General Motors Corp. v. Ruckelshaus

Decision Date07 September 1984
Docket NumberNos. 80-1868,80-2027 and 81-1029,s. 80-1868
Citation742 F.2d 1561,239 U.S.App.D.C. 408
Parties, 239 U.S.App.D.C. 408, 14 Envtl. L. Rep. 20,704 GENERAL MOTORS CORPORATION, a Delaware Corporation, Petitioner, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Respondent. (3 cases)
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Theodore Souris and George F. Ball, Detroit, Mich., with whom Michael B. Lewiston, James A. Smith, Terrance B. Larkin, Frederick J. Dindoffer and William L. Weber, Jr., Detroit, Mich., were on brief, for petitioner in Nos. 80-1868, 80-2027 and 81-1029.

Jose R. Allen, Atty. Dept. of Justice, Washington, D.C., with whom A. James Barnes, Gen. Counsel, Gerald K. Gleason, Asst. Gen. Counsel, Robert A. Weissman, Samuel I. Gutter, Attys., E.P.A., David E. Dearing and John Wittenborn, Dept. of Justice, Washington, D.C., were on brief, for respondent.

Angus MacBeth, Donald W. Stever, Jr. and Rosanne Mayer, Attys. Dept. of Justice, Washington, D.C., also entered appearances for respondent.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, SCALIA and STARR, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Senior Circuit Judge BAZELON in which Circuit Judges TAMM and WILKEY join.

WALD, Circuit Judge.

In this appeal, the General Motors Corporation (GM) challenges the authority of the Environmental Protection Agency (EPA or Agency) to require manufacturers, as a part of a recall pursuant to the Clean Air Act, to repair cars and engines, which are members of the recall class, but which have exceeded their statutory "useful lives" of five years or 50,000 miles at the time of repair. In 1980, the EPA promulgated what it termed an "interpretive rule," embodying its consistent regulatory practice since the enactment of the Clean Air Act Amendments of 1970, requiring manufacturers to repair all members of a recall class, regardless of their age or mileage at the time of repair. Soon thereafter, in accordance with the interpretative rule, the agency ordered GM to submit a remedial plan for a class of recalled Cadillacs that included all class members regardless of age or mileage. In its petitions to this court, GM contends that (1) the EPA rule is a legislative, not interpretative, rule, and therefore the rule is void for failure to comply with the notice and comment procedures set down by the Administrative Procedure Act, and (2) in any event, the rule runs counter to the recall provision of the Clean Air Act and therefore is an invalid interpretation of the statute. GM consequently challenges the validity of both the interpretative rule and the agency order that applied the rule to the recall of GM automobiles. For the reasons stated below, we hold that the EPA rule is a valid interpretative rule, supported by the language, purpose and legislative history of section 207(c) of the Clean Air Act Amendments of 1970. We accordingly deny GM's petitions.

I. BACKGROUND

On March 21, 1977, after an EPA investigation and testing by both EPA and GM, the Administrator of the EPA notified GM pursuant to section 207(c)(1) of the Clean Air Act that the class of 1975 Cadillacs with type 230-carburetors did not conform with federal standards for carbon monoxide emission, and ordered GM to "submit a plan for recalling and remedying the nonconformity of the vehicles." 1 At the same time, the Administrator expressed concern that another set of 1975 Cadillacs--with type 193-carburetors--also exhibited nonconformity with the carbon monoxide standards, but he refrained from initiating a formal recall of that class in order to give GM an opportunity to substantiate its "strong protestations" that this latter class did not violate the standards. See Letter from Douglas M. Costle, EPA Administrator, to E.M. Estes, President of GM (March 21, 1977), reprinted in Joint Appendix (J.A.) at 122-24.

Five weeks later, GM filed a proposed remedial plan for the 230-carburetor Cadillacs, and as a part of the plan offered to recall the 193-carburetor Cadillacs voluntarily. 2 See J.A. at 126-27. EPA did not approve the plan, however, and negotiations continued for two years between the agency and GM over the effectiveness of the proposed repairs and the manufacturer's obligation to audit the performance of completed repairs. Finally, on December 26, 1979, the EPA withdrew its demand that GM conduct an audit, deciding instead to conduct the audit itself, and approved GM's amended remedial plan. 3

At that time, however, GM urged the EPA to cancel the recall, arguing that "as a direct result of the delays incurred since our first remedial plan was submitted, a point of drastically diminished returns has been reached." Letter from T.M. Fisher, Automotive Emission Control Director for GM, to Benjamin R. Jackson, EPA Deputy Assistant Administrator for Mobile Source and Noise Enforcement (Feb. 5, 1980), reprinted in J.A. at 258. More specifically, GM contended for the first time that "only those vehicles within the lesser of five years or 50,000 miles of operation at the time of presentation to the dealer for repairs will receive the [remedial repairs] at General Motors [sic] expense." 4 Id., reprinted in J.A. at 259. GM thus believed that so few Cadillacs in the class would be subject to recall because of their age or mileage that the recall should not be implemented at all.

