ELR Citation: ELR 20824
No(s). s. 94-1502 et al (D.C. Cir. Apr 28, 1995)

The court holds that the U.S. Environmental Protection Agency (EPA) lacks authority to require that 30 percent of the oxygenates in reformulated gasoline (RFG) come from renewable resources. EPA justified the requirement on the grounds that it will help conserve fossil fuels, might provide global warming benefits, and will maintain the benefits of the RFG program. The court first holds that Clean Air Act (CAA) §211(k)(1)'s plain meaning precludes the adoption of RFG rules that are not directed toward the reduction of volatile organic compound (VOC) and toxics emissions, and that EPA improperly interpreted the section as giving it broader power to adopt the renewable oxygenate requirement. The sole purpose of the RFG program is to reduce air pollution; however, EPA admits that the renewable oxygenate requirement will not cause additional emissions reductions, and has even conceded that use of ethanol, the primary renewable oxygenate, might make air quality worse. The court next holds that although §211(k)(1) grants EPA broad authority to impose RFG requirements independent of and additional to the obligation to require the greatest achievable emissions reductions, it does not grant EPA authority to require the use of oxygenates that will not reduce, and may increase, VOCs and toxics emissions. EPA cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines EPA's relevant functions in a particular area.

The court rejects EPA's argument that because Congress has not explicitly limited its authority to promulgate a renewable oxygenate requirement, the court must defer to EPA's interpretation of §211(k)(1). The court will not presume a delegation of power based solely on the fact that there is not an express withholding of such power. The court holds that §211(k)(1)'s overriding goal is air quality, and that the economic, health, environmental, and energy considerations listed in that section are subordinate to that goal. The CAA does not authorize EPA to use these factors as a basis for imposing any additional restrictions on RFG. The court notes that its conclusion, is supported by §211(c), which authorizes EPA to control or prohibit fuels or fuel additives only after publishing a finding that the prohibition will not cause the use of any other fuel or fuel additive that will produce emissions that will endanger the public health as much or more than the prohibited substance. The renewable oxygenate requirement necessarily controls the use of nonrenewable oxygenates. This suggests that §211(c) governs EPA's power to control a fuel additive already in commerce, and that EPA does not have an independent source of authority to control or prohibit nonrenewable oxygenates based on the considerations enumerated in §211(k). Finally, the court holds that the authority to set a standard under the CAA does not authorize EPA to mandate the manner of compliance or the precise formula for compliance without additional explicit authority.

Counsel for Petitioners
Michael F. McBride
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave., NW, Ste. 1200, Washington DC 20009
(202) 986-8000

Counsel for Respondents
Mary E. Ward, Timothy Burns
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.