# Petition for Writ of Certiorari — 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_0193%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 426 U.S. 941 ## Text — = x 7 — aera —- irevene feet. ©. te a , fobs FILED 3 No W75-}614 MACHAEL RODAK, JR., CLEAR IN THE Suprene Court of the United States Ocroper Term, 1975 NATIONAL PrrroLeuM REFINERS ASSOCTATION, ASHLAND Onn, INc.. CLARK Orn & REFINING CORPORATION, Kerr-McGer Corroration, Mounawk Perroceum Corroratrion, INC.., Petitioners, v. ENVIRONMENTAL Prorection AGENCY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STEPS REA TNS amg bibl ELI igor OSL I TE PR are np BD Trae. A ; Hi. Epwarp DUN KELBERGER, JR. } THropore L. Garrerr i COVINGTON & BURLING SSS Sixteenth Street, NW, Washington, D.C. 20006 Afforneys for Petitioners Mav 5. 1976 Ge-ssees rere FEE SRE A RE SIE EE PPI El EL TG BLEELC THROUGH TABLE OF CONTENTS Page ee a i a ne eee 2 eI Ps ean ac oa eb ae Raed Si oie Og eee ee re Pre ere 2 STATUTES AND REGULATIONS INVOLVED .............-. 3 STATEMENT OF THE CASE ...........cccccccccccccecs 4 Proceedings Before the Agency ................ 6 ee Se dL dicce kh deewasuadeouuwoem 8 REASONS FOR GRANTING THE WRIT .............eee00- 10 I. The Decision Below Which Upheld EPA Regu- lations Based Upon New Evidence Which Was Never Brought to the Public’s Attention So As To Allow for Informed Public Participation Is Contrary to This Court’s Decision in Bowman Transportation and Inconsistent With the Re- quirements of the APA and Fundamental Re- quirements of Due Process .................-. II. The Decision Below Is Contrary to the Mandate of Congress in Holding That the Administrator Has Quasi-Legislative Power To Reach a De- termination Which ‘‘Is Necessarily a Question of Policy’’ and Which Need Not Be Based Upon SO We. Nob ck doe end bees Woke eee ree III. The Decision Below Presents Important Ques- IV. CoNCLUSION tions As To the Proper Role of the Judiciary in Reviewing Agency Action and Conflicts With This Court’s Decision in Citizens To Preserve Overton Park The Decision Below Is Inconsistent With Con- gressional Policy Requiring EPA To Consider Alternative Means of Limiting Lead Emissions | ee 11 GAY PONIES AIT RT AA il TABLE OF AUTHORITIES Page CASES: Bowman Transportation Inc. v. Arkansas-Best Freight System, 419 U.S. 28 (1974) ................ 11, 12, 13 Buckeye Power Inc. v. EPA, 481 F.2d 162 (6th Cir. ee rnd awe ihadoe Ameen e eas 13 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 8 a eee ee 18, 19, 20 International Harvester Company v. Ruckelshaus, 478 pe pf 8. oe Se: eer 13 NRDC vy. EPA, D.C. Cir. No. 72-2233 (1973) ........ 7 NRDC v. Train, 8 ERC 1695 (S.D.N.Y. 1976) ....... 23 Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 Ee ada cacik wane ao se¥ sess 13 S.E.C. v. Chenery Corp., 332 U.S. 194 (1947) ........ 14 Train v. NRDC, 421 U.S. 60 (1975) ................ 4 STaTUTEs: Administrative Procedure Act Te lun a agebees-e ee.ew 12 EE ee 18 Clean Air Act, As Amended gS ene .» op ey ae a a wc ek scene nnwceenes 4, 22, 23 nee 4, 21, 22, 23 42 U.S.C. § 1857c-5(a)(2)(B) .................. 22 cw wnecececsvess 4, 5, 22 42 U.S.C. § 1857f-6e(e)(1) ............... 3, 16, 17, 22 42 U.S.C. § 1857f-6e(e)(1)(A) ......... 5, 9, 16, 18, 22 42 U.S.C. § 1857f-Ge(e)(2)(A) ................. 22 42 U.S.C. § 1857f-6e(c)(4)(C) ................. 22 UBL. § Wre-ore Cs) ..... 2... 22.0. ...00ee 8 Judicial Code, 28 U.S.C. § 1254(1) ................. 2 REGULATIONS: eo nec ccccccncncvecces 6 a I OD cnn nn cnc cc cccccncscscene 7 ae Ped. Mow. So7st (1973) ................. 4, 8, 15, 16, 22 —— SPURTE SS APES IN AE Ree Lee ee Re Table of Authorities Continued ili Page LEGISLATIVE MATERIAL: H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) ...... 17 S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) ...... 17 SEG Cee, TN, Te CAO nc iic rece cccewecscunvene 17 Se Se CINE a voc vn ss senecsinnccceee 22 ee 17 Cong. Research Service, A Legislative History of The Clean Air Amendments of 1970 (1974) .......... 19 Riop me canerenre nee rirarsar tence Sy THROUGH CIEE EO CASTES ID LLAMA SPO FORT PET SILL BLEED THROUGH IN THE Supreme Court of the United States OcrToBeR TERM, 1975 NATIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC., CLARK OIL & REFINING CorPoRATION, Kererr-McGEE Corporation, Mouwawk PetTROLEUM Corporation, INC., Petitioners, Vv. ENVIRONMENTAL ProTecTION AGENCY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Petitioners National Petroleum Refiners Associa- tion et al. pray that a writ of certiorari issue to review the opinion and judgment of the United States Court of Appeals for the District of Columbia in this ease. 2 OPNION BELOW The opinion of the court of appeals below, on re- hearing en banc, is unofficially reported at 8 E.R.C. 1785 and is reprinted in the Appendix to this Petition.’ JURISDICTION The judgment of the court of appeals was entered on March 19, 1976. Issuance of the mandate of the court of appeals has been stayed pending the filing of this petition. The jurisdiction of this Court is invoked _ pursuant to 28 U.S.C. § 1254(1). QUESTIONS PRESENTED The regulations at issue involve fundamental ques- tions concerning the use of the nation’s limited petro- leum supplies. The use of lead additives in gasoline is of paramount importance to the refining industry. The split decision below, reversing a decision of a panel of the court of appeals, upholds EPA regula- tions limiting lead usage based upon an admittedly speculative health concern that is said to be essentially unreviewable by the courts. The questions presented are: 1. Whether the Administrator of the Environ- mental Protection Agency, acting under the command of the court of appeals to complete his action within thirty days, satisfied the requirements of due process and the Administrative Procedure Act where inter- ested persons were not provided notice of and an opportunity to comment on new evidence that was ae Poe ae ee Sti, ets, eee ee 3 1This Appendix is also submitted as the joint appendix in : four related petitions. All five cases involved the same regula- ‘ tions and were jointly decided in the opinion below. a rs | = SNES SUTTER: Cas BLE! > THROUGH 3 relied on by him in determining that emission products of lead additives in gasoline will endanger the public health. 2. Whether authority has been delegated by Con- gress to the Administrator to limit the use of lead additives in gasoline on the basis of a policy judgment even though the available scientific and medical evi- dence is speculative and inconclusive as to the effect of such additives on the public health. 3. Whether appellate review of administrative agency rulemaking that is based upon scientific and medical evidence requires examination of the evidence relied upon by the ageney or is satisfied by a determi- nation that the agency received and gave considera- tion to such evidence. 4. Whether, in any event, it was an abuse of dis- eretion for the Administrator to impose nationally uniform limitations on the lead content of gasoline, instead of establishing ambient air quality standards and providing for regional controls. STATUTES AND REGULATIONS INVOLVED Section 211(¢) (1) of the Clean Air Act, as amended, (‘the Act’’), 42 U.S.C. § 1857f-6e(¢c) (1), grants the EPA Administrator certain authority to control the sale of any fuel additive which has emission products that will endanger the public health, as follows: ‘*(1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, control or pro- hibit the manufacture, introduction into com- merce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle POOR COPY lila tas q a a Jo a PWN 8 EEO GL PILI NIRA AS OE DLL RES 4 engine (A) if any emission products of such fuel or fuel additive will endanger the public health or welfare... .’’ “©(2)(A) No fuel, class of fuels, or fuel additive may be controlled or prohibited by the Adminis- trator pursuant to clause (A) of paragraph (1) except after consideration of all relevant medical and scientifie evidence available to him, including consideration of other technologically or econom- ically feasible means of achieving emission stand- ards under section 1857f-1 of this title.”’ The regulations involved, ‘‘Regulation of Fuels and Fuel Additives, Control of Lead Additives in Gaso- line,’ were published in 38 Fed. Reg. 33734 (December 6, 1973) (R. 1) * STATEMENT OF THE CASE The principal means by which the Clean Air Act, as amended in 1970, provides for the protection of public health and welfare from the harmful effects of air pollution is the promulgation of national ambient air standards by EPA under Section 109 of the Act, and the adoption under Section 110 of state implementation plans providing for attainment and maintenance of the standards by such means as emission limitations for stationary and moving sources, and land use and trans- portation controls.* The Act contains supplementary provisions specific- ally directed at automotive emissions. The preferred methods of control, as expressed by Congress, are di- 2 References to ‘‘R’’ are to the record as set forth in the Joint Appendix below. $49 11.S.C, §§ 1857e-4, 1857-5; see Train v. NRDC, 421 US. 60, 66-67 (1975). PSE a pote oe D THROUGH 5 rect limits on vehicle emissious to be met by auto manu- facturers under Section 202 of the Act. A different means of control is provided in Section 211(¢) (1) (A) of the Act, involved here, which grants EPA certain authority to control the sale of fuel additives if it finds on the basis of medical and scientifie evidence that emission products of such additives ‘‘will endanger”’ the public health.’ The lead additives which are the subject of the regu- lations at issue in this case are of paramount im- portance to the refining industry. The use of lead additives enables refiners to inerease the yield of gaso- line, at a given octane, which is produced from a quan- tity of crude oil. It also permits refiners to produce gasoline of desired octane levels with a minimum of refinery and processing equipment. The regulations at issue will have an adverse impact upon the nation’s energy crisis, and will result in substantial increases in crude oil usage.” The regulations will also result in huge added production costs which will be borne by the consuming public and the refining industry,’ and 442 U.S.C. § 1857f-1. 549 U.S.C. § 1857f-6e(@) (1) (A). ®EPA estimated an increase of between 102,000 and 351,000 barrels per day crude oil usage by 1985, (R. 1538-39). The Department of the Interior estimated an increase of one million barrels per day (R. 2494), and the Department of Commerce projected even higher figures. (R. 2459). TEPA estimated increased consumer costs from $14 to $75 million by 1980, and additional annual investment costs of #82 to $113 million by 1980 (R. 1542-43). The Department of the In- terior estimated consumer costs of over $48 billion in this decade (R. 2498). POOR COPY ett ee, eee me SE Ee ee ee ee OE alin LA alk 0 ss eich 4 A Bra, RB ee Or 5. 5 ee Ek ad! od ne iz ai etn Noi SS aha ae ih abit ah ‘el 4 ¥ | iy fA , 6 will have a particularly severe impact on smaller refiners.