Natural Resources Defense Council v. Reilly, s. 92-1137
| Decision Date | 22 January 1993 |
| Docket Number | Nos. 92-1137,92-1260,92-1243,92-1157,92-1142,92-1222,s. 92-1137 |
| 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. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
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.
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) (). 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.
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) () [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.
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 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 (). 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 (1984) (...
To continue reading
Request your trial
-
Railway Labor Executives' Ass'n v. National Mediation Bd., s. 91-5223
...unfaithful to the principles of administrative law outlined above, and refuted by precedent. See, e.g., Natural Resources Defense 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 sta......
-
American Library Ass'n. v. F.C.C.
.... . . to presume a delegation of power merely because Congress has not expressly withheld such power."); 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 c......
-
Merck & Co. v. U.S. Dep't of Health & Human Servs.
...agency 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 ......
-
Air Transp. Ass'n of America, Inc. v. Nat'l Mediation Bd.
...gap for 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 ......
-
The State Implementation Plan Process
...miles, whichever occurs irst. 255 EPA continues to pursue a dual strategy of requir- 244. Natural Resources Defense Council v. Reilly, 983 F.2d 259, 23 ELR 20549 (D.C. Cir. 1993). 245. Id. 246. Id. at 266. 247. Id. 248. Id. at 261. 249. Control of Air Pollution From New Motor Vehicles and N......