General Motors Corporation, a Delaware Corporation v. William D. Ruckelshaus, Administrator, United States Environmental Protection Agency, (3 Cases)

premise petitioners’ ar gument recipients of construction —that rely on permits entitled NRC find permit hearing— at the

ings construction expressly rejected by

has been the Su

preme Develop Court. Power Reactor Co. v. Union Elec

ment International trical, Workers, supra, Radio & Machine (applicant

367 U.S. at 81 S.Ct. at 1538 proceeds

on notice “that it with construc risk, at its and that own all its funds

gomay naught”). regulations do

provide whereby applicant mechanism

may approval obtain Commission

safety any particular design feature at permit stage, construction see 10 C.F.R.

§ 50.35(b) (1983); however, the applicants sought approval.

in this case no such

An examination entire record petitioners this case demonstrates Bazelon, Judge, Senior Circuit dissent- given opportunity a full fair were opinion ed and filed in which Tamm and present their arguments before the Com- Wilkey, Judges, Circuit joined. mission, fully and that the Commission has complied procedures with the mandated in applicable regulations. statutes and

The orders of the Commission are there-

fore

Affirmed. CORPORATION,

GENERAL MOTORS Petitioner, Corporation,

Delaware

v. RUCKELSHAUS, D.

William Administra

tor, United States Environmental Pro (3 cases) Respondent. Agency,

tection 80-1868,

Nos. 80-2027 Appeals,

United States Court

District of Columbia Circuit.

Argued April Sept.

Decided George Ball,

Theodore Souris and F. De- troit, Mich., Michael with whom B. Lewi- ston, Smith, Larkin, James A. Terrance B. Frederick Dindoffer and J. William L. Web- er, Jr., Detroit, Mich., brief, were on for petitioner 80-1868, in Nos. 80-2027 and 81- Allen, Justice, Atty. Dept, Jose R. D.C., Washington, with whom A. James Barnes, Counsel, Gleason, K. Gen. Gerald Counsel, Weissman, Asst. Gen. Robert A. Gutter, E.P.A., Attys., Samuel I. David E. Wittenborn, Dearing Dept, and John Justice, D.C., Washington, brief, were on respondent. MacBeth, Stever, Angus Donald W. Jr. Mayer, Attys. Dept, and Rosanne of Jus- tice, D.C., Washington, ap- also entered pearances respondent. ROBINSON, Judge,

Before Chief WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, SCA- STARR, Judges, LIA and Circuit and BA- ZELON, Judge. Senior Circuit Opinion for the Court filed Circuit Judge WALD.

Dissenting opinion filed Senior Circuit Judge Judges BAZELON in which Circuit join. TAMM and WILKEY WALD, Judge. guage, purpose legislative history Circuit 207(c)of the Air Act Amend- Corpo- appeal, the General Motors accordingly deny ments of 1970. We GM’s (GM)challenges authority ration petitions. (EPA Agency Protection Environmental Background I. manufacturers, Agency) as a part pursuant a Air Clean 21, 1977,after On March an EPA investi Act, repair engines, and to cars which are gation testing by GM, and both EPA and class, members of the recall but which have the Administrator of the EPA notified GM exceeded their “useful lives” of 207(c)(1) pursuant to section of the Clean years or miles at the time of five Air Act that the class of 1975 Cadillacs repair. promulgated In the EPA type did 230-carburetors not conform rule,” “interpretive em- what it termed an with federal standards for carbon monox bodying regulatory practice its consistent emission, and ide ordered GM to “submit a of the Air Act recalling the enactment Clean plan remedying since for and the non 1970, requiring conformity Amendments of manufac- of the vehicles.”1 At the same time, expressed a recall turers to all members of Administrator concern class, that another set of 1975 regardless age mileage of their Cadillacs—with type thereafter, 193-carburetors—also exhibited non repair. the time of Soon conformity with the carbon rule, monoxide stan interpretative accordance with the dards, he refrained initiating but from a a agency ordered GM to submit remedial formal recall of give that class order to plan of recalled for a class Cadillacs opportunity GM an to substantiate its regardless all included class members “strong protestations” that this latter class mileage. petitions to this did not violate the standards. See Letter court, (1) EPA GM contends that rule is Costle, Douglas from M. EPA Administra rule, legislative, interpretative, a not and tor, Estes, (March to E.M. President of GM the rule is for therefore void failure to 21, 1977), reprinted Appendix in Joint proce- comply with the notice and comment (J.A.) at 122-24. dures set down the Administrative Pro- Act, event, cedure and the rule later, proposed Five filed weeks GM provision runs counter to the recall plan remedial for the 230-earburetor Cad Air Act and is an therefore invalid illacs, part plan and as a of the offered to interpretation of the statute. GM conse- recall the 193-carburetor Cadillacs volunt quently challenges validity of both the arily.2 J.A. at 126-27. EPA did interpretative rule order however, approve plan, negotia applied the rule to the recall of GM years tions continued for two between automobiles. For the reasons stated be- agency and GM over the effectiveness of low, hold that the EPA rule proposed repairs we is a valid the and the manufactur rule, supported by obligation performance the lan- er’s audit Costle, Douglas preserve right approve remedy 1. Letter from M. EPA Adminis- to be [the] trator, Estes, (March to E.M. President of GM actually pursued.” Id. 21, 1977), (J.A.) reprinted Appendix in Joint agency's policy 122-24. While it was and is the plan initially 2. The remedial submitted GM recalls, encourage voluntary the Administra- except covered "all 1975 Cadillac models those compelled tor to issue order” be- "fe[lt] th[e] built with California Controls.” Re- Emission acquiescence cause "General Motors’ to recall 27, 1977), (April medial Plan for 1975 Cadillacs comes at investigation end of than two of EPA reprinted plan specifically in J.A. at 129. The opposition, and GM and after as- provided eligi- vehicle affected will be "[a] convincing semblage yet of the most case plan, regard- ble for under the remedial recall." Id. the Administrator ex- Id., age, mileage, less of vehicle or owner." pressed “some concern over the likelihood of reprinted in J.A. at 131. implementation by actual dealers of the proposed by General Motors and wish[ed] added). Applying this rule to the phasis Finally, on December completed repairs. Cadillacs, EPA on demand recall of the EPA withdrew its Cadillac re- approved June GM’s audit, deciding instead that GM conduct an applied to vehicles itself, plan medial insofar as approved the audit conduct the time of their useful lives plan.3 within remedial GM’s amended plan to submit a repair, and ordered GM however, time, urged the GM At that within the repair of automobiles for the recall, arguing that “as EPA to cancel failed or will fail recall class “which delays since incurred direct result applicable emission standards conform to submitted, plan our first remedial during their lives but will be has point drastically diminished returns repair.” at the time of lives Fisher, Letter from T.M. been reached.” Freed, Acting N. Letter from Charles Director Emission Control Automotive Deputy Administrator