* Proceedings Before the Agency On February 23, 1972, the Administrator proposed regulations affecting the use of lead additives in gaso- line. These proposed regulations would have required a four-stage reduction of lead in gasoline to 1.25 grams per gallon by 1977. The reduction portion of the proposed regulations was based upon an EPA health paper entitled ‘‘Health Hazards of Lead,’’ which ac- cepted a certain relationship between air and blood levels, and made assumptions about the volume of air inhaled by a person.”” Public hearings were held by EPA on the proposed regulations in Washington, D. C., Dallas and Los Angeles in the spring of 1972." Much of the testimony at the hearings and many of the written comments received by EPA were critical of the proposed regulations and EPA’s scientific assumptions.” In the light of these criticisms and subsequent pub- lie comments received, on January 10, 1973, EPA an- nounced reproposed regulations which would require a four-stage reduction of lead in gasoline to 1.25 grams per gallon by 1978. The basis for the new proposal was that the Administrator had ‘‘re-evaluated’’ his position and concluded that ‘“‘it is difficult if not im- SEPA consultants predicted that a number of small refiners would close as a result of the regulations. R. 1592, 1674-78, 1653. 937 Fed. Reg. 3882-84 (1972) (R. 22). 10 R. 292, 295-96, 254, 272. "1 R. 1970-2116. 12 R. 2022-69, 2245, 2070. BLEED THROUGH 7 possible to rely on the analysis presented in the earlier proposal”? and that ‘‘the original health position can no long[er] be considered sufficient.”’’* The repro- posed regulations were accompanied by a second health document summarizing EPA’s ‘‘new health position’’ ™ which was based upon the assertion that ‘‘considerable numbers”’’ of people have elevated blood lead levels, and that emissions from automobiles contribute thereto. EPA invited public comment for 60 days on the re- proposed regulations, and in response to this request, extensive comments criticizing the new EPA position and its supporting health document were received, in- cluding comments from other government agencies. On October 29, 1973, while EPA was considering these comments and certain other new data which it had received, the ageney was required by the court of ap- peals, in dismissing a premature petition for review, to reach a final decision on the matter within 30 days." In response to the court’s order, EPA on November 28, 1973, announced that the Administrator had de- cided to promulgate in revised form final regulations to reduce lead levels in gasoline.” The final regula- tions, published in the Federal Register on December 6, 1973, provided for a five-stage reduction in the amount of lead in gasoline to an average lead content 13 38 Fed. Reg. 1258 (January 10, 1973) (R. 15). 14 This second health document was entitled ‘‘EPA’s Position on the Health Effects of Airborne Lead—November 29, 1972.’’ (R. 158). 15 Natural Resources Defense Council, Ine. v. Environmental Protection Ageney (D.C. Cir. No, 72-2233) (unpublished order). See Wright Op. 14. 7% R. 1143. POOR COPY ee ee Oe ee ee ae at: rib seitsh' Pe ee a | 8 of 0.5 grams per gallon over a period of five years. The regulations were accompanied by a preamble” which refers to new technical documents relied upon to justify the regulations, including a third lengthy health position paper.”* Prior to the promulgation of these regulations, EPA did not provide interested parties with notice of or an opportunity to comment either on the new health document upon which the agency based the regulations, or the new scientific and medical evidence upon which the agency had heavily relied. The Decisions Below Petitions for review of the final regulations were filed by these petitioners and others pursuant to See- tion 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b) (1). Petitioners argued that the regulations should be held unlawful and set aside on several grounds. First, we argued that EPA’s health concern is speculative and that the evidence could not support the conclusion, required by the statute, that the use of lead additives ‘*will endanger the public health.”’ Petitioners also argued that the regulations should be remanded for an opportunity to comment on the new evidence relied upon by EPA. Further, we argued that EPA’s fail- ure to consider alternative means of limiting auto- mobile emissions rendered these regulations invalid. A divided panel of the court of appeals issued its decision setting aside the regulations on January 28, 1975. The majority opinion by Judge Wilkey, in which Judge Tamm joined, found the regulations defective 1738 Fed. Reg. 33734 (1973) (R. 1). 1S“*EPA’s Position on the Health Implications of Airborne Lead,’’ November 28, 1973 (R. 27). ee EF BR Oe CER ati THROUGH 9 on the independent grounds that EPA incorrectly in- terpreted Section 211(¢)(1)(A) of the Act, and that the Administrator’s decision ‘reflected a clear error of judgment upon the available evidence.”’ (Panel Op. 69). Judge Wright filed a lengthy dissent which criti- cized the “‘rigor of the majority’s review,’ and what he viewed as its undue sensitivity to ‘tthe energy crisis.’ (Wright Diss. 94). EPA thereaiter successfully petitioned for rehear- ing en bane. The court ordered that supplemental briefs be filed, the case was argued in May 1975, and on March 19, 1976 the court rendered a deeply divided (5 to 4) decision affirming the regulations. This time Judge Wright wrote the principal opinion for the ma- jority, and Judge Wilkey wrote a dissenting opinion in which Judges Tamm and Robb joined. In addition, separate coneurring opinions were filed by Judges Bazelon and Leventhal, and a separate dissent was filed by Judge MacKinnon. Judge Wright’s opinion held (1) that the Adminis- trator properly interpreted Section 211(¢)(1)(A) to allow him to make ‘tan essentially legislative policy judgment, rather than a_ factual determination” (Wright Op. 37, 46): (2) that the court need not de- cide whether the Administrator's decision is supported by substantial evidenee, but only whether it has a ra- tional basis in evidence (id. at 74-75); and (3) that EPA’s procedures in failing to provide for comments prior to issuing the final regulations did not violate the APA or due process. (Jd. at 98, 110).” ®% Judge Wright's opinion also rejected other arguments raised by petitioners in challenging the validity of the regulations. (Wright Op. 110, n. 24). POOR COPY wee mk ta KS nee i! atone bes, iE & 3 $ i é S 4 4 w | e i 4 i a a 3 + 4 5 § i 2 2 i % f 3 i * a 2 § & 4 + 2 4 10 In a separate opinion in which Judge McGowan joined, Judge Bazelon stated that substantive review of scientific issues by the courts ‘‘is dangerously un- reliable,’’ but coneurred only because in his view the majority’s “legislative policy’’ holding would bar a ‘‘close analysis of the evidence.’’ (Bazelon Op. 4). The principal dissenting opinion by Judge Wilkey concluded, contrary to the majority, (1) that even aec- cepting EPA’s interpretation of the statute, the agency's ‘‘analysis reflected a clear error of judgment upon the available evidence’? (Wilkey Op. 85), (2) that the requirements of the APA and due process were not satisfied because EPA did not bring to the publie’s attention the new scientific data upon which it relied in a manner that made informed public com- ments possible (id. at 32, 86), and (3) that a review- ing court cannot supply reasons absent from the agency's formal explanation, and must engage in a ‘substantial inquiry”’ to consider whether the agency’s decision was based upon a consideration of relevant factors and whether there was a ‘“‘clear error of judg- ment.’’ (Jd. at 58, 65).” REASONS FOR GRANTING THE WRIT The granting of the petition for certiorari in this case is supported by several of the grounds that are traditionally deemed sufficient by this Court to justify plenary review. The majority opinion expressly ree- ognized the ‘‘importance of the issues raised’’ (Wright Op. 113), and it is clear that the questions presented by the deeply divided opinions in this case raise issues of national and continuing importance concerning the 20 Judge Wilkey did not find it necessary to reach the other arguments presented by petitioners. (Wilkey Op. 85, n. 194). BLEED - 41ROUGH 11 procedures for public participation in agency rule- making, the role of the courts in reviewing agency ac- tion, and the implementation of the Clean Air Act. This case also raises important questions concerning the use of the nation’s limited petroleum supplies. I. The Decision Below Which Upheld EPA Regulations Based Upon New Evidence Which Was Never Brought to the Public’s Attention So as To Allow for Informed Public Participation Is Contrary to This Court's Decision in Bow- man Transportation and Inconsistent with the Require- ments of the APA and Fundamental Requirements of Due Process. The absence of an opportunity for comment on the data which formed the basis for the final regulations, and the resulting due process and APA issues raised thereby, deeply divided the court below. The regula- tions involved here were twice proposed, and were twice the subject of extensive criticism by other gov- ernment agencies and the public which persuaded EPA that its hypotheses could not be supported. Despite the fact that these uncertainties were expressed by the agency itself in promulgating the final regulations, as the dissent notes, EPA ‘‘did not risk the same fate with the Third Health Document.’’ (Wilkey Op. 16). Instead, in response to a court order that EPA act within thirty days, the agency rushed into an ill con- sidered decision based upon a new health document and new scientifie data. The ‘‘majority’’ opinion by Judge Wright (one of the judges who had ordered action within thirty days) held that the requirements of the APA and due proc- ess were satisfied because, as reconstructed by the ma- jority, the agency’s general ‘‘theories’’? (but not the data relied upon) were the same in the Third Health POOR COPY 12 Document, because some of the underlying scientific data were placed in the agency’s public information file, and because the remaining data (according to the majority) were not needed to support EPA’s conclu- tion or were merely a reexamination of earlier data. (Wright Op. 98-99, 104-08). In contrast, two con- curring judges (Bazelon and McGowan) felt that there was a “failure of the record to clearly disclose the procedural steps followed by EPA,” and stated that ‘‘ordinarily’’ there should have been ‘‘a remand for clarification’? except for the possibility that the court of appeals’ ‘‘thirty-day order interfered with the op- portunity to do so.’’ (Bazelon Op. 4-5). The four dissenting judges concluded that the re- quirements of the APA and due process were not com- plied with, and that the majority was guilty of sanc- tioning a departure from ‘‘the usual rules’’ because “this is an environmental case.’ (Wilkey Op. 50). The dissent specifically concluded that making certain information available to a party as a result of a FOIA suit, and placing information in a public file without providing any notice as to which data would be relied upon rendered the opportunity to comment effectively ‘*farciceal.”’ (Id. at 47). The lack of an opportunity to comment on EPA’s new health documents and supporting data is totally inconsistent with an orderly administrative proceeding. The Administrative Procedure Act requires that an Agency provide notice of and ‘tan opportunity to par- ticipate in the rule making through submission of written data, views, or arguments ...7° 5 U.S.C. § 553 («). The importance of the right to comment on evi- denee in an administrative proceeding was empha- sized by this Court in Bowman Transportation Ine. v. PIE IEE LIE LIGA IIL EIDE RIE IEE ELS: mel es — BLEED 13 Arkansas-Best Freight System, 419 U.S. 281, 288 n. 4 (1974) : ‘‘A party is entitled . . . to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in any way that forecloses an opportunity to offer a contrary presentation.”’ The decision below is in conflict not only with this Court’s decision in Bowman Transportation, supra, but also with previous stated positions of the court of appeals, and decisions in other circuits.” In this case, a request for an opportunity to comment on the new basis for the regulations by one of the peti- tioners was denied by EPA in a letter dated after the regulations were promulgated. (See Wilkey Op. 37). Perhaps, as Judge Macixinnon noted, given the time constraints imposed on the agency by the thirty-day order, ‘it was impossible for it to comply with the no- tice and comment requirements of the Administrative Procedure Act... .’? (MacKinnon Op. 1). If allowed to stand, however, this case would sanction a wide de- parture from this Court’s decision in Bowman Trans- portation and previous cases interpreting the require- ments of the Administrative Procedure Act. As noted by the dissent, ‘‘[i]n no previous case, environmntal or otherwise, has this court tolerated such ‘public no- 21. 8ee International Harvester Company v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973) ; Portland Cement Association v. Ruckel- shaus. 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974); Buckeye Power Ine. v. EPA, 481 F.2d 162 (6th Cir. 1973). EE SPEIER NEE SS RETREAT TIMES ERIEE GONE iid THROUGH POOR COPY Sh Ral 30 OI 2 YN 14 tice’ and ‘opportunity to comment’ as it sanctions here.”’ (Wilkey Op. 50). There is a related aspect of the decision below which warrants review by this Court. As noted by Judges Bazelon and McGowan, there is a ‘‘failure of the rec- ord to clearly disclose the procedural steps followed by EPA.” (Bazelon Op. 5). It is clear that the ma- jority’s conclusions as to the procedure followed by EPA were not set forth by EPA, but were rather re- constructed by the court.” This reconstruction not only consisted of examining the factual record, but of evaluating the scientific significance of data to deter- mine whether its unavailability was prejudicial,” and filling in gaps in the record and EPA’s explanation thereof, far beyond any reasonable discernment there- of, as the dissent makes clear.‘ In doing so, the majority violated this Court’s admonition that the courts cannot supply post hoc rationalizations for agency action. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).” Review by this Court is essential to make it clear to administrative agencies and reviewing courts that agencies cannot be permitted to base regulations upon material that was never brought to the public’s atten- tion in a manner that makes informed public comment possible. *2 See Wright Op. 97-110. 23 See e.g. Wright Op. 104 n. 112; compare Wilkey Op. 28, n. 62. 24 See Wilkey Op. 17-50. 25 See also cases cited in Wilkey Op. 65, n. 140. ARE PSEA ARAL EMT LIE SS LAIR LER T ETAL SA SOPLETEE LEED OSL EE OOM BLEE THROUGH 15 II. The Decision Below Is Contrary to the Mandate of Con- gress in Holding that the Administrator Has Quasi-Legisla- tive Power To Reach a Determination Which “Is Nec- essarily A Question of Policy” and Which Need Not Be Based Upon the Facts. In promulgating the lead health regulations the Ad- ministrator has not purported to base them upon a fac- tual determination that the emission products of leaded gasoline ‘‘will endanger the public health or welfare.” Indeed, EPA expressly concludes that the percentage of total lead exposure from automobile emissions can- not be determined, that the primary causes of lead ex- posure are not automotive emissions but rather are ingestion of lead-based paint in the case of urban children and ingestion of food in the case of the general population, and that ‘‘the contention that lead con- tamination of dust and dirt by automotive emissions is a significant source of lead exposure’ is simply ‘ta hypothesis”? which is not supported by data ‘‘to con- clusively prove or disprove the hypothesis.’ * I:PA admits that it is ‘difficult to determine what impact would be achieved by partial or total reduction of lead from any one souree.’’ At best, EH PA’s action is prem- ised on its puzzling conclusion that ‘it would be pru- dent to reduce preventable lead exposure’? and that since leaded gasoline is a source of lead which can be 2638 Fed. Reg. 33735-36 (1973) (R. 3-4) (emphasis added). Neither the Administrator nor the EPA health document has taken the position that the evidence relating lead in gasoline to human health is reasonably definitive or that further information is not required. Explanations such as ‘‘a hypothesis’’, ‘‘ preliminary data show’’, ‘‘not all links in the argument have been established beyond dispute,’’ ‘‘failure to find consistent correlations’’ and ‘further information is required’? ovcur throughout the preamble to the regulations and the final health document. (R. 2, 3, 1478, 4, 123). POOR COPY 16 ‘‘readily’’ controlled by EPA ‘‘in comparison to other sources”? the agency felt obligated to do so.” The majority opinion concedes that ‘Shard proof of any danger caused by lead automotive emissions has been hard to come by”? (Wright Op. 9), but upheld the Administrator’s action based upon its decision that the determination of endangerment to publie 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.”’. (Jd. at 46). In support of this conclusion, the majority attempts to make a virtue of necessity by arguing that EPA action based on **spec- ulation, conflicts in evidence and theoretical extrapola- tion’’ should be upheld. ‘* How else can they act, given a mandate to protect the public health but only a slight or nonexistent data base upon which to draw?” (Jd. at 47). The majority’s question is not a rhetorical one, As the dissent persuasively demonstrates, the court’s hold- ings flies in the face of the fact that the ‘‘will endan- ger’’ standard is not a delegation of quasi-legislative power, and that Congress intended EPA’s determin- ation under Section 211(¢)(1)(A) to ‘tbe a reasoned factual determination based solely en the medical and scientifie evidence.’? (Wilkey Op. 55). When Congress enacted Section 211(¢)(1) of the Clean Air Act,” it realized that the authority to regu- late gasoline and its additives posed complex and im- portant questions concerning this country’s use of one *7 38 Fed Reg. 33734 (R. 2). *8 42 U.S.C. § 1857f-6¢(c) (1). . _ ear see! ec OY Pe NEA Sp GOES NTRS LED WPA : & PERE EY Pei REN Oe Le RA Py BLE D THROUGH 17 of its most vital natural and economic resources, the proper uses of which have become even more acute with the recent energy crisis. Accordingly, Congress expressly required that before the Administrator exer- cise his authority under Section 211(¢)(1) of the Act, he would have to make a determination based on ‘‘con- sideration of all relevant medical and scientific evi- dence available to him,’’ that the use of an additive ‘will endanger the public health... .’’ Congress did not have in mind the speculative and hypothetical health effects which the Administrator relied upon in the preamble to the regulations and in the new health document. The Senate and Tfouse Reports empha- sized that there would have to be ‘ta direct endanger- ment to the public health,’ and that any standards established would have to be based on a consideration of all of the medical and scientific evidence.” The split decision below has potential significance far beyond the particular statutory provisions in- volved. EPA took the step of requesting a rehearing because the agency felt that it was important to estab- lish the principle that the Administrator not be re- quired to act upon “the type of evidence” required by the original panel. (IPA Supp. Br. 6). The decision 2S. Rep. No. 91-1196, 91st Cong., 2d Sess. 34 (1970) (em- phasis added); H. R. Rep. No. 91-1146, 91st Cong., 2d Sess. 18 (1970). The Chairman of the House Committee which reported the bill, Representative Staggers, stated that the Administrator could control additives ‘*{i]f he has the facts, and he has proven this by facts, that they are a danger and poisonous.’’ 116 Cong. Ree. 19230 (1970) (emphasis added). And Senator Baker, rank- ing minority member of the Conference Committee, stated that controls could be adopted only if the Administrator found that the combustion of a given fuel ‘twas, in and of itsclf,’’ an en- dangerment of the public health. 116 Cong. Ree. 32921 (1970) (emphasis added). POOR COPY ees DERE ARS vnc RE ine a a ee aE wl a ee ee 18 below in accepting EPA’s argument raises the con- verse issue, namely whether where Congress has ex- pressly required, as it has in Section 211(¢c)(1) (A), that a determination be based on a ‘consideration of all relevant medical and scientific evidence,’’ agency ac- tion can validly be grounded upon a ‘‘nonexistent data base’? and vague considerations of ‘‘policy.’? Con- gress could have provided for an EPA determination based upon ‘‘policy’’, but it did not do so. This Court should make it clear that the courts in reviewing agency action cannot substitute their views for the express mandate of Congress as to the weight to be given policy considerations as opposed to scientific facts relating to health and safety. III. The Decision Below Presents Important Questions as to the Proper Role of the Judiciary in Reviewing Agency Action and Conflicts with This Court's Decision in Citizens To Preserve Overton Park. The absence in the record of any support for a determination that lead emissions from automobiles are a danger to public health compels the conclusion that the majority of the court below could not have subjected that determination to the statutory standard of judicial review required by the Administrative Procedure Act and decisions of this Court. That standard requires a reviewing court to hold unlawful and set aside agency action which is ‘‘arbitrary, ¢a- pricious, an abuse of discretion, or otherwise not in accordance with law.’? 5 U.S.C. §706(2)(A). The applicable test was discussed at length in this Court’s decision in Citizens To Preserve Overton Park, Ine. v. Volpe, 401 U.S. 402 (1971). There the Court em- phasized that an agency’s determination must be sub- jected to a ‘‘thorough, in-depth review’’ by ‘‘engag- BLE -D THROUGH 19 [ing] in a substantial inquiry’ and ‘‘review[ing] the whole record.’”’