Natural Resources Defense Council v. Reilly, Nos. 92-1137

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHoward I. Fox, with whom David D. Doniger, Michael D. Sherman; Before HARRY T. EDWARDS, RUTH BADER GINSBURG and STEPHEN F. WILLIAMS; HARRY T. EDWARDS; STEPHEN F. WILLIAMS
Parties, 299 U.S.App.D.C. 234, 61 USLW 2498, 23 Envtl. L. Rep. 20,549 NATURAL RESOURCES DEFENSE COUNCIL and Center for Auto Safety, Petitioners, v. William K. REILLY, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents, Association of International Automobile Manufacturers, Inc., Motor Vehicle Manufacturers Association of the United States, Inc., Intervenors, EAST COAST OIL CORPORATION and Sheetz, Incorporated, Petitioners, v. William K. REILLY, in His Capacity as Administrator of the United States Environmental Protection Agency, Respondent, Association of International Automobile Manufacturers, Inc., Motor Vehicle Manufacturers Association of the United States, Inc., Intervenors, AMERICAN PETROLEUM INSTITUTE, Petitioner, v. William K. REILLY, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents, NATURAL RESOURCES DEFENSE COUNCIL and Center for Auto Safety, Petitioners, v. William K. REILLY, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents, EAST COAST OIL CORPORATION and Sheetz, Incorporated, Petitioners, v. William K. REILLY, Administrator, in His Capacity as Administrator of the United States Environmental Protection Agency, Respondent, AMERICAN PETROLEUM INSTITUTE, Petitioner, v. William K. REILLY, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents.
Docket NumberNos. 92-1137,92-1260,92-1243,92-1157,92-1142,92-1222
Decision Date22 January 1993

Page 259

983 F.2d 259
35 ERC 2033, 299 U.S.App.D.C. 234, 61
USLW 2498,
23 Envtl. L. Rep. 20,549
NATURAL RESOURCES DEFENSE COUNCIL and Center for Auto
Safety, Petitioners,
v.
William K. REILLY, Administrator, United States
Environmental Protection Agency, and United States
Environmental Protection Agency, Respondents,
Association of International Automobile Manufacturers, Inc.,
Motor Vehicle Manufacturers Association of the
United States, Inc., Intervenors,
EAST COAST OIL CORPORATION and Sheetz, Incorporated, Petitioners,
v.
William K. REILLY, in His Capacity as Administrator of the
United States Environmental Protection Agency, Respondent,
Association of International Automobile Manufacturers, Inc.,
Motor Vehicle Manufacturers Association of the
United States, Inc., Intervenors,
AMERICAN PETROLEUM INSTITUTE, Petitioner,
v.
William K. REILLY, Administrator, United States
Environmental Protection Agency, and United States
Environmental Protection Agency, Respondents,
NATURAL RESOURCES DEFENSE COUNCIL and Center for Auto
Safety, Petitioners,
v.
William K. REILLY, Administrator, United States
Environmental Protection Agency, and United States
Environmental Protection Agency, Respondents,
EAST COAST OIL CORPORATION and Sheetz, Incorporated, Petitioners,
v.
William K. REILLY, Administrator, in His Capacity as
Administrator of the United States Environmental
Protection Agency, Respondent,
AMERICAN PETROLEUM INSTITUTE, Petitioner,
v.
William K. REILLY, Administrator, United States
Environmental Protection Agency, and United States
Environmental Protection Agency, Respondents.
Nos. 92-1137, 92-1142, 92-1157, 92-1222, 92-1260, 92-1243.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 23, 1992.
Decided Jan. 22, 1993.

Page 260

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

Howard I. Fox, with whom David D. Doniger, Michael D. Sherman, J. Keith Ausbrook, Douglas Morris and Alice Crowe, Washington, DC, were on the brief, for petitioners.

David J. Kaplan, Atty., U.S. Dept. of Justice, with whom Alan W. Eckert, Associate Gen. Counsel, Nancy Ketcham-Colwill, Asst. Gen. Counsel, and Steven E. Silverman, Atty., Office of Gen. Counsel, U.S.E.P.A., Washington, DC, were on the brief, for respondents.

