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Ethyl Corp. v. EPA

Citation: 6 ELR 20267
No. No. 73-2205, 541 F.2d 1/8 ERC 1785/(D.C. Cir., 03/19/1976) Aff'g EPA regulations

Petitioners seek review of the Environmental Protection Agency's (EPA) 1973 regulations, issued under § 211 of the Clean Air Act, which require phased reductions in gasoline lead additives in order to protect public health. An initial panel opinion favorable to petitioners, 5 ELR 20096, was subsequently vacated and the matter set for rehearing en banc, 5 ELR 20450. Under § 211(c)(1)(A), the EPA Administrator may regulate fuel additives upon a threshold determination that their emission products "will endanger public health or welfare." Taking into account the plain meaning of these words; the EPA's eonstruction of them, which is entitled to substantial deference; Congress' deletion of a factual findings requirement from the House version of § 211; a comparison of its language with §§ 108 and 202 and the reasoning of the Reserve Mining decision, 5 ELR 20596 (8th Cir. 1975) (en banc), the court concludes that "will endanger" is a precautionary standard that does not require proof of actual harm as a prerequisite to regulation. Within reasonable limits, danger is the product of magnitude of risk and magnitude of potential harm. Given the unprecedented nature and scale of technological man's environmental modifications, the EPA Administrator is not limited to factual decisions in determining "endangerment" but must have the power to make essentially legislative policy decisions and to assess risks. EPA correctly determined that the danger posed by airborne lead should be assessed by cumulating its contribution with those of the many other known sources of human blood lead levels. The "arbitrary and capricious" standard for review of the evidence restricts the court to determining whether the agency decision was rational and based on consideration of the relevant factors; to carry out this limited review in a complex case requires the court to educate itself by making a careful examination of the evidence. While not conclusive either in themselves or in combination, the scientific studies relied upon by EPA cumulatively support the agency's conclusions. The court specifically rejects challenges to three of EPA's conclusions: (1) blood levels above 40 micrograms (ug) per 100 grams are indicative of danger to health and are found in a small but significant number of adults and a considerable number of children; (2) airborne lead is directly absorbed into the body to a degree sufficient to pose a significant risk to public health; and (3) lead exposure from dustfall poses a danger to the health of children. Although lead additives have been in use for more than 50 years, it is only in the last 15 that urban airborne lead concentrations have become significant; much pertinent evidence about lead health effects did not exist at all until EPA began its research. Thus, this decision was made at the "frontiers of scientific knowledge," and the Administrator's analysis of the evidence and assessment of the risks were not arbitrary and capricious under the "will endanger" standard. By allowing two formal comment periods in connection with its first set of proposed regulations and another on its reproposed regulations, and by making available for public comment all significant new information developed in the course of its informal rulemaking, the EPA satisfied the requirements of administrative due process under § 4 of the Administrative Procedure Act. Finally, the agency's consideration of the evidence and of alternative courses of action as required by § 211 constituted the functional equivalent of an environmental impact statement, thus satisfying the National Environmental Policy Act. The Administrator's order is affirmed.

A lengthy dissent argues that the decision has inadequate support in the record, and that its substantive weakness is aggravated by procedural error. The procedural flaw asserted is the EPA's failure to bring certain new studies, on which it relied in its Third Health Document, issued simultaneously with the final regulations, to the public's attention in a manner that made informed public comment possible. Significantly, no effective comment was or could be made by scientists and other experts from other federal agencies; these persons had been uniformly critical of the earlier EPA Health Documents. The dissent interprets the term "will endanger public health or welfare" as requiring the Administrator to be able to conclude after consulting all relevant medical and scientific evidence available to him that a fuel additive "causes an emission which causes a significant health hazard to a substantial portion of the general population" before he can control or prohibit the use of particular fuels or fuel additives. No distinction should be drawn between actual and potential or between past and future harm; nor between "risks" and "facts." The requirement in § 211(c)(2)(A) that the Administrator consider all relevant medical and scientific evidence means that Congress intended the threshold determination of endangerment to be based solely on the medical and scientific evidence, not on choices of policy. The arbitrary and capricious standard of judicial review requires the agency to articulate a rational connection between the facts found and the choice made. The Administrator committed a "clear error of judgment" by supplying no scientific basis for his assertion that a significant portion of the general adult population has blood lead levels in excess of 40 micrograms; at the least he should have articulated a rational explanation for choosing the few studies which supported this view and rejecting the many that did not. Similarly, the Administrator failed to provide any rational explanation for choosing among studies on the extent to which absorption of airborne lead contributes to excessive total lead exposure. Finally, the EPA's dustfall lead ingestion theory is nothing but a speculative hypothesis.

For a summary of the arguments of amici curiae, see ELR 65322.

Counsel for Petitioner Ethyl Corp.
Joseph C. Carter, Jr.
David F. Peters
Arnold H. Quint
Hunton, Williams, Gay & Gibson
700 East Main St.
Richmond VA 23212
(804) 649-3661

Counsel for Petitioners PPG Industries and E.I. DuPont de Nemours & Co.
Daniel M. Gribbon
Allan J. Topol
Charles Lister
Covington & Burling
888 Sixteenth St., NW
Washington DC 20006
(202) 452-6118

Counsel for Petitioner Nalco Chemical Co.
Victor P. Kayser
John C. Berghoff, Jr.
Robert E. Nord
Chadwell, Kayser, Ruggles, McGee, Hastings & McKinney
135 South La Salle St.
Chicago IL 60603
(312) 726-2545

David Machanic
William H. Fitz
Pierson, Ball & Dowd
1000 Ring Bldg.
1200 Eighteenth St., NW
Washington DC 20036
(202) 331-8566

Counsel for Petitioner National Petroleum Refiners Ass'n
H. Edward Dunkelberger, Jr.
Theodore C. Garrett
Covington & Burling
888 Sixteenth St., NW
Washington DC 20006
(202) 452-6260

Counsel for Respondent
Robert V. Zener, General Counsel
Leslie A. Carothers
Environmental Protection Agency
401 M St., SW
Washington DC 20460
(202) 755-0766

Edumund B. Clark
Department of Justice
Washington DC 20530
(202) 739-2748

Counsel for Amici Curiae Natural Resources Defense Council
David Schoenbrod
Natural Resources Defense Council
15 West 44th St.
New York NY 10036
(212) 869-0150

On rehearing en banc.

For himself, Bazelon, C.J., McGowan, Leventhal and Robinson, JJ.; Bazelon C.J., joined by McGowan, J., concurs with opinion [6 ELR 20303]; Leventhal, J. concurs with statement [6 ELR 20305]; MacKinnon, J. dissents with opinion [6 ELR 20306]; Wilkey, J., joined by Tamm and Robb, JJ., dissents with opinion [6 ELR 20306].