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Ethyl Corp. v. EPA

Citation: 5 ELR 20096
No. No. 73-2205, 7 ERC 1353/(D.C. Cir., 01/28/1975)

The U.S. Court of Appeals for the D.C. Circuit overturns as arbitrary and capricious regulations promulgated by EPA under § 211(c) (1)(A) of the Clean Air Act which provide for the phased reduction of the lead content of motor vehicle gasoline. The statutory provision requires a factually-supported determination by the EPA Administrator that lead emissions from motor vehicles contribute a measurable increment of lead to the human body, and that this measurable increment causes a significant health hazard to a substantial portion of the general population before the use of particular fuels or fuel additives can be prohibited, and the agency has failed to meet this burden. EPA's contention that § 211(c)(1)(A) requires no more direct or certain proof of harm than is required for imposition of emissions standards under other provisions of the Act is in error and fundamentally misconstrues the strict standard of factual proof which that section sets forth. As an alternative ground for its holding, the court also rules that the Administrator made a clear error in judgment in determining that auto emissions contribute significantly to blood lead levels in adults and children, since this conclusion is not adequately supported by evidence in the record. The court notes that EPA is free to issue rules governing lead additives at some point in the future, if evidence sufficient to meet the statutory standard can be developed.

A lengthy dissent by Judge Wright argues that the Administrator may regulate lead in automotive fuel when he determines, based on a consideration of all the information available to him, that lead emissions from automobiles significantly increase the total human exposure to lead so as to cause a significant risk of harm to the public health. The dissent also contends that the majority, by undertaking a critical examination of the evidence upon which the regulations are based, fails to grant the Administrator's determination the deference demanded by the "arbitrary and capricious" standard of review, and in effect simply substitutes its judgment for that of the agency. According to Judge Wright, the evidence provides a rational basis for the Administrator's decision to regulate lead in motor vehicle fuels, and the majority's reversal of that decision is thus unjustified under the "arbitrary and capricious" standard of review.

Counsel for Petitioner Ethyl Corp.
Joseph C. Carter, Jr.
John J. Adams
David F. Peters
Arnold H. Quint
Hunton, Williams, Gay & Gibson
700 East Main Street
Richmond, Va. 23212

Counsel for Petitioners PPG Industries and E.I. Du Pont de Nemours & Co.
Daniel M. Gribbon
Allan J. Topol
Covington & Burling
888 Sixteenth Stret, N.W.
Washington, D.C. 20006

Counsel for NALCO Chemical Co.
Victor P. Kayser
John C. Berghoff, Jr.
Robert E. Nord
Chadwell, Kayser, Ruggles, McGee, Hastings & McKinney
135 South La Salle Street
Chicago, Ill. 60603

David Machanic
William H. Fitz
Pierson, Ball & Dowd
1000 Ring Building
1200 18th Street, N.W.
Washington, D.C. 20036

Counsel for Petitioner National Petroleum Refiners Ass'n.
H. Edward Dunkelberger, Jr.
Theodore C. Garrett
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006

Counsel for Respondent
Wallace H. Johnson Asst. Attorney General
Edward J. Shawaker
Edmund B. Clark
Martin Green
Department of Justice
Washington, D.C. 20530

Leslie A. Carothers
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460