# Amicus Curiae Brief — E. I. du Pont de Nemours & Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0191%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 941 ## Text ie Seis | Subject Index Page Motion for leave to file brief of amicus curiae Pacific Legal Foundation in support of petitions for writ of certiorari to the United States Court of Appeals for the Spaienet OF Cae CHORE no veces cksdiecovecvssees Brief of amicus curiae Pacifie Legal Foundation in support of petitions for writ of certiorari to the United States Court of Appeals for the District of Columbia Cireuit ... ee ei each a Bee bee ea een nabuhane Be LE eet Pe ee ame et em RE mae nee! Reasons for graviting the. writ 2... 0... c cc ccnsccecccss I Ses Cass bc Wid oi kueales whe eee Reewa anes I Legislative policy questions require more rather than less rigorous scrutiny by the courts ............... II The standard of review used in this case conflicts with the standard set by this court and followed in other © Rage Ne! aes me ha eM Re Ste ett EN ADS Ye LO I hig ois 1s ohne avo ia bo Sikes Wer Sek uk Oe Oeaek oO nrnn on Table of Authorities Cited Cases Pages A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. UND, 6h ecc in because aes bane vucrn ert beater cewes 9 Appalachian Power Co. v. Environmental Pro, Agey., 477 P2d O06 (4th Cle. 1978) oon ccs cccccvsccccccsnncss 14 Citizens to Preserve Overton Park, Ine. v. Volpe, 401 U.S. . ath: | CA Serre errr yes hr rere rr 9,11, 12, 18, 14, 15 Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 3 SRA LOC, TE. BUTE) node ccs evivccin seve ccdrtssaesess 7,8 i Friends of the Earth vy. U.S. Environmental Pro. Agey., ; 499 F.2d 1118 (2d Cir. 1974) ......ccccccccccccsceses 14 | International Harvester v. Ruckelshaus, 478 F.2d 615 (D.C. 4. SPR Ore ee PT Pre ee Ce Tere ret cre 12 Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) .........- 9 d South Terminal Corp. v. Environmental Protection Agcey., 504 F.2d G46 (lst Cir. 19074) 20... .ccccccsccncsvasensa 12,13 State of Texas v. Environmental Protection Agency, 499 : F.2d 289 (Sth Cir. 1974) .......cccesecscvscccccveons 12 Union Electric Co. v. Environmental Pro. Agey., 515 F.2d } ee es ee. | err rr rrrrrr errr er rT rer 12 ‘ United States v. Rock Royal Co-Op, 307 U.S. 533 (1938) .. 9,10 : United States v. Shreveport Grain & Elevator Co., 287 U.S. q | i nner rer rere rr errr recon Tee 9 Rules Supreme Court Rules: a BE cis och ideo nods een gesnveveawnianrecess 6 Ce en ath ard RAs baa EER eee ee ees 2 Statutes Sik oe | Err Ser eee errr ee re error 11 ; ee vee ee he en er eee 9 : Texts M. Forkosch, Administrative Law, 103-104 (1956) ....... 10 PERRET ELEN ee IE per BLEED THR: IGH IN THE Supreme Court of the United States OcTOBER TERM, 1975 No. 75-1602 E. I. DuPont DE Nemours & Company and PPG INpDusTRIES, INc., Petitioners, vs. ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 75-1612 ETHYL CorPorRATION, Petitioner, vs. ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 75-1613 NaLco CHEMICAL CoMPANY, Petitioner, vs. ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 75-1614 NATIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC., CuarK O1L & REFINING CORPORATION, KERR-MCGEE CORPORATION, Mouawk PETROLEUM CorporaTION, INc., Petitioners, vs. ENVIRONMENTAL PROTECTION AGENCY, Respondent. MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI to the United States Court of Appeals for the District of Columbia Circuit This motion of Pacific Legal Foundation (PLF) for leave to file the annexed brief amicus curiae in POOR COPY 2 support of petitions for writ of certiorari is respect- fully made pursuant to Rule 42 of the Supreme Court Rules. Consent to the filing of this brief has been ob- tained from counsel for all parties with the exception of the Solic:tor General, counsel for respondent En- vironmental Protection Agency, and such consents have been lodged with the clerk of this Court. : PLF is a nonprofit, tax-exempt corporation organ- ized and existing under the laws of California for ‘ the purpose of engaging in litigation in matters af- fecting the public interest. Policy for PLF is set by a Board of Trustees composed of concerned citizens. Twelve of the seventeen-member Board are attorneys. The Board evaluates the merits of any contemplated legal action and authorizes such legal action only where the Foundation’s position has broad support within the general community. The Board has au- thorized the filing of a brief amicus curtae in support of petitions