Chevron U.S.A., Inc. v. U.S. E.P.A., s. 80-3081

• Citation: 658 F.2d 271
• Decision Date: 14 September 1981
• Docket Number: Nos. 80-3081,80-3892,s. 80-3081
• Parties: , 12 Envtl. L. Rep. 20,044 CHEVRON U. S. A., INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ("EPA"), an Agency of the United States, and Anne M. Gorsuch, in her capacity as Administrator of the EPA, Respondents. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 271

658 F.2d 271

16 ERC 1878, 12 Envtl. L. Rep. 20,044

CHEVRON U. S. A., INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ("EPA"), an

Agency of the United States, and Anne M. Gorsuch,

in her capacity as Administrator of the

EPA, Respondents.

Nos. 80-3081, 80-3892.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 14, 1981.

Michael H. Salinsky, San Francisco, Cal., Joseph E. LeBlanc, Jr., New Orleans, La., for petitioner.

Jeffrey C. Smith, Atty., E.P.A., Elizabeth Stein, Pollution Control Section, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for respondents.

Petitions for Review of Orders of the Environmental Protection Agency.

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

The issue presented in these consolidated cases is whether, in determining under section 169A of the Clean Air Act, 42 U.S.C. § 7491, that the Breton Wilderness Area (Breton) in Louisiana exceeded 5,000 acres in size on August 7, 1977, the Administrator of the Environmental Protection Agency (the Administrator) acted in an arbitrary or capricious manner. Finding that the Administrator's determination was neither arbitrary nor capricious, we affirm.

I. Facts

Prior to 1977, the Clean Air Act (the Act) did not elaborate on the protection of visibility as an air-quality related value. In response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks, set aside for special protection in their natural states, Congress amended the Act in 1977 to require "aggressive steps" to remedy existing visual deterioration, and to prevent future impairment of those areas. See 45 Fed.Reg.No. 194 at 65585 et seq.

The 1977 amendments require the Administrator, in consultation with the Secretary of the Interior (the Secretary), to "promulgate a list of mandatory class I Federal areas in which he determines visibility is an important value." 42 U.S.C. § 7491(a)(2). The term "mandatory class I Federal areas" is defined as "Federal areas which may not be designated as other than class I under this part," 42 U.S.C. § 7491(g)(5), and the provision with respect to mandatory class I status for national wilderness areas provides in relevant part that:

Upon the enactment of this part, all

national wilderness areas which exceed 5,000 acres in size and which are in existence on August 7, 1977, shall be class I areas and may not be redesignated.

42 U.S.C. § 7472(a)(2).

In performing their responsibilities under the aforementioned provisions, the Administrator and the Secretary worked together to devise specific criteria for identifying the mandatory class I federal areas in which visibility is an important value. On October 14, 1977 the Secretary published these criteria and the preliminary results of his application of the criteria for public comment. 42 Fed.Reg. at 55280. With respect to Breton, the Secretary made the preliminary determination that it was over 5,000 acres in size and that it possessed visibility as an important value. 42 Fed.Reg. at 55284. ¹ The Secretary published his final determination on February 24, 1978, in which he adhered to his judgment that Breton possessed visibility as an important value and was over 5,000 acres in size on the relevant date. 43 Fed.Reg. 7721, 7725.

On February 12, 1979, the Administrator proposed to accept the Secretary's recommendation that certain areas, including Breton, possessed visibility as an important value. 44 Fed.Reg. 8909. The Administrator elected to treat this action under section 307(d)(1)(N) of the Act, 42 U.S.C. § 7607(d)(1)(N), and accordingly established a public comment period and public docket. In response to the Administrator's proposed determination, Chevron filed written comments asserting, inter alia, that Breton was not over 5,000 acres on August 7, 1977, the relevant statutory date, and that Breton therefore did not qualify as a mandatory class I federal area. ² Specifically, Chevron noted that according to the Department of the Interior's 1970 Breton Wilderness Proposal, Breton contained 4,421 acres in late 1969.

On November 30, 1979, the Administrator published his final determination of mandatory class I federal areas in which visibility is an important value, and responded therein to the comments received on the proposed determination. 44 Fed.Reg. 69122. The only comments received regarding Breton were from Chevron. The Administrator acknowledged Chevron's comments, and in response noted that he continued to accept the Secretary's determination that Breton satisfied the acreage requirement. Id. at 69124.