? This Court made it clear that although “It]he court is not empowered to substitute its judg- ment for that of the agency,’ the ‘tinquiry into the facts is to be searching and careful,”’ and in every case the court must determine whether ‘‘the decision was based on a consideration of relevant factors.’? Id. at 415, 419, 416. The five-man majority in the court below was itself deeply divided on this fundamental issue of the role of the court in reviewing action of the Administrator under the Clean Air Act. Judge Wright’s definition of this standard of review on pages 66-74 of his opin- ion for the most part indicates that he at least under- took a ‘close serutiny of the evidence’? (Wright Op. 72), but his extensive discussion in footnote 74 at page 69 of his opinion appears to be nothing less than a rejection of the “clear error of judgment’’ language of this Court in its Overton Park decision. Further, Judge Wright refused to give significance to the fact that the Conference Committee on the Clean Air Act eliminated the provision in the Senate-passed version whieh would have provided an express presumption of validity for action of the Administrator in promul- gating regulations.” This uncertainty on the part of Judge Wright in reconciling his approach to the administrative record in the light of the Clean Air Act and its legislative history, as well as the decision of this Court in Over- ton Park, is compounded by the fact that two members 39 Wright Op. 68 n. 72. See Cong. Reserach Service, A Legis- lative History of the Clean Air Amendments of 1970 (1974), Vol. 1 at 386, 149. POOR COPY 20 of the majority explicitly refused to accept even Judge Wright’s approach in reviewing the record. The con- curring opinions of Judges Bazelon and McGowan, expressly reject the notion that appellate judges should steep themselves in technical matters ‘‘to determine whether the agency has exercised a reason discretion.”’ (Bazelon Op. 1). Instead, these two Judges, which were essential to the majority, concurred in the deci- sion only because as they ‘tread the court’s opinion, it severely limits judicial weighing of the evidence by construing the Administrator’s decision to be a matter of ‘legislative policy,’ and consequently not subject to review with the ‘substantive rigor proper for questions of fact’ ’’ since **this result would bar the panel’s close analysis of the evidence....’? (Id. at 4). As a result of the confusion as to the proper scope of substantive review of agency action under the Ad- ministrative Procedure Act and this Court’s decision in Overton Park, a bizarre result has been reached. The coneurring opinion of Judges Bazelon and McGowan indicates that they did not find it necessary to engage in a close analysis of the evidence. As a result, only three of the five judges in the majority were able to form any conclusion as to the adequacy of the evidence relied upon by the Administrator. On the other hand, four dissenting judges found that ‘‘no ralid administrative procedure would countenance launching an enterprise drastically affecting a sub- stantial portion of our economy on such a shaky foun- dation as that relied upon in this case.’’ (Wilkey Op. 35). Review by this Court is essential to eliminate the uncertainty which the court of appeals found in apply- ing this Court’s decision in Overton Park, as that deci- ES eee ee Se — 21 sion applies to all agency action based upon scientific and technical evidence. IV. The Decision Below Is Inconsistent with Congressional Policy Requiring EPA To Consider Alternative Means of Limiting Lead Emissions. In promulgating these regulations, the Administrator attempted to deal with what he perceived to be a prob- lem involving the emission products of lead additives in gasoline by imposing national, uniform limitations on the lead content of gasoline. In deciding on this course of action, the Administrator expressly rejected an alternative approach of providing for regulation on a regional basis under Section 108 of the Clean Air Act. 42 U.S.C. § 1857¢-3. The Administrator’s failure to consider air quality standards for lead has great significance. In the pre- amble to the regulations the Administrator concededly was concerned with air lead levels only in certain urban areas. (R. 15-16). It is therefore impossible to justify the Administrator’s adoption of nationwide rather than regional controls. Under this statutorily preferred approach, EPA would have published an ambient air quality standard for lead, which would be made effective by the adoption of implementation plans by the states pursuant to Section 110 of the Act. In those regions of a state where airborne lead could be shown to result in ambient air levels in excess of the standard, the state implementation plan could prescribe emission limitations and ‘‘transportation control mea- sures’? as necessary to achieve the standard in those regions. Such measures can include limitations on ve- hicle use, parking controls, emission limitations for vehicles, requirement of lead traps on individual SRL RTI PILE LESLIE ERG CEL ARCOM AEE OE LEST THROUGH POOR COPY agen me TI OGRE GE PL MEHARRY FOE SANT MH owes aides, 22 vehicles, or even controls on the use of lead in gasoline sold in the region or state.” The failure of the Administrator adequately to con- sider this alternative means of control renders his decision to promulgate regulations under Section 211 an abuse of discretion in view of the admittedly speeu- lative and inconclusive nature of the available health evidence, and the fact that the amount of lead in the atmosphere concededly varies widely from region to region. No explanation was offered for the Administrator’s rejection of the air quality standard and regional ap- proach under Sections 108-110, other than the Admin- istrator’s assertion that the choice between these regu- latory approaches is ‘discretionary with the Admin- istrator.”’** The Administrator’s conclusion on this point is inconsistent with both the language of Section 108, and the Congressional mandate that means other than the control of fuel additives be given preference by EPA. As recognized by the majority opinion be- low, when EPA acts under Section 211(¢) (1) (A) “it is essentially telling manufacturers how to make their fuel, a task Congress felt the Agency should enter upon only with trepidation.” ** Congress made its prefer- ence for alternate means of controls clear by expressly providing that before EPA exercises its Section 211 authority, it must first consider ‘‘other technologically or economically feasible means of achieving emission standards’’ under Section 202. 42 U.S.C. § 1857f-6e (e)(2)(A). 31 See 42 U.S.C. § 1857e-5(a)(2)(B). Section 211(¢) (4) (C) provides that state fuel additive limitations can be approved (or promulgated by the Administrator) only if ‘‘necessary’’ to meet a national ambient standard. 42 U.S.C. § 1857f-6e(e) (4) (C). 8238 Fed. Reg. 33740 (R. 8). 33 Wright Op. 16 n. 14; see 116 Cong. Ree. 32920 (1970). PETAR AS RATE ETE PELE RE bb aes Sale TOMEI RS ORE Re TR eR a el Nk ee BLE! 23 The Administrator’s conclusion concerning Section 108 of the Act not only ignores this Congressional pref- erence, but also is based on an erroneous legal premise. According to the majority opinion, the Administrator had claimed, ‘‘with some statutory support, that action under Section 108 is discretionary with him.”’ (Wright Op. at 110-11, n. 124). The Administrator’s conclusion on this point is inconsistent with the language of Sec- tion 108, which does not confer discretionary authority, but which instead provides that if a substance has an adverse effect on public health and the other criteria of the statute are met, the Administrator ‘‘shall’’ issue ambient air quality standards. The conclusion of the majority below is directly in conflict with a recent de- cision of the United States District Court for the South- ern Distriet of New York, which held that in view of the Administrator’s health position, EPA was required to take action under Sections 108-110 to deal with auto- mobile lead, and that this was not a matter of discre- tion.** Review by this Court is thus warranted to re- %#NRDC v. Train, 8 E.R.C. 1695 (S.D.N.Y. 1976). te. =a Ftte-~.- FR LOE RR Te SOR ER EER ee SS RIO EN BY GOPENO TERI IT > THROUGH POOR COPY PLIES gs cat tak do 5 OEE OAT SMa 8 24 solve the conflicting positions taken in different cir- cuits regarding this important matter. CONCLUSION For the reasons stated, the Petition for Certiorari should be granted. Respectfully submitted, H. Epwarp DUNKELBERGER, JR. THEopoRE L. GARRETT CoviInecTton & BURLING 888 Sixteenth Street, N.W. Washington, D.C. 20006 May 5, 1976 Attorneys for Petitioners POLST LAYERS ELIE VS ISS ES SR ee od — PIRI ELLIOT a BLEED THROUGH POOR COPY “ Sawa alin ed el - io sg wade J Lae Lg. eas bt ee ¥3 % By Bee Sete anes pe oes exons ARTS RE ‘ LTerarre BE PILE WIPREME GOOIRTZ U. i i OMY 3 19 RODAK, R., ee ee ee 7S~ 16 '!2, 1613, 1679, IN THE Supreme Court of the United States Ocroper Term, 1975 Eruyt Corporation, Petitioner v, IeNVIRON MENTAL Prorection AGENCY, Respondent PPG Ixpusrnrisrs, Ixc., Petitioner ?.. M.NVIRON MENTAL Protection AGEncy, Respondent KK. 1. DePoxr pe Nemours axnp Company, Petitioner v. NVIRONMENTAL Prorection Acency, Respondent Nanco CHemicaL Company, Petitioner ’ v. ENVIRONMENTAL Prorection AGENcY, Respondent Nation at. Perroteum Rerivers Association, Petitioner v. IeNVIRON MENTAL Proreerion AGENCY, Respondent JOINT APPENDIX TO PETITIONS FOR WRIT OF CERTIORARI Press oF Byron S. ADAMS PrinTING, INC., WASHINGTON, D. C. 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 Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 73-2268 PPG INDUSTRIES, INC., PETITIONER Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 73-2269 K. I. DUPONT DE NEMouRS & COMPANY, PETITIONER Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT POOR COPY —— ot BE se AEE GAS « tee Dei RR Te PRS es, 2 No. 73-2270 NALCO CHEMICAL COMPANY, PETITIONER V. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT No. 74-1021 NATIONAL PETROLEUM REFINERS ASSOCIATION, PETITIONER Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT Petitions for Review of an Order of the Environmental Protection Agency On Rehearing En Banc Argued En Bane May 30, 1975 Decided March 19, 1976 SYLLABUS Section 211(c) (1) (A) of the Clean Air Act authorizes the Administrator of the Environmental Protection Agency to regulate gasoline additives whose emission products “will endanger the public health or welfare * * *,” 42 U.S.C. § 1857f-6e(e)(1)(A) (1970). Acting pur- 4 “ APRS WATE RI + NS BLEED THROUC 3 suant to that power in rule-making proceedings, the Ad- ministrator determined that leaded gasoline automotive emissions present “a significant risk of harm” to the public health, thereby endangering it within the con- templation of the statute. Based on this finding, the Administrator issued regulations requiring annual re- ductions in the lead content of leaded gasoline. Held: 1. The Administrator’s interpretation of the statutory “will endanger” standard is entitled to great deference. Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75 (1975). We find no basis in the language of the statute or in its legislative history to fault his interpretation. In applying the “will endanger” stand- ard, the Administrator is authorized to assess risks of harm and, where the risk is found to be significant, to act to prevent the harm from happening. Thus the regu- latory action under this precautionary statute should pre- cede, and hopefully prevent, the perceived harm. Pp. 17- 66. a. some of the questions involved in promulga- tion of environmental regulations “are on the fron- tiers of scientific knowledge, and consequently as to them insufficient data is presently available to make a fully informed factual determination. Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual analyses.” Industrial Union Depart- ment, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338, 499 F.2d 467, 474 (1974). Pp. 45-56. b. In making his policy judgment by assessing risks the Administrator is not required to limit his consideration to the danger presented by lead ad- ditives “in and of themselves.” He may consider the cumulative impact of lead additives with other sources of human exposure to lead. Pp. 56-61. POOR COPY 4 ee acetate 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 j children,” is not “arbitrary, capricious, an abuse of dis- 4 cretion, or otherwise not in accordance with law * * *.” j 5 U.S.C. § 706(2)(A) (1970). His determination has t ¢ a ee 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 i 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. ce. 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. 7 Pp. 77-97. ; The order of the Environmental Protection Agency ; is Affirmed. BLEED THROL 3H 5 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 6 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 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(e) (1) (A). Acting pursuant to that power, the Administrator, after notice and comment, determined that the automo- tive emissions caused by leaded gasoline present “a signi- ' All sections of the Act pertinent to this case were added by the Clean Air Amendments of 1970, Pub. L. 91-604, Dec. 31, 1970, 84 Stat. 1698-1700. % BROIL EM II — CEE PILI LS I aE eS BLEED THROUGH 7 ficant risk of harm” to the public health. Accordingly, he promulgated regulations that reduce, in step-wise fashion, the lead content of leaded gasoline.» We must decide whether the Administrator properly interpreted the meaning of Section 211(c)(1)(A) and the scope of his power thereunder, and, if so, whether the evidence adduced at the rule-making proceeding supports his final determination. Finding in favor of the Administrator on both grounds, and on all other grounds raised by petitioners, we affirm his determination. * The new regulations, together with regulations requiring all gasoline refiners to market at least one line of lead- free gasoline, are set out in 40 C.F.R. § 80 (1975). The lead- free regulations serve a different purpose than the low-lead regulations now before us. Leaded gasoline fouls the cata- lytic converter emission contro! 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 Fep. Rec. 11990. 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. LEE LE ee ie LAR ppc PR Saw Os POOR COPY {re Pee Ae ete a 8 I. THE FACTS, THE STATUTE, THE PROCEEDINGS AND THE REGULATIONS Hard on the introduction of the first gasoline-powered automobiles came the discovery that lead “antiknock” compounds, when added to gasoline, dramatically increase the fuel’s octane rating. Increased octane allows for higher compression engines, which operate with greater efficiency. Since 1923 antiknocks have been regularly added to gasoline, and a large industry has developed to supply those compounds. Today, approximately 90 percent of motor gasoline manufactured in the United States con- tains lead additives, even though most 1975 and 1976 model automobiles are equipped with catalytic conver- ters, which require lead-free gasoline. From the be- ' ginning, however, scientists have questioned whether the addition of lead to gasoline, and its consequent diffusion into the atmosphere from the automobile emission, poses a danger to the public health.? As use of automobiles, * The principal studies and symposia over the years on the subject have included Sayers et al., “Experimental Studies on the Effect of Ethyl Gasoline and Its Combustion Prod- ; ucts,” Bureau of Mines, 1927; HEW, “Public Health Aspects ; of Increasing Tetraethyl Lead Content in Motor Fuel,” Pub- lic Health Service Pub. No. 712, 1959; Kehoe, “The Metabo- lism of Lead in Man in Health and Disease,” The Harben ‘ Lectures, 1960, JA 500-579; HEW, “Survey of Lead in the Atmosphere of Three Urban Communities,” JA 789-839; HEW, “Symposium on Environmental Lead Contamination,” ; Public Health Service Pub. No. 1440, 1966, JA 975-984; Tepper & Levin, “A Survey of Air and Population Lead Levels in Selected American Communities,” 1972, JA 840- 916; National Academy of Sciences, “Airborne Lead in Per- spective,” 1972, JA 309-362; EPA and Commission of European Communities, Proceedings of International Sym- posium, “Environmental Health Aspects of Lead,” Luxem- bourg, 1973, JA 676-677; EPA and National Institute of Environmental Health Services, Conference on “Low-Level Lead Toxicity,” Raleigh, N.C., 1973. —- BLEED THROUGH 9 and emission of lead particulates, has accelerated in the last quarter century, this concern has mounted. The rea- sons for concern are obvious (and essentially undisputed by petitioners): (1) lead in high concentrations in the body is toxic; (2) lead can be absorbed into the body from the ambient air; and (3) lead particulate emis- sions from gasoline engines account for approximately 90 percent of the lead in our air. Despite these apparent reasons for concern, hard proof of any danger caused by lead automotive emissions has been hard to come by. Part of the reason for this lies in the multiple sources of human exposure to lead. Lead is an ubiquitous element. It is found in the land, in the sea, in plants, in animals, and, ultimately, in humans. Traces of lead ranging from 10 to 40 micro- grams per 100 grams of blood (10-40 ug/100g)* are found in everyone, including those living in environments with almost no atmospheric lead. NATIONAL ACADEMY OF ScIENCES COMMITTEE ON BIOLOGIC EFFECTS OF ATMOS- PHERIC POLLUTANTS, AIRBORNE LEAD IN PERSPECTIVE 118 (1972) (hereinafter NAS Report). Despite its uni- versal presence, however, lead serves no known purpose in the human body, and at higher concentrations is toxic, causing anemia, severe intestinal cramps, paral- ysis of nerves, fatigue, and even death. Clinical symp- toms of lead poisoning appear at blood lead levels of 80-100 ug or higher, and symptomatic lead poisoning may appear at levels of 50-60 ug, particularly in the * Some of the data discussed herein speak of micrograms of lead per 100 grams of blood, while other data report micro- grams per 100 milliliters of blood. Since the density of blood is close to 1.0, these figures are directly comparable. There- fore, lead concentrations, unless otherwise indicated, will hereafter simply be given in micrograms. See NATIONAL ACADEMY OF SCIENCES COMMITTEE ON BIOLOGIC EFFECTS OF ATMOSPHERIC POLLUTANTS, AIRBORNE LEAD IN PERSPECTIVE 61 n. * (1972) (hereinafter NAS Report). OE SRE RET TIES POOR COPY 10 presence of anemia. EPA’s POSITION ON THE HEALTH IMPLICATIONS OF AIRBORNE LEAD (hereinafter Third Health Document) at III-1, Joint Appendix (hereinafter JA) 54-55. | Human body lead comes from three major sources. In most people, the largest source is the diet. EPA esti- mates daily dietary lead intake for adults to average 200-300 ug per day, with a range of 100-500 ug a day. : Third Health Document at V-2, JA 82. Absorption of dietary lead into the bloodstream is estimated at about 10 percent, although in children absorption may be as high as 50 percent. Thus the average adult adds 20-30 ug of lead to his bloodstream daily from his diet alone. This daily intake, which may be highly variable depend- ing on individual diets, NAS Report at 50, is generally regarded as, for all practical purposes, uncontrollable.’ OP Soi Se eet PP OTR REE Gat te BO OOM RE A second major source of the body’s lead burden, at least among urban children, is regarded as controllable, j 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 t 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 2 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. BLEED THROUGH 11 are frequently banned by statute, for interior surfaces. But while some local laws require removal of existing peeling lead paints, and there is federal legislation to aid states and municipalities in such efforts, Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §§ 4801 et seq., (1970), there is no concentrated national effort at removal, and the danger to children living in dilapidated housing will remain for some time.‘ The last remaining major source of lead exposure for humans is the ambient air. This source is easily the most controllable, since approximately 90 percent of lead in the air comes from automobile emissions,’ and can be simp!y 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. 7 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. POOR COPY 12 ple sources of lead exposure it is virtually impossible to isolate one source and determine its particular effect on the body. The effect of any one source is meaningful only in cumulative terms. The multiple sources of human exposure to lead explain in part why it has been difficult to pinpoint automobile lead emissions as a danger to public health. Obviously, any danger is caused only by the additive effect of lead emissions on the other, largely uncontrollable, sources of lead. For years the lead antiknock industry has re- fused to accept the developing evidence that lead emis- sions contribute significantly to the total human lead body burden. In the Clean Air Act Amendments of 1970, Pub. L. 91-604, December 31, 1970, 84 STAT. 1698-1700, however, Congress finally set up a legal mechanism by which that evidence could be weighed in a more objective tribunal. It gave the newly-created EPA authority to control or prohibit the sale or manufacture of any fuel additive whose emission products “will endanger the pub- lie health or welfare * * *.” 42 U.S.C. § 1857f-6e(¢) (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 FED. REG. 1486 (1971). * See, e.g., 116 CONG. Rec. 19207 (1970) (remarks of Rep. Skubitz) (“the Government can require that the oil com- panies get the lead out”); id. at 19228-19230 (colloquy be- tween Reps. Waggoner & Staggers); id. at 19234 (remarks of Rep. Williams); id. at 19239 (remarks of Rep. Sebelius). *° Regulations promulgated for the latter reason were ap- proved in Amoco Oil Co. v. EPA, supra note 2. See note 2 supra. De a a a ot et BLEED THROUG 13 Proposed regulations were issued a year later, Febru- ary 23, 1972, supported by a document Health Hazards of Lead™ (‘hereinafter First Health Document), pre- pared by the EPA scientific staff. Comments were in- vited for a 90-day period, later reopened for an additional 30 days. 