D.C. Circuit Voids EPA Plan to Lower Lead Content of Gasoline

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.)

Lead compounds have been added to gasoline for more than fifty years, as they reduce engine knocking [5 ELR 10053] and increase octane ratings sharply. More than 250,000 tons of lead are used each year for this purpose, and automobile exhaust accounts for some 90 percent of all airborne lead.

Lead is also a poison. The aristocracy of ancient Rome drank its wine from leaden vessels and thereby hastened its own destruction; the less privileged classes thrived on wine drunk from pottery. Today, lead poisoning in the United States is primarily a danger to small children, especially those under the age of three, who often eat a variety of non-food substances, a phenomenon known as "pica." In slum areas, these substances often include chips of lead-based paint. The effects of lead poisoning are anemia, intestinal cramps, and, in severe cases, paralysis, brain damage, and death.

The hazards of lead were very much in the news at the time Congress was considering the Clean Air Act in 1970. In the same year, the Lead-based Paint Poisoning Prevention Act,³ authorizing financial aid to states and municipalities seeking to eliminate peeling paint in low-income housing, was enacted into law.

The legislative history of the Clean Air Act demonstrates that the question of the effects of gasoline lead was of great concern to the statute's drafters. In a colloquy on the House floor, Representative Staggers (D-W. Va.) assured Presentative Waggoner (D-Tex.) that proposed § 211(c)(1)(A) of the Act would for the first time give the government the power to order the elimination of lead from gasoline. The final text of that section gave the EPA Administrator the authority to

control or prohibit the manufacture … or sale of any fuel or fuel additive for use in a motor vehicle … if any emission products of such fuel or fuel additive will endanger the public health or welfare….⁴

In January, 1971, only a few weeks after it came into existence, EPA issued a notice of proposed rulemaking which announced the Agency's intention to force a reduction in the lead content of gasoline, using § 211. The stated purpose of the regulations was twofold: to remove a possible danger to health and to ensure a supply of lead-free gasoline for engines equipped with catalytic converters.⁵

Regulating the lead content of gasoline for the purpose of making the catalytic converters usable and for the sake of public health turn out, however, to be very different propositions. In the former case, leaded gasoline indisputably destroys the effectiveness of the converter, but in the latter, there is little agreement on anything. The major difficulty is that airborne lead is only one factor — and often a minor one at that — contributing to human intake of the metal. Except for children ingesting flakes of lead-based paint, the largest source of lead exposure is food.The average adult ingests 200-300 micrograms of dietary lead each day, and absorbs 10 percent into the bloodstream. There appears to be no way to lessen this intake, which derives from lead in the soil. The average adult's blood contains from 10 to 30 micrograms of lead per 100 grams of blood; this figure is accurate even in environments free of airborne lead. EPA calculates that respiration of airborne lead in urban areas where auto exhaust concentrations are highest may be responsible for as much lead adsorption as that from food. In addition, lead from auto emissions attaches itself to dust, which may be ingested by small children. In all these areas, however, information about actual human intake of lead is ambiguous and hotly debated.

The Agency did not issue proposed regulations until more than a year later, in February, 1972. At the same time, it published Health Hazards of Lead, a document prepared by the EPA staff, which promptly came under fire from the lead and gasoline industries and from other agencies of the government. The director of the White House Office of Science and Technology wrote that no correlation could be established between the amount of lead in the air and levels of lead in human blood. A panel of the National Academy of Sciences panel was critical, and an assistant secretary of the Department of Health, Education, and Welfare commented acidly on a decision "made on grounds other than those having to do with hazard to the public health."

In April of 1972, EPA issued a statement clarifying its reasons for believing airborne lead from auto exhausts to be a danger to health. Two months later, however, it invited the medical and scientific community to comment on some of the issues involved. These included the accuracy of EPA's methods of estimating levels of lead in the blood; the degree to which blood lead levels reflect the amount of lead in the body; the degree to which the body is harmed by sub-toxic lead levels; the accuracy of estimated intake and retention levels of airborne lead; the degree to which children may be harmed by ingesting dust, bearing lead particles from auto exhaust, from floors and other surfaces; the extent to which lead poisoning among children is attributable to [5 ELR 10054] lead paint alone, and the likelihood that reductions in other sources of exposure to lead (such as from dust) might reduce the risk of lead poisoning; and the effect on the environment in general of lead pollution from auto exhausts.