On May 30, 1980, the EPA promulgated the rule at the center of dispute in this case. See 45 Fed.Reg. 36,396 (May 30, 1980). Under the rule, all remedial plans filed under section 207(c) of the Clean Air Act "shall provide that the manufacturer will remedy, at the manufacturer's expense, all properly maintained and used vehicles which experienced the nonconformity during their useful lives regardless of their age or mileage at the time of repair." 40 C.F.R. Subpart S App. A (emphasis added). Applying this rule to the recall of the 1975 Cadillacs, the EPA on June 23, 1980 approved GM's Cadillac remedial plan insofar as it applied to vehicles within their useful lives at the time of repair, and ordered GM to submit a plan for the repair of automobiles within the recall class "which failed or will fail to conform to applicable emission standards during their useful lives but will be beyond their useful lives at the time of repair." Letter from Charles N. Freed, EPA Acting Assistant Deputy Administrator for Mobile Source, Noise and Radiation Enforcement, to T.M. Fisher, Director of Automotive Emission Control for GM (June 23, 1980), reprinted in J.A. at 263.

GM then petitioned this court, challenging both the May 30 rule and the June 30 recall determinations. 5 GM argues that (1) the May 30 rule constituted a legislative rulemaking, despite EPA's characterization of the rule as "interpretive," and therefore the EPA failed to follow the notice and comment procedures required before such rules may be promulgated, and (2) by requiring the repair of automobiles beyond their useful lives, the rule exceeds the EPA's authority under section 207(c) of the Clean Air Act. For the reasons explained below, we disagree with both of GM's contentions.

II. THE EPA RULE IS AN INTERPRETATIVE RULE

EPA styled its May 30 rule as an "interpretive rule." See 45 Fed.Reg. 36,39 6 (May 30, 1980). As a preliminary matter, GM challenges this characterization, contending that the May 30 rule is, on the contrary, a "legislative rule" and is consequently void for failure to follow the notice and comment procedures required for the promulgation of such rules. See 5 U.S.C. Sec. 553. Because we find that EPA properly categorized the May 30 rule, we conclude that notice and comment procedures were not required. See id. Sec. 553(b)(A). 6

In a turn of phrase particularly apt in this case, the distinction between legislative and nonlegislative rules has been described as "enshrouded in considerable smog." American Bus Association v. ICC, 627 F.2d 525, 529 (D.C.Cir.1980) (quoting Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.1975) (discussing definition of "general statement of policy")). Nonetheless, there are certain general principles that aid reviewing courts in making the determination whether a given rule is legislative or interpretative. First, the agency's own label, while relevant, is not dispositive. See, e.g., Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 468 (D.C.Cir.1980); Citizens to Save Spencer County v. EPA, 600 F.2d 844, 879 n. 171 (D.C.Cir.1979). An interpretative rule simply states what the administrative agency thinks the statute means, and only " 'reminds' affected parties of existing duties." Citizens to Save Spencer County, 600 F.2d at 876 & n. 153; see also Chamber of Commerce, 636 F.2d at 469. On the other hand, if by its action the agency intends to create new law, rights or duties, the rule is properly considered to be a legislative rule. See, e.g., American Postal Workers Union v. United States Postal Service, 707 F.2d 548, 558-59 (D.C.Cir.1983); Citizens to Save Spencer County, 600 F.2d at 876.

In light of these general principles, we find that the May 30 rule constitutes an interpretative rule. We note, to begin with, that the agency regarded its rule as interpretative. See 45 Fed.Reg. 36,396 (May 30, 1980) ("Action: Interpretive Rule"). Moreover, EPA's entire justification for the rule is comprised of reasoned statutory interpretation, with reference to the language, purpose and legislative history of section 207(c). See id. at 36397-98. Indeed, the language of the rule itself indicates its interpretative nature. See 40 C.F.R. Subpart S App. A ("The purpose of this rule is to set forth EPA's interpretation ... under section 207(c)(1) of the Clean Air Act....") Finally, and...

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