an air

pollutant, to the extent practicable, shall include informa-

tion on—

(A) those variable factors (including atmospheric con-

ditions) which of themselves or in combination with other

factors may alter the effects on public health or welfare of

such air pollutant ;

(B) the types of air pollutants which, when present in the

atmosphere, may interact with such pollutant to produce

an adverse effect on public health or welfare; and

(b) (1) Simultaneously with the issuance of criteria under

subsection (a), the Administrator shall, after consultation

with appropriate advisory committees and Federal depart-

ments and agencies, issue to the States and appropriate air

pollution control agencies information on air pollution con-

trol techniques, which information shall include data re-

lating to the technology and costs of emission control. Such

information shall include such data as are available on

available technology and alternative methods of prevention

and control of air pollution. Such information shall also in-

clude data on alternative fuels, processes, and operating

methods which will result in elimination or significant re-

duction of emissions.

; (2) In order to assist in the development of information

on pollution control techniques, the Administrator may

] establish a standing consulting committee for each air pol-

lutant included in a list published pursuant to subsection

(a) (1), which shall be comprised of technically qualified

: individuals representative of State and local governments,

; industry, and the academic community. Each such com-

]

SRYLOMAY ET TGA 2 ROY. IG Ao AO Ol” OOM BM

BLEED THROUGH

App. 3

mittee shall submit as appropriate, to the Administrator

information related to that required by paragraph (1).

and, as appropriate, modify, and reissue any criteria or in-

formation on control techniques issued pursuant to this sec-

tion.

(d) The issuance of air quality criteria and information

on air pollution control techniques shall be announced in

the Federal Register and copies shall be made available to

the general public.

42 U.S.C. § 1857¢-4

National Ambient Air Quality Standards

Sec. 109. (a) (1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970, shall publish proposed

regulations prescribing a national primary ambient air

quality standard and a national secondary ambient air

quality standard for each air pollutant for which air qual-

ity criteria have been issued prior to such date of enact-

ment; and

(B) after a reasonable time for interested persons to

submit written comments thereon (but no later than 90 days

after the initial publication of such proposed standards)

shall by regulation promulgate such proposed national pri-

mary and secondary ambient air quality standards with such

modifications as he deems appropriate.

(2) With respect to any air pollutant for which air

quality criteria are issued after the date of enactment of

the Clean Air Amendments of 1970, the Administrator shall

publish, simultaneously with the issuance of such criteria

POOR COPY

App. 4

and information, proposed national primary and secondary

ambient air quality standards for any such pollutant. The

procedure provided for in paragraph (1)(B) of this sub-

section shall apply to the promulgation of such standards.

(b)(1) National primary ambient air quality standards,

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to

protect the public health. Such primary standards may be

revised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard

prescribed under subsection (a) shall specify a level of air

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary stand-

ards may be revised in the same manner as promulgated.

f 42 U.S.C. § 1857f-1

Sec. 202. (a) Except as otherwise provided in subsection

E (b)—

: (1) The Administrator shall by regulation prescribe (and

from time to time revise) in accordance with the provisions

: of this section, standards applicable to the emission of any

air pollutant from any class or classes of new motor vehicles

or new motor vehicle engines, which in his judgment causes

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

pollution which endangers the public health or welfare. Such

standards shall be applicable to such vehicles and engines

for their useful life (as determined under subsection (d) ),

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App. 5

whether such vehicles and engines are designed as complete

systems or incorporate devices to prevent or control such

pollution.

(2) Any regulation prescribed under this subsection (and

any revision thereof) shall take effect after such period as

the Administrator finds necessary to permit the development

and application of the requisite technology, giving ap-

propriate consideration to the cost of compliance within such

period.

(b)(1)(A) The regulations under subsection (a) appli-

cable to emissions of carbon monoxide and hydrocarbons

from light duty vehicles and engines manufactured during

or after model year 1977 shall contain standards which

require a reduction of at least 90 per centum from emissions

of carbon monoxide and hydrocarbons allowable under the

standards under this section applicable to light duty vehicles

and engines manufactured in model year 1970.

