600 F.2d 904 (D.C. Cir. 1979), 76-1569, Chrysler Corp. v. E.P.A.

Docket Nº:76-1569, 76-1575, 76-1576 and 76-1582.
Citation:600 F.2d 904
Party Name:Envtl. CHRYSLER CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. GENERAL MOTORS CORPORATION, Petitioner, v. Douglas COSTLE, Administrator, Environmental Protection Agency, Respondent. INTERNATIONAL HARVESTER COMPANY, Petitioner, v. Douglas COSTLE, Administrator, Environmental Protection Agency, Respondent. FORD MOTOR COMPANY
Case Date:April 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 904

600 F.2d 904 (D.C. Cir. 1979)

Envtl.

CHRYSLER CORPORATION, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

GENERAL MOTORS CORPORATION, Petitioner,

v.

Douglas COSTLE, Administrator, Environmental Protection

Agency, Respondent.

INTERNATIONAL HARVESTER COMPANY, Petitioner,

v.

Douglas COSTLE, Administrator, Environmental Protection

Agency, Respondent.

FORD MOTOR COMPANY, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 76-1569, 76-1575, 76-1576 and 76-1582.

United States Court of Appeals, District of Columbia Circuit

April 9, 1979

Argued Feb. 17, 1978.

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Howard P. Willens, Washington, D. C., with whom Deanne C. Siemer and Phillip L. Radoff, Washington, D. C., were on the brief, for petitioner in No. 76-1582.

Patrick M. Raher, Washington, D. C., with whom Victor C. Tomlinson and Connie R. Gale, Detroit, Mich., were on the brief, for petitioner in No. 76-1569.

Reuben L. Hedlund, Chicago, Ill., a member of the bar of the Supreme Court of Illinois, by special leave of court pro hac vice, with whom Laurence H. Levine, Chicago, Ill., and Frazer F. Hilder, Detroit, Mich., were on the brief, for petitioners in Nos. 76-1575 and 76-1576. Edward W. Warren, Washington, D. C., and Hammond E. Chaffetz, Chicago, Ill., also entered an appearance for petitioners in Nos. 76-1575 and 76-1576.

Ronald S. Naveen and Jeffrey O. Cerar, Atty., Environmental Protection Agency, Washington, D. C., with whom James W. Moorman, Acting Asst. Atty. Gen., Dept. of Justice, and G. William Frick, Gen. Counsel, Environmental Protection Agency, Washington, D. C., were on the brief, for respondents. Peter R. Taft, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondents.

Thomas A. Pursley III, Atty., Department of Justice, Washington, D.C., argued for respondent Environmental Protection Agency.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

In these cases, petitioners challenge the validity of regulations promulgated for medium and heavy trucks 1 by the Administrator of the Environmental Protection Agency (EPA) purportedly pursuant to the Noise Control Act of 1972. 2 Because of jurisdictional limitations on review of these regulations, 3 we find ourselves unable to rule on the merits of petitioners' arguments save in one respect. That exception is their attack on warranty provisions of the regulations, 4 and these we find to be invalid under the Act.

I. BACKGROUND

The Noise Control Act of 1972 is another in the series of major congressional efforts to achieve at least a minimum acceptable level of environmental quality. A prominent and integral feature of the Act's regulatory scheme is the promulgation of noise emission standards, 5 a function delegated to the Administrator of the Environmental Protection Agency. 6 The Administrator is required to compile and publish a report identifying those products or classes of products which in his judgment constitute "major sources of noise." 7 It thereafter becomes incumbent upon the Administrator to prescribe regulations covering identified products within four categories when noise emission standards are deemed feasible. 8 The regulations must set standards limiting noise emission from such products, and may erect testing procedures to acquire compliance with the emission standards. 9 With exceptions inapplicable here, distribution of

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noncomplying products in interstate commerce is prohibited. 10

In 1974, responsively to these statutory mandates, the Administrator identified as major noise sources medium and heavy trucks with gross vehicle weight ratings in excess of 10,000 pounds, and proposed detailed regulations dealing with them. 11 The proposals included not only noise emission standards but test methodology, enforcement programs and warranty requirements as well. After rulemaking proceedings, regulations on these subjects became final in 1976. 12

Timely petitions for review were filed in this court by four major American truck manufacturers. 13 While petitioners do not question the emission standards 14 or the testing procedures 15 thus established, they do assail the enforcement 16 and warranty 17 regulations. 18 The enforcement program permits EPA to inspect and monitor regulated products and required records, 19 to recall noncomplying products, 20 and to put an end to distribution of vehicles by manufacturers disregarding specified regulations. 21 The warranty provisions exact from the manufacturer responsible for production verification of the vehicle 22 a warranty that it was "designed, built and equipped to conform at the time of sale . . . with all applicable U.S. EPA noise control regulations." 23 On both statutory and constitutional grounds, petitioners say these administrative exertions are invalid.

