Harold Leventhal

“ This would plainly be contrary to the intent of Congress to set an absolute standard in 1976. On the contrary, we view the imperative of the Congressional requirement as to the significant improvement that must be wrought no later than 1976, as interrelated with the provision for one-year suspension. The flexibility in the statute provided by the availability of a one-year suspension only strengthens the impact of the absolute standard. ”

“ While emissions from such a motor can be "cleaned" by various thermal and catalytic converter devices, these devices do nothing to decrease the production of emissions in the engine's combustion chambers. The automobile industry has a multi-billion-dollar investment in the conventional engine, and it has been reluctant to introduce new power plants or undertake major modifications of the conventional one. [62] Thus the bulk of the industry's work on emission control has focussed narrowly on converter devices. ”

“ It is with utmost diffidence that we approach our assignment to review the Administrator's decision on "available technology." The legal issues are intermeshed with technical matters, and as yet judges have no scientific aides. Our diffidence is rooted in the underlying technical complexities, and remains even when we take into account that ours is a judicial review, and not a technical or policy redetermination, our review is channeled by a salutary restraint, and deference to the expertise of an agency that provides reasoned analysis. ”

“ Thus, if suspension is granted, it is likely that International Harvester will gain a substantial competitive advantage over manufacturers who sacrificed the performance of their vehicles, and perhaps profits, in order to comply with the 1975 standards.
Assuming light duty vehicles are defined by EPA to include MPVs a question may arise whether they are entitled to a one-year suspension, for lack of feasibility, even though passenger vehicles generally should be denied a suspension. ”

“ Our concern that the 1975 standards may possibly be counter-productive, due to decreased driveability and increased cost, is not to be extrapolated into a caution against any improvement, and concomitant reduction in permitted emissions. In such matters, as the NAS recommendation for interim standards implicitly suggests, a difference in degree may be critical, and the insistence on absolute 1975 standards, without suspension or intermediate level, may stretch for the increment that is essentially counter-productive. ”

“ The underlying issue is the reasonableness and reliability of the Administrator's methodology, for it alone offsets the data adduced by petitioners in support of suspension. It is the Administrator who must bear the burden on this matter, because the development and use of the methodology are attributable to his knowledge and expertise. When certain material "lies particularly within the knowledge" of a party he is ordinarily assigned the burden of adducing the pertinent information. ”

“ According to EPA, "Congress clearly intended to require major changes in the kinds of automobiles produced for sale in the United States after 1974" and there "is no basis, therefore, for construing the Act to authorizing suspension of the standards simply because the range of performance of cars with effective emission control may be restricted as compared to present cars." As long as "basic demand" for new light duty motor vehicles was satisfied, the applicants could not establish that technology was not available. ”

“ Instead of taking emissions at 4000 miles of cars with preferred systems -- with which none of the General Motors cars was equipped -- and applying against this, adjustments for lead levels and deterioration, as had been done in the case of Ford and Chrysler, EPA took emissions at 4000 miles of GM cars which had no converters of any kind, and predicted how they would function with an Engelhard monolithic catalytic converter, based on auto manufacturers' use of this device in a number of cars -- principally Ford's -- when testing it for durability. ”

“ I. STATEMENT OF THE CASE The tension of forces presented by the controversy over automobile emission standards may be focused by two central observations:
(1) The automobile is an essential pillar of the American economy. Some 28 per cent of the nonfarm workforce draws its livelihood from the automobile industry and its products. ”

“ If in 1974, when model year 1975 cars start to come off the production line, the automobiles of Ford, General Motors and Chrysler cannot meet the 1975 standards and do not qualify for certification, the Administrator of EPA has the theoretical authority, under the Clean Air Act, to shut down the auto industry, as was clearly recognized in Congressional debate. ”

“ There seems to be agreement that there are performance costs for automobiles in employing pollution control devices, even if the effects on performance cannot fairly be characterized as constituting safety hazards. The NAS Report summarized the problem, as follows: [56]
Three areas of vehicle performance are likely to be adversely affected by the 1975 emission control systems. These are fuel economy, vehicle-acceleration capability, and vehicle driveability (or ability to perform adequately in all normal operating modes and ambient conditions) . ”

“ A court does not depart from its proper function when it undertakes a study of the record, hopefully perceptive, even as to the evidence on technical and specialized matters, for this enables the court to penetrate to the underlying decisions of the agency, to satisfy itself that the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent. ”

“ Driveability after a cold-engine start, and especially with cold ambient conditions, is likely to be impaired. To reduce HC and CO emissions during engine warmup, the choke is set to release quickly, and the fuel-air mixture is leaned out as early as possible after engine startup. Under these conditions, problems of engine stall, and vehicle stumble and hesitation on rapid acceleration, have been prevalent.
The willingness of the consumer to buy 1975 model year cars may also be affected, to some degree, by the anticipated significant costs of pollution control devices. ”

“ Grave problems are presented by the assumption that if technical feasibility proves to be a "wrong decision" it can be remedied by a relaxation.
Certain techniques available to the Administrator, through changes in the certification procedure, can be used in an even handed manner for all three auto companies to facilitate compliance with the 1975 standards. Already lower lead levels in fuel available for 1975 model year cars have been prescribed to increase the efficiency of the catalytic converter. ”

“ We do not preclude further consideration of the question of "available technology," especially if developments in the art provide enlightenment. Last but not least, especially in view of Ford's submission and the NAS Report concerning interim standards, we reiterate that the EPA's determination may consist of a conditional suspension that results in higher standards than an outright grant of applications for suspension. ”

