562 F.2d 1310 | D.C. Cir. | 1977
Opinion for the Court filed by WILKEY, Circuit Judge.
In this petition for review,
After carefully reviewing the language of the Noise Control Act and its legislative history, we conclude that the EPA has misinterpreted the scope of the mandate embodied in Section 17 of the Act through its artificially narrow definition of “equipment and facilities.” Accordingly, we reverse the decision of the Administrator to limit the scope of the Railroad Noise Emission Standards and remand the case to the EPA with directions to promulgate noise emission standards in a manner not inconsistent with this opinion.
I. STATUTORY FRAMEWORK
The requirements for the regulation of railroad noise are contained in Section 17 of the Act. In pertinent part, this Section of the Act provides that:
(a)(1) Within nine months after October 27,1972, the Administrator shall publish proposed noise emission regulations for surface carriers engaged in interstate commerce by railroad. Such proposed regulations shall include noise emission standards setting such limits on noise emissions resulting from operation of the equipment and facilities of surface carriers engaged in interstate commerce by railroad which reflect the degree of noise reduction achievable through the application of the best available technology, taking into account the cost of compliance. These regulations shall be in addition to any regulations that may be proposed under section 4905 of this title.
(2) Within ninety days after the publication of such regulations as may be proposed under paragraph (1) of this subsection, and subject to the provisions of section 4915 of this title, the Administrator shall promulgate final regulations. Such regulations may be revised, from time to time, in accordance with this subsection.
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(c)(1) Subject to paragraph (2) but notwithstanding any other provision of this chapter, after the effective date of a regulation under this section applicable to noise emissions resulting from the operation of any equipment or facility of a surface carrier engaged in interstate commerce by railroad, no State or political subdivision thereof may adopt or enforce any standard applicable to noise emissions resulting from the operation of the same equipment or facility of such carrier unless such standard is identical to a standard applicable to noise emissions resulting from such operation prescribed by any regulation under this section.
(2) Nothing in this section shall diminish or enhance the rights of any State or political subdivision thereof to establish and enforce standards or controls on levels of environmental noise, or to control, license, regulate, or restrict the use, operation, or movement of any product if the Administrator, after consultation with the Secretary of Transportation, determines that such standard, control, license,*364 regulation, or restriction is necessitated by special local conditions and is not in conflict with regulations promulgated under this section.
There are three points concerning the language of Section 17 which deserve mention at this point; an examination of these three points will serve to focus the analysis on the precise issue that forms the basis of the controversy in this case. There is a particularly strong need in this case to focus the discussion at an early stage since the parties, both in their briefs and at oral argument, have devoted much attention to issues which are either beyond peradventure or are not germane to the case in its present posture.
First of all, it is clear from the language of Section 17(a)(1) and (2) that the Administrator is under a mandatory duty to establish noise emission standards for interstate rail carriers. The word “shall” is the language of command in a statute,
Given this strong mandatory language in the statute, we can brush aside subsidiary and diversionary issues to formulate the issue under review in this case as simply: with respect to the subject matter to be regulated, what is the scope of the Administrator’s mandatory duty?
The second point to be made concerning the language of Section 17 deals with the issue of preemption. It is clear that, under the Supremacy Clause of the Constitution, federal law can preempt state law in a particular subject area.
Thus, the existence and scope of federal preemption are not directly at issue in this case; the former is beyond doubt, while the latter is dictated by the scope of the mandatory duty to establish standards (which is the focus of this case).
The third and final point to be made concerning the language of Section 17 at this time concerns the provision for local variances under Section 17(c)(2) of the Act. Under this provision the Administrator may, after consultation with the Secretary of Transportation, allow states or localities to establish and enforce standards if such standards are “necessitated by special local conditions and [are] not in conflict with regulations promulgated under this section.”
In summary, by virtue of the language and structure of Section 17 of the Act, the relevant question for purposes of this analysis concerns the scope of the mandatory duty to regulate railroad noise. In particular, this scope is to be defined by reference to the phrase “equipment and facilities” in Section 17. Before turning to an exposition of what we believe to have been the Congressional intent behind this phrase, we shall examine the definition provided by the Administrator during the course of the rulemaking proceedings here under review.
II. PROCEDURAL BACKGROUND
The first formal step taken by EPA to implement Section 17 was the issuance of ah advance notice of proposed rulemaking, which announced EPA’s intent to develop regulations and invited the participation of all interested parties.