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II. THE ENFORCEMENT REGULATIONS

At the outset, we are confronted with a challenge to our jurisdiction to review the enforcement procedures. 24 The Noise Control Act, in common with other environmental legislation, 25 provides preclusively for direct review of the Administrator's performances in certain instances. 26 Section 16(a), pursuant to which our jurisdiction is invoked, designates the one instance relevant here:

A petition for review of action of the Administrator of the Environmental Protection Agency in promulgating any standard or regulation under section 6, 17, or 18 of this Act . . . may be filed only in the United States Court of Appeals for the District of Columbia Circuit. . . . 27

Since Sections 17 28 and 18 29 relate respectively to standards for railroads and interstate motor carriers 30 and therefore are inapplicable to this litigation, we focus our attention on Section 6.

That section calls upon the Administrator to publish for each covered product 31 proposed regulations which "shall include a noise emission standard" meeting enumerated specifications and which

(i)n addition . . . may contain testing procedures necessary to assure compliance with the (applicable) emission standard . . . and may contain provisions respecting instructions of the manufacturer for the maintenance, use, or repair of the product. 32

Section 6 also establishes time limits for the publication of regulations proposed thereunder, 33 and requires manufacturers to "warrant to the ultimate purchaser" that regulated products are in conformity with the regulations adopted. 34

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Petitioner Ford Motor Company contends that the narrow grant of Section 6 rulemaking authority does not afford a substantive basis for the enforcement regulations, and that resultantly we lack jurisdiction under Section 16(a) to pass on their validity. The Administrator argues, however, that a broad reading of Section 16(a) permits our consideration of these provisions because, he says, they are closely related to regulations that clearly would be authorized by Section 6, and therefore under Section 16(a) are "Action(s) of the Administrator . . . in promulgating (a) standard or regulation under section 6." 35 We disagree with the Administrator. 36

The unequivocal language of Section 6 restricts legislative rulemaking to but three subjects: noise emission standards, testing procedures and manufacturers' instructions. 37 Nothing in the legislative history of Section 6 suggests in any way that additional types of regulations were contemplated. 38 More particularly, there is no indication in either the text or the history of Section 6 that it was meant to confer authority to establish an enforcement process, and additional considerations serve further to negate the possibility that Congress intended enforcement regulations to derive from Section 6.

Other provisions of the Noise Control Act deal overtly with the subject of enforcement. 39 Moreover, the Clean Air Amendments of 1970 40 on which the Noise Control Act of 1972 was modeled 41 expressly, and entirely apart from any general standard-setting or testing provision, licensed entry into a manufacturer's facility. 42 It

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seems inconceivable that Congress would have been ever so clear in the one instance but would leave the authority to be sought between the lines in a closely related statute subsequently enacted. To boot, Section 6 does not lend itself to so broad an interpretation that enforcement regulations would be encompassed, for it lacks a grant of general rulemaking power 43 a grant that is explicit in other environmental statutes administered by EPA. 44 Thus the plain language of Section 6, viewed in the context of the Act, its legislative history and a comparison of its provisions with those of other environmental enactments, would authorize promulgation of legislative regulations on no more than noise emission standards, testing procedures and manufacturers' instructions. Because EPA's enforcement regulations which include provisions for entry and inspection, recall and stopped deliveries do not fit within any of these categories, they would not appear to be "standard(s) or regulation(s) under section 6 . . . of (the) Act" within Section 16(a) review jurisdiction. 45

In support of the claim that under the latter section we may nevertheless examine the enforcement procedures as "action(s) of the Administrator . . . in promulgating" Section 6 regulations, 46 the Administrator cites the legislative history and case law on nearly identical review provisions found in the Clean Air Amendments of 1970 47 and the Federal Water Pollution Control Act Amendments of 1972, 48 as well as policy arguments weighing in favor of immediate review. 49 Nothing to which we...

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