for Mobile Assistant Jackson, Deputy GM, EPA Benjamin R. Enforcement, Source, and Radiation Noise for Mobile Source Assistant Administrator Fisher, Director of Automotive to T.M. (Feb. 5, 1980), re and Noise Enforcement (June 23, 1980), for GM Emission Control specifically, printed in J.A. at 258. More reprinted in J.A. at 263. “only the first time that contended for GM court, challeng petitioned this GM then of five within the lesser those vehicles May rule and the 30 ing the 30 June both 50,000 operation at the miles of years or argues GM recall determinations.5 for re presentation to the dealer time of legislative constituted a May 30 rule repairs] at pairs receive will [remedial rulemaking, despite EPA’s characterization Id., re expense.”4 Motors General [sic] “interpretive,” and therefore of the rule as printed in J.A. at 259. GM thus believed EPA to follow the notice and failed in the class would be so few Cadillacs required procedures before comment age because of their or subject to recall (2) by may promulgated, and re rules imple mileage the recall should not be quiring of automobiles mented at all. lives, the rule exceeds the promulgated the EPA May On 207(c) authority section dispute in this rule at the center explained the reasons Clean Air Act. For 36,396 Fed.Reg. (May case. See 45 below, disagree both of GM’s con we rule, plans 1980). all remedial Under tentions. Air filed under section Interpretative EPA II. Is an Rule provide that the manufacturer Act “shall Rule (cid:127) ex- remedy, at manufacturer’s will pense, properly styled May maintained and used its 30 rule as an “inter- all EPA 36,396 Fed.Reg. rule.” See experienced pretive 45 the noncon- matter, 30, 1980). preliminary regardless (May As a formity during their useful lives characterization, challenges con- mileage at the time GM is, (em- tending May 30 rule on the repair.” 40 C.F.R. Subpart App. A S Jackson, prior presented Benjamin Deputy this limitation R. shows that GM 3. See Letter from for Mobile Source and Assistant Administrator letter. its 1980 Enforcement, Fisher, to T.M. Director of Noise (Dec. Emission Control GM Automotive EPA 5. On November published 1979), reprinted J.A. at Register declaring par- in the Federal notice partial disapproval approval of GM’s tial merely re- GM contends that its 1980 letter Fed.Reg. plan to be "final.” See 45 remedial position it had taken a earlier stated a negotiations (Nov. 1980). subsequently GM filed a 78798 with the EPA. See GM Brief previ- petition, protective consolidated with its EPA, however, represents asserts that the letter Reg- appeals, seeking review of this Federal ous impose proposed that GM had "the first time ister notice. limitation on a remedial a plan.” [useful life] 5/50 Nothing in the record EPA Brief at 11. Commerce, ste also Chamber conse 636 F.2d contrary, “legislative rule” and is hand, 469. On the other if its action notice failure to follow the quently void for law, intends to create new procedures and comment duties, rights properly rule is con of such rules. See 5 U.S.C. promulgation See, e.g., legislative rule. sidered to be properly find that 553. Because we American Postal Workers Union v. Unit rule, May we conclude categorized the Service, ed States Postal 707 F.2d procedures and comment were that notice (D.C.Cir.1983); Citizens Save 558-59 § 553(b)(A).6 id. See required. Spencer County, 600 F.2d at 876. phrase particularly In a turn light general principles, of these we case, apt in this the distinction between rule find that constitutes an nonlegislative has legislative and rules note, begin rule. We with, as “enshrouded consider agency regarded been described that the its rule as American Bus Association See smog.” interpretative. Fed.Reg. able (“Action: 1980) ICC, (D.C.Cir.1980) (May 30, v. Interpretive 627 F.2d Rule”). Moreover, Chapman, justifica EPA’s entire Noel v. (quoting F.2d comprised tion for the rule is of reasoned (2d Cir.1975) (discussing definition of statutory interpretation, with reference to “general policy”)). Nonethe statement language, purpose histo less, general principles there certain 36,397-98. id. 207(c). ry of reviewing making courts in that aid Indeed, of the rule itself indi legis given rule is determination whether interpretative See cates its nature. 40 First, interpretative. agency’s or the lative (“The Subpart App. purpose C.F.R. S A label, relevant, dispositive. while is not own interpreta this rule is to set forth EPA’s See, e.g., Chamber Commerce v. Occu 207(c)(1) tion ... under section of the Clean pational Safety and Health Administra Act....”) Finally, impor Air and most tion, 464, (D.C.Cir.1980); Citi F.2d 468 636 tantly, the rule did not create new EPA, Spencer County zens to Save v. 600 instead, duties; rights simply or restated 844, (D.C.Cir.1979). An F.2d 879 n. 171 practice agency the consistent the interpretative simply rule states the what conducting pursuant recalls to section agency the statute administrative thinks 207(c).7 “ means, par only ‘reminds’ affected to Save Citizens existing Accordingly, May ties of duties.” hold that we 153; Spencer County, 600 F.2d at 876 & n. interpretative 30 rule was an rule. The tion, exempts interpreta EPA 6. The APA from its notice and com- dissent asserts rules, procedures “interpretative general only lifespan barely exceeding ment tion has “a one agency organi- policy, statements of or rules of year” controversy because the over the in sole zation, procedure, practice.” U.S.C. or 5 terpretation Diss.Op. occurred in at 1979. See 553(b)(A). Similarly, Act ex- However, Air n. 11. as the 1574 EPA observed rulemaking empts special procedures from its interpretative when it issued its rule ”[i]n circumstance, "any rule or referred to in sub- past, manufacturers have not ve conditioned a (A) (B) 553(b) paragraphs of subsection eligibility repair hicle’s for recall ... on the 7607(d)(1). Accordingly, title 5.” 42 U.S.C. § mileage.” basis of the vehicle's 45 Fed. proce- interpretative subject rules are not to the 36,397. Reg. diminishing Rather than requirements set down either the APA dural longstanding interpreta rule’s status as a tion, Clean Air Act. or the any prior controversy the absence of over repair exceeding of cars their useful lives proposition calls 7. The dissent contests this demonstrates the reasonableness of the EPA’s upon majority places proposition it "a which the interpretation regulatory of its own scheme. weight.” Diss.Op. at At the substantial See, e.g., Esquire, Ringer, Inc. v. F.2d 591 outset, proposi- it should be made clear that this (Bazelon, (D.C.Cir.1978) J.) (administrative 801 significant primarily support tion is “controlling weight," deserves interpretative, conclusion that the EPA rule is particularly consistently when it "has been fol legislative, proposition with which the and not time”), Diss.Op. significant period agrees. lowed See 1573 & for cert. n. 3. dissent denied, 440 U.S. 59 L.Ed.2d light attempt In its to make of the EPA’s States, (1979); 456 DeLano v. United 183 Ct.Cl. interpreta- its current historical adherence to Accordingly, goals in the Act. to follow embodied EPA therefore prior to the procedures uphold validity of the EPA rule at and comment we notice 5 U.S.C. rule. adoption issue in this case.