for writ of certiorari in these cases. PLF considers these cases to be of special signifi- cance in that they raise the issue of the proper scope of review of administrative agency decisions and pro- cedures. Particularly, the decision of the court of ap- peals for which review is sought raises the question whether legislative policy decisions of an administra- tive agency are exempt from the rigorous review to which findings of fact by administrative agencies are ; subjected. | As a public interest law foundation, PLF fre- quently finds itself engaged in litigation with federal administrative agencies, and particularly the Environ- ee eee , ee eee 0 te barns Abid. Se eee ee ete oe oe omy Qos AE ES ETRY TS PPE LTE ARE —————————————— LO ce les ae om am aeaiatientinad mental Protection Agency, in matters concerning such policy decisions. Thus the scope of review of these decisions is extremely important to PLF. For this reason, Pacifie Legal Foundation requests that this motion to file the annexed brief amicus curiae be granted. Respectfully submitted, Ronaup A. ZUMBRUN, JOHN H. Finp.ey, Counsel, Pacific Legal Foundation, 455 Capitol Mall, Suite 465. Secramento, California 95814, Telephone: (916) 444-0154, GLENN E. Davis, Associate Counsel, Pacific Legal Foundation, 1030 - 15th Street, N.W., Suite 342. Washinaton, D.C. 20005, Telephone: (202) 466-2686, Attorneys for Amicus Curiae Pacific Legal Foundation. June, 1976 AAP LER EE TAY" PIES BS or STI a ar IN THE Supreme Court of the United States Ocroper Term, 1975 No. 75-1602 E. L. DuPort De Nemours & Company and PPG Lxpustries, Inc., Petitioners, vs. ENVIRONMENTAL Protection AGENCY, Respondent. No. 75-1612 Eruy. Corporation, Petitioner, vs. ENVIRONMENTAL Protection AGENCY, Respondent. No. 75-1613 Natco Cuemicat Company, Petitioner, vs. ENVIRONMENTAL Protection AGENCY, Respondent. No. 75-1614 NaTIONAL Perroteum Reriners AssociaTIon, ASHLAND OIL, INC.., Crark On & Rerrxine Corporation, Kerr-McGEE Corporation, Mouawk Perro_eum Corporation, INc., Petitioners, vs. ENVIRONMENTAL Protection AGENCY, Respondent. BRIEF OF AMICUS CURIAE PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI to the United States Court of Appeals for the District of Columbia Circuit ene vase te 6 INTEREST OF AMICUS The interest of amicus is set out in the preceding motion for leave to file this brief. OPINION BELOW The opinion en banc of the United States Court of Appeals for the District of Columbia Circuit of March 19, 1976, is unofficially reported at 8 ERC 1785. REASONS FOR GRANTING THE WRIT INTRODUCTION In this brief amicus curiae, Pacific Legal Founda- tion (PLF) proposes to address only the issue of the scope of review utilized below by the court of ap- peals. Amicus believes that the concept of scope of review of administrative decisions there adopted re- quires review by this Court under the considerations governing review on certiorari set forth in Supreme Court Rule 19(b) in that: 1. Such concept is in conflict with the decision of other courts of appeals on the same matter; 2. Scope of review is an important question of federal law which has been decided by the court of appeals in a way which is in conflict with applicable decisions of this Court; and 3. The decision of the court of appeals has so far sanctioned a departure from the accepted and usual course of proceedings by an administrative agency a EEG A EE OLE SEP EE RLS, | EE OPEL 2: "7 BLEED THROUGH 7 “ as to call for the exercise of this Court’s power of supervision. I LEGISLATIVE POLICY QUESTIONS REQUIRE MORE RATHER THAN LESS RIGOROUS SCRUTINY BY THE COURTS The majority below (Maj. Op. at 46) has in this case adopted a special rule for review of questions believed by the court to be matters of legislative policy. Thus, the court found in the applicable statute “a recog- nition by Congress that a determination of endanger- ment to public health is necessarily a question of policy that is to be based on an assessment of risks and that should not be bound by either the procedural or the substantive rigor proper for questions of fact.” Maj. Op. at 46. The court noted that the Administrator must be accorded “a flexibility that recognizes the special ju- dicial interest in favor of protection of the health and welfare of people, even in areas where certainty does not exist. Environmental Defense Fund, Inc. v. Ruck- elshaus, 439 F.2d 584, 598 (D.C. Cir. 1971).” Maj. Op. at 46. This citation is puzzling in that the referenced case espouses a view diametrically