Many railroad noise problems can best be controlled by measures which do not require national uniformity of treatment to facilitate interstate commerce at this time. The network of railroad operations is imbedded into every corner of this country, including rights-of-way, spurs, stations, terminals, sidings, marshaling yards, maintenance shops, etc. Protection of the environment for such a complex and pervasive industry is not simply a problem of modifying noisy equipment, but get down into the minutiae of countless daily railroad operations at thousands of locations across the country. The environmental impact of a given railroad operation will vary depending on whether it takes place, for example, in a desert or adjacent to a residential area. For this reason, EPA believes that State and local authorities are better suited than the Federal government to consider fine details such as the addition of sound insulation or noise barriers to particular facilities, or the location of noisy railroad equipment within those facilities as far as possible from noise-sensitive areas, etc. There is no indication, at present, that differences in requirements for such measures from place to place impose any significant burden upon interstate commerce. At this time, therefore, it ap*366 pears that national uniformity of treatment of such measures is not needed to facilitate interstate commerce and would not be in the best interest of environmental protection.
The national effort to control noise has only just begun, however, and it is inevitable that some presently unknown problems will come to light as the effort progresses. Experience may teach that there are better approaches to some aspects of the problem than those which now appear most desirable. The situation may change so as to call for a different approach. Section 17 of the Noise Control Act clearly gives the Administrator of the Environmental Protection Agency authority to set noise emission standards on the operation of all types of equipment and facilities of interstate railroads. If in the future it appears that a different approach is called for, either in regulating more equipment and facilities, or fewer, or regulating them in a different way or with different standards consistent with the criteria set forth in Section 17, these regulations will be revised accordingly.
After publication of the proposed regulations, EPA made available a detailed “Background Document” for the regulations; this document is significant for the candor and frankness with which it explains the agency’s decision to limit its regulation.
There are two major themes in the EPA’s justification for limiting its regulation which should be identified at this point. The first concerns the issue of timing; EPA has repeatedly stated that it is limiting the subject matter of its noise standards “at this time.” The agency has during the course of its administrative proceedings specifically reserved the option to regulate all aspects of railroads “equipment and facilities” in the future.
The second theme is related to the first; while declining to regulate additional equipment and facilities at this time, the Administrator explicitly or impliedly encouraged state and local jurisdictions to adopt noise emission standards for some types of equipment and facilities. As EPA stated,
“Although the EPA does not currently propose to regulate retarder noise, it does recommend that local jurisdictions establish regulations which require railroads to utilize barrier technology where needed and where both practical and feasible
“They [local and state jurisdictions] may adopt and enforce noise emission standards on other pieces of equipment not covered by EPA regulations, such as retarders and railroad construction equipment .
“State and local governments may enact noise emission standards for facilities which EPA has not regulated. However, where federally regulated equipment is a noise contributor in a facility on which a State or local government proposes to set a noise emission standard, such as a marshalling yard, such regulation may or may not be preempted .
“. . . EPA believes that design or equipment standards on federally regulated equipment — viz., locomotive and rail cars — are preempted. Design or equipment standards on other pieces of*367 equipment such as retarders or cribbing machines, are not preempted. Similarly, design standards on facilities not federally regulated are not preempted, even though locomotives and rail cars may operate there, because they do not require the modification of locomotives or rail cars. An example of this type of regulation would be a local ordinance requiring that noise barriers be installed along the rights of way running through that community.”
Thus, although EPA recognized the need for additional regulation, the agency did not take it upon itself to meet this need through EPA-sponsored regulations. In addition, the encouragement of local regulation was subject to the EPA’s reservation of power to regulate in those same areas in the future. This facet of the agency’s position will assume a prominent role in our analysis in Part III, infra:
In summary, the administrative process described above resulted in standards regulating noise from only three sources: 1) locomotive operation under stationary conditions;
III. ANALYSIS
A. Statutory Language
1. Section 17(a)(1). The starting point for an analysis of the scope of the subject matter to be regulated pursuant to the Administrator’s mandatory duty to publish noise emission regulations must be the language of Section 17(a)(1). As noted previously, “shall include” refers to “the equipment and facilities” in this context;
2. The Preamble. The EPA makes much of the fact that the preamble to the Act states that
while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment.29
EPA would have us read this language as if it said that the Federal government can regulate only “major noise sources.”
The EPA argument based on the language in the preamble is based on an erroneous perception of the operation and significance of such language. A preamble no doubt contributes to a general understanding of a statute, but it is not an operative part of the statute and it does not enlarge or confer powers on administrative agencies or officers.