“ In some contexts high achievement bestows the advantage that rightly belongs to the leader, of high quality. In this context before us, however, the high achievement in emission control results, under systems presently available, in lessened car performance -- an inverse correlation. ”

“ We have no reason to believe that "effective technology" did not comport within its meaning sufficient technology to meet a basic level of consumer demand.
E. Balancing of Risks This case inevitably presents, to the court as to the Administrator, the need for a perspective on the suspension that is informed by an analysis which balances the costs of a "wrong decision" on feasibility against the gains of a correct one. ”

“ Even if the relaxation is later made industry-wide, the Government's action, in first imposing a standard not generally achievable and then relaxing it, is likely to be detrimental to the leader who has tooled up to meet a higher standard than will ultimately be required. ”

“ It is one thing to build maintenance into the 1975 certification procedure, when fleet samples are durability tested. It is another to posit that such standards will be maintained, or are reasonably likely to be maintained, by consumers. A hard question is raised by the use of a methodological assumption without evidence that it will correspond to reality, or a reasonable and forthright prediction based on expertise. ”

“ It was the assumption of the Administrator that the.05 maximum would result in gas containing on the average.03 grams per gallon of lead. The discrepancy between the maximum and average is accounted for by the contamination of lead free gasoline from its point of production to its marketing outlet. Thus EPA will allow a maximum of.05 but anticipates that on the average fuel will be at.03. This assumption is, however, subject to testimony in the record indicating a difference between companies in their ability to achieve gasoline with a low lead level complying with the proposed regulation. ”

“ Many of the anticipated performance problems are traceable to the systems introduced to conform cars to control of nitrogen oxides to achieve prescribed 1975 standards, by use of exhaust-gas recycle (EGR) . Such systems affect vehicle-acceleration capability because the power output for a given engine displacement, engine speed, and throttle setting is reduced. [57] The NAS Report indicates that such systems could result in direct fuel-economy penalties of up to 12 percent compared with 1973 prototype vehicles. ”

“ The Act makes suspension dependent on the Administrator's determination that:
the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective data of such standards . . . .
A. Requirement of Observed Data From Manufacturers Clearly this requires that the applicants come forward with data which showed that they could not comply with the contemplated standards. ”

“ The automobile has had a devastating impact on the American environment. As of 1970, authoritative voices stated that "automotive pollution constitutes in excess of 60% of our national air pollution problem" and more than 80 per cent of the air pollutants in concentrated urban areas. ”

“ The driving preferences of hot rodders are not to outweigh the goal of a clean environment.
A difficult problem is posed by the companies' contention that the production and major retooling capacity does not exist to shift production from a large number of previous models and engine types to those capable of complying with the 1975 standards and meeting the demand for new cars. ”

“ We shall subsequently develop the legal questions, primarily questions of EPA's burden of proof, that arise with respect to EPA methodology. We preface these with admission of our doubts and diffidence. We are beset with contentions of petitioners that bear indicia of substantiality. Yet we have no EPA comment on the specific questions raised, apart from some discussion by counsel which is not an adequate or appropriate substitute. [52] Our December 1972 remand [p633] opened the door to a candid discussion of these matters, but EPA fashioned a carefully limited response. ”

“ Moreover, it is not apparent why one should ignore malfunctions of a car which contribute to high emissions, even if they are not malfunctions of the converter. Malfunctions of cars occur to some degree, and cars operating in 1975 will undoubtedly be subject to them.
Lead adjustment factor
A lead adjustment factor is applied to the deterioration factor, as well as to 4000 mile emissions. EPA estimated on the basis of the questionable Ford dynamometer data, that lead levels had no observable effect, which was contrary to industry testimony on the subject. ”

“ The emission standards set for 1976 cannot be breached, since they [p641] represent an absolute judgment of Congress. But as to the decision on a one-year suspension, and the underlying issue of technological feasibility, Congress intended, we think, that the Administrator should take into account such "demand" considerations.
A significant decrease in auto production will have a major economic impact on labor and suppliers to the companies. ”

“ These costs include the risks of grave maladjustments for the technological leader from the eleventh-hour grant of a suspension, and the impact on jobs and the economy from a decision which is only partially accurate, allowing companies to produce cars but at a significantly reduced level of output. ”

“ Additional suspension requests were filed by International Harvester on March 31, 1972, and by Ford Motor Company, Chrysler Corporation, and General Motors Corporation on April 5, 1972. Public hearings were held from April 10-27, 1972. Representatives of most of the major vehicle manufacturers (in addition to the applicants) , a number of suppliers of emission control devices and materials, and spokesmen from various public bodies and groups, testified at the hearings and submitted written data for the public record. The decision to deny suspension to all applicants was issued on May 12, 1972. ”

“ Secondly, the predicted emission level assumes that there will be one total replacement of the catalytic converter at some time after 25,000 miles. This entered into the formula as an adjustment to the predicted deterioration factor. [100] The critical question is how much will the one replacement reduce emissions otherwise obtainable by use of a single catalyst. This relationship had to be assumed because manufacturers had not used catalytic converter replacements in their testing. The Administrator admitted that this factor was imprecise. ”

“ In context, we consider that the technique, adopted by EPA, of pre-screening written questions submitted in advance is reasonable and comports with basic fairness as the general procedure. This approach permits screening by the hearing officer so as to avoid irrelevance and repetition, permits a reasonable estimate of the time required for the questioning, and aids scheduling and allocation of available time among various participants and interests. ”