541 F.2d 1 (C.D. Cir. 1976), 73-2205, Ethyl Corp. v. E.P.A.

Docket Nº:73-2205, 73-2268 to 73-2270, 74-1021.
Citation:541 F.2d 1
Party Name:ETHYL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. PPG INDUSTRIES, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. E. I. duPONT de NEMOURS & COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NALCO CHEMICAL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATIONAL P
Case Date:June 14, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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541 F.2d 1 (C.D. Cir. 1976)

ETHYL CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PPG INDUSTRIES, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

E. I. duPONT de NEMOURS & COMPANY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NALCO CHEMICAL COMPANY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATIONAL PETROLEUM REFINERS ASSOCIATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 73-2205, 73-2268 to 73-2270, 74-1021.

United States Court of Appeals, District of Columbia Circuit.

March 19, 1976

See 96 S.Ct. 2662, 2663.

Syllabus by the Court

United States Court of Appeals, District of Columbia Circuit

Certiorari Denied June 14, 1976.

Argued En Banc May 30, 1975.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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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

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or welfare * * *." 42 U.S.C. § 1857f-6c(c)(1)(A) (1970). Acting pursuant to that power in rule-making proceedings, the Administrator determined that leaded gasoline automotive emissions present "a significant risk of harm" to the public health, thereby endangering it within the contemplation of the statute. Based on this finding, the Administrator issued regulations requiring annual reductions 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, 95 S.Ct. 1470, 1479, 43 L.Ed.2d 731, 743 (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" standard, 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 regulatory action under this precautionary statute should precede, and hopefully prevent, the perceived harm. Pp. --- - --- of --- U.S.App.D.C., pp. 11-33 of 541 F.2d.

a. Some of the questions involved in promulgation of environmental regulations "are on the frontiers 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 Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338, 499 F.2d 467, 474 (1974). Pp. --- - --- of --- U.S.App.D.C., pp. 24-29 of 541 F.2d.

b. In making his policy judgment by assessing risks the Administrator is not required to limit his consideration to the danger presented by lead additives "in and of themselves." He may consider the cumulative impact of lead additives with other sources of human exposure to lead. Pp. --- - --- of --- U.S.App.D.C., pp. 29-31 of 541 F.2d.

2. The Administrator's determination that lead emissions "present a significant risk of harm to the health of urban populations, particularly to the health of city children," is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law * * *." 5 U.S.C. § 706(2) (A) (1970). His determination has a rational basis in the evidence. Pp. --- - --- of --- U.S.App.D.C., pp. 33-48 of 541 F.2d.

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. --- - --- of --- U.S.App.D.C., pp. 33-37 of 541 F.2d.

b. We need not seek a single dispositive scientific study that fully supports the Administrator's determination. 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 it is here, on the inconclusive but suggestive results of numerous studies. By its nature, scientific evidence is often cumulative; the more supporting, albeit inconclusive, evidence available, the more likely the accuracy of the conclusion. Pp. --- - --- of --- U.S.App.D.C., pp. 37-38 of 541 F.2d.

c. The vast bulk of the evidence before the Administrator 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 cannot find the Administrator's conclusion that lead automotive emissions present a significant risk of harm to the public health arbitrary or capricious. Pp. --- - --- of --- U.S.App.D.C., pp. 38-48 of 541 F.2d.

Petitions for Review of an Order of the Environmental Protection Agency.

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Joseph C. Carter, Jr., Richmond, Va., with whom John J. Adams, Washington, D. C., and David F. Peters, Washington, D. C., were on the brief, for petitioner in No. 73-2205. Arnold H. Quint, Washington, D. C., also entered an appearance for petitioner in No. 73-2205.

Daniel M. Gribbon, Washington, D. C., with whom Allan J. Topol and Charles Lister, Washington, D. C., were on the brief, for petitioners in Nos. 73-2268 and 73-2269.

Victor P. Kayser, Chicago, Ill., with whom John C. Berghoff, Jr. and Robert E. Nord, Chicago, Ill., and David Machanic and William H. Fitz, Washington, D. C., were on the brief, for petitioner in No. 73-2270.

H. Edward Dunkelberger, Jr., Washington, D. C., with whom Theodore L. Garrett, Washington, D. C., was on the brief, for petitioner in No. 74-1021.

Robert V. Zener, Gen. Counsel, Environmental Protection Agency, and Leslie A. Carothers, Atty., Environmental Protection Agency, Washington, D. C., with whom Wallace H. Johnson, Asst. Atty. Gen., and Edmund B. Clark, Martin Green, and Edward J. Shawaker, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent. Raymond N. Zagone, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondent in No. 73-2268.

David Schoenbrod, New York City, filed a brief on behalf of Natural Resources Defense Council, Inc. et al. as amici curiae urging affirmance.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.

Opinion for the court, in which Chief Judge BAZELON and Circuit Judges McGOWAN, LEVENTHAL, and SPOTTSWOOD W. ROBINSON, III, concur, filed by Circuit Judge J. SKELLY WRIGHT.

Concurring opinion, in which Circuit Judge McGOWAN joins, filed by Chief Judge BAZELON.

Concurring statement filed by Circuit Judge LEVENTHAL.

Dissenting opinion filed by Circuit Judge MacKINNON.

Dissenting opinion, in which Circuit Judges TAMM and ROBB join, filed by Circuit Judge WILKEY.

J. SKELLY 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 alterations. It is only recently that we have begun to appreciate 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 unappreciated or unrevealed by their supporters. Such agencies, unequipped with crystal balls and unable to read the future, are nonetheless charged with evaluating the effects of unprecedented environmental modifications, often made on a massive scale. Necessarily, they must deal with predictions and uncertainty, with developing evidence, with conflicting evidence, and, sometimes, with little or no evidence at all. Today we address the

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scope of the power delegated one such watchdog, 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 automobiles.

Section 211(c)(1)(A) of the Clean Air Act 1 authorizes the Administrator of EPA to regulate gasoline additives whose emission products "will endanger the public health or welfare * * *." 42 U.S.C. § 1857f-6c(c)(1)(A). Acting pursuant to that power, the Administrator, after notice and comment, determined that the automotive emissions caused by leaded gasoline present "a significant risk of harm" to the public health. Accordingly, he promulgated regulations that reduce, in step-wise fashion, the lead content of leaded gasoline. 2 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.

  1. 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 contains lead additives, even though most 1975 and 1976 model automobiles are equipped with catalytic converters, which require lead-free gasoline. From the...

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