Charles H. Lockwood and John T. Whatley, Arlington, VA, entered an appearance for intervenor, Ass'n of Intern. Auto. Mfrs., Inc.

Kenneth S. Geller, Erika Z. Jones, Evan M. Tager, Washington, DC, and William Crabtree entered an appearance for intervenor, Motor Vehicle Mfrs. Ass'n of the U.S. Inc.

Before HARRY T. EDWARDS, RUTH BADER GINSBURG and STEPHEN F. WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

Page 261

HARRY T. EDWARDS, Circuit Judge:

The 1990 amendments to the Clean Air Act ("CAA") altered section 202(a)(6) to require the Environmental Protection Agency ("EPA"), after "consultation" with the Department of Transportation ("DOT"), to promulgate standards by November 15, 1991, that would require new "light-duty" vehicles 1 to be equipped with on-board refueling vapor recovery ("ORVR") systems over a specified phase-in period. After consulting with DOT, EPA concluded that the safety risks of ORVR systems were unreasonable given the availability of alternative mechanisms for controlling refueling vapor emissions and declined to promulgate ORVR standards by the statutory deadline. This decision was Noticed as a Final Agency Action in April, 1992. 57 Fed.Reg. 13,046 (1992). In explaining its decision, EPA contended that amended section 202(a)(6) contained residual authority for EPA to exercise discretion in deciding whether to promulgate ORVR standards if the Agency determined that ORVR was unreasonably unsafe. The Natural Resources Defense Council ("NRDC") initiated this suit, alleging that EPA lacked discretion under the statute and that its failure to promulgate ORVR standards was therefore unlawful.

Because the language of section 202(a)(6) plainly imposes a mandatory duty, we agree that EPA's decision not to promulgate ORVR standards was beyond the pale of its statutory authority. There is nothing in the statute to substantiate EPA's claim for residual discretionary authority, nor is there ambiguity that would warrant deference by this court to EPA's construction. Furthermore, EPA's findings regarding ORVR safety do not establish that all such systems present inherent and unreasonable safety risks. We are thus not faced with a situation in which a literal reading of the section produces nonsensical results. Whatever doubts EPA may have about the wisdom of choices implicit in the statute must be raised with Congress. This court is not the proper forum in which to argue the relative merits of those choices. Therefore, the Final Agency Action is set aside and EPA is ordered to promulgate ORVR standards in compliance with the CAA.

I. BACKGROUND

A. The "Refueling Vapor Recovery" Problem

During the normal operation of gasoline fueled vehicles, hydrocarbon vapors build up in the fuel tank. When the fill cap is removed during refueling, most of these vapors are forced out of the tank and into the environment by the influx of liquid gasoline. This release of vapors poses significant health and environmental hazards. Of primary concern is the effect these vapors have on the production of ozone, which is formed when hydrocarbons and nitrogen oxides react in sunlight. 2 Excessive ozone pollution is a persistent environmental hazard in major metropolitan areas. See Air Quality Designations and Classifications, 56 Fed.Reg. 56,694 (1991) (designating nonattainment areas for ozone pollution). In addition, escaping gasoline vapors contain known carcinogens. 3 Thus, the control and containment of these vapors has been an environmental concern for many years.

Page 262

Two basic approaches have emerged for controlling the emission of hydrocarbon vapors during refueling: "Stage II" controls 4 and ORVR systems. Stage II controls--typically a rubber boot on the fuel nozzle that creates a tight seal with the fuel filler spout so that escaping vapors are recaptured and funneled to underground tanks--are relatively simple mechanisms that have been used since 1976 in many counties in California as well as certain cities in the United States. See DOT, Assessment of the Safety of Onboard Refueling Vapor Recovery Systems at 3 (July 1991) [hereinafter "DOT Assessment"]. Under the current CAA, Stage II controls are required in most nonattainment areas of moderate or worse severity. See 42 U.S.C. §§ 7511a(b)(3), (c), (d), (e) (Supp.1990).

