747 F.2d 1 (D.C. Cir. 1984), 82-2032, Center for Auto Safety v. Ruckelshaus

Docket Nº:82-2032.
Citation:747 F.2d 1
Party Name:Envtl. CENTER FOR AUTO SAFETY, Public Citizen, Inc., Natural Resources Defense Council, Hon. Toby Moffett, Sidney Wolfe, M.D., and Russell J. Shew, Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, and Environmental Protection Agency, Respondents, General Motors Corp., Intervenor.
Case Date:October 26, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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747 F.2d 1 (D.C. Cir. 1984)

Envtl.

CENTER FOR AUTO SAFETY, Public Citizen, Inc., Natural

Resources Defense Council, Hon. Toby Moffett,

Sidney Wolfe, M.D., and Russell J. Shew,

Petitioners,

v.

William D. RUCKELSHAUS, Administrator, Environmental

Protection Agency, and Environmental Protection

Agency, Respondents,

General Motors Corp., Intervenor.

No. 82-2032.

United States Court of Appeals, District of Columbia Circuit

October 26, 1984

Argued May 24, 1983.

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Petition for Review of an Order of the Environmental Protection agency.

Frederic Townsend, Washington, D.C., with whom Alan B. Morrison and David D. Doniger, Washington, D.C., were on the brief, for petitioners.

William F. Pedersen, Acting Associate Gen. Counsel, E.P.A., Washington, D.C., of the Bar of the Supreme Court of the State of Massachusetts, pro hac vice, by special leave of Court, with whom Carol E. Dinkins, Asst. Atty. Gen., Robert M. Perry, Gen. Counsel, Gerald K. Gleason, Asst. Gen. Counsel, Samuel I. Gutter, Robert A. Weissman, Peter J. Murtha and Maureen Smith, Attys., E.P.A., and Rosanne Mayer, Atty. Dept. of Justice, Washington, D.C., were on the brief, for respondents.

Theodore Souris, Detroit, Mich., with whom Frederick J. Dindoffer and George F. Ball, Detroit, Mich., were on the brief, for intervenor. William L. Weber, Detroit, Mich., also entered an appearance for intervenor.

Before WILKEY, MIKVA and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Section 207 of the Clean Air Act, 42 U.S.C. Sec. 7541 (1982) provides that if the Administrator of the Environmental Protection Agency ("EPA") determines that a substantial number of any class or category of vehicles or engines fail during their statutorily defined useful life to conform to the regulations establishing maximum emission levels, the Administrator shall require the manufacturer to submit a plan for remedying the nonconformity at the manufacturer's expense. The EPA has hitherto implemented this provision by requiring and approving plans that commit the manufacturer to recall and repair the nonconforming vehicles or engines. This case presents the question whether the EPA may implement it instead by approving a plan that commits the manufacturer to "offset" the excessive pollution emitted from nonconforming vehicles or engines by meeting lower than currently permitted emission standards for vehicles or engines to be built in future model years.

I

Until 1970, the EPA enforced motor vehicle pollution restrictions exclusively by testing engine prototypes for compliance with emission standards. Cf. S. REP. NO. 1196, 91st Cong., 2d Sess. 29 (1970), reprinted in SENATE COMM. ON PUBLIC WORKS, 93d CONG., 2D SESS. 1 LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970, 397, 429 (Comm. Print 1974) ("Leg.Hist."). The experience of the 1960s showed that many vehicles in actual use emitted pollutants at levels far in excess of the tested prototypes and that the discrepancy grew as the vehicles' mileage increased. Id. at 29-30, 1 Leg.Hist. 429-30. Proponents of stricter clean air requirements concluded it was essential to "require that new cars meet not only the standards on the production line but also the standards in performance. Unless they do, the whole exercise is useless...." 116 CONG.REC. 33,093 (1970) (statement of Sen. Muskie). The Clean Air Act Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676, addressed this problem by adding Sec. 207, which requires the manufacturer to warrant continuing compliance with emission standards during the vehicle's or engine's

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useful life, directs the EPA to test for such compliance (if technologically feasible), and provides for the remedying of noncompliance as described above.

As part of its in-use surveillance program, the EPA tested 1979 General Motors ("GM") cars with GM engine family 920S2E. All ten test vehicles exceeded the NOx emission standard of 2.0 grams per mile, for reasons which neither the EPA nor GM was able to determine. In December 1980, the EPA ordered GM to submit a plan for remedying the nonconformity. In February 1981 GM submitted a proposed remedial plan that called for recall and repair of the nonconforming vehicles. After some discussions with the EPA, GM submitted in May 1981 an alternate plan covering both the 920S2E engine family and the similar 920S4 family which also showed a 100 percent noncompliance rate for NOx. (The latter was under consideration...

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