§ 553(b)(A). We now consider whether recently Supreme Court has rule is valid reviewing proper the Clean Air Act. outlined our task construction of a statute

administrative First, EPA Rule Is a Permissible III. administers. we Interpretation op Section Congress di must determine whether “has spoken precise question at rectly May 30 rule finds substantial The EPA’s Chevron, U.S.A. v. National Re issue.” contradiction, in the lan- support, and no — Council, sources history guage of section Defense — at —, 104 S.Ct. 2778 at 81 L.Ed.2d 694 Air Act. of the Clean policy If construction important public the administrative rule effectuates lives); (1968) ("A strong mately indica- J.A. at 296 F.2d 16% Buicks; (1977 approximately beyond use- of that 28.5% [administra- of the reasonableness lives). regulated is the fact that ful [the construction tive] by claiming challenged though parties] it was The dissent obfuscates the issue never it” even ”neglect[s] “consistently agency.”). Ap- that the above discussion the fact” maintained younger virtually every engaging parently, that some of these recalls included cars manufacturer cars, voluntarily "AMC included older cars in in addition to older and that the in a recall has stringent complicated by plans. recall was its own remedial mistakenly speculates applicable that “manu- standards” in Califor- The dissent emissions Diss.Op. interest- previous nia. n. 12. However recalls have failed to raise facturers in liability ing, question of cars be- these details are irrelevant to the dissent’s yond "failed to raise lives because the involvement assertion that the manufacturers question liability of cars be- vehicles in the recalls has been de min- of such Diss.Op. yond n. 12. The dissent here the involvement their useful lives because imis." Despite sight in the recalls has been de min- loses of the facts. its view of such vehicles tiny younger "virtually per- cars in addi- of the recalls involved imis." Id. The recall of all” cars, way centages in six out of the fifteen tion to older cars in no detracts from of older record, in detail in the see J.A. fact that there were substantial numbers older recalls described 278-96, the issued a recall notice to the cars involved in these recalls. The relevance of EPA months were air emission standards to the dis- manufacturer 34-55 after the cars the California position on the market. Under EPA’s method of calcu- sent’s is at best obscure. aside, lating percentage of cars that were a final the dissent invokes the fact recalled In lives, 275, responses drop beyond dramati- their useful see J.A. at these that "owner to recalls age large quantities cally of older cars. with the of the vehicle." Id. Such recalls involved however, recall, example, sport, ignores the fact that For the Pontiac initiated statistical cars, heavy involved 1975 model 54% of the manufacturer incurs costs—both fi- by issuing beyond good simply were their useful lives. See J.A. nancial will— Moreover, Moreover, response while the at 293. almost 30% of the 1976 Pon- notice to owners. goes by, percentage tiacs involved in that recall had exceeded their rate declines as time useful lives at the time of manufacturer notice. older cars in the recall sales rises commensurate- Therefore, Similarly, ly. in 1978 EPA initiated a recall that See J.A. at whatever Fords, class, age approximately included 1975 28% of of the recall the manufacturer ample which had exceeded their useful lives. See J.A. would still have a substantial stake Also, began issue. at 289. in 1978 the EPA a recall incentive to raise the useful life California, sum, attempts In the dissent fails in its that included 1974 AMCcars sold in beyond transmogrify controversy approximately their over the 56% of which were absence of Any policy any policy useful lives. See J.A. at 291-92. manufac- into absence of "prophetically individually Taken turer who foresaw” the dissent’s on the useful life limitation. Diss.Op. cumulatively, position, believing at 1574 n. or the dissent's efforts to invent these legal coverage, scope post recalls exceeded the hoc rationalizations for manufacturers’ challenge reasonably expected policy have been to make failure to the EPA’s are similar- could objection. ly unconvincing. consistently ap- The EPA has proved only plans at least three other recalls included those remedial that included class, regard- engines numbers of olders cars. See J.A. at all cars and in the recall substantial Pontiacs; (1974 age mileage. approximately less or It therefore consti- 22% Fords; lives); (1975 approxi- longstanding policy. J.A. tutes a administrative intent, congressional 7541(c)(1). runs counter to clear 42 U.S.C. interprets The EPA reviewing reject then court must it. provision to authorize the recall of all See id. at — n. 9; 104 S.Ct. at 2782 n. class, members of nonconforming except see also FEC v. Democratic Senatorial “properly those not used,” maintained and Committee, Campaign 32, 102 454 U.S. regardless mileage any S.Ct. L.Ed.2d On the given member. pro- We think the statute hand, other if the administrative construc ample support vides interpreta- for such an clearly tion does not contravene discernible tion. intent, reviewing then the court requires The statute manufacturers simply impose “does not its own construc plans submit remedial for “vehicles or en- — Chevron, tion slip op. on the statute.” gines respect to which ... notification at —, Instead, U.S. S.Ct. we given,” and directs the EPA Administra- then inquiry must conduct the “narrower give tor to respect notification with [agency’s] into whether construction a “class category of vehicles or en- ‘sufficiently accepted reasonable’ to be gines,” a substantial number of which ex- court.”8 Democratic Sen reviewing nonconformity hibited during their useful Committee, Campaign atorial U.S. lives. provides The statute thus for notice Chevron, 46; see slip op. S.Ct. at on a classwide basis and requires further — at —, 104 S.Ct. at 2782. manufacturer all cars with respect given. to which such notice is begin We our review with an exami light of this class-based orientation of sec- 207(c)(1) nation of the pro statute. Section 207(c)(1), we think the EPA reasonably vides, pertinent part: mandated that plans remedial designed If the Administrator determines that a to cover all members of a recall class. The substantial class number or cate- agency reasonably required the manufac- gory of engines, although vehicles or engine turers to include a ear or in their properly used, maintained and do not (1) plans remedial if a substantial number conform to the emission stan- [EPA given of cars within a class exhibited non- dards], throughout when in actual use conformity during lives, their useful (as life determined under the car is a member of that class. Section 7521(d) title), of this he shall im- ample affords an basis for this re- mediately notify the manufacturer there- quirement. of of such nonconformity, and he shall argues GM nevertheless manufacturer individual submit a plan remedying vehicles and that have exceeded engines respect the vehicles or to their useful possibly lives cannot exhibit a given. which such notification “nonconformity,” is because the Clean Air square 7541(a) position It is difficult (warranty provision). to the dissent’s pp. § See at infra pronouncements with these recent the Su- preme Although attempts Court. the dissent Similarly, dicta, setting the dissent's extensive statute,” "plain meaning invoke of the Diss. alternatives,” out what it dubs "some reasonable Op. argues only at that in truth it 1582-1584, Diss.Op. particularly inap see is imported useful life limitation should be into propriate light Supreme of the Court’s recent provision. the recall See id. at 1575-1576. warning reviewing respect courts should However, nothing in the policy agencies. choices of administrative provision history compels of the recall this re- — Chevron, at —, slip op. See pp. 1578-1580. The sult. See absence infra question presented S.Ct. today at 2793-94. The provision of a useful life limitation in the recall agency’s is whether action is a reasonable compared express should be with the limitation constraints, light existing statutory one in of the liability of the manufacturer’s the war- job propose and it is not the of the courts to ranty provision to emissions violations occur- they prefer rules that would ring during Compare a "useful vehicle’s life.” adopt. (recall 7541(c)(1) provision) § 42 U.S.C. with id. “noncon- lives—can be considered apply only to ve- useful standards emission Act’s is May 30 rule forming.” Hence the useful lives. engines their within hicles and § by the definition of statute’s 7521(a)(1). precluded section Since 42 U.S.C. re- life.” to devise “useful 207(c) manufacturers requires “remedy will so a recall plans medial only assuming arguendo that class, con- nonconformity” GM within their cars and vehicles individual obligations extend that its remedial cludes “nonconformi lives could exhibit a useful recall class members of a only to those remedying “for the nonconform ty,” plan a time of at the their useful lives are within engines be ity” could still include cars repair. repair. time of yond their useful lives at the scheme, Congress Through recall obvi However, emis- it true that the while is conduct tests on ously cars intended EPA to apply only to individual sion standards lives, cars and en representative samplings during useful engines their to recall on gines, cars and and to base its decision only those follow that does not Congress wanted the may be tests.9 Unless lives such engines within every Indeed, in a class —an absurd presented EPA to test car question recalled. a willing to allow statisti prospect vehicle or is whether a member case this —it representative testing inference from that has exceeded cal a recall class engine of exhibit re- members of the class be that all life should nevertheless its useful 207(c) nonconformity during their useful lives. at the manufac- section paired under car was out not set- it is established that a expense. question That Once turer’s life”; during compliance rath- with emission standards of “useful by the definition tled life, could scope pur- useful reasonable er, the intended it turns on compensate provision. we have of the car to recall As include pose of the above, during the time of provides pollution for caused section for explained Therefore, EPA once the es defects. its violation. remedies of classwide classwide recall that members of a class Accordingly, reasonably EPA reads tablishes during nonconforming their generally the manufacturers were lives, a method of “reme “remedy the nonconformi- useful reasonable plans to submit all, nonconformity” includes the re dying a defec- After ty” the recall class. class, even if all members of the pair of which do not members tive class —the useful lives.10 We their had exceeded their emission standards some satisfy the class). Diss.Op. (hypothesizing erroneously that the concludes The dissent design expose a class of some features of the manufacturer rule "would indefinitely." might repair virtually engines liability be altered from one mod- cars or however, statute, Diss.Op. changes autho- could at 1579. el to another. If these affect emissions, only institute a recall Administrator to of auto then the test- rizes the the level determining number ing that a substantial useful the models within their lives after engines in "do not conform might the class vehicles or not be as to the nonconformi- conclusive actual use when in ty ever, proposed standards] recall. [emission the entire class How- 42 U.S.C. throughout presented this the recall class case since life." added). 7541(c)(1) (emphasis Since cars and problem, raise this we need not decide does not age are no say older than hypothetical. it to this Suffice our five lives, longer within their useful amply permits reading the EPA of the statute "indefinitely." There condition cannot met engines regardless of their cars and least, is, very limitation time at the this definite today address of recall. We do not the time conclude his on the testing he must Administrator: defining possible upon EPA in constraints has exceed- recall class before entire scope class. reasonable of a recall age. years ed of five supplemental argument in its Moreover, At oral problems might special arise when brief, flexibility in devis- the EPA attested to its proposed numerous mod- a includes class ing appropriate remedial and reasonable engine, particular some of el car or of engines. We do for older not entirely schemes find, cars useful lives which have exceeded their contend, remedy testing. does that the and GM not See at the time the EPA conducts that, rule, notified); EPA note under the if a certain id. at 62-63 (section-by-seetion in compliance analysis) car or subclass of cars were after the EPA “discovers defects 50,000 during period, the five through testing” mile of a class of vehicles or repair engines, then the manufacturer need not it “shall order the manufacturer to Fed.Reg. notify ”) car or subclass of cars.11 purchasers (em- ... defect 30, 1980) (“the (May added). n. 2 phasis manufac responsible turer is not the non Furthermore, Congress when revisited which, conformity although vehicle 207(c) 1977, the discussion as- class, part experienced of the recall provision sumed that the recall extended to nonconformity only expiration after engines all member vehicles or of the non- life”). vehicle’s useful See, conforming e.g., H.Rep. classes. No. legislative history similarly supports Cong., 95th 1st Sess. U.S.Code Report Cong. rule. The & pp. 1077, Admin.News (“if upon Senate Public Works a substantial systems number of fail Committee — relies, heavily p. which GM see at during operation, their on-the-road the EPA infra 1570—refers to the recall of an can recall repair entire the entire lot for at the engines. “model or class” of vehicles or expense”); manufacturer’s id.

