504 F.2d 646 (1st Cir. 1974), 73-1366, South Terminal Corp. v. E.P.A.

Docket Nº:73-1366, 73-1382 to 73-1389.
Citation:504 F.2d 646
Party Name:Envtl. SOUTH TERMINAL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train, Administrator, Respondents. MASSACHUSETTS PORT AUTHORITY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train, Administrator, Respondents. SEARS, ROEBUCK AND CO., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. GULF
Case Date:September 27, 1974
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 646

504 F.2d 646 (1st Cir. 1974)

Envtl.

SOUTH TERMINAL CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train,

Administrator, Respondents.

MASSACHUSETTS PORT AUTHORITY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train,

Administrator, Respondents.

SEARS, ROEBUCK AND CO., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

GULF OIL CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

TEXACO, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

FITZ-INN AUTO PARKS, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PILGRIM PARKING INC., a Massachusetts corporation, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Marvin A. MEYERS, as he is President of Pilgrim Parking

Inc., a Massachusetts corporation, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

ASSOCIATED DRY GOOD CORPORATION etc., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 73-1366, 73-1382 to 73-1389.

United States Court of Appeals, First Circuit

September 27, 1974

Argued June 6, 1974.

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Joseph L. Cotter, Boston, Mass., with whom Raymond P. Boulanger, Robert B. Fraser, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for South Terminal Corp., petitioner.

John W. Arata, Boston, Mass., with whom Neil L. Lynch, Boston, Mass., was on brief, for Massachusetts Port Authority, petitioner.

John T. Clary, Philadelphia, Pa., with whom William J. Dailey, Jr., Edward W. Waystack, Boston, Mass., and John R. Galloway, Philadelphia, Pa., were on brief, for Gulf Oil Corp., petitioner.

Robert A. Difilippo, St. Davids, Pa., with whom Edward I. Masterman and Cargill, Masterman & Cahill, Boston, Mass., were on brief, for Sears, Roebuck and Co., petitioner.

Stephen H. Bard, New York City, with whom Lowell N. Elsen, Brookline, Mass., was on brief, for Texaco, Inc., petitioner.

Phillip J. Nexon, Boston, Mass., with whom Alan W. Rottenberg, Barry Brown, Robert C. Davis, and Goulston & Storrs, Boston, Mass., were on brief, for Fitz-Inn Auto Parks, Inc., et al., Pilgrim Parking, Inc., Marvin A. Meyers, and Associated Dry Goods Corp., petitioners.

Carl Strass, Atty., Dept. of Justice, and William F. Pedersen, Atty., Environmental Protection Agency, with whom Wallace H. Johnson, Asst. Atty. Gen., Alan G. Kirk, II, Atty., EPA, Edmund B. Clark, and Martin Green, Attys., Dept. of Justice, were on brief, for respondent.

Charles H. Resnick, Alfred C. Phillips, Paul A. Butler, and Neil E. Minahan, Lexington, Mass., on brief for Raytheon Co., amicus curiae.

Peter Koff, Asst. Corp. Counsel, on brief for the City of Boston, amicus curiae.

Page 654

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

We are asked to review 1 the Metropolitan Boston Air Quality Transportation Control Plan (the plan). 2

The plan is aimed at keepint two types of air-borne pollutants, photochemical oxidants and carbon monoxide, from exceeding within Greater Boston the national primary and secondary ambient air quality standards prescribed by the Environmental Protection Agency (EPA) under authority of the Clean Air Act. 3 In the Act, Congress has directed EPA, using latest scientific knowledge, to establish nationwide air-quality standards for each pollutant having an adverse affect upon the public health or welfare. 42 U.S.C. 1857c-4. It has further directed each state to have a plan to 'impolement' those standards-- that is, to see that within the state the level of each such pollutant does not exceed limits prescribed in the national standards.

The present plan (termed a 'transportation' control plan because it focuses upon pollutants caused mainly by vehicles rather than by 'stationary sources' like factories, incinerators, and power plants) has been recognized from the outset to present delicate problems; inevitably it seems bound to come between the citizen and his automobile. Indeed the problems were seen to be so novel and difficult, that the EPA Administrator initially postponed compliance dates from mid-1975 to 1977; however, it was held that he lacked authority to do so. See Natural Resources Defense Council, Inc. v. EPA, 154 U.S.C.App.D.C. 384, 475 F.2d 968 (1973).

