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Anderson Shipping Co. v. EPA

ELR Citation: 18 ELR 21409
Nos. No. 87-1705, 852 F.2d 1387/28 ERC 1056/(D.C. Cir., 08/05/1988)

The court upholds the Environmental Protection Agency's (EPA's) revised regulations governing the importation of motor vehicles that do not conform to federal Clean Air Act emission requirements. The revisions provide that nonconforming vehicles can be imported only by an independent commercial importer, and not by an original equipment manufacturer or distributor for an original equipment manufacturer. The regulations also require nonconforming imported vehicles to be modified to meet emission standards not only when tested immediately prior to official release, but additionally for a period of up to five years or 50,000 miles. The court first holds that EPA's creation of the status of independent commercial importer does not conflict with the Tariff Act, which also defines "importer." EPA's regulations do not create a new kind of importer who is unable to meet the customs law's requirements. The preamble to the regulations specifically states that an importer of nonconforming vehicles is not necessarily an importer under the Tariff Act, and the duties of the two categories are different. The court then holds that the five-year/50,000 mile definition of a vehicle's useful life is not jurisdiction as to EPA's regulatory power, and thus EPA can regulate vehicles exceeding that standard at the time of import. Useful life plays no role in delineating the scope of EPA's regulatory jurisdiction; that jurisdiction is over "new vehicles," which are defined as gasoline-powered passenger cars manufactured during or after 1968. The court holds that EPA's application of the five-year/50,000 mile useful life formula is consistent with congressional intent in the Clean Air Act. Congress was concerned about the effects of air pollution from motor vehicles for a reasonable time after their initial use in the United States. The legislative history indicates that Congress had before it information that cost-effective anti-emission technology should be expected to meet something like the 50,000 mile test, and it is reasonable to conclude that a purchaser paying for the importation and conforming technology of a vehicle produced in another country would expect to use it for a similar useful life period as purchasers of cars in this country. The court declines to rule on petitioners' argument that the regulations constitute discriminatory treatment of imported as opposed to domestically manufactured automobiles, which is unlawful under the Trade Agreements Act, since the question was not raised during the administrative proceedings and the Trade Agreements Act does not provide for a private right-of-action.

Counsel for Petitioners
Richard A. Kulics
401 S. Woodward, Ste. 370, Birmingham MI 48011
(313) 644-0884

Counsel for Respondents
Peter W. Colby; Roger J. Marzulla, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before ROBINSON, RUTH B. GINSBURG, and SENTELLE, Circuit Judges.