S.Rep. Cong., No. 91st Cong. 2d Sess. 29 Code p. & Admin.News (noting The Senate Committee possibility bill de- of “a recall of all of signed two EPA methods for to assure engine type”); model vehicle or 6 En- compliance in-use with emission Policy standards. vironmental Congres- Division of the First, development “quick after of a sional Research Library Service of the Comm, method, test” could test the con- on Environment and Public tinuing compliance Works, of “individual Cong., 95th 2d Sess. 4540 on the road.” Alternatively, Id. the EPA (preliminary Bentsen) statement of Sen. (“section could conduct more intensive examinations Agency authorizes the ' “representative samplefs] require of a model or the automaker given recall a class,” and, finding after a of classwide model if repairs Agen- run needed noncompliance, EPA “could cy determines that a substantial number of manufacturer to recall engine model or type model or do conform Id.; (section class.” use”) (em- see id. 207 of S. to the standards when in actual 4358) (if EPA “statistically repre- added); finds that phasis (preliminary id. samples sentative category (“If class or Riegle) statement of Sen. a substan- engines of vehicles or vehicle systems ... do not tial during number fail their conform,” engines then all “vehicle operation, includ- on-the-road the EPA can recall ed category” within class or should be the entire lot for at the manufactur- proposed for the Cadillacs in this testing particu- case is unrea- results of on-the-road would be sonable. larly inquiry. relevant to this course, proof problem, This same would be complains 11. The dissent that “the EPA’s rule present implementation in the dissent’s pre- establishes absolute and irrebutable proposal permit the Administrator to recall sumption among that all older cars were engines cars and that were within their useful percentage failing during to meet standards nonconformity. lives at the time of the notice of Diss.Op. lives." proposal, Under this manufacturers would be However, it is the statute that establishes the engines exceeding cars and presumption engines that the cars and within any showing their useful lives without that the exhibiting class substantial particular cars or had violated the emis- individually nonconforming. during sion standards lives. The irrebuttable”; presumption is not "absolute and proposal, practical, dissent’s to be must also the manufacturer is free to come forward with statutory presumption follow the that members engine, evidence that an individual car or or a nonconforming recall class were particular engines, subclass of cars and were in their useful lives. conforming during fact their useful lives. The expense”). Given these indicia of the not to

er’s manufacturer understanding the vehicle could congressional be made after notice 207(c), finding and after contemporaneous the vehicle had and the adminis 50,000-mile warranty peri- exceeded the (as policy by manufactur trative evidenced 1563), od. supra p. see plans, it ers' remedial Congress to assume that re is reasonable 1196, supra, S.Rep. No. at 31. be- GM understanding EPA’s of its affirmed the passage lieves that this constitutes a clear authority when it revisited and rati recall Congress indication that intended to limit provision in 1977. There is

fied the recall obligations the manufacturers’ recall to ex- contrary.12 not a shred of evidence to the engines beyond clude cars and lives. Nonetheless, GM contends that one bit

legislative history contradicts the EPA’s disagree. place, We In the first we interpretation. Specifically, heavily GM re- very would be hesitant to overrule a rea upon passage Report lies one from the agency interpretation, sonable which en the Senate Public Works In Committee. joys support in discussing provision precur- that was the portions legislative history, other on the enacted, finally sor to section 207 as single, basis of a ambiguous, and rather Report said: passage report.13 from a committee Fur thermore, explained below, we find that recognizes

The Committee also the diffi- passage way in no undermines the culty any provision notifying recall interpretation EPA’s of section be the owners of vehicles. The Committee cause the Senate bill under consideration at expects that the manufacturer would not the time the report Committee wrote its did only depend on the files of the franchise provision not contain a recall similar to the dealer, would, practica- but to the extent provision finally embodied in section 207. ble, department use State motor vehicle Accordingly, nothing we conclude that registration files obtain the names and legislative history runs counter to the subsequent purchasers addresses of 30 rule. By establishing mile, cars. no purpose lifetime for the of warran- impose upon The Senate bill did not man- ty, the Committee did not intend to re- repair obligation; ufacturers lieve the automobile manufacturers provided only warranty repair for the obli- responsibility notify owners gation. 207(d)(2) merely Section of the bill 50,000-mileperiod older cars. The can be directed the EPA to “order the manufac- assumed to 4 to and the provide turer to prompt notification ... [to] expected manufacturer should be to noti- purchasers of all ... vehicles or vehicle fy any owner of a vehicle that is five engines included in the category” class or years old or less as to failure to continue that the noncompliance EPA found to inbe perform A standard. decision with emission standards. S.Rep. addition, EPA’s class-based must be [I]t remembered committee re- enjoys precedential of court, support. law; section 207 This ports they only are not the aids in judicial in one of the few cases to con interpreting statutory language and are useful provision, strue the recall observed that they fairly congres- to the extent reflect "[ujnlike discovery and cure of nonconform reports sional intent. Sometimes committee ity warranty of individual intent, as, guides are not reliable provisions, stage at this is recall of example, they where contain statements class of vehicles in order to entire correct plain meaning that contradict the of the statu- material, design, workmanship defect.” tory language or that conflict with the ex- EPA, Chrysler (D.C. Corp. v. F.2d pressed purpose of the statute. Cir.) denied, (emphasis original), cert. Justice, Dep’t Jordan v. United States 591 F.2d 66 L.Ed.2d 483 (D.C.Cir.1978) (en banc) (footnotes omitted). court, banc, sitting As this en observed: supra, at 111. Once the purchaser re- the final version of Act pur- for the poses determining scope notice, of the recall sought ceived such a he could have repair obligation. We decline to overrule only repair expense at the manufacturer’s agency interpreta- an otherwise reasonable warranty mandated such an on attenuated basis. 207(c) of the bill. See id. in 110. As Act, pur- The EPA’s rule also expressly final the bill limited the furthers life poses Congress. of the The Clean Air warranty to the useful life of the unequivocal Act’s protect directive is “to (section See id. engine. 207(c) vehicle or quality and enhance the of the Nation’s air § 4358); 7541(a) (“the see also 42 U.S.C. S. promote resources so public as to manufacturer ... shall warrant ... productive health and welfare and the ca- engine such vehicle or is ... free from pacity population.” 42 U.S.C. workmanship defects materials § 7401(b)(1). obviously 30 rule engine which cause such vehicle or to fail effectuates purpose. this When the EPA applicable regulations to conform with discovers a defect that results in excessive ”) its useful (emphasis supplied). life pollution in a class of engines, cars or Thus, the Senate bill’s so-called “recall” rule assures that the manufacturer must provision merely required manufacturers fashion a to fit the violation: notify purchasers of a class of vehicles plan remedial properly must include “all defect, and relied on the warranty of a used and nonconforming maintained vehi- repair obligation expressly lim- subject —which cles in the regardless class of their ited in duration to the useful life of the age mileage repair.” the time of engine vehicle or the manufac- Fed.Reg. (May 1980). —to pay repairs. turers Under This good makes scheme, might well have been reasonable practical because, sense no matter what to limit the obligation “recall” recall, their at the time of actual non engines include cars and within their conforming riding cars have been the roads useful lives. pollution in violation of standards. Before recall, institutes a it must make a However, enacted, finally the law as determination that the members of the re bill, contrast to the Senate creates an inde- call generally class have exceeded emission pendent repair obligation recall in addition during standards their useful lives. warranty obligation. Section § 7541(c)(1). U.S.C. therefore 42 requires of title the manufacturer of a may reasonably require manufacturers recalled comply class to submit and with a include engines older cars and in their plan remedial for that class. Unlike the plans “remedy nonconformity” warranty repair obligation, which covers the class. engines Cars and that failed to only failure to conform with emission stan- conform with during emission standards dards “for individual vehicle or en- [the lives do not cease to be a life,” gine’s] 7541(a), 42 U.S.C. pollution thereafter; fact, hazard it is repair obligation contains no such presume sensible to they are more limitation, reasonably and can be con- likely to be a hazard afterward than con sidered to extend to all vehicles or forming engines.14 cars and degree To the Thus, in the recall class. the passage from that the members of nonconforming class report explains the Senate an earlier ver- repaired can pollution to decrease their sion of section potential which is irrelevant even after their useful lives have Congress "clearly lives, The dissent maintains that the emission standards prospect "ten-year accordingly they intended to avoid” the should not be excluded from they old the recall ’ vehicles would be to conform” of the class of which with are mem- supra pp. ers. See Diss.Op. emission standards. See at 1580 & However, "ten-year n. 40. old vehicles" proposed the dissent’s own alterna- conformity are vehicles that were not in “ten-year tive would entail the old By public expired, benefitted. IV. Conclusion token, they degree to the that elude same above, For the reasons stated we hold during both and their correction interpre- that the EPA’s 30 rule is an lives, public We the is cheated.15 useful enjoys sup- tative rule. This rule adequate not believe older mem therefore do that port language, purpose legisla- in the and granted of a recall class must be an bers history tive Air Act. GM’s exemption plans remedy of from for the a petitions are therefore denied. simply of their defect because classwide So ordered. mileage the recall age or the time is implemented, when, especially or initiated BAZELON, Senior Judge, Circuit with interpretation, an the number under WILKEY, whom TAMM and Circuit engines repair escaping and could of cars Judges, join, dissenting. a result be increased as of manufacturer or delays getting interpretative in upheld by administrative the recall rule the underway.16 enjoys today simplicity, court the virtues of prefer plan severely The dissent would that the vehicles.” limit the could number of noncon- repair only order the manufacturer to vehi- forming ders, repaired pursuant vehicles or- to recall and that were within their useful cles lives at the time the EPA issues seriously impact quality, could ambient air its notice of Congress.” frustrate and would the intent of nonconformity. 40; Diss.Op. See at 1580 n. id. 36,398. Fed.Reg. however, proposal, at 1582. Under this argues The dissent that the EPA could have would manufacturers dy also be engines reme- scheme, devised alternative an administrative overage cars and their own ex- using rulemaking powers, to "toll” pense. quent process If the administrative and subse- life of vehicles either at the time more, appeals took five as it has during any period EPA initiates recall or case, very would manufacturers delay could be attributed to manufacturer "remedy required to cars at decade-old comply timely failure to in a with its manner How, expense.” Diss.Op. n. own regulatory obligations. then, can the dissent maintain such a result scheme, Diss.Op. at 1582-1583. Under such a contrary congressional is to clear intent? cars those within their useful at the lives explained specificity pur- The EPA with time of the initial EPA notice of recall would be poses promulgated of section 207 when it repaired ever, expense. How- manufacturer’s interpretative pur- rule and warned those scheme, under the could manufacturers poses could be undermined in the absence of by engaging not cause attrition in the class size the rule: dilatory tactics. objectives: 1) program The recall has two inquiry We to enter decline into the which To assure that manufacturers vehicles regulatory scheme all would best balance exceeding which are standards if emission merely interests in this field. Our task here is non-conformity maintained and used and the agency's interpreta- to determine whether the vehicles, occurs within the useful life of reasonable,” "sufficiently tion is and we con- 2) encourage and manufacturers build certainly clude is. See FEC v. Democratic components durable emission-related to as- Comm., 27, 39, Campaign Senatorial 454 U.S. sure that vehicles will not manifest excessive 38, 44, (1981). Regard- 70 L.Ed.2d 23 emissions their useful lives. Both of interpretations less of whether such as the dis- objectives interpre- these an frustrated suggests permissible sent would be we issue —an of useful life tation which limits manufactur- today they need not reach are in fact not the liability only ers’ to vehicles which are within — interpretation adopted that has been repair. their useful life at the time of agency. special pay 36,397. courts should Fed.Reg. at court 45 only As this stressed when, agency’sinterpretation to an deference as recently, interpret cannot section 207 ”[w]e here, (a) agency interpreting a statute it is ‘in manner which runs goals to the broad counter ’’ (b) Congress charged administering, interpreta- to effectuate.’ with intended it EPA, Chrysler to, Corp. (quoting (c) consistently v. 631 F.2d at 888 tion has been Con- adhered Inc., Meyer, FTC v. Fred gress acquiesced 390 U.S. has inter- administrative (1968)). (d) S.Ct. 19 L.Ed.2d 1222 pretation, gives agency and the statute administering substantial discretion in de- emphasized rule, issuing As the EPA when signing an enforcement scheme. See National interpretative "interpreting Gorsuch, Fed'n v. 693 F.2d 166-69 207(c)(1) Wildlife imposing a useful limitation on life (D.C.Cir.1982). eligible a remedial congruence administerability, apparent always subject challenge rules are public judicial proceedings.4 though ideals of later Even powerfully attractive however, properly agency’s it suffers courts often defer to policy.1 Regrettably, the vices of administrative over statute for which it has from congruence assigned responsibility, reaching and a marked in with been enforcement history clearly power of the statute it court has the to substitute its interpret. “princi judgment that of the in the purports to Because case meaning pal dispute relates to the of the of an rule.5 But “neither statutory significantly agency ignore term” and “does not this court nor the is free to agency’s expertise,”2 plain meaning engage the and be of the statute and to promulgated policy judgment cause the EPA this case an substitute its for that interpretative far-reaching impli Congress.”6 rule I fear with this instance precisely cations for the fair administration of the the EPA has done that. Air Act without sufficient Clean grounds doing, by I am so troubled Supreme The pointed Court has out that