ORVR systems, on the other hand, are more sophisticated and have not yet been used in production vehicles. As the name implies, onboard refueling vapor recovery systems are built into the vehicle itself to contain the vapors before they reach the fuel filler spout. There are presently two types of technology that have been seriously considered for operational ORVR systems. The first is the ORVR "canister," which collects vapors as they are forced through a regulating orifice and stores them in a charcoal-filled canister. See DOT Assessment at 1. As the engine operates, ambient air is drawn through the canister to purge the hydrocarbons from the charcoal and meter the vapors back into the engine for combustion ("purging"). See id. 5 Canister systems are more fully evolved than other ORVR systems because virtually all of the necessary technology for canister systems is currently available. Indeed, most passenger cars on the road today already carry a small charcoal filled canister (so called "evaporative canisters") to collect the relatively modest quantities of vapor that accumulate in fuel tanks during operations other than refueling. It was, in fact, modified versions of current evaporative canisters that the National Highway Transportation Safety Administration ("NHTSA") studied in order to provide EPA with DOT's recommendations regarding the safety of ORVR. Id. at 2.

An alternative to ORVR canisters is the flexible fuel bladder, which contracts as gasoline is burned, retarding the evaporation of liquid fuel and thus the accumulation of hydrocarbon vapors. Because of potential safety benefits from such a system, aside from the environmental protection it would provide, the possibility of using flexible fuel bladders has been explored for many years. See, e.g., Memorandum from Jean Schwendeman, EPA Mechanical Engineer, to Public Docket No. A-87-11 (Mar. 1, 1988) (memorializing a meeting with a manufacturer that had been testing fuel bladders since "the early 1970's") [hereinafter "Schwendeman Memo"], reprinted in J.A. at 524. Nonetheless, no bladder prototypes were available at the time NHTSA conducted its study. See DOT, Review of Comments Submitted to EPA on NHTSA's Report "An Assessment of the Safety of Onboard Refueling Vapor Recovery Systems" at 4 (Nov. 27, 1991) [hereinafter "DOT Review"], reprinted in J.A. at 163.

B. Legislative and Regulatory Responses to the "Refueling Vapor Recovery" Problem

Under the 1977 amendments to the CAA, EPA was required to promulgate ORVR regulations if it found ORVR to be a feasible and desirable means of controlling vapor emissions during refueling. Pub.L.

Page 263

No. 95-95, § 216, 91 Stat. 760-61 (1977). 6 Upon review of the information available to it in the late 1970's, EPA initially concluded that ORVR was "technically feasible." See 52 Fed.Reg. at 31,163 (describing conclusions reached in 1980). However, in order to avoid placing additional regulatory burdens on the ailing American automotive industry, EPA decided not to require ORVR systems at that time. See 46 Fed.Reg. 21,628, 21,629 (1981).

In 1984, EPA again took up the ORVR issue in a draft study entitled "Evaluation of Air Pollution Strategies for Gasoline Marketing Industry," EPA-450/3-84-012a (July 1984). See 49 Fed.Reg. 31,706, 31,707...

