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

Telephone: (916) 444-0154,

Gienn E. Davis,

_ Associate Counsel, Pacific Legal Foundation.

1030 - 1 Sth Street, N.W.. Suite 342,

Weshington, D.C. 20005,

Telephone: (202) 466-2686,

Attorneys for Amicus Curiae

Subject Index

Page

Motion for leave to file brief of amicus curiae Pacific

Legal Foundation in support of petitions for writ of

certiorari to the United States Court of Appeals for the

District of Columbia Cireuit ..........................

Brief of amicus curiae Pacifie Legal Foundation in support

of petitions for writ of certiorari to the United States

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

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

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I

Legislative policy questions require more rather than

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

II

The standard of review used in this case conflicts with

the standard set by this court and followed in other

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Table of Authorities Cited

Cases Pages

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

Ge SD: sp kknn ce cuandace hneedddcecnssenecenaseses 9

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

2 £ FB BP verree ere Tri Tree 14

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

ee SUED 5d cAdcccndabarecavecaanesadace 9, 11, 12, 13, 14, 15

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

Se Ge WE ED bn wnein denecd cdnsesceestéuneteeke 7,8

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

GD Fe BERD COE GOR BOGE) c cccvccccecesccccacesies 14

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

S WUEE ainctedudnsncddcdaddnessttudevedesesenanees 12

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

South Terminal Corp. v. Environmental Protection Agcey.,

a TS GE COR SA TR ec cece di nntenbdnccndccccs 12,13

State of Texas v. Environmental Protection Agency, 499

¢ & 8 fe Be Bepererererrrr re rere er erry te 12

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

ie See EE SE “a dsauceshcannebatatenteehanmbaee 12

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

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

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Rules

Supreme Court Rules:

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Statutes

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Texts

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

BLEED THRC

IN THE

Supreme Court of the United States

OctToBer TERM, 1975

No. 75-1602

E. I. DuPont De Nemours & Company and PPG

Inbustries, Inc., Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1612

EtHyYL Corporation, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1613

Na.co CHEmicaL Company, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1614

NATIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC.,

CuarK O1 & REFINING CorporRaTION, KERR-MCGEE CorPoRATION,

Mouawk Perro.euM Corporation, INc., Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

PACIFIC LEGAL FOUNDATION IN SUPPORT OF

PETITIONS FOR WRIT OF CERTIORARI

to the United States Court of Appeals for

the District of Columbia Circuit

This motion of Pacific Legal Foundation (PLF)

for leave to file the annexed brief amicus curiae in

PELE LE LEONI PO I LILA IV LLLER BO RIEL S 0 AEN MO” 5

IGH

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2

support of petitions for writ of certiorari is respect-

fully made pursuant to Rule 42 of the Supreme Court

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

tained from counsel for all parties with the exception

of the Solicitor General, counsel for respondent En-

vironmental Protection Agency, and such consents

have been lodged with the clerk of this Court.

PLF is a nonprofit, tax-exempt corporation organ-

ized and existing under the laws of California for

the purpose of engaging in litigation in matters af-

fecting the public interest. Policy for PLF is set by

a Board of Trustees composed of concerned citizens.

Twelve of the seventeen-member Board are attorneys.

The Board evaluates the merits of any contemplated

legal action and authorizes such legal action only

where the Foundation’s position has broad support

within the general community. The Board has au-

thorized the filing of a brief amicus curiae in support

of petitions for writ of certiorari in these cases.

PLF considers these cases to be of special signifi-

cance in that they raise the issue of the proper scope

of review of administrative agency decisions and pro-

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

peals for which review is sought raises the question

whether legislative policy decisions of an administra-

tive agency are exempt from the rigorous review to

which findings of fact by administrative agencies are

subjected.

As a public interest law foundation, PLF fre-

quently finds itself engaged in litigation with federal

administrative agencies, and particularly the Environ-

NOLO LEME ED LONE ALO LLOELE EA NII LAELIA GLARE ERE EIDE

eae

pPIrrn THE

3

mental Protection Agency, in matters concerning such

policy decisions. Thus the scope of review of these

decisions is extremely important to PLF.

