ELR Citation: ELR 20549
No(s). s. 92-1137 et al (D.C. Cir. Jan 22, 1993)

The court holds that Clean Air Act (CAA) §202(a)(6), as amended in 1990, does not provide the U.S. Environmental Protection Agency (EPA) with discretionary authority to decline to promulgate standards requiring that new light-duty vehicles (LDVs) must be equipped with on-board refueling vapor recovery (ORVR) systems, and the court sets aside EPA's final decision not to promulgate the ORVR's standards. The court orders EPA to promulgate the ORVR's standards. The 1990 Amendments to the CAA altered §202(a)(6) to require EPA, after consultation with the Department of Transportation (DOT), to promulgate by November 15, 1991, the ORVR's standards for LDVs. After consulting with DOT, EPA concluded that the safety risks of the ORVR's systems were unreasonable given the availability of alternative mechanisms for controlling refueling vapor emissions. Thereafter, EPA declined to promulgate the ORVR's standards by the statutory deadline, claiming that §202(a)(6), as amended, contained residual authority for EPA to exercise discretion in deciding whether to promulgate the ORVR's standards if the Agency determined that the ORVR was unreasonably unsafe.

The court, applying the two-step analysis provided by the U.S. Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507, holds that §202(a)(6) manifestly obligates EPA to promulgate standards for the ORVR systems, and thus, no deference is owed to EPA's interpretation of that section. Where Congress intended to create a conditional duty in the CAA, it used words of condition, such as "if" and "unless." Because §202(a)(6) provides that EPA "shall" promulgate the ORVR's standards within one year after November 15, 1990, EPA exceeded its statutory authority by declining to issue the standards.

Although the court does not reach the deferential second step of the Chevron test, it addresses the two facets of §202(a)(6) that EPA posits as evidence that the statute is ambiguous. EPA first argues that although the duty in §202(a)(6) is mandatory, the scope of that duty is circumscribed by the requirement that EPA consult with DOT regarding the ORVR's safety. EPA further argues that because the section does not specify how the consultation requirement "meshes" with the duty to promulgate standards, it is at least ambiguous and the Agency is owed deference in interpreting its mandate.

The court rejects thisargument because it is premised on a reading of "consultation" that would effectively result in DOT having a veto over any EPA action in compliance with the statutory duty to promulgate the ORVR's standards. Section 202(a)(6) expressly provides that EPA "shall" promulgate standards "after" consultation with DOT, not "subject to" or "conditioned on" that consultation. Thus, no substantive result of the consultation is comprehended within the text that might vitiate EPA's mandatory duty to promulgate the ORVR's standards: no determination is required, no minimal standard for safety is articulated, and no particular measure or purpose of the consultation is specified. Moreover, this interpretation does not mean that the ORVR's safety concerns will never be addressed, because §§206(a)(3)(A) and 202(a)(4) provide for a later certification process to ensure that no system will be installed in an automobile for sale to the public before it is safe. However, this safety evaluation does not affect the duty to promulgate standards in the first instance. Contrary to EPA, the advisory nature of consultation with DOT does not make it meaningless. Such consultation might have been meant to provide EPA with a better awareness of the various recovery systems so that the ORVR's standards might accurately conform to imminently available technology, to allow EPA to structure standards that will promote the design and development of safer systems. As a matter of general statutory construction, a general consultation clause does not normally render invalid other substantive requirements in a statute.