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 FED. REG. 1254; approved in Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722 (1974), reproposed the health-based regulations now at issue. 38 FED. REG. 1258. The reproposal was supported by a second health document, EPA’s Position on the Health Effects of Airborne Lead (hereinafter Second Health Document), JA 158, and was necessitated by a modification of EPA’s analysis of the health effects of lead emissions. The Agency concluded, after considering the comments received, that it was virtually impossible to identify the precise amount of airborne lead that will endanger public health. Instead, the control strategy would concentrate on evaluating the cumulative effect of airborne lead on total human lead exposure and the sig- nificance of that contribution. 38 FED. REG. 1258. The reproposed regulations themselves were similar to the original proposal, requiring a phased cutback to 1.25 grams of lead per gallon of leaded gasoline, but, in recognition of the industry’s lead-time problems, pushing the timetable for reduction back one year. The Agency again invited public comment, this time for a 60-day period. 11 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. POOR COPY awe 14 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 j 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. q JA 27. This document, the Third Health Document, ex- ; tensively details and reviews the state of knowledge of 4 the health effects of airborne lead. It candidly discusses the various scientific studies, both pro and con, underly- ing this information, and ultimately concludes that lead ; from automobile emissions will endanger the public health. : The same day, based largely on the conclusions of the Third Health Document, EPA promulgated its final regulations, accompanied by a thorough discussion of its health conclusions, the impact of the regulations, and the alternative courses of action considered and re- jected. 38 FED. REG. 33734. The final regulations re- quire the same step-wise reduction of lead additives but, in response to the comments of a majority of refiners, calculate the reduction in a slightly different manner. Whereas the original and reproposed regulations set standards for permissible lead use by each refiner on : the basis of grams of lead per gallon of leaded gasoline ; produced (leaded pool averaging), the final regulations : base the standards on grams of lead per gallon of all gasoline produced (total pool averaging). The quantity of lead emitted into the atmosphere is the same under both systems; EPA simply converted its leaded pool 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] BLEED THROUG 15 Petitioners, various manufacturers of lead additives and refiners of gasoline, appealed the promulgation of low-lead regulations to this court under Section 307 of the Clean Air Act, 42 U.S.C. § 1857h-5. The appeal was heard by a division of the court on September 9, 1974. On December 20, 1974, the division, one judge dissent- ing, ordered the regulations set aside. The majority and dissenting opinions were published on January 28, 1975." Because of the importance of the issues presented, we granted EPA’s petition for rehearing en banc 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). 13 Commentators have been uniformly critical of the ma- jority opinion. See Gardner, Federal Courts and Agencies: An Audit of the Partnership Books, 75 CoLuM. L. REv. 800, 801 & n.77 (1975); Note, Judicial Review of the Facts in In- formal Rulemaking: A Proposed Standard, 84 YALE L.J. 1750, 1767-68 & nn. 81-82 (1975); Note, Reserve Mining—The Standard of Proof Required to Enjoin an Environmental Hazard to the Public Health, 58 MINN. L. REV. 893, 918-19 n.116 (1975). See also Reserve Mining Co. v. EPA, 514 F.2d 492, 519-520 (8th Cir. 1975) (en banc). POOR COPY wat Se SSA RD a aed esc a ak So PE SA | Lar ts ) > ‘ 16 majority based its reversal, are that the Administrator misinterpreted the statutory standard of “will endanger” and that his application of that standard is without Support in the evidence and arbitrary and capricious. II. THE STATUTORY REQUIREMENTS Under Section 211(¢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(c) (2) (A), 42 U.S.C. § 1857f-6e(c) (2) (A). Sec- tion 202 of the Act, 42 U.S.C. § 1857f-1, allows the Ad- ministrator to set standards for emission of pollutants from automobiles (as opposed to standards for the com- position of the gasoline that produces the emissions), and is thus the preferred—although not the mandatory— alternative under the statutory scheme, presumably be- cause it minimizes Agency interference with manufac- turer prerogatives." ** When EPA acts under § 211(c) (1) (A) it is essentially telling manufacturers how to make their fuels, a task Con- gress felt the Agency should enter upon only with trepidation. See, e.g., 116 Conc. REC. 32920 (1970) (remarks of Sen. Baker) ; id. at 19229 (remarks of Reps. Rogers & Waggoner). [continued] BLEED THROU 17 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 18 that the statutory language * * * does not require a determination that automobile emissions alone cre- ate the endangerment on which controls may be based. Rather, the Administrator believes that in providing this authority, the Congress was aware that the public’s exposure to harmful substances re- sults from a number of sources which may have varying degrees of susceptibility to control. Id. It is petitioners’ first claim of error that the Admin- istrator has erroneously interpreted Section 211(c) (1) (A) by not sufficiently appreciating the rigor demanded by Congress in establishing the “will endanger’ stand- ard. Therefore, petitioners argue, the Administrator’s action is “short of statutory right,” in violation of Sec- tion 10(e)(2)(C) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(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 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 ** 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 BLEED THROL 19 Administrator’s interpretation of the standard is the cor- rect one.” 1. The Precautionary Nature of “Will Endanger.” Simply as a matter of plain meaning, we have difficulty crediting petitioners’ reading of the “will endanger” Association (hereinafter NPRA Supp. Br.) at 5. The short answer to the argument is that petitioners’ view of the facts is erroneous. While interpreting the “will endanger” standard to mean “presents a significant risk of harm,” 33 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 Bor & Basket Co. v. White, 296 U.S. 176, 186 (1935) ; Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32-33 (1827) (Story, J.). Cf. Joseph v. FCC, 131 U.S.App.D.C. 207, 211- 212, 404 F.2d 207, 211-212 (1968). The law is fully developed in 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 16.07 at 455- 59 (1958). ** We note that even if we did not agree fully with the Administrator’s interpretation of the Act, we would be obliged to accord it considerable deference. As the Supreme Court recently held in approving, despite the contrary views of several circuits, the Administrator’s reading of another sec- tion of the Clean Air Act: Without going so far as to hold that the Agency’s con- struction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts. Train Vv. Natural Resources Defense Council, Inc., 421 U.S. 60, 75 (1975). See also id. at 87. POOR COPY PALE DO op Se he DEE eee 20 standard. The meaning of “endanger” is not disputed. Case law and dictionary definition agree that endanger means something less than actual harm.'* When one is endangered, harm is threatened; no actual injury need ever occur. Thus, for example, a town may be “endan- gered” by a threatening plague or hurricane and yet emerge from the danger completely unscathed.’* A stat- It is linguistically clear, of course, that one can be “en- dangered” without actually being harmed. Nonetheless, some risk of harm is necessary. State v. Fine, 324 Mo. 194, 23 S.W.2d 7, 9 (1929). Webster defines “endanger” as “to bring into danger or peril of probable harm or loss.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 748 (1961) (empha- sis added). Not all courts have agreed that “probability” of harm is the proper determinant of danger. Where grounds for divorce are few, for instance, courts have interpreted laws allowing divorce because of inhuman treatment that “endangers the life” to require only the slightest possibility of actual loss of life. Thus action that endangers health has been held to endanger life on the theory that the former cannot be en- dangered without threatening the latter. See Cole v. Cole, 23 Iowa 433, 438 (1867); Beebe v. Beebe, 10 Iowa 133, 139 (1859). In one of the latest of these cases, mistreatment that deprived a spouse of needed rest and peace of mind was held to “endanger” life. Smith v. Smith, 258 Iowa 557, . 138 N.W.2d 453, 456 (1966). We need not decide here how remote the possibility of actual harm could be under the “will endanger” standard since we accept the Administrator’s determination in this case that a “significant” risk to health falls within the statutory language. See pages 31-36 infra. ® 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 A sice BLEED THROUGH 21 ute allowing for regulation in the face of danger is, nec- essarily, a precautionary statute. Regulatory action may be taken before the threatened harm occurs; indeed, the very existence of such precautionary legislation would seem to demand that regulatory action precede, and, optimally, prevent, the perceived threat. As should be apparent, the “will endanger” language of Section 211 (ec) (1) (A) makes it such a precautionary statute. The Administrator read it as such, interpreting “will endanger” to mean “presents a significant risk of harm.” 38 FED. REG. 33734. We agree with the Administrator’s interpretation. This conclusion is reached not only by reference to the plain meaning of the statute, but by juxtaposition of Section 211(c)(1)(A) with other sec- tions of the Clean Air Act and by analysis of pertinent precedent.” and the EPA. However, in so far as 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 POOR COPY © LPI ALLL MOL ILE INGE POINT 22 Petitioners support their view of the rigorous nature of the “will endanger” standard by relying on two other sections of the Clean Air Act that also allow for regula- tion of air pollutants for health reasons. Ethyl Supp. Br. at 18-23; supplemental brief of petitioner Nalco Chemical Company (hereinafter Nalco Supp. Br.) at 20-25; NPRA Supp. Br. at 31-46. However, we find in the same sections relied upon by petitioners firm support for our view of the precautionary nature of Section 211(c) (1) (A). The provisions identified by petitioners are Sec- j 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 ~ ust result.” This eck sd aS ses ; 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 BLEED THROUGH PERT ISAS CML IN PIS = TENN 23 firm threshold finding is reasonable in light of the con- siderable disruption caused by action under Sections 108- 110. After a pollutant is listed under Section 108, the Administrator must issue national ambient air quality standards under Section 109 within a year. Promulga- tion of standards begins the implementation plan process of Section 110 under which the states must control, on a mandatory timetable, the listed pollutants to the ex- tent necessary to achieve the federal standards. Sec- tion 110, 42 U.S.C. § 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, —— US. , 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 dverse 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, 7.