The regulations under subsection (a) applicable to emis-

sions of carbon monoxide and hydrocarbons from light-duty

vehicles and engines manufactured during model years 1975

and 1976 shall contain standards which are identical to the

interim standards which were prescribed (as of December 1,

1973) under paragraph (5) (A) of this subsection for light-

duty vehicles and engines manufactured during model year

1975.

(B) The regulations under subsection (a) applicable to

emissions of oxides of nitrogen from light duty vehicles and

engines manufactured during or after model year 1978 shall

contain standards which require a reduction of at least 90

per centum from the average of emissions of oxides of

nitrogen actually measured from light duty vehicles manu-

factured during model year 1971 which are not subject to

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App. 6

any Federal or State emission standard for oxides of nitro-

gen. Such average of emissions shall be determined by the

Administrator on the basis of measurements made by him.

The regulations under subsection (a) applicable to emis-

sions of oxides of nitrogen from light-duty vehicles and

engines manufactured during model years 1975 and 1976

shall contain standards which are identical to the standards

which were prescribed (as of December 1, 1973) under sub-

section (a) for light-duty, vehicles and engines manufac-

tured during model year 1975. The regulations under sub-

section (a) applicable to emissions of oxides of nitrogen from

light-duty vehicles and engines manufactured during model

year 1977 shall contain standards which provide that such

emissions from such vehicles and engines may not exceed

2.0 grams per vehicle mile.

(2) Emission standards under paragraph (1), and meas-

urement techniques on which such standards are based (if

not promulgated prior to the date of enactment of the Clean

Air Amendments of 1970), shall be prescribed by regula-

tion within 180 days after such date.

(3) For purposes of this part

(A) (i) The term ‘model year’ with reference to any

specific calendar year means the manufacturer’s annual

production period (as determined by the Administrator),

which includes January 1| of such calendar year. If the man-

ufacturer has no annual production period, the term ‘model

year shall mean the calendar year.

(ii) For the purpose of assuring that vehicles and engines

manufactured before the beginning of a model year were

not manufactured for purposes of circumventing the ef-

fective date of a standard required to be prescribed by sub-

section (b), the Administrator may prescribe regulations

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App. 7

defining ‘model year’ otherwise than as provided in clause

(i). 3

(B) The term ‘light duty vehicles and engines’ means

new light duty motor vehicles and new light duty motor :

vehicle engines, as determined under regulations of the Ad- t

ministrator.

(4) On July 1 of 1971, and of each year thereafter, the

Administrator shall report to the Congress with respect to :

the development of systems necessary to implement the emis-

sion standards established pursuant to this section. Such re-

ports shall include information regarding the continuing

effects of such air pollutants subject to standards under this

section on the public health and welfare, the extent and

progress of efforts being made to develop the necessary

systems, the costs associated with development and applica-

tion of such systems, and following such hearings as he may

deem advisable, any recommendations for additional con-

gressional action necessary to achieve the purposes of this

Act. In gathering information for the purposes of this para-

graph and in connection with any hearing, the provisions

of section 307 (a) (relating to subpoenas) shall apply.

PO PATE OR na pom

(5)(A) At any time after January 1, 1975, any manv-

facturer may file with the administrator an application re-

questing the suspension for one year only of the effective

date of any emission standard required by paragraph

(1)(A) with respect to such manufacturer for light-duty

vehicles and engines manufactured in model year 1977.

The Administrator shall make his determination with respect

to any such application within sixty days. If he determines,

in accordance with the provisions of this subsection, that

such suspension should be granted, he shall simultane- _

ously with such determination prescribe by regulation

;

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App. 8

interim emission standards which shall apply (in lieu

of the standards required to be prescribed by paragraph

(1) (A) of this subsection) to emissions of carbon monoxide

or hydrocarbons (or both) from such vehicles and engines

manufactured during model year 1977.