For this reason, Pacific Legal Foundation requests

that this motion to file the annexed brief amicus

curtae be granted.

Respectfully submitted,

Ronaup A. ZUMBRUN,

JOHN H. FINpiey,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Telephone: (916) 444-0154,

GLENN E. Davis,

Associate Counsel, Pacific Legal Foundation,

1030 - [5th Street, N.W., Suite 342.

Washington, D.C. 20005,

Telephone: (202) 466-2686,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

June, 1976

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XSiIGH

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No. 75-1602

E. IL. DuPont De Nemours & Company and PPG

INpDustrigs, INc., Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1612

EtHy. Corporation, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1613

Nauco CHEMICAL Company, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1614

NATIONAL PETROLEUM REFINERS ASSOCIATION, ASHLAND OIL, INC.,

CuarK O1 & REFINING CoRPORATION, KERR-MCGEE CORPORATION,

Monawk PETROLEUM CorporRATION, INc., Petitioners,

VS.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

BRIEF OF AMICUS CURIAE PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI

to the United States Court of Appeals for

the District of Columbia Circuit

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CP RRR BIR IS ia RN tee |

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INTEREST OF AMICUS

The interest of amicus is set out in the preceding

motion for leave to file this brief.

OPINION BELOW

The opinion en bane of the United States Court of

Appeals for the District of Columbia Circuit of

March 19, 1976, is unofficially reported at 8 ERC

1785.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

In this brief amicus curiae, Pacific Legal Founda-

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

scope of review utilized below by the court of ap-

peals. Amicus believes that the concept of scope of

review of administrative decisions there adopted re-

quires review by this Court under the considerations

governing review on certiorari set forth in Supreme

Court Rule 19(b) in that:

1. Such concept is in conflict with the decision of

other courts of appeals on the same matter;

2. Scope of review is an important question of

federal law which has been decided by the court. of

appeals in a way which is in conflict with applicable

decisions of this Court; and

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

sanctioned a departure from the accepted and usual

course of proceedings by an administrative agency

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

supervision.

I

LEGISLATIVE POLICY QUESTIONS REQUIRE MORE RATHER

THAN LESS RIGOROUS SCRUTINY BY THE COURTS

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

adopted a special rule for review of questions believed

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

the court found in the applicable statute “a recog-

nition by Congress that a determination of endanger-

ment to public health is necessarily a question of

policy that is to be based on an assessment of risks

and that should not be bound by either the procedural

or the substantive rigor proper for questions of fact.”

Maj. Op. at 46.

The court noted that the Administrator must be

accorded “a flexibility that recognizes the special ju-

dicial interest in favor of protection of the health and

welfare of people, even in areas where certainty does

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

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

at 46.

This citation is puzzling in that the referenced

case espouses a view diametrically opposed to that

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

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

elshaus, supra at 597. The court reasoned that since

courts were increasingly asked to review “administra-

tive action that touches on fundamental interests in

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

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92 1) R ARETE RE RBIS

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protect these interests from “administrative arbitrari-

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

applied. Jd. at 598. That court stated:

“For judicial review alone can correct only the

most egregious abuses. Judicial review must op-

erate to ensure that the administrative process

itself will confine and control the exercise of dis-

cretion. [Footnote omitted.] Courts should re-

quire administrative officers to articulate the

standards and principles ‘3 govern their dis-

eretionary decisions in uch detail as pos-

sible. [Footnote omitted. ules and regulations

should be freely formulated by administrators,

and revised when necessary. [Footnote omitted. |

Discretionary decisions should more often be sup-

ported with findings of fact and reasoned opin-

ions. [Footnote omitted.] When administrators

provide a framework for principled decision-

making, the result will be to diminish the im-

portance of judicial review by enhancing the

integrity of the administrative process, and to im-

prove the quality of judicial review in those eases

where judicial review is sought.” Id.