B. Legislative History
Our conclusion that the language of Section 17(a)(1) itself is an unambiguous reference to all “equipment and facilities” forecloses the necessity of looking to the legislative history for resolution of this issue. In the interest of thoroughness, however, we have scrutinized the legislative history and believe that it is consistent with our reading of the language of the Act. In addition, the legislative history provides an important insight into why the justification offered by the EPA for the narrowness of the scope of its regulations is incorrect.
The only legislative Committee Report to touch on the provisions relating to railroad noise regulation is the Report of the Senate Committee on Public Works.
The Senate Committee Report summarized the railroad section of the law as follows:
“Part B — Railroad Noise Emission Standards
This part (sections 511 through 514) provides a Federal regulatory scheme for noise emissions from surface carriers engaged in interstate commerce by railroad. The Administrator of the Environmental Protection Agency is required to publish within 9 months after enactment and promulgate within 90 days after publication noise emission standards for railroad equipment and facilities involved in interstate transportation, including both new and existing sources. Such standards must be established on the basis of the reduction in noise emissions achievable with the application of the best available technology, taking into account the cost of compliance.
Standards take effect after the period the Administrator determines necessary to develop and apply the requisite technology, and are implemented and enforced through the safety inspection and regulatory authority of the Secretary of Transportation, as well as through Title IV.
Based on the interrelationship between the need for active regulation of moving noise sources and the burdens imposed on interstate carriers by differing State and local controls, the Federal regulatory program for railroads under this part completely preempts the authority of State and local governments to regulate such noise after the effective date of adequate Federal standards, except where the Administrator determines it to be necessitated by special local conditions or not in conflict with regulations under this part.”
Although the language in the report offers no insight into the meaning of the phrase “equipment and facilities,” it does provide evidence as to the major policy justification for the broad preemptive effect accorded to the railroad noise emission standards. Congress was clearly concerned about “the burdens imposed on interstate carriers by differing State and local controls . . . .” This concern was expressed repeatedly in the Senate debate on the Act. Two excerpts from this debate serve to illustrate this concern:
Senator Randolph:
“I also bring to the attention of the Senate the provisions in title V of S. 3342, which establishes a regulatory framework for noise from interstate trucks and buses and the operations of railroads. Here, as well as in the area of product noise emission standards, the transportation industry is faced with the prospect of conflicting noise control regulations in every jurisdiction along their routes. It is completely inappropriate for interstate carriers or interstate transportation to be burdened in this way. The committee met the need for active legislation on moving noise sources by requiring controls on noise from all interstate trucks and buses and railroads, including existing equipment which would not otherwise be subject to produce noise emission standards under title IV and the patterns of operations of such carriers. After the effective date of an adequate Federal regulation program, the authority of State and local governments to regulate noise from interstate trucks and buses or trains is completely preempted, except where the Administrator determines it would be necessitated by special local conditions or in no conflict with the Federal requirements.”34
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*370 “Mr. HARTKE. Mr. President, one of the basic purposes of title V of this bill, as explained in the committee report, is to assure the maximum practical uniformity in regulating the noise characteristics of interstate carriers such as the railroads and motor carriers which operate from coast to coast and through all the States, and in hundreds of communities and localities.
“Without some degree of uniformity, provided by Federal regulations of countrywide applicability which will by statute preempt and supersede any different State and local regulations or standards, there would be great confusion and chaos. Carriers, if there were not Federal preemption, would be subject to a great variety of differing and perhaps inconsistent standards and requirements from place to place. This would be excessively burdensome and would not be in the public interest.”35
This concern for “maximum practical uniformity” is certainly consistent with a broad definition of “equipment and facilities.” But the EPA has put forth a curious motion as to which equipment and facilities are in need of such uniform treatment with respect to noise emission standards.
EPA justifies its narrow view of equipment and facilities by arguing that if a source of noise is subject to the regulation of only one jurisdiction, there is no need for national uniformity. EPA believes that national uniformity is needed only in those situations in which the noise source is potentially subject to noise regulation by more than one jurisdiction (such as locomotive or rail cars).
We emphasize that the discussion in this section of the opinion concerns a policy justification underlying the Act and does not focus on the statutory language. There is no language in Section 17 which mandates that the Administrator regulate only those equipment and facilities in need of national uniform treatment. But this question of uniformity is supportive of our reading of the contested phrase, and the manner in which the Administrator applied the uniformity concept is important to an understanding of the EPA’s earlier, limited action. It is for these reasons that we have discussed this issue.
C. Other Arguments
The analysis thus far in Part II has focused on the statute itself and the legislative history. We now address several additional arguments raised by the EPA.
The EPA argues that its interpretation of the Noise Control Act should be accorded deference by a reviewing court because it is the agency charged with administering the Act.