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  • Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., No. 19-30006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 3, 2020
    ...for review under the deferential second prong of Chevron ." Ethyl , 51 F.3d at 1060 (quoting Nat. Res. Defense Council v. Reilly , 983 F.2d 259, 266 (D.C. Cir. 1993) ) (cleaned up); see also Am. Bus Ass'n v. Slater , 231 F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J., concurring) ("In order for t......
  • Merck & Co. v. U.S. Dep't of Health & Human Servs., Case No. 19-cv-01738 (APM)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 8, 2019
    ...to advance its own statutory construction for review under the deferential second prong of Chevron ." Nat. Res. Def. Council v. Reilly , 983 F.2d 259, 266 (D.C. Cir. 1993) (quoting Kansas City v. Dep't of Hous. & Urban Dev. , 923 F.2d 188, 191–92 (D.C. Cir. 1991) ); see also Am. Bus Ass'n ,......
  • Chamber of Commerce of the U.S. v. Nat'l Labor Relations Bd., No. 2:11–cv–02516–DCN.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 13, 2012
    ...entitles an agency to advance its own statutory construction for review under the deferential second prong of Chevron.” NRDC v. Reilly, 983 F.2d 259, 266 (D.C.Cir.1993) (internal quotation marks omitted); see also Texas v. United States, 497 F.3d 491, 502 (5th Cir.2007). To ascertain congre......
  • Air Transp. Ass'n of America, Inc. v. Nat'l Mediation Bd., Nos. 10–5253
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 16, 2011
    ...the agency to fill.” Ry. Labor Execs.' Ass'n, 29 F.3d at 671 (internal citation omitted); see also Natural Res. Def. Council v. Reilly, 983 F.2d 259, 266 (D.C.Cir.1993) (“[I]t is only legislative intent to delegate such authority that entitles an agency to advance its own statutory construc......
  • Request a trial to view additional results
24 cases
  • Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., No. 19-30006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 3, 2020
    ...for review under the deferential second prong of Chevron ." Ethyl , 51 F.3d at 1060 (quoting Nat. Res. Defense Council v. Reilly , 983 F.2d 259, 266 (D.C. Cir. 1993) ) (cleaned up); see also Am. Bus Ass'n v. Slater , 231 F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J., concurring) ("In order for t......
  • Merck & Co. v. U.S. Dep't of Health & Human Servs., Case No. 19-cv-01738 (APM)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 8, 2019
    ...to advance its own statutory construction for review under the deferential second prong of Chevron ." Nat. Res. Def. Council v. Reilly , 983 F.2d 259, 266 (D.C. Cir. 1993) (quoting Kansas City v. Dep't of Hous. & Urban Dev. , 923 F.2d 188, 191–92 (D.C. Cir. 1991) ); see also Am. Bus Ass'n ,......
  • Chamber of Commerce of the U.S. v. Nat'l Labor Relations Bd., No. 2:11–cv–02516–DCN.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 13, 2012
    ...entitles an agency to advance its own statutory construction for review under the deferential second prong of Chevron.” NRDC v. Reilly, 983 F.2d 259, 266 (D.C.Cir.1993) (internal quotation marks omitted); see also Texas v. United States, 497 F.3d 491, 502 (5th Cir.2007). To ascertain congre......
  • Air Transp. Ass'n of America, Inc. v. Nat'l Mediation Bd., Nos. 10–5253
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 16, 2011
    ...the agency to fill.” Ry. Labor Execs.' Ass'n, 29 F.3d at 671 (internal citation omitted); see also Natural Res. Def. Council v. Reilly, 983 F.2d 259, 266 (D.C.Cir.1993) (“[I]t is only legislative intent to delegate such authority that entitles an agency to advance its own statutory construc......
  • Request a trial to view additional results
3 provisions
  • Air pollution; standards of performance for new stationary sources: Hospital, medical, and infectious waste incinerators,
    • United States
    • Federal Register February 06, 2007
    • February 6, 2007
    ...require compliance with statutorily prescribed standards and time tables, irrespective of present technologies.'' (See NRDC v. Reilly, 983 F.2d 259, 268 (D.C. Cir. 1993) (holding that elimination of feasibility requirements and specification of particular control systems indicated that cong......
  • Part II
    • United States
    • Federal Register February 06, 2007
    • February 6, 2007
    ...require compliance with statutorily prescribed standards and time tables, irrespective of present technologies.'' (See NRDC v. Reilly, 983 F.2d 259, 268 (D.C. Cir. 1993) (holding that elimination of feasibility requirements and specification of particular control systems indicated that cong......
  • Air quality implementation plans; approval and promulgation; various States: Georgia,
    • United States
    • Federal Register May 07, 2002
    • May 7, 2002
    ...for pollution coming from outside the area's borders. The commenter also references Natural Resources Defense Council v. Reilly, 983 F.2d 259, 268, 272 (D.C. Cir. 1993). This case involved promulgation of requirements for on-board refueling vapor recovery systems, a provision far different ......

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