In the instant case, the court disregards this admon-

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

lator flexibility to assess risks and make essentially

legislative policy judgments, as we believe it does,

preventive regulation based on conflicting and incon-

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

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

is precautionary in nature [footnote omitted], the

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

ing because it is on the frontiers of scientifie knowl-

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9

edge, the regulations designed to protect the public

health, and the decision that of an expert administra-

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

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

This new doctrine is at odds not only with the

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

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

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

glaringly inconsistent with this Court’s decisions con-

cerning delegation of legislative policy making fune-

tions to administrative agencies.

Legislative policy making is a Congressional fune-

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

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

granted shall be vested in a Congress of the United

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

of this section, it has been the traditional rule

in federal law that Congress cannot delegate its law-

making power to any other authority or body. (uted

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

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

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

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

The Clean Air Act authorizes the Administrator to

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

“the emission products will endanger the public

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

(A).

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

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

powers has heen that:

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10

“each enactment must be considered to deter-

mine whether it states the purpose which the

Congress seeks to accomplish and the standards

by which that purpose is to be worked out with

sufficient exactness to enable those affected to un-

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

As one authority has restated the rule:

“In other words, the delegator cannot just del-

egate and let the delegatee go off on a legal and

political bender; the delegatee must be curbed,

else his power would be unlimited. This curb is a

requirement of the Constitution, as judicially in-

terpreted in each case, so that every delegavion

must contain standards as limitations. These

standards are for the purpose, as Chief Justice

Warren has stated in another connection, of

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

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

104 (1956).

It is clear that the decisions of this Court require

that in any delegation of any legislative power—and

certainly in the area of legislative policy making—

the courts must give such delegation the strictest of

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

ventive regulation based on conflicting and inconclu-

sive evidence may he sustained if a statute may be

interpreted as according the regulator flexibility to

assess risks and make essentially legislative policy

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

to either the procedural or substantive rigor proper

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

with the applicable decisions of this Court concerning

LPG GASPAR PED OPIN I 7

SALT EN EN NLT ATT EME I LL TELS on he

11

review of delegated powers and should therefore be

reviewed by this Court.

II

THE STANDARD OF REVIEW USED IN THIS CASE CONFLICTS

WITH THE STANDARD SET BY THIS COURT AND FOL-

LOWED IN OTHER CIRCUITS

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

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

of review under the Administrative Procedure Act.

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

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

depth review.” The court must first decide whether

the Administrator acted within the scope of his au-

thority. Then the court must go on to determine

whether the choice made was “arbitrary, capricious,

an abuse of discretion or otherwise not in accordance

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

whether the decision was based on a consideration of

the relevant factors and whether there has been a

clear error of judgment.” The reviewing court is

specifically instructed to make an “inquiry into the

facts.” Id.

While the opinion of the court of appeals accepts

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

does not follow them in practice in holding that the

standard of review is narrower in eases of legislative

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

at 4.

The concurring opinion of Judges Bazelon and Me-

Gowan, whose votes are necessary to the majority, says

ee ee ee ae PF NM a eos - ~

12

explicitly what the court seems to accept implicitly.

This opinion is based on the premise that courts

should not inquire into the technical details of admin-

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

approach of the District of Columbia Cireuit in /xter-

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

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

First Cireuit in South Terminal Corp. v. Environ-

mental Protection Agcy., 504 F.2d 646 (1st Cir. 1974).

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

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

1975), appeal pending, states that the one principle

upon which Clean Air Act cases are in agreement is

that the standard for review of agency decisions is

the arbitrary and capricious standard.

The Fifth Cireuit in State of Teras v. Environ-

mental Protection Agency, 499 F.2d 289 (5th Cir.

1974), appeal pending, heard a state challenge to

the Environmental Protection Agency’s (EPA) re-

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

that announced in Overton Park, supra, and went

on to say:

“In applying this standard, our review must be

based not only upon the agency’s explanation of

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

[citation omitted] but also upon the full record

before the agency [cit .tion omitted]. Only by

our own study of the record can we resolve the

factual disputes between the parties, much less

hope to ‘engage in a substantial inquiry’ into

the agency’s action.” Id. at 297.