On January 25, 1980, Chevron filed with this Court a petition for review challenging the Administrator's decision. On March 12, 1980, after the Administrator had filed with this Court the Index to the Record, Chevron filed with the Administrator an administrative petition for reconsideration of the Breton designation. ³ A supplement to that petition was filed on March 25, 1980.

In its petition for reconsideration, Chevron argued that the Administrator's response to Chevron's comments was inadequate, because it contained no explanation of how the Secretary determined that Breton satisfied the acreage requirement. Chevron also offered two new items of information in support of its assertion that Breton did not exceed 5,000 acres on August 7, 1977. The first was an affidavit of a legal assistant employed by Chevron's counsel, to the effect that he had been informed by the official in the Department of the Interior responsible for identifying mandatory class I federal areas that, in identifying those areas, the official simply had relied upon the acreage descriptions appearing in the various acts of Congress establishing those areas. The second item was an internal memorandum from the Fish and Wildlife Service (FWS) dated April 19, 1979, which concludes that although a 1971-72 source places the acreage of Breton at 4,764 acres, because of the likelihood of error, "the 5,000 acre figure for Breton Wilderness is still valid, and we see no need to revise it at this time."

The Administrator formally denied Chevron's administrative petition on October 3, 1980. Chevron subsequently filed a petition for review of the Administrator's denial of the petition for reconsideration, and, on Chevron's motion, the two cases were consolidated by this Court on November 24, 1980.

II. The Administrator's Determination That Breton Exceeded 5,000 Acres in Size on August 7, 1977

The standard for judicial review of the Administrator's determination is found in section 307(d)(9) of the Act, 42 U.S.C. § 7607(d)(9), which provides that the Administrator's action may be reversed if shown to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...." ⁴ With respect to the Administrator's denial of an administrative petition for reconsideration, the controlling standard is found in section 307(d)(7)(B) of the Act, 42 U.S.C. § 7607(d)(7)(B), which provides that the Administrator shall convene a proceeding to reconsider the rule in question only if a person raising an objection can demonstrate that (1) it was impracticable to raise the objection during the period for public notice and comment; and (2) the objection is of central relevance to the outcome of the rule. ⁵

As noted supra, Chevron's petition for reconsideration relied upon two items of new information: (1) an affidavit to the effect that the Administrator, in identifying mandatory class I federal areas, relied upon the acreage descriptions contained in the acts of Congress establishing those areas; and (2) a 1979 FWS memorandum that noted that although data obtained in 1971-72 placed the acreage of Breton at 4,764 acres, "the 5,000 acre figure for Breton Wilderness is still valid ...." Chevron also argued that the Secretary's acreage determination was not entitled to deference by the Administrator, because the Secretary did not explain how the determination was made.

In denying Chevron's petition for reconsideration, the Administrator concluded that Chevron failed to meet both criteria for granting such a reconsideration. First, the Administrator noted that the aforementioned "new" information was not really new at all, and could have been presented during the time for public comment. Second, the Administrator determined that, in any event, the materials relied upon by Chevron would not have changed his determination, and therefore were not of central relevance to the outcome of the "rule."

The Administrator advanced several reasons in support of his conclusion that Chevron's proffered evidence was not of central relevance to the acreage determination. First, the Administrator noted that the legislative history of the act of Congress establishing Breton as a wilderness area expressly recognized the impossibility of measuring with any certainty the exact acreage of the area, and that, based on this recognition, Congress adopted the Secretary's recommendation that Breton be established as approximately 5,000 acres to allow for error in measurement and future growth due to accretion. ⁶ In accepting the Secretary's recommendation, the Senate Committee placed particular emphasis on the difficulty of estimating Breton's size with any degree of precision:

Breton and Chandeleur Islands are barrier landforms representative of the dynamic processes of continental accretion which have been in progress along the Atlantic and Gulf Coasts since the Cretaceous Period. The chain of islands are generally lowlying and subject to constant change from wave action, winds, and frequent storms.

S.Rep.No.93-1287, 93rd Cong. 2d Sess. at 17-19 (1974). Pursuant to the Secretary's recommendation, the act establishing Breton as a national wilderness area fixes that area at "5,000 acres, more or less." Certificate of Legal Description and Map of the Boundary of Breton...