opposed to that of the opinion at issue. There the court spoke of a “new era” in judicial review of agency action. Ruck- elshaus, supra at 597. The court reasoned that since courts were increasingly asked to review “administra- tive action that touches on fundamental interests in life, health and liberty” there was a dire necessity to POOR COPY FELT OPT E SAP R aN erree hoe protect these interests from “administrative arbitrari- ness.” To do this, strict judicial scrutiny must be applied. Id. at 598. That court stated: “For judicial review alone can correct only the most egregious abuses. Judicial review must op- , erate to ensure that the administrative process | itself will confine and control the exercise of dis- | cretion. [Footnote omitted.] Courts should re- quire administrative officers to articulate the : standards and principles that govern their dis- i ecretionary decisions in as much detail as pos- sible. [Footnote omitted.] Rules and regulations _should be freely formulated by administrators, and revised when necessary. [Footnote omitted. ] Discretionary decisions should more often be sup- ported with findings of fact and reasoned opin- ions. [Footnote omitted.] When administrators provide a framework for principled decision- making, the result will be to diminish the im- portance of judicial review by enhancing the integrity of the administrative process, and to im- prove the quality of judicial review in those cases where judicial review is sought.” Id. or In the instant case, the court disregards this admon- ition and finds that “if the statute accords the regu- lator flexibility to assess risks and make essentially legislative policy judgments, as we believe it does, preventive regulation based on conflicting and incon- clusive evidence may be sustained.” Maj. Op. at 51. The majority found therefore that “[w]here a statute is precautionary in nature [footnote omitted], the evidence is difficult to come by, uncertain, or conflict- ing because it is on the frontiers of scientifie know]- SL oo fen ee ee er een) | ee eee BLEED THROUGH 9 edge, the regulations designed to protect the public health, and the decision that of an expert administra- tor, we will not demand rigorous step-by-step proof of cause and effect.” Maj. Op. at 53-54. This new doctrine is at odds not only with the mandate of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), to engage in a “search- ing and substantial inquiry.” Jd. at 415. It is also glaringly inconsistent with this Court’s decisions con- cerning delegation of legislative policy making func- tions to administrative agencies. Legislative policy making is a Congressional func- tion. Article I, Section 1, of the United States Con- stitution provides that “[a@]// legislative powers herein granted shall be vested in a Congress of the United States.” (Emphasis added.) Because of the language of this section, it has been the traditional rule in federal law that Congress cannot delegate its law- making power to any other authority or body, Uuited States v. Shrevepoit Grain & Elevator Co., 287 U.S. 77 (1932); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). The Clean Air Act authorizes the Administrator to prohibit, control, or regulate a fuel or fuel additive if “the emission products will endanger the public health or welfare... .” 42 U.S.C. § 1857F-6C(¢) (1) (A). Sinee United States v. Rock Royal Co-Op, 307 U.S. 533 (1938), the federal rule on delegation of powers has been that: POOR COPY 10 “each enactment must be considered to deter- mine whether it states the purpose which the Congress seeks to accomplish and the standards »y which that purpose is to be worked out with sufficient exactness to enable those affected to un- derstand these limits, ...” 307 U.S. at 574. As one authority has restated the rule: “In other words, the delegator cannot just del- egate and let the delegatee go off on a legal and political bender; the delegatee must be curbed, else his power would be unlimited. This curb is a requirement of the Constitution, as judicially in- terpreted in each case, so that every delegation j must contain standards as limitations. These i standards are for the purpose, as Chief Justice ee eee Warren has stated in another connection, of having the force of law, not the law of force, apply.” M. Forkosch, Administrative Law, 103- 104 (1956). It is clear that the decisions of this Court require that in any delegation of any legislative power—and certainly in the area of legislative