Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. Ruckelshaus

• Decision Date: 21 October 1983
• Docket Number: No. 80-1829,80-1829
• Citation: 231 U.S.App.D.C. 240,719 F.2d 1159
• Parties: , 231 U.S.App.D.C. 240, 13 Envtl. L. Rep. 21,063 MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF the UNITED STATES, INC., et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Respondent, Automobile Importers of America, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1159

719 F.2d 1159

19 ERC 2001, 231 U.S.App.D.C. 240, 13

Envtl. L. Rep. 21,063

MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF the UNITED

STATES, INC., et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, United States

Environmental Protection Agency, Respondent,

Automobile Importers of America, Inc., Intervenor.

No. 80-1829.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 9, 1983.

Decided Oct. 4, 1983.

As Amended Oct. 21, 1983.

Theodore Souris, Detroit, Mich., with whom James A. Smith, David G. Chardavoyne, Terrence B. Larkin, Frederick J. Dindoffer, Detroit, Mich., Milton D. Andrews, Alden J. Bianchi, Lance E. Tunick, Washington, D.C., William H. Crabtree, Charles H. Lockwood, Kenneth I. Gluckman, Michael W. Grice, Thomas L. Saybolt, William L. Weber and George F. Ball, Detroit, Mich., were on joint brief, for petitioners and intervenor.

Maureen D. Smith, Atty., E.P.A., Washington, D.C., with whom Angus MacBeth, Deputy Asst. Atty. Gen., Gerald K. Gleason, Asst. Gen. Counsel, E.P.A., David Feldman and Robert Weissman, Attys., E.P.A., David E. Dearing and Donald W. Stever, Jr., Attys., Dept. of Justice, Washington, D.C., were on brief, for respondent.

Thomas Y. Au, Asst. Atty. Gen., Com. of Pa., Harrisburg, Pa., Robert Abrams, Atty. Gen., Marcia J. Cleveland, Asst. Atty. Gen., and David R. Wooley, Sp. Asst. Atty. Gen., The State of N.Y., New York City, Francis X. Bellotti, Atty. Gen., Com. of Mass., and Stephen M. Leonard, Asst. Atty. Gen., E.P.A., Boston, Mass., were on the brief, for amici curiae, urging dismissal.

Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

Title II of the Clean Air Act (the Act), 42 U.S.C. Secs. 7521-7574 (Supp. V 1981), deals with air pollution caused by "moving sources," i.e., motor vehicles. In the 1970 Amendments to the Clean Air Act, ¹ Congress determined that emission inspections of vehicles while in use were essential to controlling air pollution. To this end, vehicle manufacturers were required to warrant compliance with emission standards throughout the useful life of the vehicles they produced. Section 207(b) of the Act, 42 U.S.C. Sec. 7541(b), directs the Administrator of the Environmental Protection Agency (EPA) to establish, for use in state and local inspection and maintenance programs, "short tests" which could reasonably identify vehicles that exceeded emission standards.

Petitioners ² seek judicial review of the short test regulations promulgated by the Administrator. ³ Petitioners contend that the Administrator's action was arbitrary and capricious and that the regulations exceed statutory authority. Because we deem the short test regulations to be a reasonable exercise of the Administrator's discretion under the Act, we affirm the regulations in their entirety.

I. THE STATUTORY SCHEME

In 1970, Congress enacted in Title II of the Act a powerful and comprehensive strategy for controlling pollution from mobile sources. Section 202 of the Act, 42 U.S.C. Sec. 7521, prescribes standards for emissions of hydrocarbon (HC), carbon monoxide (CO), and oxides of nitrogen (NOx ) for certain classes of motor vehicles. These standards must be met during the "useful life" of the vehicle; for passenger cars, the Act defines "useful life" as five years or 50,000 miles, whichever occurs first. ⁴ Id. Sec. 7521(d).

Section 206 of the Act, 42 U.S.C. Sec. 7525, directs the Administrator to require the testing of new vehicles to determine whether they conform to emission standards. A manufacturer may not sell a new vehicle or engine that has not been issued a certificate of conformity. EPA has already established "certification" procedures to test preproduction, prototype vehicles. The procedures, which are not at issue in this case, are known as the Federal Test Procedure ("Federal Test"). The Federal Test is a timeconsuming and highly complex procedure for simulating driving situations under closely controlled laboratory conditions. See Emission Regulations for 1977 and Later Model New Light-Duty Vehicles and New Light-Duty Trucks; Test Procedures, 40 C.F.R. pt. 86, subpt. B. (1982).

