Association of American Railroads v. Costle

Decision Date27 October 1972
Docket NumberNo. 76-1353,76-1353
Citation562 F.2d 1310,183 U.S.App.D.C. 362
Parties, 183 U.S.App.D.C. 362, 7 Envtl. L. Rep. 20,730 ASSOCIATION OF AMERICAN RAILROADS, Chesapeake and Ohio Railway Company, Chicago and Northwestern Transportation Company, and Southern Railway Company, Petitioners, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency and the Environmental Protection Agency, Respondents, The State of Illinois, Intervenor. . Argued 7 June 1977. Decided 23 Aug. 1977. Richard J. Flynn, Washington, D. C., with whom Lee A. Monroe and Joseph B. Tompkins, Jr., Washington, D. C., were on the brief, for petitioners. Erica L. Dolgin, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen. and Jeffrey O. Cerar, Atty., E. P. A., Washington, D. C., were on the brief, for respondents. Russell R. Eggert, Chicago, Ill., was on the brief, for intervenor. Before TAMM and WILKEY, Circuit Judges, and WILLIAM B. JONES, * United States Senior District Judge for the United States District Court for the District of Columbia. Opinion for the Court filed by WILKEY, Circuit Judge. WILKEY, Circuit Judge: In this petition for review, 1 the Association of American Railroads 2 (AAR) challenges the validity of the action of the Administrator of the Environmental Protection Agency (EPA) in promulgating Railroad Noise Emission Standards limited to rail cars and locomotives operated by surface carriers engaged in interstate commerce by railroad. 3 These regulations were promulgated pursuant to Section 17 of the Noise Control Act of 1972 (the Act) which requires the Administrator to establish emission standards for noise "resulting from operation of the equipment and facilities" of interstate rail carriers. 4 The petitioner does not challenge the validity of the noise emission standards set for rail cars and locomotives; rather, the AAR contends that the Administrator has interpreted the mandate embodied in Section 17 of the Act unlawfully in failing to establish standards for all of the "equipment and facilities" of int
CourtU.S. Court of Appeals — District of Columbia Circuit

Richard J. Flynn, Washington, D. C., with whom Lee A. Monroe and Joseph B. Tompkins, Jr., Washington, D. C., were on the brief, for petitioners.

Erica L. Dolgin, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen. and Jeffrey O. Cerar, Atty., E. P. A., Washington, D. C., were on the brief, for respondents.

Russell R. Eggert, Chicago, Ill., was on the brief, for intervenor.

Before TAMM and WILKEY, Circuit Judges, and WILLIAM B. JONES, * United States Senior District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by WILKEY, Circuit Judge.

WILKEY, Circuit Judge:

In this petition for review, 1 the Association of American Railroads 2 (AAR) challenges the validity of the action of the Administrator of the Environmental Protection Agency (EPA) in promulgating Railroad Noise Emission Standards limited to rail cars and locomotives operated by surface carriers engaged in interstate commerce by railroad. 3 These regulations were promulgated pursuant to Section 17 of the Noise Control Act of 1972 (the Act) which requires the Administrator to establish emission standards for noise "resulting from operation of the equipment and facilities" of interstate rail carriers. 4 The petitioner does not challenge the validity of the noise emission standards set for rail cars and locomotives; rather, the AAR contends that the Administrator has interpreted the mandate embodied in Section 17 of the Act unlawfully in failing to establish standards for all of the "equipment and facilities" of interstate rail carriers. The EPA, on the other hand, argues that the Act vests the Administrator with discretion to determine which sources of railroad noise are to be regulated at the federal level.

After carefully reviewing the language of the Noise Control Act and its legislative history, we conclude that the EPA has misinterpreted the scope of the mandate embodied in Section 17 of the Act through its artificially narrow definition of "equipment and facilities." Accordingly, we reverse the decision of the Administrator to limit the scope of the Railroad Noise Emission Standards and remand the case to the EPA with directions to promulgate noise emission standards in a manner not inconsistent with this opinion.

I. STATUTORY FRAMEWORK

The requirements for the regulation of railroad noise are contained in Section 17 of the Act. In pertinent part, this Section of the Act provides that: 5

(a)(1) Within nine months after October 27, 1972, the Administrator shall publish proposed noise emission regulations for surface carriers engaged in interstate commerce by railroad. Such proposed regulations shall include noise emission standards setting such limits on noise emissions resulting from operation of the equipment and facilities of surface carriers engaged in interstate commerce by railroad which reflect the degree of noise reduction achievable through the application of the best available technology, taking into account the cost of compliance. These regulations shall be in addition to any regulations that may be proposed under section 4905 of this title.