The Administrator finally ordered Massachusetts to submit its transportation control plan by April 15, 1973. When Massachusetts did not submit an acceptable plan, the Administrator, as he is obliged to do under such circumstances, 4 promptly proposed a plan of his own for the state, held a public hearing and, after making changes in the plan he had first proposed, promulgated regulations embodying the final plan before us.

The plan is designed, by May 31, 1975, to reduce the expected emission of hydrocarbons in the Metropolitan Boston Intrastate Region by 58 percent, and of carbon monoxide in the Boston core and East Boston area of the region by about 40 percent. The Administrator has determined that reductions of this magnitude are necessary if the region's air is to conform to national standards by that date, which is the compliance date set by Congress.

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At the heart of the plan is a strategy of cutting down emissions by discouraging the use of vehicles. Off-street and on-street parking spaces are to be 'frozen' or cut back, and the construction of new parking facilities is regulated. There are to be special bus and car pool lanes, and a computer car pool matching system. There is also to be a program of vehicle inspection and maintenance and emission exhaust controls, including oxidizing catalysts, air bleed emission controls and a vacuum spark disconnect. Finally, there are controls on some stationary sources, including gasoline sales outlets, to prevent hydrocarbon emission.

Many aspects of the plan are attacked by affected entities and individuals, although we note that the City of Boston registers its support. The separate petitions for review were consolidated and are herein decided together.

I

STANDARD OF REVIEW

In providing for review of an implementation plan under the Clean Air Act by courts of appeals, Congress did not lay down standards beyond those already established in the Administrative Procedure Act (APA). The latter standards, appearing in 5 U.S.C. 706, are controlling. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 28 L.Ed.2d 136 (1970); Texas v. EPA, 499 F.2d 289, at 296 (5th Cir. 1974). Under 706, we must determine whether EPA followed lawful procedures in evolving its plan; whether it acted within its statutory authority; and whether the plan is constitutional. If so, we must set aside the plan only if it is found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law'. 5 U.S.C. 706(2) (A).

In the following parts of this opinion we deal first with the procedural objections to the plan and later with the constitutional ones. In between we consider statutory objections and, most difficult of all, those objections addressed to the merits of the plan. The last objections, it is clear, are outside our province unless they show that EPA's decision was not based on consideration of relevant factors or else included a 'clear error of judgment'. Overton Park, supra, 401 U.S. at 416, 91 S.Ct. 814. We are not empowered to substitute our judgment for that of the agency. 5

The questions about the plan on review are of two types: the rationality of EPA's technical decisions (such as its determinations of local photochemical oxidant and carbon monoxide levels and the amount of reductions required to meet national standards), and the rationality of EPA's 'control strategy', that is, the measures adopted to reduce emissions. The former present peculiar difficulties for nonexperts to evaluate. Yet '(our) inquiry into the facts is to be searching and careful', id., and we must assure ourselves as best we can that the Agency's technical conclusions no less than others are founded on supportable data and methodology and meet minimal standards of rationality. See Section III infra.

Assuming EPA's technical determinations are reasonably based, we must decide whether the selected controls are arbitrary or capricious. In so doing, we must bear in mind that Congress lodged with EPA, not the courts, the discretion to choose among alternative strategies. 6 Unless demonstrably

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capricious-- such as much less costly but equally effective alternatives were rejected or the requisite technology is unavailable-- the Administrator's choices may not be overturned. See Friends of the Earth v. EPA, 499 F.2d 1118, at 1123 (2d Cir. 1974); Delaware Citizens for Clean Air, Inc. v. EPA, 480 F.2d 972, 975-976 (3d Cir. 1973). Of course neither EPA nor this court has any right to decide that it is better to maintain pollutants at a level hazardous to health than to require the degree of public sacrifice needed to reduce them to tolerable limits.

We now turn to the objections.

II

PROCEDURAL OBJECTIONS

A. Notice

Several petitioners charge that the final plan differed so radically from the one proposed in the Administrator's published notice that they had no meaningful forewarning of its substance.

Notice of a proposed rulemaking must be published in the Federal Register...

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