Memorandum — Exxon Corp. v. Environmental Protection Agency

Gu the Supreme Court of the Wnited States

OcToBER TERM, 1975

No. 75-324

Exxon Corporation, SHELL Or. Company, Amoco OIL

CoMPANY AND ATLANTIC RICHFIELD COMPANY,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY

No. 75-325

TExaS CHEMICAL COUNCIL, PETITIONER

ws

ENVIRONMENTAL PROTECTION AGENCY

No. 75-326

Harris County, TEXAs, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE ENVIRONMENTAL PROTECTION .

AGENCY IN OPPOSITION

Petitioners contend that the Environmental Pro-

tection Agency lacked statutory authority to issue a

regulation to control hydrocarbon vapor emissions

from ships and barges in the Houston-Galveston air

q

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quality control region and that the regulation was

improperly promulgated because the Agency did not

consider its economic and technological feasibility.

Section 110 of the Clean Air Act, as added by the

Clean Air Amendments of 1970, 84 Stat. 1680-1683,

42 U.S.C. 1857c-5, requires that each state adopt and

submit to the Administrator of the Environmental

Protection Agency (‘“‘EPA”) an implementation plan

to maintain and enforce national ambient air quality

standards. This plan must include limitations on the

various sources of pollution emissions and such other

measures aS may be necessary, including but not

limited to land-use and transportation controls, in

order to achieve the ambient air standards as ex-

peditiously as practicable, but no later than mid-1977.*

On April 15, 1973, the State of Texas submitted its

implementation plan to the EPA Administrator, who

disapproved the plan both because applicable public

hearing requirements had not been met and because

the plan would not have adequately insured attain-

ment of national air quality standards. 38 Fed. Reg.

16562, 16568.

1 Each state was to submit an implementation plan to the EPA

by January 31, 1972; the Administrator was required to approve

or disapprove a state plan within four months of its submission.

42 U.S.C, 1857c-5(a) (2). The Administrator granted any state

which was required to impose transportation and land-use con-

trols until February 15, 1973, to submit those portions of its plan.

36 Fed. Reg. 15489 ; 37 Fed. Reg. 10844. In National Resources De-

fense Council v. Environmental Protection Agency, 475 F. 2d 968,

970 (C.A.D.C.), the court held that the Act did not authorize this

extension. However, because of other modifications it made to the

required contents of these plans, the court then gave the states

until April 15, 1978, to submit the deferred portions.

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In order to eliminate the deficiencies in the Texas

plan, the Administrator published pursuant to 42

U.S.C. 1857e-5(c) a set of proposed federal regula-

tions, including the “ship and barge loading” regula-

tion at issue here. 38 Fed. Reg. 17799, 17808. After

public hearings and a comment period, the Adminis-

trator promulgated the final plan on November 6,

1973. 38 Fed. Reg. 30633, et seq.

Petitioners then filed timely petitions for review

of the EPA Administrator’s actions in the United

States Court of Appeals for the Fifth Circuit.* On

August 7, 1974, that court held that EPA had prop-

“erly disapproved the Texas plan and upheld some, but

not all, of the supplementary regulations EPA had

promulgated.

In regard to the questions petitioners present here,

the court of appeals held that EPA had statutory

authority to control hydrocarbon emissions during

the loading and unloading of ships and barges using

port facilities within Region 7 (Houston-Galveston)

and that issuance of this regulation, 40 C.F.R.

52.2287, was not arbitrary or capricious (Exxon

Pet. App. A, pp. A-50 to A-53). The court stated that

the technology necessary for compliance with the ship

and barge regulation was not then in existence, ‘“‘al-

though it is suggested by the technology used in con-

trolling evaporative losses during the transfer of gaso-

line from tank trucks to service station tanks and

then to automobiles” (td. at p. A-52). The court

found no basis for concluding that the May 31, 1975,

2 Twenty-five separate petitions were timely filed, but the cases

were consolidated before the court of appeals (Exxon Pet. App. A,

p. A-8).

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compliance date was technologically feasible and

stated that it “may well be that this requirement

must be postponed” (tbid.).°

However, since Section 110(f) of the Clean Air Act,

42 U.S.C. 1857e-(f), contemplates promulgation of

plans that require control measures of less than cer-

tain technology,* the court held that the regulation was

not arbitrary or capricious (Exxon Pet. App. A, p.

A-52). The court stated that if petitioners desire

relief, they must seek this through the procedure

established in Section 110(f) for obtaining a postpone-

ment of compliance dates for particular sources of

emissions.°

1. Petitioners argue that the Clean Air Act does

not authorize EPA to control hydrocarbon emissions

from ships and barges during loading and unloading

operations. (Exxon Pet. 14-15). Under Section

110(a)(2)(B) of the Act, 42 U.S.C. 1857c-5(a)

(2)(B), any implementation plan must assure at-

tainment of ambient standards by employing “emis-

sion limitations, * * * and such other measures as

may be necessary * * * including, but not limited

’ Although EPA intends to propose amendments to the regula-

tion, it has not yet finished consideration of pertinent information.

It has therefore postponed the final compliance date until March

1, 1976. 40 Fed. Reg. 47765.

* This court has recognized the validity of the “technology forec-

ing” nature of the Act when technological development is necessary

to maintain national ambient air quality standards. 7'rain v. Nat-

ural Resources Defense Council, 421 U.S. 60, 90-91.

