Ethyl Corp. v. Browner, No. 92-1064

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSTEPHEN F. WILLIAMS
Citation989 F.2d 522
Parties, 300 U.S.App.D.C. 330, 23 Envtl. L. Rep. 20,689 ETHYL CORPORATION, Petitioner, v. Carol M. BROWNER, Administrator, U.S. Environmental Protection Agency and U.S. Environmental Protection Agency, Respondents.
Docket NumberNo. 92-1064
Decision Date06 April 1993

Page 522

989 F.2d 522
36 ERC 1574, 300 U.S.App.D.C. 330, 23
Envtl. L. Rep. 20,689
ETHYL CORPORATION, Petitioner,
v.
Carol M. BROWNER, Administrator, U.S. Environmental
Protection Agency and U.S. Environmental
Protection Agency, Respondents.
No. 92-1064.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 8, 1993.
Decided April 6, 1993.

Petition for Review of An Order of the U.S. Environmental Protection Agency.

Page 523

F. William Brownell, with whom John J. Adams, and Kevin L. Fast, Washington, DC, were on the brief, for petitioner.

John C. Nagle, Atty., Dept. of Justice, with whom Raymond Ludwiszewski, Acting Gen. Counsel, Alan W. Eckert, Associate Gen. Counsel, Nancy Ketcham-Colwill, Asst. Gen. Counsel, and Timothy D. Backstrom, Counsel, U.S. E.P.A., Washington, DC, were on the brief, for respondents.

Before: SILBERMAN, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Ethyl Corporation seeks review of the Environmental Protection Agency's denial of Ethyl's application for a waiver for a fuel additive, MMT, 1 a manganese-based additive designed to prevent auto engine knocking. See § 211(f)(4) of the Clean Air Act, 42 U.S.C. § 7545(f)(4). The Administrator acknowledges that evidence developed since denial of the waiver has undermined the stated basis for denial, and asks that we remand the matter to the Agency for further consideration, including review of other possible bases for denial that the Agency alluded to but did not resolve in its explanation of the original denial. Ethyl resists the remand, arguing that we must decide whether the denial was erroneously issued, because (it says) the statutory scheme entitles it to receive the waiver if the denial was in error. Because we conclude that illegality at the time of denial would not entitle Ethyl to that remedy, we think it inappropriate to review the now stranded decision, and we remand the case to the Administrator.

Section 211(f)(1) of the Clean Air Act prohibits the sale of fuels and fuel additives that are not "substantially similar" to those in use in vehicles or engines certified since 1974. 42 U.S.C. § 7545(f)(1). Section 211(f)(4), however, provides that upon application by a manufacturer, the Administrator may waive the prohibition of § 211(f)(1) if he determines that the applicant has established that its additive will not "cause or contribute" to the failure of vehicles to comply with the emission standards to which they have been certified. In the interests of assuring timely action by the EPA, the same section provides a sanction for failure to act within 180 days:

If the Administrator has not acted to grant or deny an application under this paragraph within days of receipt of such application, the waiver authorized by this paragraph shall be treated as granted.

42 U.S.C. § 7545(f)(4).

Ethyl applied on July 12, 1991 for a § 211(f)(4) waiver to permit the addition of MMT to unleaded gasoline. 2 The Administrator denied...

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71 practice notes
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 2020
    ..."decide[ ] whether or not to alter some of its regulatory choices" (internal quotation marks omitted)); Ethyl Corp. v. Browner , 989 F.2d 522, 523 (D.C. Cir. 1993) (noting "[t]he Administrator['s] acknowledg[ment] that evidence developed since denial of the waiver has undermi......
  • Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, No. 15-1219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 21, 2018
    ...and the parties’ resources reviewing a record that both sides acknowledge to be incorrect or incomplete." Ethyl Corp. v. Browner , 989 F.2d 522, 524 (D.C. Cir. 1993). Remand may also be appropriate if the agency’s motion is made in response to "intervening events outside of the ag......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • November 30, 2020
    ...a matter to 507 F.Supp.3d 58 an agency is to conserve "the courts’ and the parties’ resources." See Ethyl Corp. v. Browner , 989 F.2d 522, 524 (D.C. Cir. 1993) ; see also id. at 524 n.3 (collecting cases where remand was granted prior to significant events in the development of th......
  • Am. Forest Res. Council v. Ashe, Civil Action No. 12–111 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2013
    ...and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete.” See Ethyl Corp. v. Browner, 989 F.2d 522, 524 & n. 3 (D.C.Cir.1993) (citing cases); Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.2010); Sierra Club v. Van Ant......
  • Request a trial to view additional results
70 cases
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 2020
    ..."decide[ ] whether or not to alter some of its regulatory choices" (internal quotation marks omitted)); Ethyl Corp. v. Browner , 989 F.2d 522, 523 (D.C. Cir. 1993) (noting "[t]he Administrator['s] acknowledg[ment] that evidence developed since denial of the waiver has undermi......
  • Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, No. 15-1219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 21, 2018
    ...and the parties’ resources reviewing a record that both sides acknowledge to be incorrect or incomplete." Ethyl Corp. v. Browner , 989 F.2d 522, 524 (D.C. Cir. 1993). Remand may also be appropriate if the agency’s motion is made in response to "intervening events outside of the ag......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • November 30, 2020
    ...a matter to 507 F.Supp.3d 58 an agency is to conserve "the courts’ and the parties’ resources." See Ethyl Corp. v. Browner , 989 F.2d 522, 524 (D.C. Cir. 1993) ; see also id. at 524 n.3 (collecting cases where remand was granted prior to significant events in the development of th......
  • Am. Forest Res. Council v. Ashe, Civil Action No. 12–111 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2013
    ...and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete.” See Ethyl Corp. v. Browner, 989 F.2d 522, 524 & n. 3 (D.C.Cir.1993) (citing cases); Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.2010); Sierra Club v. Van Ant......
  • Request a trial to view additional results
1 books & journal articles
  • The Regulation of Fuels and Fuel Additives
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...been registered for use in unleaded gasoline since 1970, and if 148. 57 Fed. Reg. 2535, 2541 (Jan. 22, 1992). 149. Ethyl Corp. v. Browner, 989 F.2d 522, 524, 23 ELR 20689 (D.C. Cir. 1993). 150. 59 Fed. Reg. 44424-502 (Aug. 19, 1994). 151. Ethyl Corp. , 51 F.3d at 1053. 152. Fuels and Fuel A......

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