Last month's ELR reported on the January 31 decision of the Second Circuit Court of Appeals, upholding strict new standards governing exposure of workers to vinyl chloride gas.¹ The court took the position that once the danger to the workers was proved, a rigid standard could be imposed by the government without a showing that that standard was technologically feasible. In so ruling, the Second Circuit appeared to be furthering the trend to an altered burden of proof in cases affecting public health, as it had in effect shifted to the vinyl chloride industry the burden of proving that the new standards were unattainable.

The same week, in Ethyl Corporation v. EPA,² the Court of Appeals for the D.C. Circuit invalidated, on two separate grounds, regulations promulgated under the Clean Air Act by the Environmental Protection Agency, providing for a phased reduction in the lead content of gasoline. In an opinion written by Judge Wilkey, joined by Judge Tamm, the court ruled that EPA had applied an incorrect standard in issuing the regulations, but that even if the Agency's interpretation of the statute had been correct, there was insufficient evidence to support its action. If upheld, the decision represents a far greater impediment to regulation in behalf of public health than the Second Circuit's decision was a breakthrough, as it demands a high quantum of proof. Judge Wright filed a vigorous and lengthy dissent. (Editor's Note: On March 18, as this issue of ELR went to press, the D.C. Circuit voted 6-3 to rehear the case en banc.)