majority’s extreme to the EPA’s deference “[ojrdinarily, interpretations administrative Therefore, respectfully I dissent. actions. given important but not controlling sig 7 precise nificance.” weight The and the to be ac I. “Useful Life” Limits Interpretation interpretative corded an promulgated rule by agency an “in particular case will A. The Standard Review depend upon thoroughness evident in upon consideration, are called in this case to review validity We its of its reason interpretative, ing, consistency not a rule.3 its with earlier and later pronouncements, The distinction between the two can be of and all those factors moment, great distinguish give since one of power persuade, lacking if ing interpretative power features of an rule is its to control.”8 A court must consider courts; binding upon timing lack of force “such factors as consistency Act, Through Congress sought regulation.”); to an 1. the Clean Air Citizens EPA, 844, quality protect Spencer County "to and enhance the of the Na- Save v. 600 F.2d 876 (D.C.Cir.1979); promote public Joseph tion’s air resources so as to v. United States Civil productive capacity Comm'n, 1140, 24, health and welfare and the F.2d n. Serv. 554 1153 1154 ____” population (D.C.Cir.1977); Clean Air Act its Snyder, n. 26 Gibson Wine Co. v. 101(b)(1), 7401(b)(1) (Supp. 329, 42 U.S.C. V (D.C.Cir.1952); § general 194 F.2d 331-32 see 1981) Act], cited as the 7:8, [hereinafter ly 2 K. Law Treatise §§ Davis, Administrative (2d Supp.1982). & 7:13 ed. 1979 Morton, 842, Soc'y F.2d Wilderness v. 479 866 denied, 917, (D.C.Cir.), S.Ct. cert. 411 U.S. 93 Francis, 416, 9, 5. See Batterton v. 432 U.S. 425 n. 1550, (1973) (quoting L.Ed.2d Barlow v. 36 309 2399, 9, (1977); 97 S.Ct. 2405 n. 53 L.Ed.2d 448 Collins, 159, 166, 832, 837, 397 U.S. 90 S.Ct. 25 Gilbert, 125, General Elec. Co. v. 141- 429 (1970)); see also to Preserve 192 Citizens L.Ed.2d 42, 401, 410-11, (1976); 97 S.Ct. L.Ed.2d 50 343 402, 415, Park, Volpe, Overton Inc. v. 401 U.S. 91 Co., 134, 140, Skidmore v. & 323 U.S. 65 Swift S.Ct. 28 L.Ed.2d 136 (1944); S.Ct. 89 L.Ed. 124 2 K. Davis, outset, notes, majority 7:8, From the as the 3. supra, at § 7:13. "interpretive.” characterized the rule as See 45 30, 1980); Fed.Reg. (May Majority opin- 323, Costle, 6. Alabama Power Co. v. 636 F.2d 365 Maj. [hereinafter op.]. ion cited as (D.C.Cir.1979). by majority opinion For the reasons cited authorities, agree. upon I and based those same Batterton, 424, 432 U.S. at S.Ct. at 2404. 97 7. Id. Co., 142, 8. General Elec. 429 U.S. at 97 S.Ct. at 416, See, Francis, e.g., Batterton v. 432 U.S. 425 4. Skidmore, (quoting 323 U.S. S.Ct. n. L.Ed.2d 448 n. (1977) ("[A] 164). give court is not effect interpretation the Act position standing and the agency’s nature of of the agency.11 Nor, view, my did the rule expertise.”9 “simply practice the consistent restate[ ] in conducting pursuant recalls high “receive does EPA rule 207(e)” to section proposition upon standards —a judged when [these] marks majority places which the ____” substantial contemporane not a rule was weight.12 Act, Finally point this Air can interpretation ous —and long scarcely overemphasized it reflects interpre evidence is no there —the Batterton, therefore, position; 9. 432 U.S. at 424 n. "voluntarily” 97 S.Ct. at 2405 n. 9. included plans, older vehicles in their remedial refraining challenging manifestly from Co., interpretation. "reasonable" Elec. General 429 U.S. at 97 S.Ct. at plausible explanation suggests A itself. exception Chrysler With the and Cadillac disputes recalls in which the useful life argues, majority agrees, did 11. EPA and the that its arise, virtually completed all "longstanding." emission recalls Maj. op. Yet, have involved vehicle exception dispute classes less than three n. 7. years age at leading promulgation the time of owner with the notification of GM to of the rule, nonconformity by May agency point only the manufacturer. See 30 the can to J.A. one controversy, Chrysler response drop 278-96. The owner recall in rates sub- stantially years which the "useful life” issue for vehicles more than arose. See EPA four old. case, by strong Brief at 5 & n. admission, In See id. at that EPA’sown 298. This information forms a agency press the did not the basis for the inference issue that both the EPA and Chrysler, question previous because the of noncon- manufacturers in recalls have failed to Thus, formity being litigated. question liability was itself repair See id. raise the for of cars assuming lifespan barely beyond even exceeding that a their useful lives because the involve- interpretation one suffices to render an ment of such vehicles in the recalls been de has longstanding, appear public it would that the minimis. It would not have been economical placed respect was never on notice with to expended for manufacturers to have the re- interpretation. EPA’s To the extent to which necessary the identify sources to those vehicles be- Supreme required Court has that yond courts scruti- their useful lives or to risk owner aliena- timing agency’s nize the of an by refusing repair percentage the small rulemaking, promulgation May EPA’s of the 30 might older cars which have found their regulatory rule while in the heat of battle with ways dealerships response in to a recall. GM deserves close and critical attention. When the "six out of fifteen recalls described by majori- in detail in the record” and cited 1565; 1563; Maj. op. ty, Maj. op. examined, at see also id. at closely 1565n. at n. 7; n. 12. This conclusion lacks sufficient percentages conclusion is reinforced. The specific support fact, in the record. Outside of the upon neglect example, relied that dispute, supra, instant as noted the EPA Pontiacs, can the recalls of 1975 and 1976 point only Chrysler February Fords, recall in and 1974 AMCs involved vehicles that 1979,and there the useful life issue was conced- (and part larger younger) were of a much ed the EPA. See class; EPA Brief at &5 n. 5. complicated by that the AMC recall was Thus, specific in the two instances in stringent applica- emissions standards issue, which the useful life limitations were at California; uniquely ble to vehicles sold in ultimately the EPA acceded to the limitation in the manufacturers included older vehicles vol- recall, Chrysler choosing for the first time to untarily; responses drop that owner to recalls present contest the limitation in this Cadillac vehicle; dramatically with the of the and recall. idiosyncracies particular that the recalls and majority negotiations speculates The also between and that the EPA manufacturers practice case-by-case must have been on a consistent because the basis render the statistics re- upon by majority unrepresentative "manufacturers have not lied conditioned a vehicle’s and eligibility misleading. for recall ... on the See J.A. basis of at 278-96. age mileage.” Maj. op. example, at the vehicle's 7 1565n. For writes that "in 1978 majority (citing Fed.Reg. 36,397). began record a recall that included 1974 AMC simply directly California, fails to approximately substantiate cars sold in 56% of beyond manufacturers’ behavior was the result Maj. op. which were their useful lives.” imposition practice. majori- of the EPA’s (emphasis original). 1565n. 7 in A close look ty’s speculation appears recall, however, presume in fact the facts of that is illuminat- ing. manufacturers somehow foresaw EPA’s EPA ordered the recall of all 1976 AMC interpretation May heretofore point, unannounced of their cars 1978. At that the model was liability approximately of vehicles their use- two-and-a-half old and few- lives; (2) ful conceded the "reasonableness” of er than 20% of the vehicles could have been Statutory Language not B. in this case does at issue tative rule questions fact-intensive the kind of involve reviewing agency’s interpretation great deference need concerning which statute, a first of a court should examine expertise; agency’s technical given the language of that statute to determine rather, concedes. itself as interpretation falls within the whether simply expresses an inter the rule “[s]ince plain meaning.15 statute’s Section language, pretation of the law based on part Air Act reads in relevant history policy of the Clean legislative follows: Act, analyzed data need be Air no factual If the determines that Administrator Consequently, al or commented on.”13 substantial number of class or cate- deference is to be accorded though some engines, gory although of vehicles or rule, inquiry must focus on our used, properly maintained and do not interpretation is reasonable whether EPA’s regulations prescribed conform to the un- light supportable of this title der section 7521 [emissions history. And our language and through- when actual use standards] reflect, if re should final determination (as out their useful life determined under history, quired by that 7521(d) title), of this he im- shall court Supreme reminder mediately notify Court’s the manufacturer there- “[a] interpre give nonconformity, effect to an of of such and he shall the manufacturer submit regulation.”14 tative simply previously lives. that the issue at stake has not expected exceeded their useful to have appropriate AMC "indicate[d] [would] We are told that arisen. Such deference is if an ad- 1974, 1975, and AMC cars sold in include consistently ministrative has been plan.” J.A. 291. The exact California in its long the face series asserted in lenges, 796, of a of chal- by inclusion is not disclosed the motive for this see, Ringer, e.g., Esquire, Inc. v. 591 F.2d record, it is clear that AMC included these but (D.C.Cir.1978), policy or if the 801 had voluntarily, perhaps out of a concern vehicles publicly implemented been announced and stringent ability to meet more Califor- for their time, see, States, long e.g., a DeLano v. United However, requirements. the nia state emissions 379, 517, (1968). 