The court notes that §202(a)(6), as amended, no longer requires that EPA determine the feasibility and desirability of the ORVR's systems prior to promulgating the ORVR's standards. By deleting this requirement, Congress provided notice that the consultation requirement is not to be used by EPA to avoid its obligation to promulgate the ORVR's systems standards. The court observes further that this is not a case in which EPA has made an irrefutable finding that no safe ORVR system could be developed in the foreseeable future. Rather, both EPA and DOT unduly restricted their analysis of the ORVR's systems to the charcoal canister systems similar to those used in present evaporative systems. The CAA clearly calls for EPA to evaluate the ORVR's "systems," and EPA may not infer that Congress intended EPA to consider only the ORVR's canister technology. Although the court has previously distinguished between provisions in the CAA that are "technology-based," which require EPA to promulgate standards only after finding that the requisite technology exists or may be feasibly developed, and those that are "absolute," which require compliance with statutorily prescribed standards and schedules irrespective of present technologies, nothing in §202(a)(6) warrants EPA's decision to limit its consideration of the ORVR's systems to a single existing technology. For instance, vapor condensers and vapor combustors have been considered as alternatives to canister containment systems, and both were sufficiently developed to be the subject of investigation during EPA's analysis of canister systems. Moreover, no basis exists to establish that Congress was not aware that flexible bladders represented a plausible alternative to charcoal canisters or that Congress did not intend for EPA to consider them in promulgating the ORVR's standards. In restricting its safety analysis to a single type of ORVR system, EPA disregarded its responsibility under the CAA.

The court holds that the record does not substantiate a finding that the ORVR's systems present inherent and unreasonable safety risks. Much of the data in the record directly contravenes EPA's conclusion that canister-based systems present safety problems that are not entirely capable of resolution. In addition, many of the benefits of the ORVR's systems, such as reduced service station fires, reduced dermal contact during fueling, and reduced fuel tank pressure, were largely ignored in EPA's final safety determination. The court next turns to EPA's second argument for the proposition that deference is owed the Agency's interpretation of the statute. EPA argues that §202(a)(6)'s provision for the lapse of Stage II requirements, which relate to controls over escaping vapors from the fuel filler spout during refueling, when EPA promulgates the ORVR's standards creates an ambiguity that warrants deference. EPA argues that under CAA §182(b)(3), the effective date of the Stage II requirements is November 15, 1992, one year after EPA's deadline for promulgating the ORVR's standards, and thus, Congress provided for an alternative pollution control system in the event that EPA determined that the ORVR's systems are unsafe. The court rejects this argument because §202(a)(6) expressly provides for the termination of Stage II requirements after the ORVR's standards are promulgated, not if they are promulgated. The implication of this language is that the ORVR's standards will be promulgated and that Stage II will then become unnecessary in certain nonattainment areas. Thus, the Stage II requirements are not an alternative to the ORVR's systems, but rather are an interim measure in the event that the ORVR's standards are inexplicably delayed. The court notes that this "fall-back" approach does breach any canons of interpretation. If the ORVR's standards had been promulgated on time, the Stage II requirements in moderate nonattainment areas would have been superfluous. On the other hand, if EPA missed the statutory deadline—as it did—some vapor emission control would be provided. The court concludes that the overlap between §§182(b)(3) and 202(a)(6) demonstrates not a statutory ambiguity, but congressional prudence in providing for foreseeable administrative delays. Moreover, requiring EPA to promulgate the ORVR's standards now, after Stage II controls have become mandatory in moderate and worse nonattainment areas, will not result in duplication. The benefits provided by ORVR are small at first and increase as fleet turnover occurs. Stage II controls will provide important environmental protection in the areas with the worst ozone accumulation while the turnover takes place. In addition, the ORVR's standards only apply to LDVs and whatever investment has already been made in Stage II controls will benefit the environment by capturing vapor emissions from heavy trucks, motorcycles, and other vehicles not encompassed within the ORVR's standards.

Finally, the court holds that the potential for the converse situation, in which no controls would exist in some moderate nonattainment areas if the requirements for stage II controls cease to apply after the promulgation of the ORVR's standards and the ORVR's systems are subsequently denied certification, may be a legitimate concern for EPA, but is not one that the court can resolve. The possibility that the ORVR's systems will not reach the production fleet because of a failure to satisfy certification requirements must have been known to Congress when it passed the 1990 Amendments to the CAA, and thus, reflects an implicit policy decision by Congress.

Counsel for Petitioners
David D. Doniger
Office of Envtl. Policy
Old Executive Office Bldg., Washington DC 20500
(202) 395-6938

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

Steven E. Silverman
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: EDWARDS, RUTH B. GINSBURG, and WILLIAMS, Circuit Judges.