ADAMO WRECKING CO. v. UNITED STATES
No. 76-911
Supreme Court of the United States
Argued October 11, 1977-Decided January 10, 1978
434 U.S. 275
Frank H. Easterbrook argued the cause pro hac vice for the United States. With him on the brief were Acting Solicitor General Friedman, Acting Assistant Attorney General Moorman, Raymond N. Zagone, Patrick A. Mulloy, John J. Zimmerman, and Gerald K. Gleason.
The Clean Air Act authorizes the Administrator of the Environmental Protection Agency to promulgate “emission standards” for hazardous air pollutants “at the level which in his judgment provides an ample margin of safety to protect the public health.”
“(1) A petition for review of action of the Administrator in promulgating . . . any emission standard under section 112 . . . may be filed only in the United States Court of Appeals for the District of Columbia. . . . Any such petition shall be filed within 30 days from the date of such promulgation or approval, or after such date if such petition is based solely on grounds arising after such 30th day.
“(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.”
It is within this legislative matrix that the present criminal prosecution arose.
Petitioner was indicted in the United States District Court for the Eastern District of Michigan for violation of
I
We do not intend to make light of a difficult question of statutory interpretation when we say that the basic question in this case may be phrased: “When is an emission standard not an emissiоn standard?” Petitioner contends, and the District Court agreed, that while the preclusion and exclusivity provisions of
The Court of Appeals in its opinion relied heavily on Yakus v. United States, 321 U. S. 414 (1944), in which this Court held that Congress in the context of criminal proceedings could require that the validity of regulatory action be challenged in a particular court at a particular time, or not at all. That case, however, does not decide this one. Because
II
In resolving this question, we think the statutory provisions of the Clean Air Act are far less favorable to the Government‘s position than were the provisions of the Emergency Price Control Act considered in Yakus. The broad language of that statute gave clear evidence of congressional intent that any actions taken by the Price Administrator under the purported authority of the designated sections of the Act should be challenged only in the Emergency Court of Appeals. Nothing has been called to our attention which would lead us to disagree with the Government‘s description of the judicial rеview provisions of that Act:
“Review of price control regulations was centralized in the Emergency Court of Appeals under a statute giving that court ‘exclusive’ jurisdiction of all non-constitutional challenges to price control regulations. The Court had no difficulty construing the statute as precluding any attack on a regulation in a criminal case (321 U. S., at 430-431), even though the statute did not explicitly mention criminal cases.” Brief for United States 18.
This relatively simple statutory scheme contrasts with the Clean Air Act‘s far more complex interrelationship between the imposition of criminal sanctions and judicial review of the
“(c) (1) Any person who knowingly-
“(A) violates any requirement of an applicable implementation plan (i) during any period of Federally assumed enforcement, or (ii) more than 30 days after having been notified by the Administrator under subsection (a) (1) that such person is violating such requirement, or
“(B) violates or fails or refuses to comply with any order issued by the Administrator under subsection (a), or
“(C) violates section 111 (e), seсtion 112 (c), or section 119 (g)
“shall be punished by a fine of not more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after the first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both.”
Each of the three separate subsections in the quoted language creates criminal offenses. The first of them, subsection (A), deals with violations of applicable implementation plans after receipt of notice of such violation. Under
Subsection (C), which we discuss before turning to subsection (B), provides criminal penalties for violations of three
Finally, subsection (B) of
III
The conclusion we draw from this excursion into the complexities of the criminal sanctions provided by the Act are several. First, Congress has not chosen to prescribe either civil or criminal sanctions for violations of every rule, regulation, or order issued by the Administrator. Second, Congress, as might be expected, has imposed civil liability for a wider range of violations of the orders of the Administrator than those for which it has imposed criminal liability. Third, even where Congress has imposed criminal liability for the violation of an order of the Administrаtor, it has not uniformly precluded judicial challenge to the order as a defense in the criminal proceeding. Fourth, although Congress has applied the preclusion provisions of
These conclusions in no way detract from the fact that Congress has precluded judicial review of an “emission standard” in the court in which the criminal proceeding for the violation of the standard is brought. Indeed, the conclusions heighten the importance of determining what it was that Congress meant by an “emission standard,” since a violation of
The stringency of the penalty imposed by Congress lends substance to petitioner‘s contention that Congress envisioned a particular type of regulation when it spoke of an “emission standard.” The fact that Congress dealt more leniently, either in terms of liability, of notice, or of available defenses, with other infractions of the Administrator‘s orders suggests that it attached a peculiar importance to compliance with “emission standards.” Unlike the situation in Yakus, Congress in the Clean Air Act singled out violators of this generic form of regulation, imposed criminal penalties upon them which would not be imposed upon violators of other orders of the Administrator, and precluded them from asserting defenses which might be asserted by violators of other orders of the Administrator. All of this leads us to conclude that Congress intended, within broad limits, that “emission standards” be regulations of a certain type, and that it did not empower the Administrator, after the manner of Humpty Dumpty in Through the Looking-Glass, to make a regulation an “emission standard” by his mere designation.