183 Ct.Cl. 393 F.2d 521-22 majority points the AMCs included in 1974 case, however, previous- the EPA the instant has involving large recall as evidence of a class and, ly position only once in that announced its beyond their useful lives for numbers of cars instance, proceed” on behalf of that "did not impose a five which the manufacturers did not year pointed position. at n. 5. We are EPA Brief 5 suggest, mile limitation. I would or on which the EPA to no other occasion affirma- inappropri- respect, that such use of data is tively required manufacturers to include vehi- (1) only vehicles ate because from California cles their useful lives in their remedial model-years were and 1975 AMC included 1974 by plans; simply the issue was never raised recall, making relatively in the thus them a party. either proportion the recall class which was small overwhelmingly composed AMCs, and of 1976 13. EPA Brief at 41. (2) voluntarily, included these vehicles were willingness indicating the manufacturer’s thus 9, Batterton, U.S. at 425 n. S.Ct. at 432 97 requirements. go beyond EPA's upon 2405 n. 9. majority’s reliance a few other re- involving percentage cars is calls some of olders pur- similarly misplaced, but no constructive Safety Consumer Prod. Comm’n v. GTE 15. See disputing by pose here would be served 102, 108, 2051, Inc., Sylvania, 2056, 447 U.S. 100 S.Ct. by by majority or enumer- numbers offered ating (1980); Touche Ross & Co. 64 L.Ed.2d 766 special involved each circumstances 560, 568, 2479, Redington, 442 99 S.Ct. v. fifteen fact remains that nine of the case. The (1979); 61 L.Ed.2d 82 Caminetti v. United vehicles, older J.A. at 278- recalls involved no States, 242 U.S. only Chrysler and Cadillac and that (1917); Symons Chrysler Corp. v. L.Ed. 442 meaningfully presented life the useful recalls issue, Bd., (D.C.Cir. 670 F.2d Loan Guarantee which, case, Chrysler in the an issue Marshall, 1981); Higgins v. 584 F.2d by supra Such pursued note 11. EPA. denied, (D.C.Cir.1978), cert. 441 U.S. longstanding history hardly ad- “constitutes a a 60 L.Ed.2d 659 S.Ct. policy.” Maj. op. n. 7. ministrative agency’s to an "consistent” Judicial deference fact not be based on the should “sufficiently reasonable” in nonconformity constitutes remedying plan for legislation to which this respect terpretation of engines with or the vehicles guidance.19 must look for given. The court notification such which provide plan shall course, extent, plain lan To some are or which vehicles legislative histo guage of a statute and maintained will be and properly used in that are ry resulted expense of the manufact remedied at the inextricable;20 a casual reader of but even urer.16 text, Air Act’s without reference the Clean intent, help could not but be upon “this class- relies majority concept 207(c)(1)” significance struck of section based orientation outset, Act makes At the reasonably man “useful life.” “the EPA concluding prescribed standards designed to clear that emissions plans be remedial dated class,” applicable by the Administrator a recall re all members cover throughout their “useful lives.”21 mileage any indi age or gardless of life of auto explicitly defines the useful brought it is It at the time vidual vehicle period as “a of use five (1) number of mobiles “if a substantial repair, (or equivalent), fifty thousand miles noncon given class exhibited cars within occurs____” lives, In the re first whichever during their useful formity at the heart of remedy provision that class.”17 GM call member of the car is a controversy, the statute not concept the instant upon the of non instead focuses life” but directs essentially only al refers to “useful arguing conformity, recalled, statutory definition of readers to the can be though classes of vehicles section with prepared on a term number.23 plans can be remedial definition, the Act to the term or basis, can be out resort a manufacturer class-wide fifty thousand mile the five nonconform utilizes “remedy” those liable concept in no fewer than four life” recall class that are “useful ing of a members provis enforcement time of different lives at within interpret in such To approaches to the ions.24 Each of these repair.18 eliminate, practical way for all appeal, neither superficial but has a statute amended, 7541(c)(1) example: (Supp. V 24. For U.S.C. § 16. As 1981). 206(a) certify, requires to on 1. Section testing prototypes, that the basis of extensive Maj. op. at 1567. produced to vehicle will conform each new 50,000 years or standards for five emissions 20, 23-26; Supple- Petitioner's 18. GM Brief at may produce or mar- No manufacturer miles. Banc, Rehearing April En on mental Brief by a certificate. vehicles not covered such ket Br.j Supp. cited as GM [hereinafter 5 1981). 7525(a) (Supp. V 42 U.S.C. § ("Because applies standard to no emissions 206(b) authorizes the EPA to con- 2. Section 50,000 miles, beyond there vehicle testing production wheth- line to determine duct nonconformity the manufac- can be no being will conform to er vehicles manufactured required to be turer can 50,000 Suspen- miles. emissions standards 207(c)(1).”); Maj. op. see at 1567. § conformity is authoriz- of the certificate of sion 42 U.S.C. fail such tests. ed if vehicles Campaign Democratic Senatorial 19. See FEC v. 1981). 7525(b) (Supp. V § Comm., 207(a) requires to a manufacturer 3. Section L.Ed.2d 23 designed and sold is warrant that each vehicle and to conform to emissions standards built pp. legislative history explored is 20. The infra workmanship free and that its materials any cause it to fail to defect which will from use- its conform to emissions standards 1981). 7521(a)(1) (Supp. V § 21. 42 U.S.C. 1981). 7541(a) (Supp. V U.S.C. § ful life. 42 207(b) requires a manu- further 1981). 4. Section 7521(d)(1) (Supp. V § 22. 42 U.S.C. major performance of to warrant that facturer 1981); components will con- 7521(c)(1) of each vehicle (Supp. emissions V see U.S.C. § years or for five form to emissions standards supra accompanying text. note 16 and repair.” purposes, any support “useful life” limitation on time of There is no an authority interpretation statutory to in the the EPA’s manufactur lan Indeed, vehicles, guage. remedy nonconforming suggests, that ers if to unreasonable, anything, manifestly that the definition of useful would evi life be applies plain dent when “the Administrator attempt to circumvent mean deter that ing statutory language. Yet, it mines” exists of the and interpretation “immediately.”27 notifies manufacturer precisely such an that addition, condones, interpretation In accept GM’s majority today emphasizing that be, question by practice, this would undercut presented case “is not cen 207(c), life’; point tral by the definition of even as to settled ‘useful ac scope cept EPA’s purpose majority's interpreta turns intended and and the on the provision.”25 destroy explicitly tion would be to recall delin eated outer If the boundaries. noncon concept defining But if “useful formity of a class of vehicles were discov cannot settle question, life” neither life, ered relatively late a vehicle’s useful concept’s im- minimizing will obvious protracted if negotiations, litigation, and portance contribute correct resolu- appeals place combined to all or most vehi Indeed, likely it is of this case. beyond cles involved in a recall their useful scope purpose “intended of the lives the time members of the recall recall can at and provision” arrived brought necessary class were in for ser fully attempting define, appreciated by vice, interpretation GM’s could regularly, understand, reasonably apply that crit- totally, purpose even frustrate the of the good place statutory begin ical term. A hand, provision. the other On urged upon argument is with the this court offered the EPA and ac by GM, majority of which the bulk cepted by just majority surely flies as properly rejects. plain face meaning of the statute’s asserting “the statute does not similarly frustrates the intent of Con authorize EPA to order recall and gress. these two Somewhere between ex lives, ignoring statutory treme readings language, mileage at the age and time of re path lies. reasonableness pair,” confusingly intermingles the GM authority “to order recall and re Legislative History C. pair” duty per own of vehicles with its here, necessary repair, implying where, form Even lan clear, mileage parameters guage appears plain “useful meaning time and applied only primary life” to be “at rule is and not a are somehow conclusive manufacturer, 7541(b) (Supp. 42 U.S.C. V estimate and take into miles. account 1981). potentially long lag between that times notice and the date that the entire class of vehicles op. Maj. at 1568. 25. inspection repair. brought be would in for terms, Supp. practical 26. Br. at 5. GM the five administrative years might element of "useful life” mean 4!/2 essentially ignores 27. GM of sec- cases, years in others. some two or less Section itself, 207(c) plainly tion invokes would become an uncertain incon- concept in connection with the "useful life" best, nullity sistent at mechanism worst. pre-notice determination of nonconformi- statute, instead, Reading the to mean what it ty. company argues instead that vehicles The i.e., plainly that a seems to manufactur- mean — beyond brought when in for their useful lives that are er must recall and vehicles with- time, be, "nonconforming,” at that cannot agency’s time that the in their useful lives at the only apply can standards since emissions nonconformity notice of first issues —would be during their useful lives. GM Brief at at once and reasonable. See administerable in- 19-20, accepted aas reasonable inter- 23-26. If pp. statute, required, pretation EPA would fra issuing a notice of to a before yield actual life of a car is more than understanding and must on