Acknowledging that presale testing alone could not guarantee that vehicles would comply with emission standards throughout their useful lives, Congress also established two warranty schemes under section 207 of the Act, 42 U.S.C. Sec. 7541. See H.R.Rep. No. 91-1783, 91st Cong., 2d Sess. 51 (1970), U.S.Code Cong. & Admin.News 1970, p. 5357, (Joint Appendix (JA) 322). Vehicle manufacturers must provide both a design-and-defect warranty established by section 207(a) ⁵ and a performance warranty to be implemented under section 207(b). The short tests whose validity is challenged here are a part of the performance warranty scheme.

Under the performance warranty scheme, Congress directed the Administrator to promulgate two sets of regulations. First, he was to establish "short tests" for use in state and local inspection and maintenance programs so that vehicles which failed to conform to emission standards could be identified. In other words, the short tests are intended to determine whether in-use vehicles would fail the Federal Test. Second, once facilities were available to conduct the short tests, the Administrator was to promulgate regulations requiring the manufacturer, instead of the vehicle owner, to pay for such repairs as would bring the vehicle into compliance with applicable emission standards. ⁶

Because failure of a short test will trigger performance warranty liability on the part of a manufacturer, Congress established three prerequisites to the promulgation of short test regulations. EPA must determine that:

(1) testing methods and procedures are "available" to detect the failure of in-use vehicles to conform to emission standards;

(2) the tests are consistent with "good engineering practices"; and

(3) the tests are "reasonably capable of being correlated with" the test procedures utilized in certification testing (i.e., the Federal Test).

42 U.S.C. Sec. 7541(b)(1)-(iii). The gravamen of petitioner's challenge is the alleged failure of EPA to meet these prerequisites.

II. PROCEDURAL HISTORY

Although section 207 of the Act was enacted in 1970, EPA did not formally propose short test regulations until 1977, when, after conducting an extensive series of tests, the agency noticed a proposed rule. ⁷ The notice proposed five short tests, the nature of which ranged from simple tests already in use in some inspection and maintenance programs to complex tests that had not yet actually been used. Proposed Rule, supra note 7, at 26,742-43 (JA 12). Because the data gathered in preparing the proposed rules were generated solely by testing vehicles under controlled laboratory conditions, the agency contemplated incorporating the effects of real world variables, such as ambient conditions, into numerous short test standards, or "cutpoints," for particular classes of new vehicles on a yearly basis. Id. at 26,743, col. 1-2 (JA 2). "Cutpoints" are particular numerical values or "levels" for determining whether vehicles pass or fail the short test: a vehicle with emissions above the cutpoint fails the short test. EPA noted that short tests were subject to two types of incorrect predictions. An error of commission would occur if the test predicted a vehicle would fail the certification test when it would actually pass; an error of emission would occur if the test incorrectly predicted that a vehicle would pass the certification test when it would actually fail. Id. at 26,744, col. 1-2 (JA 3). Errors of commission can cause manufacturers to bear the costs of repairs for vehicles actually in compliance with emission standards, while errors of omission result in a loss of air quality benefits.

Nearly one hundred individuals and corporations, including all of the major American and import automobile manufacturers, submitted comments. On December 21, 1979, petitioner Motor Vehicle Manufacturers Association of the United States, Inc. (the "association") petitioned the agency to repropose the short test regulations, chiefly on the ground that new studies, data, and technology cast doubt on the capability of the proposed tests to meet the statutory prerequisites. See Motor Vehicle Manufacturers Association's Petition for Reproposal at 3 (JA 67). Six days later, EPA released a technical report ⁸ containing new information principally data from a study of motor vehicle emission testing procedures conducted for EPA in Portland, Oregon (hereinafter "the Portland Study"). A month after releasing the report, EPA noticed the reopening of the short-test comment period for thirty days ⁹ to allow interested persons to comment on the data and analyses that had been generated since the close of the original comment period. ¹⁰

Unsatisfied, the association filed a Supplement to its Petition for Reproposal, ¹¹ contending that the 30-day period for additional comments was too short to permit adequate analysis of the EPA Technical Report. The association also protested that regulations based on the Report necessarily would be so different and would raise so many new issues that reproposal was required. Nonetheless, petitioners and other interested parties submitted comments on the EPA Technical Report and on the Portland Study data. ¹²

The Administrator promulgated the final rules at issue here on May 22, 1980. Short Test Regulations, supra note 3 (JA 224). EPA adopted test methods and procedures that were greatly simplified as compared to the proposed tests. ¹³ Acknowledging that the short tests could not detect all excess emissions, the agency determined not to delay the entire program until more complex test procedures could be developed. Id. at 34,810-11 (JA 233-34). Instead, and in order to ensure that the simplified tests adopted would ...