ELR Citation: ELR 20397
No(s). 73-1117 (D.C. Cir. May 1, 1974)

The D.C. Circuit Court of Appeals upholds all but the liability provisions of EPA's regulations prohibiting the use of leaded gasoline in automobiles fitted with "cataltic converter" devices for the control of exhaust emissions and requiring widespread retail marketing of at least one grade of unleaded gasoline. The regulations were promulgated under §§211(c) and (d) of the Clean Air Act, and become effective July 1, 1974, the beginning of the 1975 model year. The court holds that the Administrator's statement accompanying the regulations meets the findings requirements of §211(c)(2)(B) and (C) by showing that leaded gasoline destroys the effectiveness of catalytic devices, that fuel regulation is necessary to meet the §202 schedule for reduced emissions, and that the proposed regulations will not cause use of an equally harmful fuel or additive. This interpretation of the statutory requirements is supported by the legislative history of the Act and the fact that rulemaking under these circumstances is essentually a legislative judgment, based more on predictions and policy determinations than explicit factual findings. EPA's selection of 0.05 gram per gallon as the lead content ceiling for unleaded gasoline is adequately supported by the record, and the agency was not required to promulgate test methods for detecting violations at the same time this standard was issued. The legislative history also shows that the statutory provision authorizing control of fuels which impair the performance of emission control devices gives the Administrator power to assure the availability of unleaded gasoline through imposition of an affirmative marketing requirement. The court further finds that the marketing requirement is a considered policy judgment which was made in good faith and which is amply supported by the record. The portion of the regulations which extends vicarious strict liability to refiners and distributors in the event of leaded gasoline being introduced into converter-equipped cars from pumps normally used to dispense unleaded gasoline must be modified, however, since refiners and distributors must have the opportunity to rebut the presumption of liability by demonstrating freedom from fault. The court also holds that preparation of an EIS was not required in conjunction with the regulations because of the general rule that EPA actions under the Clean Air Act are exempt from NEPA's impact statement requirements.

Counsel for Petitioners
William Simon
James F. Davis
William R. O'Brien
Howrey, Simon, Baker & Murchison
1730 Pennsylvania Avenue, NW
Washington, DC 20006

H. Edward Dunkelberger, Jr.
Theodore L. Garrett
Covington & Burling
888 16th Street, NW
Washington, DC 20006

Counsel for Respondent
Wallace H. Johnson Asst. Attorney General
Edward J. Shawaker
Edmund B. Clark
Martin Green
Department of Justice
Washington, DC 20530