In sum, a survey of the totality of the statutory scheme does not compel agreement with the Government‘s contention that Congress intended that the Administrator‘s designation of a regulation as an emission standard should be conclusive in a criminal prosecution. At the very least, it may be said that
We conclude, therefore, that a federal court in which a criminal prosecution under
IV
It remains to be seen whether the District Court reached the correct conclusion with regard to the regulation here in question. In the Act, Congress has given a substantial indication of the intended meaning of the term “emission standard.” Section 112 on its face distinguishes between emission standards and the techniques to be utilized in achieving those standards. Under
Most clearly supportive of petitioner‘s position that a standard was intended to be a quantitative limit on emissions is this provision of
This distinction, now endorsed by Congress, between “work practice standards” and “emission standards” first appears in the Administrator‘s own account of the development of this regulation. Although the Administrator has contended that a “work practice standard” is just another type of emission standard, the history of this regulation demonstrates that he
The Government concedes that, prior to the 1977 Amendments, the statute was ambiguous with regard to whether a work-practice standard was properly classified as an emission standard, but argues that this Court should defer to the Administrator‘s construction of the Act.5 Brief for United
For all of the foregoing reasons, we conclude that the work-practice standard involved here was not an emission standard. The District Court‘s order dismissing the indictment was therefore proper, and the judgment of the Court of Appeals is
Reversed.
MR. JUSTICE POWELL, concurring.
If the constitutional validity of
Although I express no considered judgment, I think Yakus is at least arguably distinguishable. The statute there came before the Court during World War II, and it can be viewed as a valid exercise of the war powers of Congress under
The 30-day limitation on judicial review imposed by the Clean Air Act would afford precariously little time for many affected persons even if some adequate method of notice were afforded. It also is totally unrealistic to assume that more than a fraction of the persons and entities affected by a regulation-especially small contractors scattered across the country-would have knowledge of its promulgation or familiarity with or access to the Federal Register. Indeed, following Yakus, and apparently concerned by Mr. Justice Rutledge‘s
I join the Court‘s opinion with the understanding that it implies no view as to the constitutional validity of the preclusion provisions of
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN join, dissenting.
Section 307 (b) (1) of the Clean Air Act provides that a “petition for review of action of the Administrator in promulgating . . . any emission standard under section 112” may be filed only in the United States Court of Appeals for the District of Columbia Circuit within 30 days of promulgation. Section 307 (b) (2) of the Act provides that an “[a]ction of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” Despite these unambiguous provisions, the Court holds in this case that such an action of the Administrator shall be subject to judicial review in a criminal proceeding for enforcement of the Act, at least sometimes. Because this tampering with the plain statutory language threatens to destroy the effectiveness of the unified and expedited judicial review procedure established by Congress in the Clean Air Act, I respectfully dissent.
The inquiry that the Court today allows a trial court to make-whether the asbestos regulation at issue is an emission standard of the type envisioned by Congress is nothing more than an inquiry into whether the Administrator has acted beyond his statutory authority. But such an inquiry is a normal part of judicial review of agency action.
The Court‘s interpretation of
Finally, the Court provides no real guidance as to which
Since I believe that the Administrator‘s action in promulgating this regulation could have been reviewed in the Court of Appeals for the District of Columbia Circuit under
MR. JUSTICE STEVENS, dissenting.
