478 F.2d 615 (D.C. Cir. 1973), 72-1517, International Harvester Co. v. Ruckelshaus

Docket Nº:72-1517, 72-1525, 17-1529, 72-1537.
Citation:478 F.2d 615
Party Name:INTERNATIONAL HARVESTER COMPANY, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. GENERAL MOTORS CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. CHRYSLER CORPORATION, a Delaware Corporation, Petitioner, v. William D. RUCKELSHAUS, Admini
Case Date:February 10, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 615

478 F.2d 615 (D.C. Cir. 1973)

INTERNATIONAL HARVESTER COMPANY, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent.

GENERAL MOTORS CORPORATION, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent.

CHRYSLER CORPORATION, a Delaware Corporation, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent.

FORD MOTOR COMPANY, Petitioner,

v.

William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent.

Nos. 72-1517, 72-1525, 17-1529, 72-1537.

United States Court of Appeals, District of Columbia Circuit.

February 10, 1973

Argued Dec. 18, 1972.

As Amended Feb. 12, 1973.

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Reuben L. Hedlund, of the Bar of the Supreme Court of Illinois, pro hac vice, by special leave of the Court, with whom Lawrence Gunnels, Chicago, Ill., was on the brief for petitioner in No. 72-1517.

Frederick M. Rowe, Washington, D. C., with whom Edward W. Warren, F. F. Hilder, Asst. Gen. Counsel, William L. Weber, Jr., Detroit, Mich., and Hammond E. Chaffetz, Washington, D. C., were on the brief for petitioner in No. 72-1525.

John E. Nolan, Jr., Washington, D. C., with whom Robert E. Jordan, III, William G. Christopher, Michael J. Malley,

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Richard H. Porter, Scott R. Schoenfeld, Washington, D. C., and Victor C. Tomlinson were on the brief for petitioner in No. 72-1529.

Howard P. Willens, Washington, D. C., with whom Jay F. Lapin, William P. Hoffman, Jr., Gerald Goldman, Washington, D. C., were on the brief for petitioner in No. 72-1537.

James A. Glasgow, Atty., Department of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Raymond N. Zagone, Attys., Department of Justice, were on the brief for appellee.

Jerome Maskowski was on the brief for State of Michigan, amicus curiae.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

These consolidated petitions of International Harvester and the three major auto companies, Ford, General Motors and Chrysler, seek review 1 of a decision by the Administrator of the Environmental Protection Agency denying petitioners' applications, filed pursuant to Section 202 of the Clean Air Act, 2 for one-year suspensions of the 1975 emission standards prescribed under the statute for light duty vehicles in the absence of suspension.

I. STATEMENT OF THE CASE

The tension of forces presented by the controversy over automobile emission standards may be focused by two central observations:

(1) The automobile is an essential pillar of the American economy. Some 28 per cent of the nonfarm workforce draws its livelihood from the automobile industry and its products. 3

(2) The automobile has had a devastating impact on the American environment. As of 1970, authoritative voices stated that "[a]utomotive pollution constitutes in excess of 60% of our national air pollution problem" and more than 80 per cent of the air pollutants in concentrated urban areas. 4

A. Statutory Framework

Congressional concern over the problem of automotive emissions dates back to the 1950's, 5 but it was not until the passage of the Clean Air Act in 1965 that Congress established the principle of Federal standards for automobile emissions. Under the 1965 act and its successor, the Air Quality Act of 1967, the Department of Health, Education and Welfare was authorized to promulgate emission limitations commensurate with existing technological feasibility. 6

The development of emission control technology proceeded haltingly. The Secretary of HEW testified in 1967 that

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"the state of the art has tended to meander along until some sort of regulation took it by the hand and gave it a good pull. . . . There has been a long period of waiting for it, and it hasn't worked very well." 7

The legislative background must also take into account the fact that in 1969 the Department of Justice brought suit against the four largest automobile manufacturers on grounds that they had conspired to delay the development of emission control devices. 8