5 The court of appeals denied petitions for rehearing on Febru-

ary 19, 1975, and April 3, 1975 (Exxon Pet. Apps. B and C). On

June 27, 1975, Mr. Justice Powell granted petitioners’ motion for

an extension of time until August 31, 1975, for filing petitions

for a writ of certiorari. The petitions for a writ of certiorari

were filed on August 30, 1975.

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to, land-use and transportation controls.” After a

careful review of the legislative history and regula-

tory scheme of the Clean Air Act, the court below

correctly concluded that the regulation at issue here

was authorized by the broad statutory language re-

quiring implementation of national ambient air qual-

ity standards (Exxon Pet. App. A, p. A-51). While

the final bill eliminated an earlier provision authoriz-

ing establishment of uniform national emission stand-

ards for marine sources under Title II of the Clean

Air Act, 42 U.S.C. 1857f-1, ct seq., the EPA’s au-

thority to protect ambient air quality on a region-by-

region basis, as provided in Title I of the Act, 42

U.S.C. 1857¢-1, et seq., is wholly independent of its

responsibility to create national standards for mobile

power emissions sources and is therefore not affected

by limitations on the scope of Title II.°

2. Petitioners raise the question whether EPA must

consider economic and technological feasibility when

it promulgates a substitute implementation plan

under the Clean Air Act (Exxon Pet. 2). That ques-

tion is not, however, presented by this case. Although

petitioners repeatedly assert that EPA failed to take

economic and technical factors into account when it

issued the ship and barge regulation, there is no sup-

port for these assertions in the opinion below. The

court of appeals found only that compliance with the

regulation was not then technologically possible ; it did

not find that EPA had ignored technological or eco-

nomic factors (Exxon Pet. App. A, p. A-52). The rec-

6 See 116 Cong. Rec. 42392 (1970) (remarks of Senator Muskie).

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ord before the court of appeals demonstrated that

EPA fully considered the feasibility of this regula-

tion and the objections thereto. See, e.g., 38 Fed. Reg.

30635-30636 ; see also Exxon Pet. Apps. H, I, J, K.

That compliance with the regulation is not now

technologically or economically feasible in no way

implies that EPA failed to consider these factors

since the Act provides that regulations may properly

be of a technology-forcing nature, as this Court recog-

nized in Train v. Natural Resources Defense Council,

421 U.S. 60. Thus, EPA need not be bound by pres-

ently available technology in formulating its supple-

mentary regulations. Moreover, the court below

pointed out that despite the fact that the necessary

technology is not currently available, it is suggested

by existing technology in other analogous areas

(Exxon Pet. App. A, p. A-52).

The regulation thus rests on a reasonable judgment

that any technical or economic problem encountered

in developing or applying necessary control devices

could be overcome by the industry, upon which the

main burden of technology-foreing regulation rests,

and through existing legal mechanisms which function

as safety valves should the compliance deadlines

prove too stringent. Nor has EPA denied relief. As

previously noted, the final compliance deadline has

been extended until March 1, 1976. See note 3, supra.

And as the Fifth Cireuit pointed out, should future

events ultimately prove that vapor recovery is tech-

nologically unfeasible, a postponement of the compli-

ance date may be sought under 42 U.S.C. 1857c-5f or

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the state may adopt a revision of its plan under 42

U.S.C. 1857¢e-5(a) (3) (Exxon Pet. App. A Lypp. A-52

to A-53).’

For the foregoing reasons, this case does not, as

petitioners contend, present an issue similar to that

presented in Union Electric Co. v. Environmental

ProtectioyACgency, No. 74-1542, certiorari granted,

October 6, 1975. The grant of certiorari in that case

was limited to the question whether in reviewing the

Administrator’s approval of a state implementation

plan under Section 307(b)(1) of the Clean Air Act,

the court of appeals may consider technological fac-

tors which allegedly make it impossible for an emis-

sion source to comply with the regulations and eco-

nomic considerations which allegedly render attempts

to comply contrary to the public interest. As our

memorandum in that case indicates, resolution of that

question depends upon the Administrator’s obligation

to consider economic and technological factors in de-

termining whether to approve a state plan.* In the

* Petitioners also argue (Exxon Pet. 10) that the ship and barge

vapor emission regulation discriminates against the Houston-Gal-

veston area. That the regulation affects only one area of a state is

irrelevant, since the Clean Air Act envisions that heavily polluted

areas must be subjected to more stringent implementation plans

in order to achieve national ambient air quality standards (Exxon

Pet. App. A, p. A-52).

® We argued that the Administrator is under no such duty in con-

sidering a state-submitted plan, since EPA must approve any such

plan that meets the requirements of Section 110(a) (2), none of

which impose a duty to review technological or economic factors.

Furthermore, Section 116 of the Act, 42 U.S.C. 1857d-1, explicitly

recognizes that a state may adopt pollution control requirements

more stringent than those necessary to attain the national ambient

air quality standards.

3

instant case, however, EPA did consider technological

and economic feasibility in promulgating the supple-

mentary regulation, so the question presented is

wholly unrelated to the issue in Union Electric.

In any event the source of EPA’s authority, the

procedures properly followed and the scope of EPA’s

discretion are fundamentally different in approving

state-submitted plans than in promulgating supple-

mentary regulations.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petitions for a writ of certiorari

should be denied.

Rosert H. Bork,

Solicitor General.

Water KIECHEL, Jr.

Acting Assistant Attorney General.

EpmunpD B. CiaRK,

Grorce R. Hype,

Attorneys.

NOVEMBER 1975.

US. GOVERNMENT PRINTING OFFICE: 1975

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