source legislative 50,000 in ap indicia of all to other miles. We know that. It occasion history.28 The tent, including legislative 100,000 miles, think, I proaches increas history rightly looks to such majority feeling 50,- ingly, but it was our that a looks, believe, wrong I in the guidance, but warranty put would sufficient 000-mile wrong emphasis. The places and with the pressure on the manufacturers to meet the recall point to be made about crucial they the standards so that if met them Congress that intended it provision is not 50,000 miles, the were that chances “model” or “class” or “cate apply to a pretty met the standards would be close engines, or but gory” of vehicles 50,000 ly even miles.31 ... ... “given any delineation of a model intended underlying The considerations the “use- upon depend lot” to run” or an “entire equally straight- life” limitations ful were concept “useful deliberately created Report forward. As Senate Committee life.”29 noted in 1970: crystal clear from the If little else is The manufacturers informed the Com history Air of the Clean complex they mittee that would not be able to Act, thing despite is: evidence that the one conformity guarantee with emissions is closer to ten actual life of an automobile anticipated 10-year life standards for years one hundred thousand miles than provides a vehicle. The committee bill miles, fifty thousand it is to five 50,000 be the maximum miles would Congress intentionally limited the dura required to con that a vehicle would be liability of a manufacturer’s for a form to the standards for which it was nonconformity with emissions vehicle’s certified.32 five-year/fifty-thousand to a standards Congress explicitly Where has so and delib Muskie, period. example, mile For Senator considered, rejected, erately and then prime sponsors, one of the bill’s remarked requirement than that ulti expansive “[fjifty thousand miles is not all their enacted, mately it is not for life, 100,000 being miles nearer to a meas guise limits under the exceed the vehicle, ure the life of a motor but we “interpretation.”33 50,000 During miles.”30 have taken Nevertheless, argues majority at con- Air Act Amend debate on the Clean ments, leg- length that some of the 1970 reemphasized Senator Muskie siderable history is “irrelevant” because conscious choice: islative History Chesapeake Ry. 28. See & Ohio Co. v. United Legislative Cong., Sess., A 2d 1190, States, (D.C.Cir.1977); F.2d see 1977, Air Amendments of at 5145 (1978). Alaska, also Watt v. 451 U.S. 266 & n. S.Rep. Cong., (1981); 2d 32. No. 91st Sess. 30 S.Ct. 1678 & n. 68 L.Ed.2d 80 (1970), SEC, 680, 705-08, Legislative History, reprinted in 1 1970 Aaron v. 446 U.S. 1945, 1960-61, (1980) (Black supra note 430. 64 L.Ed.2d 611 mun, J., concurring part dissenting in recently Supreme 33. The Court has reaffirmed part). agency’s con court reviews “[w]hen administers, of the statute which it ... struction majority devotes much effort to estab- court, agency, give class-wide, as the must effect lishing well that recalls must be but sheds unambiguously expressed intent of Con defining light role of no on the "useful life” judiciary gress.” Maj. op. This is so because ”[t]he to be recalled. See 1567- the "class” authority statutory construc final on issues of reject administrative construc tion and must congressional (1970), contrary to clear reprinted tions which 30. 116 in 1 Cong.Rec. ____ court, employing intent If a traditional 93rd 2d Senate Comm, Cong., Sess., Works, on Pub. construction, statutory tools of ascertains History Legislative A Air Amendments precise ques Congress had an intention on the at 430 cited as 1970 [hereinafter issue, is the law and must History tion at that intention Legislative ]. given v. Natural Res. be effect.” Chevron U.S.A. — Council, U.S. —, — & (1976), n. reprinted in 6 31. 122 Cong.Rec. Ref. 2778, &2782 n. 81 L.Ed.2d 694 95th Senate Comm, Works, on Environment & Pub. (and in enacted, virtually indefinitely, dramatic pair in contrast to finally the law as unexplained) warranty to the re contrast independent bill, an creates the Senate limited the manufac pair obligation, which in addition to the repair obligation recall liability repair to a vehicle’s for turer’s 7541(c) of obligation. Section warranty majority, the I do not useful life. Unlike manufacturer of a requires the title see, repair try might, I how the recall as comply to and recalled class submit reasonably obligation “can be extended” so Unlike plan for class. a remedial far.36 obligation, warranty repair how un reasonable such an appreciate To conform with emis only failure to covers be, important to interpretation would “for individual vehi sion standards [the may in mind that a recall class include bear life,” 42 engine’s] useful U.S.C. cle or engines of more than one model vehicles or obligation the recall 7541(a), year. example, For the same carburetor or limitation, can rea and contains no may in engine component be used to extend to all sonably be considered four or model over the course of five in recall class.34 vehicles or interpretation espoused years.37 Under response exertions in respect, such With majority, by EPA and the the manufactur passage upon particular reliance GM’s for the of all er would be liable hardly seems report from a committee produced compo with that vehicles ever Ultimately, majori candle.35 worth the nent, sample of provided a defective vehi Re Committee ty’s dismissal of Senate engines still their useful lives cles or within assumption that on the dubious port rests testing.38 If the could be assembled Committee, com without the Conference investigation processes of the initial EPA explanation, to the recall ment or added plan approving a remedial were to “indepen provision of the Senate bill in they much time as did as in repair obligation addition case, dent” recall liability would extend present be warranty obligation. Any such new taking process And ed even further.39 however, account, ex repair obligation, would notification into com of owner appeals pounded infrequently by liability for re- not pose the manufacturer Additionally, Maj. it does not avoid the op. original). here at issue. (emphasis 34. at 1571 result illustrated notes 37-41 unreasonable infra Maj. op. accompanying text. 35. See at 1570. I do not find this ambiguous passage particular either as as the See, (recall e.g., Ponti- majority appears dispositive J.A. 293 1975-1978 or as 37. believe transducers). pressure congressional acs with EGR back on the issue of intent. GM claims completely importantly, consistent I find it Most Thus, defect, statutory engine supra, meaning plain lan- if the Pontiac with "the 38. instance, guage” expressed purpose discovered the fourth of the stat- had been and “the the useful lives of the 1978 model Ponti- it reinforces the evident desire of ute” insofar as acs, suspect Congress place manufactured with the reasonable limitation all Pontiacs some subject liability to recall. The upon manufacturers. See id. at transducer would 10; Justice, Department been to re- v. manufacturer would have Jordan n. (foot- (D.C.Cir.1978) (en banc) four-year pair old 1978 but also the F.2d Pontiacs, which, omitted). at the time the EPA would 1580 courts, gation to attracted at least manufacturers could have some de the

