Natural Resources Defense Council v. Thomas
| Decision Date | 07 November 1986 |
| Docket Number | Nos. 85-1294,85-1296,s. 85-1294 |
| Citation | 805 F.2d 410 |
| Parties | , 256 U.S.App.D.C. 310, 55 USLW 2314, 17 Envtl. L. Rep. 20,269 NATURAL RESOURCES DEFENSE COUNCIL, et al., Petitioners, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, et al., Respondents, Engine Manufacturers Association, Motor Vehicle Manufacturers Association, et al., International Harvester Company, People of the State of California, Intervenors. ENGINE MANUFACTURERS ASSOCIATION on Behalf of CATERPILLAR TRACTOR COMPANY, et al., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, International Harvester Company, Natural Resources Defense Council, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David D. Doniger, Washington, D.C., for Natural Resources Defense Council, et al., petitioners in No. 85-1294 and intervenors in No. 85-1296.
Thomas S. Martin, Washington, D.C., with whom Jed R. Mandel, Chicago, Ill., and Christopher S. Vaden, Washington, D.C., were on the brief, for Engine Mfrs. Ass'n, petitioner in No. 85-1296 and intervenor in No. 85-1294.
David E. Dearing, Atty., Dept. of Justice, with whom Francis S. Blake, Gen. Counsel, Gerald K. Gleason, Asst. Gen. Counsel, Nancy A. Ketcham-Colwill and Ralph J. Colleli, Jr., Attys., E.P.A., Washington, D.C., were on the brief, for respondents in Nos. 85-1294 and 85-1296.
Laurence H. Levine, Chicago, Ill., for Intern. Harvester Co., intervenor in Nos. 85-1294 and 85-1296.
Theodora Berger, Asst. Atty. Gen. and Susan L. Durbin, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., were on the
brief for the People of the State of Cal., intervenor in No. 85-1294.
V. Mark Slywynsky, Detroit, Mich., was on the brief for Motor Vehicle Mfrs. Ass'n, intervenor in No. 85-1294. William H. Crabtree, Detroit, Mich., Paula Winkler-Doman, Dearborn, Mich., and Gary P. Toth, Detroit, Mich., also entered appearances for Motor Vehicle Mfrs. Ass'n.
Daniel R. Barney, Robert A. Hirsch and William S. Busker, Alexandria, Va., were on the brief for amicus curiae, American Trucking Ass'n, Inc., urging denial of Natural Resources Defense Council's petition for review.
Before WALD, Chief Judge, MIKVA, Circuit Judge, and LEIGHTON, * Senior District Judge.
Opinion for the Court filed by Chief Judge WALD.
The Clean Air Act Amendments of 1977 mandated for the first time emissions reduction for heavy duty motor vehicles. Congress required the Environmental Protection Agency to set standards for both gaseous and particulate matter emissions. After years of delay, and pursuant to an order of the District Court for the District of Columbia, the agency issued a notice of proposed rulemaking in 1984, and, finally, promulgated regulations to reduce heavy duty motor vehicle emissions in 1985. Raising a variety of substantive and procedural challenges, the Natural Resources Defense Council and the Engine Manufacturers Association petitioned this court for review of those regulations, the former arguing, essentially, that the standards were too lenient, the latter maintaining, predictably, that the standards were too stringent. We find that the agency has in the main acted reasonably in interpreting the substantive mandate of the law, but find that in two instances the agency failed to follow the appropriate statutory procedure. Therefore, we affirm in part, and reverse and remand in part.
The regulations under attack in this case represent one aspect of a twenty year old quest by Congress for effective motor vehicle emissions reduction. Responding to a national outcry for air pollution control, the Clean Air Act Amendments of 1965 first authorized the Environmental Protection Agency (agency or EPA) to regulate heavy duty vehicle (HDV) emissions. 1 By the mid-1970s little had been done, however, and in 1977 Congress enacted a detailed, mandatory set of standards (Clean Air Act Amendments of 1977 or 1977 amendments) to effect emissions reduction from HDVs. 2
At issue here are the provisions requiring emissions reduction of oxides of nitrogen (NOx) and of particulate matter (PM). 3 contain standards which reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology.