In South Terminal Corp., s pra, the First Cireuit

Court of Appeals reviewed an EPA regional air qual-

PERF Ee BPD. PB BPE He PK ee PDT LE PORE IN LE, ine at

13

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

the court applied Overton Park standards. The court

emphasized the “clear error of judgment” language

and stressed the need for a “searching and careful”

review to assure it “that the Agency’s technical

conclusions no less than others are founded on

supportable data and methodology and meet mini-

mal standards of rationality.” Jd. at 655. Emphasis

added.

The court also upheld the arbitrary and capricious

standard for review of the controls selected by EPA,

but said it must bear in mind that Congress has

given EPA, not the courts, the discretion to choose

among alternative strategies. This may be similar to

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

jority here. But in South Terminal the court in-

sisted that the technical determination upon which

the policy is based be strictly reviewed and explained.

That court did not accept some of EPA’s technical

determinations in that case, but went on to review

the implementation plan controls. In reviewing a

regulation putting a freeze on new parking spaces, the

court indicated :

“We cannot say that such a freeze is arbitrary

and capricious assming EPA is able to support

bu credible data its position as to the magnitude

of the need for carbon monoxide emission reduc-

tions ... .” Jd. at 671. Emphasis added.

The majority in the case at bar appeared reluctant

to question whether there is credible data to support

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14

the decision. While the court cannot substitute its

judgment for that of the Agency, the reviewing court

must require the Agency to demonstrate to the court

that its decision is based on credible data. Overton

Park, supra at 416.

In Appalachian Power Co. v. Environmental Pro.

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

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

plementation of federal ambient air quality standards.

The Administrator argued that the scope of review

should be limited solely to questioning whether a state

hearing was held and whether the mathematical de-

termination that the rational standards will be

achieved under the state plans were arbitrary and

capricious. He contended these were the only things

which he considered in his action. The court did not

accept this argument and reasoned that the Admini-

strator had considered much more than these factors

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

into all of his considerations to assure itself that all

relevant factors had been considered by the Ageney.

The court therefore demanded the “full record” be-

fore the Administrator when he made his decision. The

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

indicates that the court must examine all the bases for

the agency decisions whether termed technical or

policy.

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

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

Cirenit Court of Appeals reviewed EPA’s approval

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

15

tation plan. The court was primarily concerned with

whether the Administrator was correct in his factual

determinations. Again that court reiterated the Over-

ton Park standard that an inquiry into the facts

should be “searching and careful.” It indicated that

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

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

ther explanation and if the findings are not sustained

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

at 1123. While this inquiry of the court was limited

to a factual inquiry, it emphasizes that the Admini-

strator must present a full factual basis for his deci-

sion. Again, in this case the court recognizes that

while it cannot substitute its judgment for that of

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

basis for the decision he made.

The “arbitrary and capricious” standard is the one

which other courts of appeals have stressed. All these

cases require a full record indicating all factors con-

sidered and a thorough expianation of why the deci-

sion was made. These courts also stress that all

relevant factors be considered in the decision. This in-

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

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

review to ascertain if they were properly considered

or determined. While a court cannot substitute its

decision for the Agency’s, it can require the Agency to

substantiate its decision at every step. The scope of

review in these courts, then, substantially conflicts

with the scope of review espoused by the majority

here.

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CONCLUSION

Scope of review of administrative agency decisions

and procedures is an important question of federal law.

Because the standard adopted by the majority in the

case at bar conflicts with the standard specified by this

Court and implemented by other courts of appeals,

Pacific Legal Foundation, as amicus curiae, urges

that the petitions for certiorari be granted.

Respectfully submitted,

Ronatp A. ZUMBRUN,

JOHN H. FINpiey,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Telephone: (916) 444-0154,

GLENN E. Davis,

Associate Counsel, Pacific Legal Foundation,

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

Washington, D.C. 20005,

Telephone: (202) 466-2686.

Attorneys for Amicus Curiae

Pacific Legal Foundation.

June, 1976

—— i me ee