(B) Any interim standards prescribed under this para-

graph shall reflect the greatest degree of emission control

which is achievable by application of technology which the

Administrator determines is available, giving appropriate

consideration to the cost of applying such technology with-

in the period of time available to manufacturers.

any such suspension, and after public hearing, the Adminis-

trator shall issue a decision granting or refusing such suspen-

sion. The Administrator shall grant such suspension only if

he determine that (i) such suspension is essential to the pub-

lic interest or the public health and welfare of the United

States, (ii) all good faith efforts have been made to meet

the standards established by this subsection, (iii) the ap-

plicant has established that effective control technology,

processes, operating methods, or other alternatives are not

available or have not been available for a sufficient period

of time to achieve compliance prior to the effective date of

such standards, and (iv) the study and investigation of the

National Academy of Sciences conducted pursuant to sub-

section (c) and other information available to him has not

indicated that technology, processes, or other alternatives are

available to meet such standards.

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(D) Nothing in this paragraph shall extend the effective

: date of any emission standard required to be prescribed

under this subsection for more than one year.

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App. 9

(c)(1) The Administrator shall undertake to enter into

appropriate arrangements with the National Academy of

Sciences to conduct a comprehensive study and investiga-

tion of the technology feasibility of meeting the emissions

standards required to be prescribed by the Administrator

by subsection (b) of this section.

(2) Of the funds authorized to be appropriated to the

Administrator by this Act, such amounts as are required

shall be available to carry out the study and investigation

authorized by paragraph (1) of this subsection.

(3) In entering into any arrangement with the National

Academy of Sciences for conducting the study and investi-

gation authorized by paragraph (1) of this subsection, the

Administrator shall request the National Academy of Sci-

ences to submit semiannual reports on the progress of its

study and investigation to the Administrator and the Con-

gress, beginning not later than July 1, 1971, and continuing

until such study and investigation is completed.

(4) The Administrator shall furnish to such Academy

at its request any information which the Academy deems

necessary for the purpose of conducting the investigation

and study authorized by paragraph (1) of this subsection.

For the purpose of furnishing such information, the Ad-

ministrator may use any authority he has under this Act

(A) to obtain information from any person, and (B) to

require such person to conduct such tests, keep such records,

and make such reports respecting research or other activities

conducted by such person as may be reasonably necessary to

carry out this subsection.

(d) The Administrator shall prescribe regulations under

which the useful life of vehicles and engines shall be deter-

mined for purposes of subsection (a) (1) of this section and

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App. 10

section 207. Such regulations shall provide that useful life

shall—

(1) in the case of light duty vehicles and light duty vehicle

engines, be a period of use of five years or of fifty thousand

miles (or the equivalent ), whichever first occurs ; and

(2) in the case of any other motor vehicle or motor ve-

hicle engine, be a period of use set forth in paragraph (1)

unless the Administrator determines that a period of use of

greater duration or mileage is appropriate.

(e) Inthe event a new power source or propulsion system

for new motor vehicles or new motor vehicle engines is sub-

mitted for certification pursuant to section 206(a), the

Administrator may postpone certification until he has pre-

scribed standards for any air pollutants emitted by such

vehicle or engine which cause or contribute to, or are likely

to cause or contribute to, air pollution which endangers the

public health or welfare but for which standards have not

been prescribed under subsection (a).

42 U.S.C. § 1857f-6e

Regulations Of Fuels

Sec. 211. (a) The Administrator may by regulation desig-

nate any fuel or fuel additive and, after such date or dates as

may be prescribed by him, no manufacturer or processor of

any such fuel or additive may sell, offer for sale, or introduce

into commerce such fuel or additive unless the Administra-

tor has registered such fuel or additive in accordance with

subsection (b) of this section.

(b) (1) For the purpose of registration of fuels and fuel

additives, the Administrator shall require—

——e

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App. 11

“(A) the manufacturer of any fuel to notify him as to

the commercial identifying name and manufacturer of any

additive contained in such fuel; the range of concentration

of any additive in the fuel; and the purpose-in-use of any

such additive ; and

(B) the manufacturer of any additive to notify him as to

the chemical composition of such additive.

(2) For the purpose of registration of fuels and fuel ad-

ditives, the Administrator may also require the manufac-

turer of any fuel or fuel additive

(A) to conduct tests to determine potential public health

effects of such fuel or additive (including, but not limited

to, carcinogenic, teratogenic, or mutagenic effects) , and

(B) to furnish the description of any analytical technique

that can be used to detect and measure any additive in such

fuel, the recommended range of concentration of such addi-

tive, and the recommended purpose-in-use of such additive,

and such other information as is reasonable and necessary to

determine the emissions resulting from the use of the fuel or

additive contained in such fuel, the effect of such fuel or

additive on the emission control performance of any vehicle

or vehicle engine, or the extent to which such emissions

affect the public health or welfare.