Along with carbon monoxide and hydrocarbons, oxides of nitrogen are a type of gaseous emission that Congress set out to reduce in three statutory provisions. First, Congress installed interim, less stringent standards; it required the agency to prescribe regulations for model years 1979 through 1982 that
42 U.S.C. Sec. 7521(a)(3)(A)(i).
Second, Congress established a specific target for later reductions:
Unless a different standard is temporarily promulgated as provided in subparagraph (B) or unless the standard is changed as provided in subparagraph (E), regulations under paragraph (1) of this subsection applicable to emissions from vehicles or engines manufactured during and after model year ... 1985, in the case of oxides of nitrogen, shall contain standards which require a reduction of at least 75 per cent, from the average of the actually measured emissions from heavy-duty gasoline-fueled vehicles or engines, or any class or category thereof, manufactured during the baseline model year.
42 U.S.C. Sec. 7521(a)(3)(A)(ii). 4
Third, subparagraph (B) of the same section, which authorizes the EPA to promulgate revised standards for gaseous emissions and is the source of much of the controversy in this case, provided for periodic revision of the NOx standards:
[D]uring the period of June 1 through December 31, 1980, in the case of oxides of nitrogen, and during each period of June 1 through December 31 of each third year thereafter, the Administrator may, after notice and opportunity for a public hearing promulgate regulations revising any standard prescribed as provided in subparagraph (A)(ii) for any class or category of heavy-duty vehicles or engines. Such standard shall apply only for the period of three model years beginning four model years after the model year in which such revised standard is promulgated. In revising any standard under this subparagraph for any such three model year period, the Administrator shall determine the maximum degree of emission reduction which can be achieved by means reasonably expected to be available for production of such period and shall prescribe a revised 42 U.S.C. Sec. 7521(a)(3)(B). 5
emission standard in accordance with such determination. Such revised standard shall require a reduction of emissions from any standard which applies in the previous model year.
Congress also provided in the 1977 amendments for PM reduction:
The Administrator shall prescribe regulations under paragraph (1) of this subsection applicable to emissions of particulate matter from classes or categories of vehicles manufactured during and after model year 1981 (or during any earlier model year, if practicable). Such regulations shall contain standards which reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology. Such standards shall be promulgated and shall take effect as expeditiously as practicable taking into account the period necessary for compliance.
42 U.S.C. Sec. 7521(a)(3)(A)(iii).
Finally, the amendments instituted nonconforming penalties (NCPs), whereby a manufacturer can pay a tax on its engines that fail to meet the standards (dirty engines), rather than pull those engines off the market:
In the case of any class or category of heavy-duty vehicles or engines to which a standard promulgated under section 7521(a) of this title applies, except as provided in paragraph (2), a certificate of conformity shall be issued under subsection (a) of this section and shall not be suspended or revoked under subsection (b) of this section for such vehicles or engines manufactured by a manufacturer notwithstanding the failure of such vehicles or engines to meet such standard if such manufacturer pays a nonconformance penalty as provided under regulations promulgated by the Administrator after notice and opportunity for public hearing.
42 U.S.C. Sec. 7525(g)(1).
The agency fell behind the statutory timetable, almost from the beginning. It failed to promulgate either a specifically targeted NOx standard or a revised NOx standard in the 1980 "window period." It published a proposal for PM standards on January 7, 1981, 46 Fed.Reg. 1,910, J.A. at 54, and an advance notice of intent to promulgate revised NOx standards on January 19, 1981, 46 Fed.Reg. 5,838, J.A. at 65. However, the PM standards were never promulgated, and, purportedly in response to requests from financially strapped manufacturers, the agency also failed to promulgate revised NOx standards. 46 Fed.Reg. 21,628 (1981), J.A. at 68.
By 1984 there were still no standards. The Natural Resources Defense Council (NRDC) sued the EPA, requesting the court to order the agency to promulgate HDV emissions reduction standards and NCPs. Natural Resources Defense Council v. Ruckelshaus, 21 Env't Rep. Cas. (BNA) 1953 (D.D.C. Sept. 14, 1984). The court ordered the agency to publish proposed NOx and PM standards no later than In accordance with this order, the EPA published a...
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