policy making— the courts must give such delegation the strictest of . scrutiny. Thus, the court of appeals’ ruling that pre- i ventive regulation based on conflicting and inconclu- sive evidence may be sustained if a statute may be interpreted as according the regulator flexibility to assess risks and make essentially legislative policy judgments (Maj. Op. at 51) without being subjected to either the procedural or substantive rigor proper for questions of fact (Maj. Op. at 46) is in conflict 4 with the applicable decisions of this Court concerning 3 = DERI ETT ATE PARTE BPEBIS sepals es ekate. BLEED THROU: 11 review of delegated powers and should therefore be reviewed by this Court. II THE STANDARD OF REVIEW USED IN THIS CASE CONFLICTS WITH THE STANDARD SET BY THIS COURT AND FOL- LOWED IN OTHER CIRCUITS Citizens to Preserve Overton Park, Ine. v. Volpe, 401 U.S. 402, 415-416 (1971), prescribes the standard of review under the Administrative Procedure Act. There this Court noted that 5 U.S.C. § 706 dictates a “substantial inquiry,” a “thorough, probing, in- depth review.” The court must first decide whether the Administrator acted within the scope of his au- thority. Then the court must go on to determine whether the choice made was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” To do this the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” The reviewing court is specifically tustructed to make an “inquiry into the facts.” Id. While the opinion of the court of appeals accepts these requirements in theory (Maj. Op. at 69-71), it does not follow them in practice in holding that the standard of review is narrower in eases of legislative policy making than it would be in others. Maj. Op. at 4. The concurring opinion of Judges Bazelon and Me- Gowan, whose votes are necessary to the majority, says POOR COPY : | : q 4 | jetta Re? es a: 2 Fh os RO meee petty % Fe 12 explicitly what the court seems to accept implicitly. This opinion is based on the premise that courts should not inquire into the technical details of admin- istrative decisions. (Bazelon at 1.) This was not the approach of the District of Columbia Cireuit in Inter- national Harvester v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). It has also been explicitly rejected by the First Cireuit in South Terminal Corp. v. Environ- mental Protection Agcy., 504 F.2d 646 (1st Cir. 1974). The Eighth Cireuit in Union Electric Co. v. En- vironmental Pro. Agcy., 515 F.2d 206, 214 (8th Cir. 1975), appeal pending, states that the one principle upon which Clean Air Act cases are in agreement is that the standard for review of agency decisions is the arbitrary and capricious standard. The Fifth Circuit in State of Teras v. Environ- mental Protection Agency, 499 F.2d 289 (5th Cir. 1974), appeal pending, heard a state challenge to the Environmental Protection Agency’s (EPA) re- jection of its plan. It held the standard of review was that announced in Overton Park, supra, and went on to say: “In applying this standard, our review must he based not only upon the agency’s explanation of ‘its course of inquiry, its analysis and reasoning,’ [citation omitted] but also upon the full record before the agency [citation omitted]. Only by our own study of the record can we resolve the factual disputes between the parties, much less hope to ‘engage in a substantial inquiry’ into the agency’s action.” Td. at 297. In South Terminal Corp., sv pra, the First Cireuit Court of Appeals reviewed an EPA regional air qual- BLEED THROUGI 13 ity control plan made in place of a state plan. Again, the court applied Overton Park standards. The court emphasized the “clear error of judgment” language and stressed the need for a “searching and careful” review to assure it “that the Agency’s technical conclusions no less than others are founded on supportable data and methodology and meet mini- mal standards of rationality.” /d. at 655. Emphasis added. The court also upheld the arbitrary and capricious standard for review of the controls selected by EPA, but said it must bear in mind that Congress has given EPA, not the courts, the discretion to choose among alternative strategies. This may be similar to the type of “policy” decision discussed by the ma- jority here. But in South Terminal the court in- sisted that the technical determination upon which the policy is based be strictly reviewed and explained. That court did not accept some of EPA’s technical determinations in that case, but went on to review the