The EPA argues quite strenuously that “practical factors” compel the conclusion that Congress did not intend all railroad equipment and facilities to be regulated
We do not find this argument convincing. The courts are, of course, concerned with the consequences of the decisions which they render; they will examine these consequences as a factor in determining whether to grant the relief requested by the complaining party in a particular case. The consequences of the position we take in this case are not of the variety that cast doubt on the wisdom of the decision, however. This is because the position advocated by EPA counsel in this case is an artificial one; the AAR has not contended that the EPA must thrust its presence into every minute detail of railroad office buildings,
The EPA itself (as opposed to EPA counsel in this case) has shown that it is capable of defining “equipment and facilities” in a realistic and reasonable manner. In Section 5 of its “Background Document for Railroad Noise Emission Standards,” the EPA has identified broad categories of railroad noise sources in order “to identify [the] types of equipment and facilities requiring national uniformity of treatment.”
Two points of significance emerge from the foregoing discussion. First, the EPA has demonstrated that it is capable of defining the phrase “equipment and facilities” in a manner consistent with customary usage of the phrase in the industry. Congress often does not specify in detail phras
The second point concerns EPA’s insistence that it has the option to regulate the enumerated “equipment and facilities” in the future. In our view, the EPA has virtually admitted the error of its interpretation of Section 17 in making this argument. Section 17(a)(1) makes no provision for a “phasing in” of the required regulations over a period of time; the provision does not have a temporal element in which the agency determines when to initiate the federal regulatory machinery. There is a temporal element in Section 17(a)(2); this provision states that “such regulations may be revised, from time to time . . . ,”
Therefore, if a certain subject matter is properly included within the term “equipment and facilities,” the EPA has jurisdiction over the subject matter. If the EPA has such jurisdiction, it must exercise it in accordance with the mandate of Section 17(a)(1). In its “Background Document” the EPA has claimed future jurisdiction over a broad range of “equipment and facilities;”
In its construction of Section 17(a)(1), the EPA has attempted to secure for itself the best of both worlds; that is, to limit current regulation while reserving plenary power to regulate in the future. This is perhaps an understandable effort to introduce an element of flexibility into the promulgation of noise emission standards. It is not, however, for us as a reviewing court to add this dimension of flexibility to the statutory framework. Congress has dictated that the EPA regulate “the equipment and facilities” of interstate rail carriers. Congress has not provided the agency with the type of discretion it evidently desires and contends for in this case. We are bound to effectuate the legislative will and we perceive it to be unambiguous in this context. If the EPA desires an element of flexibility in its operations, the agency must look to the Congress and not to the courts.
In addition to the arguments already presented, we perceive a highly unfavorable consequence of EPA’s position that it can refrain to regulate at this time while reserving the option to regulate in the future. As noted previously, the EPA has encouraged local jurisdictions to regulate particular noise sources which it (the EPA) chooses not to regulate at this time. If the L calities take this suggestion seriously, they may well invest considerable resources and time in developing and promulgating local noise ordinances. But the EPA claims the authority to issue regulations covering the same noise sources at any time in the future. It is clear that these EPA-issued regulations would, under Section 17(c)(1) of the Act, preempt the locally developed standards. Thus, the localities could not be sure
If the federal level issues all of its regulations concerning “equipment and facilities” at one time; the localities can plan their own activities in the area of noise regulation with increased certainty and confidence that their efforts will not go for naught. Also, once the federal regulations are issued, the localities will be able to discern whether or not they should attempt to trigger the variance provisions found in Section 17(c)(2) of the Act. Therefore, we believe that our decision in this case is consistent with the overall structure of the Act as it applies to railroad noise emission standards.
IV. RELIEF
Section 10(e) of the Administrative Procedure Act states that
[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed.
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Having concluded that the Administrator of the EPA misinterpreted the clear statutory mandate to regulate “the equipment and facilities” of interstate rail carriers, we direct that the Administrator reopen the consideration of Railroad Noise Emission Standards and promulgate standards in accordance with the statutory mandate as interpreted herein. Several observations concerning the nature of the inquiry on remand are in order.
Although the Administrator construed the term “equipment and facilities” in a narrow and artificial manner, we do not in this opinion dictate what we believe to be a proper definition of the term. Rather, we believe that Congress intended for this definition to be developed by the agency in a manner that is consistent with the customary usage of the phrase in the railroad industry.
Second, nothing we do herein affects the degree of regulation which the Administrator deems desirable in a particular context. We are concerned at this point only that the Administrator broaden the scope of the subject matter regulated so as to bring the coverage of the regulations in line with the Congressional mandate in Section 17 of the Act. The particular manner in which the “equipment and facilities” are regulated is a matter which rests, in the first instance, with the Administrator. This action is, of course, reviewable, but under a different standard and at a future date.