In January, 1973, the Agency issued a new notice of proposed rulemaking which acknowledged that none of the scientific findings on lead, viewed individually, constituted conclusive evidence that airborne lead by itself was a hazard to human health. Considered together, however, they indicated that airborne lead was a factor contributing to excessive lead exposure among urban populations. At the same time, EPA published its "Second Health Document" on the effects of airborne lead. Officials of the Interior Department, the Occupational Safety and Health Administration, and HEW reviewed the document and commented on it negatively.

In October, 1973, a panel of the D.C. Circuit Court of Appeals, in ruling on a suit brought by the Natural Resources Defense Council, ordered the Administrator to promulgate final regulations within thirty days. A month later, the Agency complied, accompanying its regulations with a "Third Health Document." The standards called for a five-year phased reduction in the average lead content of gasoline, from 1.7 grams per gallon after January 1, 1975, to half a gram per gallon four years later. The figure represents an average of all gasoline sold, so that the low 1979 level anticipates — prematurely, perhaps, in light of the EPA Administrator's reevaluation of catalytic converters — a widespread changeover to cars requiring gasoline that is completely free of lead. The petitioners, four manufacturers of lead addititives and an association of petroleum refiners, immediately filed suit.

The court in Ethyl faced two major issues: the meaning of the statutory provision that sale of a fuel or fuel additive may be controlled or banned if its emission products "will endanger" public health, and — assuming that EPA's regulations met that initial test of validity — the adequacy of the evidence on health effects of airborne lead to support a finding that the regulations were a valid exercise of administrative discretion. The second of these issues involved also the interpretation of the "arbitrary and capricious" standard of judicial review.

On the first of these questions, the Environmental Protection Agency took the position that "will endanger," in § 211(c)(1)(A), meant "presents a significant risk of harm." Writing in dissent, Judge Wright elaborated on EPA's, and his own, understanding of the meaning of these terms. "Endanger," he wrote, means a threat of harm, and does not require the certainty of actual injury: a town may be endangered by a hurricane and yet never be touched by it. Judge Wright stated that the EPA Administrator had shown a proper understanding of the problem in formulating the definition "presents a significant risk of harm." The question, he wrote, was twofold: how much risk, and how much harm? After reviewing several sections of the Clean Air Act, each of which sets out a different standard of risk and harm, he concluded that "endanger" required neither the certainty of harm nor possible injury as grave as death or incapacitation.

The majority interpreted "will endanger" differently. It rejected the idea that a distinction could be drawn between actual and potential harm, arguing that to find potential harm without a showing of actual harm in the past was to grant license for wild speculation. Judge Wilkey reasoned that while it was unnecessary to prove that airborne lead by itself was a health hazard, the Administrator was required to show that airborne lead from auto exhausts contributes a "measurable increment of lead to the human body, and that this measurable increment causes a significant health hazard (emphasis the court's)."

The difference between the majority and the dissent on this question was only partly one of interpreting statutory language; at issue also was the nature of the Administrator's role under the Clean Air Act. To the majority, the Administrator was intended to act in an essentially adjudicatory role, taking certain prescribed action after specific findings of fact have been made. Judge Wright and EPA argued that the purpose of § 211(c)(1)(A) was to give the EPA Administrator broad discretion, of a quasi-legislative rather than a quasi-judicial nature, to make a "reasoned judgment on a border area of scientific knowledge and policy choice." Unlike the majority, the dissent would grant the Administrator the flexibility to weigh the risk involved, the degree of harm that might result, and the evidence already accumulated in order that, even without proof of past harm, public health may be protected before harm occurs.