The reason Congress attached “the most stringent criminal liability,” ante, at 283, to the violation of an emission standard for a “hazardous air pollutant” is that substances within that narrow category pose an especially grave threat to human health. That is also a reason why the Court should avoid a construction of the statute that would deny the Administrаtor the authority to regulate these poisonous substances effectively.
Nothing in the language of the 1970 statute, or in its history, compels so crippling an interpretation of the Administrator‘s authority. On the contrary, I am persuaded (1) that the Administrator‘s regulation of asbestos emissions was entirely legitimate; (2) that if this conclusion were doubtful, we would nevertheless be required to respect his reasonable interpretation of the governing statute; (3) that the 1977 Amendments, fairly read, merely clarified his pre-existing authority; and (4) that the Court‘s reading of the statute in its current form leads to the anomalous conclusion that work-practice rules, even though properly promulgated, are entirely unenforceable. Accordingly, although I agree with the conclusions reached in Parts I, II, and III of thе Court‘s opinion, I cannot accept Part IV‘s disposition of the most important issue in this case.1
I
The regulation which petitioner is accused of violating requires that asbestos insulation and fireproofing in large
buildings be watered down before the building is demolished.2 The effect of the regulation is to curtail the quantity of asbestos which is emitted into the open air during demolition. Because neither the rule nor its limiting effect is expressed in numerical terms, the Court holds that the asbestos regulation cannot be a “standard” within the meaning of
Section 112 is concerned with a few extraordinarily toxic pollutants. Only three substances, including asbestos, have been classified as “hazardous air pollutants” within the meaning of
If that total prohibition had been adopted, it unquestionably would have conformed to the statutory mandate. It was not adopted, however, because industry convinced the Administrator that his proposal would prevent the demolition of any large building.11 At public hearings it was demonstrated that
The promulgated standard is entirely consistent with congressional intent. Congress had indicated a preference for numerical emission standards.13 Congress had also expressed a willingness to accept the serious economic hardships that a total prohibition of asbestos emissions would have caused. But there is no evidencе that Congress intended to require the Administrator to make a choice between the extremes of closing down an entire industry and imposing no regulation on the emission of a hazardous pollutant; Congress expressed no overriding interest in using a numerical standard when industry is able to demonstrate that a less drastic control tech-
Admittedly, Congress did not foresee the Administrator‘s dilemma with precision. But there is nothing unique about that circumstance. See, e. g., Mourning v. Family Publications Serv., Inc., 411 U. S. 356, 372-373 (1973). Indeed, there would be no need for interstitial administrative lawmaking if Congress could foresee every ramification of laws as complex as this.16 I am persuaded that the Administrator‘s solution
II
The precise question presented to this Court is not whether, as an initial matter, we would regard the asbestos regulation as an “emission standard” within the meaning of
The Administrator, who has primary responsibility for carrying out the purposes of the Clean Air Act, interpreted the term “emission standard” to include the rule before us. Contrary to the Court‘s implication, ante, at 287, the Administrator did not promulgate this rule “instead” of an emission standard. He unambiguously concluded that the rule was a proper emission standard.17
The Court holds that these well-established doctrines apply only in “ordinary circumstances.” Ante, at 288. I do not understand why these rules of construction should be less applicable in the unusual than in the ordinary case. Indeed, it seems to me that the extraordinary importance of regulating a hazardous air pollutant in a way that is both fair and effective provides an additional reason for respecting the Administrator‘s reliance on well-established doctrine, rather than a reason for reaching out to undermine his authority.19
In the Court‘s view, however, the enactment of amendments to the Clean Air Act in 1977 was an extraordinary circum-
III
The Court‘s conclusion ultimately rests on the 1977 Amendments. Even accepting the dubious premise that we can rely on the 95th Congress to tell us what the 93d had in mind, the 1977 Amendments do not support the Court‘s interpretation of the statute.
The history of the Amendments is instructive. In late 1974, several wrecking companies successfully challenged indictments brought against them in the Northern District of Illinois for violating the wetting requirements.20 Six weeks after the first court ruling, the Administrator proposed an amendment that would expressly confirm his authority to establish design, equipment, or work-practice standards when numerical emission limitations were not feasible.21 A major bill to amend the Clean Air Act was proposed in the 94th Congress, but the House and Senate were unable to agree. In 1977, the Senate again proposed a major revision. It included the Administrator‘s requested authorization. S. Rep.