Tests under subparagraph (A) shall be conducted in con-

formity with test procedures and protocols established by

the Administrator. The result of such tests shall not be

considered confidential.

(3) Upon compliance with the provisions of this subsec-

tion, including assurances that the Administrator will receive

changes in the information required, the Administrator shall

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App. 12

basis of information obtained under subsection (b) of this

section or other information available to him, by regulation,

control or prohibit the manufacture, introduction into com-

merce, offering for sale, or sale of any fuel additive for use

in a motor vehicle or motor vehicle engine (A) if any emis-

sion products or such fuel or fuel additive will endanger the

public health or welfare, or (B) if emission products of such

fuel or fuel additive will impair to a significant degree the

F performance of any emission control device or system which

j 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 regulation to be promulgated.

(2)(A) No fuel, class of fuels, or fuel additive may be

: controlled or prohibited by the Administrator pursuant to

clause (A) of paragraph (1) except after consideration of

: all relevant medical and scientific evidence available to him,

4 including consideration of other technologically or econom-

ically feasible means of achieving emission standards under

section 202.

(B) No fuel or fuel additive may be controlled or pro-

hibited by the Administrator pursuant to clause (B) of para-

graph (1) except after consideration of available scientific

and economic data, including a cost benefit analysis com-

paring emission control devices or systems which are or will

be in general use and require the proposed control or pro-

hibition with emission control devices or systems which are

or will be in general use and do not require the proposed

3 control or prohibition. On request of a manufacturer of

motor vehicles, motor vehicle engines, fuels, or fuel addi-

tives submitted within 10 days of notice of proposed rule-

making, the Administrator shall hold a public hearing and

7 publish his findings with respect to any matter he is re-

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App. 13

quired to consider under this subparagraph. Such findings

shall be published at the time of promulgation of final

regulations.

Administrator under paragraph (1) unless he finds, and

publishes such finding, that in his judgment such prohibi-

tion will not cause the use of any other fuel or fuel additive

which will produce emissions which will endanger the public

health or welfare to the same or greater degree than the use

of the fuel or fuel additive proposed to be prohibited.

(3) (A) For the purpose of obtaining evidence and data

to carry out paragraph (2), the Administrator may require

the manufacturer of any motor vehicle engine to furnish

any information which has been developed concerning the

emissions from motor vehicles resulting from the use of any

fuel additive, or the effect of such use on the performance of

any emission control device or system.

(B) In obtaining information under subparagraph (A),

section 307(a) (relating to subpoenas) shall be applicable.

(4) (A) Except as otherwise provided in subparagraph

(B) or (C), no State (or political subdivision thereof) may

prescribe or attempt to enforce, for purposes of motor

vehicle emission control, any control or prohibition respect-

ing use of a fuel or fuel additive in a motor vehicle or motor

vehicle engine—

(i) if the Administrator has found that no control or

prohibition under paragraph (1) is necessary and has pub-

lished his finding in the Federal Register, or

(ii) if the Administrator has prescribed under paragraph

(1) a control or prohibition applicable to such fuel or fuel

additive, unless State prohibition or control is identical to

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App. 14

the prohibition or control prescribed by the Administrator.

(B) Any State for which application of section 209(a)

has at anytime been waived under section 209(b) may at

any time prescribe and enforce, for the purpose of motor

vehicle emission control, a control or prohibition respecting

any fuel or fuel additive.

of motor vehicle emission control, a control or prohibition

respecting the use of a fuel or fuel additive in a motor

vehicle or motor vehicle engine if an applicable implemen-

tation plan for such State under section 110 so provides. The

Administrator may approve such provision in an imple-

mentation plan, or promulgate an implementation plan con-

taining such a provision, only if he finds that the State con-

trol or prohibition is necessary to achieve the national pri-

mary or secondary ambient air quality standard which the

plan implements.