Having struck down the regulations on the issue of the correct reading of the statute, the majority could simply have remanded the case to EPA. It chose, however, to examine the evidence on the health effects of airborne lead, ostensibly to speed the administrative process on remand and obviate unnecessary litigation. The court stated that it would test the data using the agency's, rather than its own, interpretation of the "will endanger" standard. (Writing in dissent, Judge Wright suggested that in reality, the majority feared that it would be reversed on the question of what meaning to give "will endanger," and therefore wanted alternative grounds for ruling against the agency.) The outcome of this analysis was the court's finding that the Administrator's decision had been "arbitrary and capricious," "an abuse of discretion," and a "clear error of judgment."

The court recognized that the scope of its review was limited: under the Administrative Procedure Act, informal [5 ELR 10055] rulemaking procedures of the type involved here are to a great extent insulated from judicial interference. The reviewing court may not substitute its judgment for that of the agency, even if it believes the agency to be seriously mistaken, being limited instead to an examination of whether the agency's action, findings, or conclusions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

Judge Wilkey declared the court's adherence to this standard, but then cautioned that reviewing courts must not serve as rubber stamps for administrative agencies. He cited the language of the Supreme Court in Citizens to Preserve Overton Park v. Volpe:⁶ "[We] must consider whether the decision [of the administrative agency] was based on a consideration of the relevant factors and whether there has been a clear error of judgment." The court then proceeded to elevate "clear error of judgment" into a new and exacting standard of review, seemingly far removed from the traditional limitations which the "arbitrary and capricious" standard places on the reviewing court's powers. "If there is an essential point or element missing in the logical progression toward the conclusion that the agency reaches," the majority wrote, "then the agency's action likewise may be arbitrary or capricious, because it is not supported by a logical thought process."

The court next reviewed the studies on which EPA based its finding that airborne lead presented a hazard to public health, and was critical of all. The first study was of the effects of airborne lead on a single individual, an unacceptably small sample, from the court's point of view. The second study was conducted in Japan, and the court stated that EPA had taken statements from it and used them out of context. The third study was deprecated by the court because of the size of the lead particles to which subjects were exposed differed from that of the particles found in auto exhaust fumes. A fourth study, the most impressive from EPA's standpoint, showed that among New Jersey residents, persons living near a major highway had higher levels of lead in their blood than persons dwelling further away from the traffic. The majority condemned this study too. "The study is purely a statistical correlation," said the majority, "and does not provide any evidence as to the causal connection." The court concluded, therefore, that the Administrator had made a "clear error of judgment" in assessing the scientific and medical data and in finding a causal connection between airborne lead and blood lead levels.

The dissent protested that while the majority claimed to be adhering to the agency interpretation of the "will endanger" standard, it was in fact using its own rigid construction of the statute. Judge Wright observed that the "arbitrary and capricious" standard is extremely lax; he noted that the more stringent "substantial evidence" test requires, according to the Supreme Court, "more than a mere scintilla … such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The courts are not, he insisted, empowered to weigh the adequacy of the evidence, but rather, in the language of another Supreme Court opinion, to attempt to "discern in the [agency's] opinion a rational basis for its treatment of the evidence." If the evidence contained contradictions, therefore, an agency might take either of two conflicting positions and still be immune from reversal under the "arbitrary and capricious" standard.

Judge Wright reviewed the same four studies criticized by the majority, stressing that EPA was not asserting that any one of them by itself proved the connection between airborne lead and harm to public health, but rather that all together contributed to the agency's conclusion that such a link existed. He was particularly disturbed at the majority's casual dismissal of the New Jersey study as showing only a "statistical correlation," and not a causal connection, between blood lead levels and proximity to a highway. This argument, wrote Judge Wright, was like that of the tobacco industry, "which for years rejected evidence of the high incidence of lung cancer in cigarette smokers compared to non-smokers." He concluded that if the correct meaning of "will endanger" were applied, the evidence clearly sufficed to uphold the legality of EPA's action under the "arbitrary and capricious" standard of review.

