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George E. Warren Corp. v. EPA

ELR Citation: 29 ELR 20252
Nos. 97-1651, 164 F.3d 676/47 ERC 1513/(D.C. Cir., 11/03/1998, 01/29/1999)

The court denies petitions to review a U.S. Environmental Protection Agency (EPA) rule that conditionally allows foreign gasoline refiners to establish and use individual baselines reflecting their 1990 gasoline fuel property levels, instead of statutory baselines, under the antidumping provision of the Clean Air Act's (CAA's) reformulated gasoline (RFG) program. The court first holds that the gasoline importer's challenge to a remedial provision in EPA's rule is ripe. Whether the remedial provision is consistent with the statute is purely an issue of law. The issue is as concrete now as it ever will be. And the rule is undoubtedly final.

The court next holds that EPA did not exceed its statutory authority by enacting a rule that does not guarantee the maintenance or improvement of air quality. Although the general purpose of the antidumping provision is to maintain average emissions from conventional gasoline at 1990 levels or lower, the specific approach adopted by Congress makes full achievement of that goal less than certain. The court then holds that CAA §211 does not preclude EPA from considering factors other than air quality, such as the rule's effects on U.S. treaty obligations and on the price and supply of gasoline, when it enacted the rule. There is nothing in the text or structure of the CAA to indicate that Congress intended to preclude EPA from considering these factors, and EPA's interpretation is permissible. The court also holds that EPA's requirement that foreign refiners agree to certain conditions aimed at ensuring their compliance with the RFG program was reasonable given the likelihood that foreign refiners would be unable or unwilling to produce data necessary to establish individual baselines. The court further holds that EPA acted within its CAA authority by including a remedial provision in the rule that provides for an automatic tightening of the statutory baseline for imported conventional gasoline in the event emissions per gallon of nitrogen oxide ever exceed a certain level. It is well-established that under the CAA the EPA may control fuels or fuel additives already in commerce. The court also rejects the importer's seven claims that EPA's RFG rule is arbitrary or capricious. Last, the court holds that the trade organization's challenge to EPA's reliance on comments filed after the close of the comment period is barred because the trade organization failed to exhaust its administrative remedies.

Counsel for Petitioner
Jeffrey C. Bates
McDermott, Will & Emery
75 State St., Ste. 1700, Boston MA 02109
(617) 345-5000

Counsel for Respondents
Seth M. Barsky
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle and Rogers, JJ.