(d) Any person who violates subsection (a) or the regu-

lations prescribed under subsection (c) or who fails to fur-

nish any information required by the Administrator under

subsection (b) shall forfeit and pay to the United States a

civil penalty of $10,000 for each and every day of the con-

tinuance of such violation, which shall accrue to the United

States and be recovered in a civil suit in the name of the

United States, brought in the district where such person has

his principal office or in any district in which he does busi-

ness. The Administrator may, upon application therefor,

remit or mitigate any forfeiture provided for in this sub-

section and he shall have authority to determine the facts

upon all such applications.

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App. 15

3 U.S.C. § 553

§ 553. Rule making.

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the United

States; or

(2) a matter relating to agency management or personnel

or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be pub-

lished in the Federal Register, unless persons subject thereto

are named and either personally served or otherwise have

actual notice thereof in accordance with law. The notice

shall include—

(1) a statement of the time, place, and nature of public

rule making proceedings ;

(2) reference to the legal authority under which the rule

is proposed ; and

(3) either the terms or substance of the proposed rule or

a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of policy,

or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorpo-

rates the finding and a brief statement of reasons therefor in

the rules issued) that notice and public procedure thereon

are impracticable, unnecessary, or contrary to the public

interest.

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App. 16

give interested persons an opportunity to participate in the

rule making through submission of written data, views, or

arguments with or without opportunity for oral presentation.

After consideration of the relevant matter presented, the

agency shall incorporate in the rules adopted a concise gen-

eral statement of their basis and purpose. When rules are

required by statute to be made on the record after oppor-

tunity for an agency hearing, Sections 556 and 557 of this

title apply instead of this subsection.

(d) The required publication or service of a substantive

rule shall be made not less than 30 days before its effective

date, except—

(1) a substantive rule which grants or recognizes an ex-

emption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause

found and published with the rule.

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

40 C.F.R. §§ 80.1, 80.2, 80.20, 80.25, 80.26

Part 80 of Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

1. In § 80.1, the second sentence is revised to read as

follows:

§ 80.1 Scope.

* * * These regulations are based upon a determination

by the Administrator that the emission product of a fuel

or additive will endanger the public health, or will im-

App. 17

pair to a significant degree the performance of a motor

vehicle emission control device 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 regu-

lations promulgated; and certain other findings specified by

the Act.

2. In § 80.2, a new paragraph (m) is added as follows:

§ 80.2 Definitions.

* * *

(m) “Lead additive manufacturer” means any person

who produces a lead additive or sells a lead additive under

his own name.

3. Anew § 80.20 is added as follows:

§ 80.20 Controls applicable to gasoline refiners.

(a) (1) In the manufacture of gasoline at any refinery, no

gasoline refiner shall exceed the average lead content per

gallon specified below for each 3-month period (January

through March, April through June, July through Septem-

ber, October through December) :

(i) 1.7 grams of lead per gallon, after January 1, 1975;

(ii) 1.4 grams of lead per gallon, after January 1, 1976;

(iii) 1.0 grams of lead per gallon, after January 1, 1977;

(iv) 0.8 grams of lead per gallon, after January 1, 1978;

(v) 0.5 grams of lead per gallon, after January 1, 1979.

(2) For each 3-month period (January through March,

April through June, July through September, October

through December) the average lead content per gallon

oe RLM ISS TPS LS IEA TIO EL SUES BIE

App. 18

shall be computed by dividing total grams of lead used at a

refinery in the manufacture of gasoline by total gallons of

gasoline manufactured at such refinery.

(3) For each 3-month period (January through March,

April through June, July through September, October

through December) commencing with the period January

1, 1975 through March 31, 1975, each refiner shall submit

to the Administrator a report showing for each refinery (i)

the total grams of lead in lead additive inventory on the

first day of the period, (ii) the total grams of lead received

during the period, (iii) the total grams of lead in lead addi-

tive inventory on the last day of the period, (iv) the total

gallons of gasoline produced by such refinery during the

period, and (v) the average lead content in each gallon

of gasoline produced during the period. Reports shall be

submitted within 15 days after the close of the reporting

period, on forms supplied by the Administrator upon re-

quest.