When the bill emerged from conference, it no longer expressly stated that a work-practice rule was an emission standard. This change therefore lends support to the Court‘s view. But it is most unlikely that the Conference Committee intended to express indirect disapproval of the Administrator‘s reading of the 1970 Amendments. The Conference Report explained that the change in language was merely intended to “clarify” an aspect of the Senate version which was unrelated to the question whether a work-practice rule is, or had been a species of emission standard.23
It is true, as the Court says, that the Senate Report “refrained from endorsing the Administrator‘s view that the regulation had previously been authorized as an emission standard under
A reading of the entire statute, as amended in 1977, confirms my opinion that the asbestos regulation is, and since its promulgation has been, an emission standard. If this is not true, as the Court holds today, it is unenforceable, and will continue to be unenforceable even if promulgated anew pursuant to the authority expressly set forth in the 1977 Amendments.
The Clean Air Act treats the Administrator‘s power to promulgate emission standards separately from his power to enforce them. While it is
Ironically, therefore, the 1977 Amendments, which were intended to lift the cloud over the Administrator‘s authority, have actually made his exercise of that authority ineffectual. This is the kind of consequence a court risks when it substitutes its reading of a complex statute for that of the Administrator charged with the responsibility of enforcing it. More-
I would affirm the judgment of the Court of Appeals for the Sixth Circuit.
Notes
This lack of specific attention to the statutory authorization is especially important in light of this Court‘s pronouncement in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), that one factor to be considered in giving weight to an administrative ruling is “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” The Administrator‘s remarks with regard to these regulations clearly demonstrate that he carefully considered available techniques and methods for controlling asbestos emissions, but they give no indication of “the validity of [his] reasoning” in concluding that he was authorized to promulgate these techniques as an “emission standard,” within the statutory definition. Since this Court can only speculatе as to his reasons for reaching that conclusion, the mere promulgation of a regulation, without a concomitant exegesis of the statutory authority for doing so, obviously lacks “power to persuade” as to the existence of such authority.
By contrast, the Wage and Hour Administrator in Gemsco, Inc. v. Walling, 324 U. S. 244 (1945), referred to in Brother STEVENS’ dissenting opinion, post, at 299-300, n. 16, gave clear indication of his reasons for concluding that the administrative regulation prohibiting industrial homework was authorized by § 8 (f) of the Fair Labor Standards Act, 52 Stat. 1065. The statute empowered the Administrator to issue orders necessary “to prevent the circumvention or evasion” of orders issued under § 8 (f), and the Administrator specifically found that the practice prohibited by the order there challenged “‘furnishe[d] a ready means of circumventing or evading the minimum wage order for this Industry.‘” 324 U. S., at 250, n. 9. In this case, the Administrator of the Environmental Protection Agency offered no comparable analysis of his statutory authority.
In Train v. Natural Resources Defense Council, 421 U. S. 60 (1975), relied upon by Brother STEVENS’ dissent, this Court was not persuaded by “a single sentence in the Federal Register,” post, at 301 n. 18, but by our own “analysis of the structure and legislative history of the Clean Air Amendments,” 421 U. S., at 86, which led us to a result consistent with the Administrator‘s prior practice. Here, our analysis mandates a contrary conclusion, which is not undercut by the Administrator‘s unexplained exercise of supposed authority.
Finally, as noted in n. 4, supra, Congress has not explicitly adopted the Administrator‘s present position with regard to the meaning of the term “emission standard,” although it could easily have done so. It is true, as that dissent remarks, post, at 305-306, n. 24, that Congress has responded to concerns expressed by the Administrator. However, he first advised us of the deficiency in § 307 (b) at oral argument, and even then did not suggest that under the statutory scheme as it presently exists his work-practice standards may be unenforceable. This piecemeal approach to the complexities of the Act hardly displays the “thoroughness . . . in . . . consideration,” Skidmore, supra, at 140, which we would expect to find in an administrative construction.
See