At first blush, the argument of the majority in Ethyl is not without appeal. To be sure, the connection between airborne lead and blood lead levels has not been proved, and some of the evidence on the subject is contradictory; airborne lead is, moreover, only a small fraction of the body's daily intake of lead, and the elimination of lead from gasoline would only marginally reduce Americans' absorption of the metal. Under such circumstances, to put an industry out of business may seem premature, at best, or draconian, at worst. The majority compared EPA to Hamlet, when he stabbed Polonius through the curtain, "inflicting anguish, but in our judgment not rationally solving any problem."

On the other side, however, the arguments are not only appealing but compelling. An examination of the Clean Air Act's language and purpose supports Judge Wright's view that actual harm need not be proved for the Administrator to decide that a fuel or fuel additive "will endanger" public health; the aim of § 211(c)(1)(A) was to make the EPA Administrator a watchdog, not a judge. The "arbitrary and capricious" standard is, as the dissent maintained, a loose standard of judicial review, and the majority seems to have committed a clear error of law in attempting to revamp that standard altogether to avoid what it views as an unjust result. The administrative process functions on the principle that, subject to review of different types, certain decisions are assigned for better or for worse to the [5 ELR 10056] discretion of administrators. That process cannot work if courts feel free to alter the foul line depending on the direction a given ball is hit. In this case, whether the evidence to support EPA's regulations could have won a "preponderance of the evidence" test is debatable; whether it was adequate to meet the "arbitrary and capricious" standard is not.

Lastly, the issue at stake must be kept in mind. On the one side is the ability of the Ethyl Corporation and others to produce lead additives for gasoline; on the other is the health of the American people, in particular the young. Commenting on the majority's reference to the "anguish" caused by EPA's action, Judge Wright ended his 96-page dissent with a tart rejoinder:

With due deference to the "anguish" the Administrator has inflicted on the suppliers of lead for the petroleum industry, it is the anguish of the children and urban adults who must continue to breathe our lead-polluted air that moves me.

The question of the effect on human health of leaded gasoline is not the open-and-shut case the aldrin/dieldrin or vinyl chloride cases were. Rather, it is doubtful, comparable in that regard to the Reserve Mining case, which involved the dumping of asbestos-bearing taconite tailings into Lake Superior.⁷ As in Reserve Mining, the issue is ultimately whether in such situations, the benefit of the doubt should be given to public health or to the right of private enterprise to manufacture and sell its products. By striking down the regulations, the D.C. Circuit was only in form preserving the status quo; in reality, it was resolving in favor of industry a matter which only recently had been perceived to be an open question. The court's evaluation of the merits of the case may ultimately prove to be correct, but as a matter of policy, its decision to give the benefit of the doubt to the lead manufacturers — and in order to do so, misinterpret the statute and twist existing standards of judicial review — is disturbing indeed.

1. Society of the Plastics Industry v. Occupational Safety and Health Administration, 5 ELR 20157 (2d Cir. Jan. 31, 1975). See Comment, OSHA Standards for Vinyl Chloride Plants Upheld, 5 ELR 10042 (Mar.1975).

2. 5 ELR 20096, (D.C. Cir. Jan. 28, 1975).

3. 42 U.S.C. § 4801 et seq.

4. 42 U.S.C. § 1857f-6c(c)(1)(A).

5. Since that time, the U.S. Court of Appeals for the D.C. Circuit has upheld, in NRDC v. Amoco, regulations requiring service stations to carry lead-free gasoline. As pre-1975 cars will in time wear out and be replaced by cars able to use only unleaded gas, it might be reasonable to expect the problem largely to solve itself within a few years. In March of this year, however, EPA Administrator Train announced that if the agency had known several years ago what it knows today, it would not have approved Detroit's reliance on the catalytic converter for meeting the Clean Air Act's auto emission standards. Because of the sulphuric acid mist given off by the converters, EPA is looking to other devices. The result may well be that within a few years, new U.S. autos will again be using leaded gasoline. See Environmental Protection Agency — Recent Developments, 5 ELR 10060 (Apr. 1975).

6. 401 U.S. 402, 1 ELR 20110 (1971).

7. 4 ELR 20598 (1974).