(b) The piovisions of paragraph (a) (1) (i) and (ii) of

this section shall not be applicable to any refiner which does

not have more than 30,000 barrels per day crude oil or bona

fide feed stock capacity from owned or leased facilities or

from facilities made available to such refiner under an ar-

rangement such as, but not limited to, an exchange agree-

ment (except one on a refined product for refined product

basis) or a through-put or other form of processing agree-

ment, with the same effects as though such facilities had

been leased.

4. Anew § 80.25 is added as follows:

§ 80.25 Controls applicable to lead additive manufacturers.

For each 3-month period (January through March, April

through June, July through September, October through

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App. 19

; ‘ -_ ;

December) commencing with the period January 1, 1975 :

through March 31, 1975, cach lead additive manufacturer |

shall submit to the Administrator a report showing the total :

grams of lead shipped to each refinery by such lead addi- t

tive manufacturer during the period. Reports shall be sub- ;

mitted within 15 days after the close of the reporting period, i

on forms supplied by the Administrator upon request. :

5. Anew § 80.26 is added as follows: ;

$ 80.26 Confidentiality of information. :

Information obtained by the Administrator or his repre-

sentatives pursuant to this part shall be treated, insofar as

its confidentiality is concerned. in accordance with the pro-

visions of 40 CFR Part 2.

‘ 2

Rei econ am earch men tee I NN

POOR COPY

2GPREME COURT: U. & A

7S~ 16 '2, 1613, 1679,

IN THE

Supreme Court of the United States

Ocroper Term, 1975

Eruyt Corporation, Petitioner

E.NVIRON MENTAL Protection Acency, Respondent

PPG Ixpvusrries, Ixc., Petitioner

ENVIRONMENTAL Protection Acency, Respondent

BE. 1. DePoxr pe Nemours axnp Company, Petitioner

ENVIRONMENTAL Prorection Agency, Respondent

Natco Cuemican Company, Petitioner

E.XvironMENTAL Prorretion Acency, Respondent

Nationa Perroteum Rerixers Association, Petitioner

ENVIRON MENTAL Prorretion Acexcy, Respondent

JOINT APPENDIX TO

PETITIONS FOR WRIT OF CERTIORARI

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

No. 73-2205

ETHYL CORPORATION, PETITIONER

nr”

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 73-2268

PPG INDUSTRIES, INC., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

i No. 73-2269

KE. I. DUPONT DE NEMouRS & COMPANY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

panawadll 2502555000 FIL EEL REGIE SEG RENE ER MEO APTI

THROUGH POOR COPY

<EMAIL SAND Be Te eee |

No. 73-2270

NALCO CHEMICAL COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

No. 74-1021

NATIONAL PETROLEUM REFINERS ASSOCIATION, PETITIONER

, *

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Petitions for Review of an Order of the

Environmental Protection Agency

On Rehearing En Bane

Argued En Banc 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 * * *.”

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

li a il at

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Dmorirrn TrTwmpomiimt

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

US. 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.

omAamoDo CODY

14 ADM EC RETNA TARAINS § ctiiacecnglll

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

not as the chemist, biologist, or statistician that we

are qualified neither by training nor experience to

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

harm to the public health arbitrary or capricious.

Pp. 77-97.

The order of the Environmental Protection Agency

Affirmed.

BLEED THROUC

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. Berghoff, 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, Ine. 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 bane.

Opinion for the court, in which Chief Judge BAZELON

and Circuit Judges McGowan, LEVENTHAL, and RoBIN-

SON concur, filed by Circuit Judge WRIGHT.

Concurring opinion, in which Circuit Judge MCGOWAN

joins, filed by Chief Judge BAZELON.

Concurring statement filed by Circuit Judge LEVEN-

THAL.

POOR COPY

Dissenting opinion filed by Circuit Judge MACKINNON.

Dissenting opinion, in which Circuit Judges TAMM

and Ross join, filed by Circuit Judge 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

j Act before EPA may act to protect the health of our

‘ populace from the lead particulate emissions of auto-

mobiles.

Section 211(c)(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(c) (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

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

4 31, 1970, 84 Stat. 1698-1700.