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 POOR COPY SEV ET P RL NO RPL LTP APM meg 24 Section 108 is not a precautionary statute at all, and so differs sharply from Section 211. However, the effects of such after-the-fact regulation are somewhat amelio- rated by the Act; Congress did provide a precautionary element in standard-setting under Sections 108-110. Sec- tion 109 expressly requires that the ambient air stand- ards ultimately issued provide for “an adequate margin of safety.” 42 U.S.C. § 1857c-4(b) (1). Thus, while the threshold decision to regulate under Sections 108-110 is not precautionary but rather requires proof of demon- strable harm caused by the suspect pollutant, once the decision is made the standards promulgated must be preventive in nature. Congress’ choice of this scheme is in direct contrast to the procedures it established under Section 211. Under that section the decision to regulate is based on perceived danger. Unless we are to assume Congress chose its language carelessly, regula- 3 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.** 4 : a s z : 2 3 2 5 Cet loony sea alta 3 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. Vv. EPA, No. 74-1023 (D.C. Cir. September 11, 1974), and NRDC has since brought a success- ful citizen’s suit under § 304 of the Act, 42 U.S.C. § 1857h-2, to compel issuance of national ambient air standards for lead. Natural Resources Defense Council, Inc. Vv. Train, No. 74- Civ-4617 (S.D.N.Y. decided March 1, 1976). 22 Thus we must reject amicus NRDC’s suggestion that the standards for action under §§ 108 and 211 are the same. dle ns nena ite ne ai 23 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- BLEED THROUGH 25 Petitioners also rely on Section 202 to support their strict reading of Section 211. Ethyl suggests that Section 202 is more lenient than Section 211 in that it allows regulation of “likely” dangers. Ethyl Supp. Br. at 18-19. See also 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.” Ethyl Supp. Br. at 19 n.27. Even if true, however, this argument has nothing to do with whether the threshold determination to regulate is, or is not, precautionary. Even if § 108 allowed regu- lation of less severe effects than does § 211, regulations could still be premised only on a finding of an actual effect, while § 211 regulations could still be premised on a pre- cautionary finding of threatened, albeit more severe, harm. POOR COPY 26 at 31-36. Section 202 provides that the Administrator may regulate the emission of any air pollutant {from any new motor vehicle] which in his judgment causes or con- tributes to, or is likely to cause or contribute to, air pollution which endangers the public health or welfare. 42 U.S.C. § 1857f-1(a)(1) (emphasis added). While this language may be unnecessarily opaque, we think a fair reading disproves petitioners’ suggestion. The itali- cized language upon which petitioners rely refers not to the causal relationship between air pollution and health, but to the relationship between automobile emis- sions and air pollution.* Thus regulation may not be premised on a threshold determination of likely danger; rather regulation must be premised on a 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 Pre eee re erie eee et weer MLSE Tal het Ug nd thas Sonos )> Bia aN ORNL Bice is Silene a ENS INN ae *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. tr ny Coe ie See een ek ee! FN BLEED THROU‘ 27 Section 202 is more lenient than Section 211,”° but in making the threshold determination of danger both sec- tions are the same:* air pollution must endanger the public health before regulation is justified.”’ ** Section 211 simply skips this chain of causation and re- quires instead that the emission products of the fuel additive to be regulated endanger the public health. This omission of a step does not support petitioners’ “in and of itself” theory, see pages 56-61 infra, but rather is responsive to the different intendments of §§ 101 and 211. See note 27 infra. In any case, it is plain that for regulation under § 211 the emission products must directly (although not necessarily by them- selves) endanger the public health; whether they contribute to air pollution that in turn endangers the public health, as required by § 202, is irrelevant. Since the Administrator found that lead emissions directly endanger the public health, whatever leniency § 202 provides is irrelevant to this case. Nalco takes issue with the dismissal of this question and asks sarcastically, “If causation is irrelevant to the regula- tion of fuel additives, why is EPA concerned about meeting any standard at all in these regulations.” Nalco Supp. Br. at 20-21. Nalco is confusing two separate causation issues. There is undoubtedly a causation issue about whether lead emissions cause a danger to public health. On the other hand, however, there is no causation issue about whether lead emissions contribute to lead air pollution. There is no such issue, first, because § 211, unlike § 202, does not demand such a finding and, second, because in any case petitioners could not, and do not, contest the validity of that assertion. It is only this issue of causation, to which the “likely” language of § 202 relates, that EPA argues, and we agree, is irrelevant to this case. See EPA Supp. Br. at 17-18. *° Thus while Congress preferred emission regulation un- der § 202 to fuel content regulation under § 211, see note 14 supra, there is no reason to assume, as NPRA argues, NPRA Supp. Br. at 31-35, that in situations where § 211 regulation is proper, the Administrator must find greater potential harm before acting. Cf. note 23 supra. **NPRA recognizes that a literal reading of § 202 pro- duces the result suggested above. Thus it argues that this POOR COPY Re a POO eS aS a 28 Thus the two sections of the Clean Air Act presented by petitioners in support of their stringent reading of the threshold requirement for action under Section 211 turn out, upon analysis, to be of no support at all. Sec- tion 108 only bolsters our reading of Section 211 as a precautionary statute while Section 202 includes the same standard as Section 211 and thus is of no guidance one way or the other. While petitioners have little more to offer to prove that the “will endanger” standard demands proof of actual harm and is not precautionary in nature, we may turn, in support of our interpretation, to the relevant case law. While cases interpreting the result is ‘“‘meaningless, or at best tautological,’” NPRA Supp. Br. at 32, so that its “likely” danger theory emerges as an acceptable, although linguistically incorrect, alternative. Jd. at 33. NPRA argues that the above reading would require the Administrator to determine whether “the emission of ayy air pollutant ... is likely to cause or to contribute to, air pollution... .” Id. at 32 (emphasis in original). Since under this reading, NPRA argues, the Administrator would always reach a posi- tive conclusion, this reading must be incorrect. We agree that this reading is of little value, but we do not think it is the proper result of our analysis above. Rather, we think that to regulate under § 202 the Administrator must find that emission of the air pollutant is likely to cause or contribute to dangerous air pollution. This addition is important, for not all air pollutants contribute to dangerous air pollution and, more importantly, not all dangerous air pollution is caused by air pollutants that are, themselves, dangerous. Thus hydrocarbons, whose emission is regulated by § 202, are not themselves always dangerous, but are properly regulated because they react in sunlight to form smog, which is danger- ous. See S. Rep. 89-192, 89th Cong., Ist Sess. 5-6 (1965); EPA Supp. Br. at 18 n.15. Thus, far from stating a tautology, § 202 allows for the regulation of such apparently innocent ; pollutants, which indirectly cause dangerous pollution. ARSE HL OE ENED SL DD PERIL ERE OW ER RE oe a PPE MES BLEED THROU 29 meaning of “endanger” are few in number,” at least one recent case is directly on point and fully in accord with our view. In Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975) (en banc), the Eighth Circuit addressed, among other issues, the meaning of the phrase “endanger- ing the health or welfare of persons” under Section 1160 of the Federal Water Pollution Control Act of 1970 (FWPCA), 33 U.S.C. § 1160. FWPCA and the Clean Air Act together constitute the bulk of this nation’s substantive environmental protection legislation.” As 28 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). 2° 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. § 4821 et seq. 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- 4 he > See AAPA PERRET SNE H POOR COPY 30 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, 321-822, 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: ALR STAIR 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 i 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 BS Lit we eaawedeer in ew keas car sk Re ec 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). BLEED THROU 31 does not require proof of actual harm before regulation is appropriate. Perhaps because it realized that the above interpreta- tion was the only possible reading of the statutory language, petitioner Ethyl addresses this interpretation and argues that even if actual harm is not required for action under Section 211(c) (1) (A), the occurrence of the threatened harm must be “probable” before regula- tion is justified. Ethyl Supp. Br. 12. While the diction- ary admittedly settles on “probable” as its measure of danger,*’ we believe a more sophisticated case-by-case analysis is appropriate. See note 17 supra. Danger, the Administrator recognized, is set not by a fixed probability of harm, but rather is composed of reciprocal elements of risk and harm, or probability and severity. Cf. Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 419, 510 F.2d 796, 799 (1975); Reserve Mining Co. v. EPA, supra, 514 F.2d at 519-520. That is to say, the public health may properly be found endangered both by a lesser risk of a greater harm and by a greater risk of a lesser harm.**? Danger depends 8° See Green, The Risk-Benefit Calculus in Safety Deter- minations, 48 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. *1 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 POOR COPY 32 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 - ——— Stet HGR DARDEN SRT VEPA ISSN 229 OTE ES Bes SERENA MN LENA EPS IE RN sil BLEED THRC 33 In Reserve Mining the issue was whether asbestiform wastes flushed into Lake Superior by the Reserve Min- ing Company endangered health.