Natural Resources Defense Council, Inc. v. U.S. E.P.A., MERCEDES-BENZ

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBB, MIKVA and GINSBURG; MIKVA; ROBB
Citation655 F.2d 318
Parties, 210 U.S.App.D.C. 205, 11 Envtl. L. Rep. 20,361 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle, Administrator, Respondent, Mercedes-Benz of North America, Inc., General Motors Corporation, Volkswagen of America, Inc., Intervenors. GENERAL MOTORS CORPORATION, Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Volkswagen of America, Inc., Natural Resources Defense Council, Inc., Mercedes-Benz of North America, Inc., Intervenors.OF NORTH AMERICA, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Natural Resources Defense Council, Inc., Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Automobiles Peugeot, Volkswagen of America, Inc., Intervenors.
Docket NumberNos. 80-1312,80-1710 and 80-1712,80-1464,MERCEDES-BENZ
Decision Date22 April 1981

Page 318

655 F.2d 318
15 ERC 2057, 210 U.S.App.D.C. 205, 11
Envtl. L. Rep. 20,361
NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,
v.
U. S. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle,
Administrator, Respondent,
Mercedes-Benz of North America, Inc., General Motors
Corporation, Volkswagen of America, Inc., Intervenors.
GENERAL MOTORS CORPORATION, Petitioner,
v.
Douglas M. COSTLE, Administrator, United States
Environmental Protection Agency, Respondent,
Volkswagen of America, Inc., Natural Resources Defense
Council, Inc., Mercedes-Benz of North America,
Inc., Intervenors.
MERCEDES-BENZ OF NORTH AMERICA, INC., Petitioner,
v.
Douglas M. COSTLE, Administrator, United States
Environmental Protection Agency, Respondent,
Natural Resources Defense Council, Inc., Intervenor.
NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,
v.
Douglas M. COSTLE, Administrator, United States
Environmental Protection Agency, Respondent,
Automobiles Peugeot, Volkswagen of America, Inc., Intervenors.
Nos. 80-1312, 80-1464, 80-1710 and 80-1712.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 28, 1980.
Decided April 22, 1981.

David D. Doniger, Washington, D.C., with whom Richard E. Ayres, Washington, D.C., was on the brief, for Natural Resources Defense Council, Inc., petitioner in Nos. 80-1312 and 80-1712 and intervenor in Nos. 80-1464 and 80-1710.

William Weber, Jr., Detroit, Mich., with whom Thomas L. Arnett and Frazer F. Hilder, Detroit, Mich., were on the brief, for General Motors Corporation, petitioner in No. 80-1464 and intervenor in No. 80-1312.

Jose R. Allen, Atty., Dept. of Justice, Boston, Mass., of the bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of Court, and Bruce Bertelsen, Atty., E.P.A., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of Court, Washington, D.C., with whom Angus MacBeth, Acting Asst. Atty. Gen., Donald W. Stever, Jr., Atty., Dept. of Justice, Patrick O'Hare and Gerald K. Gleason, Attys., E.P.A., Washington, D.C., were on the brief, for respondents. Nancy J. Marvel, Washington, D.C., also entered an appearance for respondents.

Patrick M. Raher, Washington, D.C., with whom David M. Gische, Washington, D.C., was on the brief, for Mercedes-Benz of North America, intervenor in Nos. 80-1312 and 80-1464 and petitioner in No. 80-1710.

Herbert Rubin, New York City, Thomas H. Truitt and Terrance Roche Murphy, Washington, D.C., were on the brief for Volkswagen of America, Inc., intervenor in Nos. 80-1312, 80-1464 and 80-1712.

Richard deC. Hinds and Christopher Miller Klein, Washington, D.C., were on the brief for Automobiles Peugeot, intervenor in No. 80-1712.

Before ROBB, MIKVA and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion concurring in part and dissenting in part filed by Circuit Judge ROBB.

MIKVA, Circuit Judge:

These consolidated cases present a variety of challenges to actions of the Environmental Protection Agency (EPA) in setting standards to govern emissions of particulate matter and oxides of nitrogen from diesel vehicles. The Natural Resources Defense Council (NRDC) argues that the agency's actions do not adequately protect the public health; General Motors Corporation (GM) and Intervenors Mercedes-Benz of North America, Inc., and Volkswagen of America, Inc., assert that the EPA did not give adequate consideration to safety factors, and that, in a variety of ways, the standards are too strict. Finding that the agency has stated adequate reasons for its decisions, and that its actions are consistent with statute, we uphold the challenged regulations in their entirety.

I. THE REGULATORY FRAMEWORK

The EPA is authorized by the Clean Air Act (Act) 1 to regulate emissions of harmful pollutants from motor vehicles. The Act itself specifies the quantity of acceptable emissions from light-duty vehicles for three classes of pollutants: carbon monoxide, hydrocarbons,

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and oxides of nitrogen. Act § 202(b)(1). Section 202(a)(1) of the Act confers on the EPA Administrator the general power to prescribe by regulation "standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." These provisions are supplemented and qualified by various specific provisions relating to particular classes of vehicles or pollutants. E.g., Act §§ 202(a)(3)(A)(i), 202(a)(3)(F), 202(b)(6)(A).