Third, there is the matter of the time within which the Administrator must promulgate the regulations concerning “equipment and facilities.” The original statutory command was that the Administrator publish proposed regulations within nine months from 27 October 1972;
Fourth, and finally, our holding in this case does not affect the validity of the individual Railroad Noise Emission Standards already issued. These may continue in effect. Our sole directive is that the EPA broaden the scope of its regulations by defining “the equipment and facilities” of interstate rail carriers in a manner consistent with the usual and customary understanding of the phrase in the railroad industry.
So Ordered.
. This petition for review is properly before the court pursuant to 42 U.S.C. § 4915.
. The State of Illinois was allowed to intervene as a party respondent by order of this court on 18 May 1976.
. The regulations are stated at 40 C.F.R. §§ 201.11, 201.12, 201.13.
. 42 U.S.C. § 4916.
. Id.
.For example, the petitioner devotes substantial energy to the question of whether the Act has preemptive effect. See Brief of Petitioners at 9-32. The Act clearly has such an effect; see text at notes 10, 35, and 36, infra.
The respondents focus on the issue of whether the EPA has exercised its discretion in a reasonable manner; see Brief for Respondents 26-37. The discussion by respondents assumes that discretion is vested in the EPA; we have concluded that it does not and, therefore, this discussion of the reasonableness of the exercise of discretion is not relevant.
. See, e. g., Boyden v. Comm. of Patents, 142 U.S.App.D.C. 351, 441 F.2d 1041 (1971).
. 42 U.S.C. § 4916(a)(1).
. We emphasize that the question as to the degree of regulation to be applied to various noise sources is not before us in this case. The sole issue which we address concerns the question as to what is to be regulated.
. See, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).
. 42 U.S.C. § 4916(c)(2).
. 38 Fed.Reg. 3086.
. 38 Fed.Reg. 10644.
. 39 Fed.Reg. 24580.
. Id at 24580-81.
. The document is reproduced in the Joint Appendix (J.A.) at 28-51. See also text and notes at notes 45 to 48, infra.
. 39 Fed.Reg. 24585.
. J.A. at 117-160.
. See 42 U.S.C. § 4915.
. See J.A. at 18, 24-25.
. 40 C.F.R. § 201.11.
. Id. at § 201.12.
. Id. at § 201.13.
. This listing is not meant to be an exhaustive compilation of the subject matter included within the phrase “equipment and facilities.” The definition of this term must be made by the agency with a realistic reference to the definition of the term customarily employed in the railroad industry. See text and notes at notes 45 to 48, infra.
. See text and notes at notes 7 to 8, supra.
. Of course, the EPA has reserved the option to regulate “facilities” in the future (see note 15, supra). The EPA thus believes that it can choose the timing of its regulations, a proposi
. Brief for Respondents at 10.
. Respondents refer us to other statutory language in various subsections of Section 17; see Brief for Respondents at 12-14. We find these arguments to be clearly frivolous and insubstantial and therefore do not address them in detail in this opinion.
. 42 U.S.C. § 4901(a)(3).
. See, e. g., Yazoo Railroad Co. v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 33 L.Ed. 302 (1889).
. S. Rep. No. 92-1160, 92d Cong., 2d Sess. (1972) U.S.Code Cong. & Admin.News 1972, p. 4655.
. H. Rep. No. 92-842, 92d Cong., 2d Sess. (1972).
. S. Rep. No. 92-1160, supra, note 31, at 18-19.
. 118 Cong.Rec. 35412 (1972) (Remarks of Senator Randolph).
. 118 Cong.Rec. 35881 (1972) (Remarks of Senator Hartke).
. See Background Document, J.A. at 37 — 45.
. See Brief for Respondents at 7-8.
. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
. See, e. g., Freeman v. Morton, 162 U.S.App.D.C. 358, 499 F.2d 494 (1974).
. See J.A. at 214-16, 210, 189.
. Brief for Respondents at 22.
. Id. at 23.
. Id. at 22-23.
. Reply Brief of Petitioners at 3-5.
. Background Document, J.A. at 37.
. Id, J.A. at 37-44.
. See text at notes 14 to 19, supra.
. See note 46, supra.
. 42 U.S.C. § 4916(a)(2).
. See note 46, supra.
. 5 U.S.C. § 706.
. This definition will, of, course, be reviewable in the courts.
.42 U.S.C. § 4916(a)(1).
. Id. at § 4916(a)(2).