On December 31, 1970, Congress grasped the nettle and amended the Clean Air Act to set a statutory standard for required reductions in levels of hydrocarbons (HC) and carbon monoxide. (CO) which must be achieved for 1975 models of light duty vehicles. Section 202(b) of the Act added by the Clean Air Amendments of 1970, provides that, beginning with the 1975 model year, exhaust emission of hydrocarbons and carbon monoxide from "light duty vehicles" must be reduced at least 90 per cent from the permissible emission levels in the 1970 model year. 9 In accordance with the Congressional directives, the Administrator on June 23, 1971, promulgated regulations limiting HC and CO emissions from 1975 model light duty vehicles to .41 and 3.4 grams per vehicle mile respectively. 36 Fed.Reg. 12, 657 (1971). 10 At the same time, as required by section 202(b)(2) of the Act, he prescribed the test procedures by which compliance with these standards is measured. 11

Congress was aware that these 1975 standards were "drastic medicine, " 12 designed to "force the state of the art." 13 There was, naturally, concern whether the manufacturers would be able to achieve this goal. Therefore, Congress provided, in Senator Baker's phrase, a "realistic escape hatch": the manufacturers could petition the Administrator of the EPA for a one-year suspension of the 1975 requirements, and Congress took the precaution of directing the National Academy of Sciences to undertake an ongoing study of the feasibility of compliance with the emission standards. The "escape hatch" provision addressed itself to the possibility that the NAS study or other evidence might indicate that the standards would be unachievable despite all good faith efforts at compliance. This provision was limited to a one-year suspension, which would defer compliance with the 90% reduction requirement until 1976. Under section 202(b)(5)(D) of the Act, 42 U. S.C.§ 1857f-1(b)(5)(D), the Administrator is authorized to grant a one-year suspension

only if he determines that (i) such suspension is essential to the public interest or the public health and welfare

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of the United States, (ii) all good faith efforts have been made to meet the standards established by this subsection, (iii) the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards, and (iv) the study and investigation of the National Academy of Sciences conducted pursuant to subsection (c) of this section and other information available to him has not indicated that technology, processes, or other alternatives are available to meet such standards.

The statute provides that an application for suspension may be filed any time after January 1, 1972, and that the Administrator must issue a decision thereon within 60 days. On March 13, 1972, Volvo, Inc., filed an application for suspension and thereby triggered the running of the 60 day period for a decision. 37 Fed.Reg. 5766 (March 21, 1972.) 14 Additional suspension requests were filed by International Harvester on March 31, 1972, and by Ford Motor Company, Chrysler Corporation, and General Motors Corporation on April 5, 1972. Public hearings were held from April 10-27, 1972. Representatives of most of the major vehicle manufacturers (in addition to the applicants), a number of suppliers of emission control devices and materials, and spokesmen from various public bodies and groups, testified at the hearings and submitted written data for the public record. The decision to deny suspension to all applicants was issued on May 12, 1972.

The Decision began with the statement of the grounds for denial: ". . . I am unable, on the basis of the information submitted by the applicants or otherwise available to me, to make the determinations required, by section 202 (b)(5)(D)(i), (iii), or (iv) of the Act." 15 The EPA Decision specifically focused on requirement (iii) that:

the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards . . .,

A Technical Appendix, containing the analysis and methodology used by the Administrator in arriving at his decision, was subsequently issued on July 27, 1972.

B. Initial Decision of the Administrator

The data available from the concerned parties related to 384 test vehicles run by the five applicants and the eight other vehicle manufacturers subpoenaed by the Administrator. In addition, 116 test vehicles were run by catalyst and reactor manufacturers subpoenaed by the Administrator. These 500 vehicles were used to test five principal types of control systems: noble metal monolithic catalysts, base metal pellet catalysts, noble metal pellet catalysts, reactor systems, and various reactor/catalyst combinations.

At the outset of his Decision, the Administrator determined that the most effective system so far developed was the noble metal oxidizing catalyst. 16 Additionally,

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he stated that the "most effective systems typically include: improved carburetion; a fast-release choke; a device for promoting fuel vaporization during warm-up; more consistent and durable ignition systems; exhaust gas recirculation; and a system for injecting air into the engine exhaust manifold to cause...

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