implementation plan controls. In reviewing a regulation putting a freeze on new parking spaces, the court indicated : “We cannot say that such a freeze is arbitrary and capricious assviming EPA is able to support bu credible data its position as to the magnitude of the need for carbon monoxide emission reduc- tions... .” Id. at 671. Emphasis added. The majority in the case at bar appeared reluctant to question whether there is credible data to support POOR COPY 14 the decision. While the court cannot substitute its judgment for that of the Agency, the reviewing court must require the Agency to demonstrate to the court that its decision is based on credible data. Overton Park, supra at 416. In Appalachian Power Co. v. Environmental Pro. Agcy. 477 F.2d 495 (4th Cir. 1973), petitioners sought review of EPA approval of a state plan for im- plementation of federal ambient air quality standards. The Administrator argued that the scope of review should be limited solely to questioning whether a state hearing was held and whether the mathematical de- termination that the rational standards will be achieved under the state plans were arbitrary and capricious. He contended these were the only things which he considered in his action. The court did not accept this argument and reasoned that the Admini- strator had considered much more than these factors and that it needed to engage in a “substantial inquiry” into all of his considerations to assure itself that all relevant factors had been considered by the Ageney. The court therefore demanded the “full record” be- fore the Administrator when he made his decision. The emphasis of the “full record” in that case and others indicates that the court must examine all the bases for the agency decisions whether termed technical or PP bled aR RRs policy. In Friends of the Earth v. U.S. Environmental Pro. Agcy., 499 F.2d 1118 (2d Cir. 1974), the Second Cirenit Court of Appeals reviewed EPA’s approval of certain aspects of New York’s clean air implemen- BLEED THRO GH 15 tation plan. The court was primarily concerned with whether the Administrator was correct in his factual determinations. Again that court reiterated the Over- ton Park standard that an inquiry into the facts should be “searching and careful.” It indicated that if the record does not reveal the basis of his determi- nation, the court can ask the Administrator for a fur- ther explanation and if the findings are not sustained by the record the court can vacate the decision. Jd. at 1123. While this inquiry of the court was limited to a factual inquiry, it emphasizes that the Admini- strator must present a full factual basis for his deci- sion. Again, in this case the court recognizes that while it cannot substitute its judgment for that of the Administrator, it must ask whether or not he had a basis for the decision he made. The “arbitrary and capricious” standard is the one which other courts of appeals have stressed. All these ‘ases require a full record indicating all factors con- sidered and a thorough explanation of why the deci- sion was made. These courts also stress that all relevant factors be considered in the decision. This in- dicates that even if a decision is termed one of “pol- icy” it must be supported by facts which the court can review to ascertain if they were properly considered or determined. While a court cannot substitute its decision for the Ageney’s, it can require the Agency to substantiate its decision at every step. The scope of review in these courts, then, substantially conflicts with the scope of review espoused by the majority here. POOR COPY dabei ied oie ae ee ee 16 CONCLUSION Scope of review of administrative agency decisions and procedures is an important question of federal law. Because the standard adopted by the majority in the case at bar conflicts with the standard specified by this Court and implemented by other courts of appeals, Pacifie Legal Foundation, as amicus curiae, urges that the petitions for certiorari be granted. Respectfully submitted, Ronap A. ZUMBRUN, JOHN H. FINp.ey, Counsel, Pacific Legal Foundation, 455 Capitol Mall, Suite 465, Sacramento, California 95814, Telephone: (916) 444-0154, GLENN E. Davis, Associate Counsel, Pacific Legal Foundation, 1030 - 15th Street, N.W., Suite 342, Washington, D.C. 20005, Telephone: (202) 466-2686, Attorneys for Amicus Curiae Pacific Legal Foundation. June, 1976 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0191%3A3. Public record. Not legal advice.