The statutory standard for hydrocarbon emissions from light-duty vehicles is an absolute one. For models manufactured from 1977 to 1979, hydrocarbon emissions may not exceed 1.5 grams per vehicle mile; for those manufactured from 1980 on, the standards must require a reduction of at least ninety percent from the emission standards applying in 1970. Act § 202(b)(1)(A). The statutory standards for carbon monoxide and oxides of nitrogen are also absolute, but they are subject to a variety of waivers for certain manufacturers who lack the technological capacity to comply. See Act §§ 202(b) (1)(B), 202(b)(5), 202(b)(6).

The emission standards set by the EPA under its general regulatory power, in contrast, are "technology-based" the levels chosen must be premised on a finding of technological feasibility. Section 202(a)(2) of the Act provides that standards promulgated under section 202(a)(1) shall not take effect until "after such period as the Administrator finds necessary to permit the development and application of the requisite technology."

The requirement that emission standards be technologically achievable highlights the need for the EPA's power to divide the broad spectrum of motor vehicles into classes or categories. See Act §§ 202(a)(1), 202(a)(3)(A)(iv). Manufacturers produce a wide variety of motor vehicles of different sizes, some using different engine technologies resulting in unusual emission characteristics. In particular, diesel engines use a different fuel, emit exhaust at a lower temperature, and produce a different distribution of pollutants than traditional gasoline engines. For example, diesel carbon monoxide levels are typically lower than those from gasoline vehicles, see 45 Fed.Reg. 5480, 5493 n.192 (1980), but diesel vehicles produce particulate emissions at thirty to seventy times the rate of gasoline vehicles, see 45 Fed.Reg. 14,496 (1980), and also produce higher levels of the unregulated pollutants sulfur dioxide and benzo(a)pyrene, see 45 Fed.Reg. 5480, 5489 (1980).

The present challenges concern the EPA's promulgation of standards governing particulate 2 emissions from light-duty diesel vehicles and light-duty diesel trucks, 3 and

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the EPA's waiver of the statutory standard for oxides of nitrogen 4 for light-duty vehicles. 5 The EPA's particulate standard and NOx decisions are appropriately linked in the present proceeding because current technology creates an unfortunate trade-off between particulate control and control of oxides of nitrogen. The primary technique used today for reducing NOx emissions is exhaust gas recirculation (EGR). While lowering the NOx content of the exhaust, EGR increases the particulate content, and "the greater the EGR rate, the greater the increase in particulate emissions." Environmental Protection Agency, Regulatory Analysis (of) Light-Duty Diesel Particulate Regulations 33 (1980) (hereinafter cited as Regulatory Analysis), Joint Appendix (J.A.) 510. Thus the stringency of a technology-based particulate standard depends on the level of the NOx standard concurrently applied. We consider the EPA's actions and the NRDC and industry challenges in turn. 6

II. THE PARTICULATE STANDARDS

The EPA announced its intention to promulgate standards for particulate emissions from light-duty diesels on February 1, 1979. See 44 Fed.Reg. 6650 (1979). The proposed standards would have limited diesel particulates to 0.60 grams per vehicle mile (gpm) in model year 1981, and to 0.20 gpm in model year 1983. The agency concluded that a single standard, governing all light-duty vehicles, was the preferable regulatory strategy, although 1979 certification data indicated that diesel particulate performance among those vehicles ranged from the 0.23 gpm achieved by the Volkswagen Rabbit to the 0.84 gpm emitted by the Oldsmobile 350. Id. at 6651. Furthermore, these restrictions would have applied equally to light-duty vehicles and light-duty trucks. Id. at 6654-55.

After analyzing the comments elicited by its notice of proposed rulemaking, the EPA promulgated as final standards a modification of the rules originally announced. See 45 Fed.Reg. 14,496 (1980). The limit of 0.60 gpm was retained, but its effective date was postponed to model year 1982, because the rulemaking process had absorbed so much time that testing and certification of 1981 models was no longer feasible. Id. at 14,497. The agency concluded that the technology necessary to make the 0.20 gpm standard feasible would probably not be developed in time for implementation in 1983 model vehicles; 1984 was a more likely goal, but the effective date was postponed to model year 1985 to give sufficient margin for error. Id. at 14,498. Finally, the EPA believed that light-duty trucks would not be able to perform as well as light-duty vehicles, and the 1985 standard for light-duty trucks was therefore adjusted to 0.26 gpm. Id. at 14,497.

The auto industry petitioners do not challenge the 1982 standard of 0.60 gpm, but

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they vigorously deny the likelihood that technology will be available to meet the lower standards in 1985. 7 In setting the 1985 standards, the EPA predicted that a currently experimental particulate control device, known as a "trap-oxidizer," would be perfected early enough to allow its mass production and installation in 1985 model diesel vehicles. The...

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