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Natural Resources Defense Council v. EPA

Citation: 14 ELR 20191
No. Nos. 81-2001 et al., 725 F.2d 761/20 ERC 1264/(D.C. Cir., 01/17/1984)

The court rules that vessels are mobile sources under the Clean Air Act, but that some emissions from vessels docked at marine terminal facilities may be attributed to the terminals without violating § 110(a)(5)(C)'s ban on indirect source regulation. In 1982, the Environmental Protection Agency (EPA) rescinded the 1980 regulations controlling emissons from ships docking at marine terminals, claiming that (1) the regulations violated the ban in the 1977 Clean Air Act amendments on indirect controls on mobile sources and (2) the regulations were promulgated without notice. The court rules that by any standard of review, it must agree with EPA that ships are mobile sources. The statute is silent on the definition of mobile source; the legislative history suggests that Congress never considered whether ships are mobile sources; however, the legislative policy behind banning indirect controls on mobile sources applies as strongly to ships as to motor vehicles and other mobile sources. The court also rules, though, that EPA erred when it concluded that all ship-associated emissions were beyond EPA's regulatory reach. The court vacates and remands a portion of EPA's rescission of the 1980 rules. It directs the Agency to apply its "control and proximity" standard to determine which emissions from docked ships are properly attributed to the terminal, and to develop rules consistent with the ban on indirect source review to attribute emissions from dockside operations to the terminal. The court cites EPA's bulk gasoline terminal regulations as a model for regulation of emissions from movable sources at a stationary facility. The court notes that the 1980 regulations were based on the faulty premise that ships are not mobile sources. Because ships are mobile sources, the Agency was correct in rescinding its regulations governing emissions from vessels approaching or leaving the terminal facility.

Turning to procedural challenges to the 1980 regulations, the court holds that EPA gave sufficient notice to alert those regulated that the rules would encompass dockside emissions, and there is no substantial likelihood that the Agency would have issued different regulations had clearer notice been given. Finally, the court refuses to rule on whether the Agency may stay a rule pending a decision on the rule's rescission, holding that since the parties have not alleged any injury from EPA's stays, no justiciable controversy exists.

Counsel for Petitioners
Graeme W. Bush
Caplin & Drysdale
1101 17th St. NW, Washington DC 20036
(202) 862-5000

Selma L. Durbin, Daniel P. Selmi, Deputy Attorneys General
555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 445-9555

William J. Barzano Jr., Ass't Attorney General
500 S. 2nd St., Springfield IL 62701
(217) 782-1090

Counsel for Respondent
William F. Pedersen
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 475-8040

Jesse Carrillo, Patrick J. Cafferty Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3126

Counsel for Intervenor GATXT Terminals Corp.
Ky P. Ewing Jr., Norman D. Radford Jr., Jeffrey Civins, Christopher T. Corson
Vinson & Ewing
Suite 900, 1101 Connecticut Ave. NW, Washington DC 20036
(202) 862-6500

Before: MIKVA and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.