(2) Within ninety days after the publication of such regulations as may be proposed under paragraph (1) of this subsection, and subject to the provisions of section 4915 of this title, the Administrator shall promulgate final regulations. Such regulations may be revised, from time to time, in accordance with this subsection.

(c)(1) Subject to paragraph (2) but notwithstanding any other provision of this chapter, after the effective date of a regulation under this section applicable to noise emissions resulting from the operation of any equipment or facility of a surface carrier engaged in interstate commerce by railroad, no State or political subdivision thereof may adopt or enforce any standard applicable to noise emissions resulting from the operation of the same equipment or facility of such carrier unless such standard is identical to a standard applicable to noise emissions resulting from such operation prescribed by any regulation under this section.

(2) Nothing in this section shall diminish or enhance the rights of any State or political subdivision thereof to establish and enforce standards or controls on levels of environmental noise, or to control, license, regulate, or restrict the use, operation, or movement of any product if the Administrator, after consultation with the Secretary of Transportation, determines that such standard, control, license regulation, or restriction is necessitated by special local conditions and is not in conflict with regulations promulgated under this section.

There are three points concerning the language of Section 17 which deserve mention at this point; an examination of these three points will serve to focus the analysis on the precise issue that forms the basis of the controversy in this case. There is a particularly strong need in this case to focus the discussion at an early stage since the parties, both in their briefs and at oral argument, have devoted much attention to issues which are either beyond peradventure or are not germane to the case in its present posture. 6

First of all, it is clear from the language of Section 17(a)(1) and (2) that the Administrator is under a mandatory duty to establish noise emission standards for interstate rail carriers. The word "shall" is the language of command in a statute, 7 and there is no doubt that the Congress has commanded the Administrator of the EPA to promulgate railroad noise emission standards. In Section 17(a)(1), however, Congress went beyond commanding the Administrator to establish standards and sought to specify the subject matter to be regulated. In so specifying the subject matter, Congress also used the language of command the regulations "shall include " standards setting limits on noise emanating from "the equipment and facilities" of interstate rail carriers. 8 In this sentence the phrase "shall include" refers to and incorporates the phrase "equipment and facilities" as the subject matter which must be included in the mandatory regulations. Thus, both the obligation to promulgate regulations and the subject matter to be regulated are dictated by the statute. Although there is a mandatory duty relative to "equipment and facilities," the statute does not attempt to define the phrase "equipment and facilities" beyond the use of the words themselves.

Given this strong mandatory language in the statute, we can brush aside subsidiary and diversionary issues to formulate the issue under review in this case as simply: with respect to the subject matter to be regulated, what is the scope of the Administrator's mandatory duty? 9

The second point to be made concerning the language of Section 17 deals with the issue of preemption. It is clear that, under the Supremacy Clause of the Constitution, federal law can preempt state law in a particular subject area. 10 Congressional intent to preempt state and local regulation must at times be inferred from the overall structure of regulation found in the federal statute; such a need to infer is not present in this case. Section 17(c)(1) of the Act constitutes an explicit and direct preemption clause. Under the terms of this subsection, noise emission regulations relative to "the operation of any equipment or facility" of an interstate rail carrier will preempt state or local regulations dealing with the same sources of noise. In addition, the scope of the preemption provision appears clear; all regulations promulgated pursuant to Section 17(a)(1) and (2) are to have preemptive effect. That is, if a regulation comes within the scope of the mandatory duty specified in Section 17(a)(1) and (2) the regulation then displaces inconsistent state or local laws.

Thus, the existence and scope of federal preemption are not directly at issue in this case; the former is beyond doubt, while the latter is dictated by the scope of the mandatory duty to establish standards (which is the focus of this case).

The third and final point to be made concerning the language of Section 17 at this time concerns the provision for local variances under Section 17(c)(2) of the Act. Under this provision the Administrator may, after consultation with the Secretary of Transportation, allow states or localities to establish and enforce standards if such standards are "necessitated by special local conditions and (are) not in conflict with regulations promulgated under this section." 11 This provision for local variances has no effect on the scope of the mandatory duty outlined in Section 17(a), nor does it alter the preemption provisions of Section 17(c)(1); in fact, the nature of this provision would seem to confirm preemption. Section 17(c)(2) performs a valuable function in its recognition that local conditions may dictate some degree of flexibility in the approach to noise control. The provision does not, however, limit the scope of the Administrator's mandatory duty or the preemptive effect of the regulations issued pursuant to that duty.

In summary, by virtue of the language and structure of Section 17 of the Act, the relevant question for purposes of this analysis concerns the scope of the mandatory duty to regulate railroad noise. In particular, this scope is to be defined by reference to the phrase "equipment and facilities" in Section 17. Before turning...

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