** The polluted lake is insufficient to support the kind of demonstrable dan- ger to the public health that would justify the immediate closing of Reserve’s operations. We now address the basic question of whether the discharges pose any risk to the public health, and, if so, whether the risk is one that is legally cognizable. 514 F.2d at 507. The Eighth Circuit is not drawing a sharp line between “danger” and “risk,” but is only contrasting degrees of danger. Nalco fails to note that the “legally cog- nizable” risk ultimately found was that Reserve’s discharges were “endangering” the public health within the meaning of the Federal Water Pollution Control Act. See page 34 infra. Necessarily, “risk” is an element of “danger,” and the Reserve Mining court explicitly recognized that fact. 514 F.2d at 520. The Power Reactor case is likewise of no support to Nalco. There the Supreme Court simply recognized that when regu- lations juxtaposed, and ordered, findings of “undue risk” and “endanger,” an “undue risk” was not intended to mean “en- danger.” The Court did not say that risk was not an element of danger, only that in the regulations before it an “undue” risk was not necessarily a sufficient risk to constitute a “dan- ger.” ** Reserve Mining involved issues not only under FWPCA, but under § 407 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 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. Vv. EPA, supra note 13, 514 F.2d at 588. With respect to the ey SIE ag cn gece JGH POOR COPY 34 waters formed the drinking supply of several surround- ing communities, while a medical theory, bolstered only by inconclusive evidence, suggested that ingestion of the wastes caused cancer. See pages 93-94 infra. Applying the “endangering the health or welfare of persons” stand- ard of the FWPCA, the court found the wastes to be a danger cognizable under the Act. The court did not find that the danger was probable; rather it found the wastes to be “potentially harmful,” 514 F.2d at 528, and potential harm to be embraced by the “endangering” standard, id. See page 30 supra. The court concluded: The record shows that Reserve is discharging a substance into Lake Superior waters which under an acceptable but unproved medical theory may be considered as carcinogenic. As previously discussed, this discharge gives rise to a reasonable medical concern over the public health. We sustain the dis- trict court’s determination that Reserve’s discharge into Lake Superior constitutes pollution of waters “endangering the health or welfare of persons” within the terms of $§ 1160(c)(5) and (g)(1) of the Federal Water Pollution Control Act and is subject to abatement. 514 F.2d at 529 (footnote omitted) (emphasis added). The court thus allowed regulation of the effluent on only a “reasonable” or “potential” showing of danger, hardly the “probable” finding urged by Ethyl as the proper reading of the “endanger” language in Section 211. water pollution, as described in the text, the court found the probabilities of danger to be low for they do not rest on a history of past health harm attributable to ingestion but on a medical theory implicating the ingestion of asbestos fibers as a causa- tive factor in increasing the rates of gastrointestinal cancer among asbestos workers. Id. at 536 (emphasis added). Thus the court only ordered cessation of dumping within a “reasonable time.” Jd. at 538. alien BLEED THROUGH 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. Vv. OSHA, 509 F.2d 1301, 1307 (2d Cir.), cert. denied, 421 U.S. 992 (1975); Industrial Union Depart- ment, AFL-CIO Vv. 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 wa#@tensiderably greater than the cancer risk that motivated the Reserve Mining court. Thus this greater risk of an arguably lesser harm still constitutes endangerment. POOR COPY tions before us. Instead, he finds a “significant” risk of harm to health. While this finding may be less than the “probable” standard urged by Ethyl, it is con- siderably more certain than the risk that justified regu- lation in Reserve Mining of a comparably “fright-laden” harm. Cf. Environmental Defense Fund, Inc. v. EPA, 150 U.S.App.D.C. 348, 358, 465 F.2d 528, 538 (1972). Moreover, like the Reserve Mining court, in the face of this still less than certain risk the Administrator did not order the cessation of use of lead additives, but rather directed a phased step-down to a plateau level. Thus we conclude that however far the parameters of risk and harm inherent in the “will endanger” standard might reach in an appropriate case, they certainly present a “danger” that can be regulated when the harm to be avoided is widespread lead poisoning and the risk of that occurrence is “significant.” “ “ This conclusion that a “significant risk of harm” states a sufficient probability of occurrence to fall within the “will endanger” standard is bolstered by the fact that Congress did not employ various modifiers frequently used (in the Clean Air Act and elsewhere) to mandate more certain en- dangerment. Thus Congress did not require that the lead emissions “clearly endanger” the public health, cf. 21 U.S.C. § 454(c); id. § 661(c); 50 U.S.C. § 1517, or that the emis- sions pose an “imminent and substantial endangerment” to the public health, cf. 33 U.S.C. § 1364 (Supp. 1974); 42 U.S.C. §300i(a); id. §1851c-10(b); id. § 1857c-7(c) (1). See Reserve Mining Co. v. EPA, supra note 13, 514 F.2d at 528. We find these omissions more significant than the use of the modifier “will,” which Ethyl argues adds “a particular degree of certainty to the probability that must be shown.” Ethyl Supp. Br. at 12. To the contrary, “will” only makes it clear that the standard is one of danger and nothing less, a conclusion with which we agree. Whether the evidence relied upon by the Administrator is sufficient to support his finding of a “significant risk of harm” is discussed below at pp. 66-97 infra. - —s in > ve Sines eine hia "7 g Rea rn ery ns Saree os se os 7 q s - BLEED THROUGH POLES SS IT 37 2. The Administrator's Power to Assess Risks. Pe- titioners argue that Section 211 requires the Adminis- trator to make a “threshold factual determination” that automobile emissions “will endanger” the public health, Naleo Supp. Br. at 15-20; Ethyl Supp. Br. at 24-26, and dispute EPA’s claim that the Administrator may make “an essentially legislative policy judgment, rather than a factual determination, concerning the relative risks of underprotection as compared to overprotection.” Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 339, 499 F.2d 467, 475 (1974). We must reject petitioners’ argument, since the power to assess risks, without relying solely on facts, flows inexorably from the nature of the “will danger” stand- ard. We have already found that Section 211 allows the Administrator to regulate fuel content when he finds that emissions cause a significant risk of harm to the public health. Yet, how can the Administrator deter- mine that a risk is a significant risk if he cannot assess risks? And how can he assess risks if he can- not make policy judgments? Surely reliance on “facts” as contemplated by petitioners will provide little guid- ance. However, sole reliance on facts was not demanded by Congress.” * Besides the arguments discussed below, petitioners sup- port their claim that a “factual” not judgmental decision is required by pointing to the absence in § 211 of a phrase ex- pressly allowing the Administrator to use his “judgment,” in contrast to the presence of such a phrase in §§ 108 and 202. Nalco Supp. Br. at 21-22; Ethyl Supp. Br. at 21-22. The argu- ment ignores an important difference between the cited sec- tions and § 211. Sections 108 and 202 are mandatory in their terms; under both sections the Administrator “shall” regu- late if “in his judgment” the pollutants warrant regulation. Because of the mandatory nature of the provisions, express provision for administrative discretion via the “judgment” phrase is necessary. By contrast, § 211 is permissive; the Administrator “may” regulate if emissions “will endanger” POOR COPY wy tee i sl 38 Originally, it is true, it appeared that Congress would severely restrict the Administrator’s ability to assess risks and make policy judgments to protect public health. The bill sent to the floor of the House, and eventually passed by the House, would have allowed EPA to con- trol fuels or fuel additives only if the determination that their emission products would endanger the public health were established on the basis of specific findings derived from rele- vant medical and scientific evidence, including * * * a finding that it is not otherwise technologically or economically feasible to achieve the emission stand- ards established pursuant to section 202 of this Act. H.R. 17255, 91st Cong., 2d Sess. § 210(g) (1) (1970) (emphasis added). The specific findings requirement had more than procedural significance. It limited the scope of evidence on which the Administrator could proceed, made alternative action under Section 202 mandatory if possible, and was widely interpreted in the House, as the extracts of debate relied upon by petitioners show, Ethyl Supp. Br. at 24; NPRA Supp. Br. at 30; Nalco Supp. Br. at 15, as requiring that any EPA action be the public health. Since discretion is provided in the directive to the Administrator, the safety valve of a “judgment” phrase is unnecessary. On the other hand, since we find the exercise of judgment to be implicit in a determination of “danger,” there is no need for an express statement of that power and no reason to ascribe significance to the omission of the phrase. The irrelevancy of the omission is shown by the Amoco decision, where the court construed § 211(c) (1) (B), which, like its sister section at issue here, does not contain the phrase “in his judgment.” Nonetheless, the court recognized the Ad- ministrator must, necessarily, have the power to assess risks and make policy decisions under that section whenever the determinations called for are judgmental. Amoco Oil Co. Vv. EPA, supra note 2, 163 U.S.App.D.C. at 180-181, 501 F.2d at 740-741, quoted in text at pp. 43-44 infra. FEE IE RRL LS EIR SE rey BLEED THROUGH 39 based solely on facts.** See also H.R. Rep. No. 91-1146, 91st Cong., 2d Sess., at 13 (1970). ** Petitioner Nalco argues that if the specific requirement, and its subsequent deletion, have substantive effect at all, that effect relates not to the threshold decision to regulate, but to the subsequent implementing decisions about how to regulate. Nalco Supp. Br. at 17-20. It is true that a literal reading of the House version, proposed § 210(g¢) (1), sug- gests that specific findings are required in setting “stand- ards” for fuel additives rather than for the threshold deci- sion to regulate. Nonetheless, it is doub [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0193%3A1. Public record. Not legal advice.