4 — —— NELLIE GLE RIAL NTAD LEE SY TGR IR Ee a eae onc

= _ wea SEALANT eT AEP TAN ee : xs

ROLE LE DE ELLE EE ST '

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

he promulgated regulations that reduce, in step-wise

fashion, the lead content of leaded gasoline.2 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.

POOR COPY

LES PMR OPE TE

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.

SLE TANARIS INET INTE ELIE ON LEE LI OS IS PLETE LOE SRE PEER ARP NOEE —

URS ae ee eee te PERI ER ty pant 4 and :

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JGH

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).

POOR COPY

ate i

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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 (hereinafte*”

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

* 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.

noIicrcrnm Thin s

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.

nmomMmrapo me pow

— ~a ee e atoe ’

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 STAar. 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. § 1857f-6e(e) (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 contro] system.” 36 Fep. Rec. 1486 (1971).

* See, e.g., 116 Conc. 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.

——

LIE OEE EOE PE AOE AE IE oD

i —

BLEED THROU:

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. 37 Fep. Rec. 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 Fep. Rec. 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 Fep. Rec. 1258. The reproposal was supported

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

Health Effects of Airborne Lead ‘hereinzfter 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 Frep. Rec. 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.

PERO PE OT Ee OPO OE LE i ION

POOR COPY

LY gp PRD:

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

Natural Resources Defense Council, Inc. 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 fina!

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 /eaded 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]

a a en

BLEED THROU:

pee OS

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).

**» 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. Vv. EPA, 514 F.2d

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

POOR COPY

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.

Il. THE STATUTORY REQUIREMENTS

Under Section 211(c) (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].” Sec-

: 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."

7 eee

* 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 ]

on ee 7 a ™ ° ee ee ene ta Se ieee - xe

BLEED THROUGI

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(¢) (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.

POOR COPY

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)(C) (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

cI petitioners, regulation under Section 211(c) (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 of human exposure to lead.

We have considered these arguments with care and find

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

Saal MUST Be Se

oie Nest eae Se

hed bier rSi headin

** 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

PARP R CRE Keb nce hig

iarise

> LE REANR A SPENCER ; eres

BLEED THROU

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 FED. 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 Box & 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.

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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 4538, 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.

** 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

RLEED THR<(

JGH

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

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 Ethyl 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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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(c) (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 infra. See also note 89 infra.

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

quickly resolved by reference to §109. There Congress

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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. § 1857c-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.

** 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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ee a

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.”

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. v. 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.

*8 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-

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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 Nalco 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.” Ethy] 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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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 determination

{ 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, air 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.

se, EO. “AR aig cee one —

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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.

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

duces the result suggested above. Thus it argues that this

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

7 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. Id.

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

d to regulate under § 202 the Administrator must find that

& emission of the air pollutant is likely to cause or contribute

j 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., 1st Sess. 5-6 (1965) ;

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

§ 202 allows for the regulation of such apparently innocent

pollutants, which indirectly cause dangerous pollution.

We PART Rte LFA alt

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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. v. 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

Eighth Circuit borrowed extensively from the interpre-

tation of the “will endanger” language of Section 211

expressed in the dissent from the division opinion in this

case, the same interpretation we adopt here. See Re-

serve Mining Co. v. EPA, supra, 514 F.2d at 528-529.

; After analysis of the plain meaning of the FWPCA

; 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:

MIMS ORNL MED SRN GL sid cayta ects:

aeons ve. aime

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 v. Morton, U.S.App.D.C. ,

& n.25, 514 F.2d 856, 873-875 & n.25 (1975), and cases

cited therein, cert. granted, sub nom. Kleppe v. Sierra Club,

— US. ——, 44 U.S. L. WEEK 3397 (Jan. 12, 1976).

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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 decisfons 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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Se eS ae

| ee)

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.

** Nalco 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 Devel-

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 im.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 ard Harbors Act of 1899, 33

U.S.C. § 401 et 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” findirg 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.” Id. 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; Ethyl 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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IIE ES

tions before us. Instead, he finds a “significant” risk

of harm to health. While this finding may be less than

the “p

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