agency or Certainly there were those in the bate. compelled be to reme certainly and would Senate who believed even limited five- expense the “nonconformi dy at own by the liability imposed warranty pro were than a dec ty” that of vehicles to excessive.42 vision have been Particular to The emissions standards ade old.40 ly House, original where to bill ten-year old vehicles would be which those Air Act amend the Clean contained neither conform, moreover, be would to warranty repair obligation, a recall nor a Congress explicitly intended that standards sweeping some comment on such a new exclusively to half that to vehicles apply liability surely imposition would younger.41 Yet, have arisen.43 no such comment was expected have such a drastic One would made either the House the Sen ate repair obli debates on Conference Committee of the manufacturer’s extension 145, 170, 182, 226, 1, 142, being required aof manufacturer to 230, 247, 236, expense, a 252. decade-old cars at its own that result Congress clearly to avoid. EPA intended The “average that the time from 40. EPA estimates salvage attempted argument to at oral the rule owner notification is recall order 8‘A by conspicuous asserting from this defect 33; n. & n. 6. Brief at 28 J.A. 268 months.” EPA agency in fact will not such vehicles "the certain appeals, As to EPA found recall of brought compliance inapplicable to be with into 8, recalled Chryslers ordered on December 1975 require the standards will instead same “re- but particular note”: 1976”to be “[o]f pair” younger and be made on older vehicles. relatively Although was ordered ear recall difficulty approach with this is that the Act vehicles, ly Chrysler request life of in the requires "repair” performed be not that a but hearing Adminis ed administrative on the nonconformity be remedied. nonconformity. determination trator’s Similarly, majority’s attempt to save Judge upheld Law the determi Administrative interpretative by reading rule a modest limita- 10, February on decision filed nation in a facially language, Maj. op. into limitless Subsequent appeals to the Administra 1978. 9, unavailing. ought at 1568 n. to be Even if the also decisions tor this Court resulted in and and EPA, recall in this case can should be Chrysler action Corp. EPA. v. [631 favorable to itself, upheld, p. (D.C.Cir.1980) see at the rule ].... F.2d Certiorari was 865 infra Supreme promulgated, clearly unambiguously by the U.S. Court on Decem is and con- denied few, ..., any, trary history. when if ber 208,000 1980 and the statute’s subject cases, vehicles the recall order agency Under our if the wishes to fill in their useful were still within lives. possible congressional interstices created EPA n. 35. Brief at 28 anticipate possible all the scheme, failure to conse- proper quences of the interpreted 41. If and this court had the EPA legislative, recourse not an require the and manufacturer to recall statute to OSHA, Commerce v. 636 rule. See Chamber conformity bring stan- into "useful life” (D.C.Cir.1980). F.2d 469-70 which were within their useful dards all cars lives nonconformity time the notice at the 33,083, 33,093 See, (1970), e.g„ manufacturers, or even Cong.Rec. date the issued on the Legislative reprinted History, supra in 1 agreed appropri- and on an manufacturer 307-08, (remarks would, interpretation plan, note Griffin); at 330-31 of Senator ate remedial 33,097, believe, reprinted Legis- in 1 a reasonable This is so at have been one. id. (remarks though, developed supra History, even accompanying note 58 lative note 29 as. infra text, such an Cooper); Let- Senator see also Administration’s might brought vehicles to into require some Recommending ter to Committee Conference conformity despite their with such standards 17, 1970), (Nov. reprinted in Certain Provisions having repair. useful lives time exceeded their at the Legislative History, supra note initio, limiting, By ab authori- (expressing 212-13 view executive branch ty to the class of within 50,000-mile warranty "inappropriate lives es- time the is first technology light in the of known unrealistic agency and communicated tablished the experience"). manufacturer, would have been my opinion, acting, within its reasonable Cong., Rep. 91st 2d Sess. 43. See H.R. No. pp. statute. See discretion infra 11-13, (1970), Cong. U.S.Code & Admin. 38-40 1970, p. News however, face, EPA rule Taken on its far, specter simply goes and does raise the too case, instead, majority discussion In this the Report; concludes that “it § certainly Reluctantly, sympathet is.”48 as 207 of the Act focused amendments chafing ic as I am with the EPA’s at acquiesence in the bit exclusively the House’s on statutory authority in promulgating of its repair proposed warranty ob Senate’s rule, agree.49 I the instant cannot admits, majority ligation, which as five-year/50,000-mile useful limited to the II. Inquiry Reasonableness life the recalled vehicle.44 Language May A. The 30 Rule legislative history My reading own of the Implications and its any me conclude that alterations leads By requiring “manufacturers to submit a by made in the bill the Conference Senate plan all vehicles within class “technical, merely clarify Committee were category subject or of vehicles to an or conforming changes,”45 and ing, and experienced dered recall which the noncon obligation warranty repair and the re formity during regardless their useful lives essentially repair obligation call coterm mileage of their at the time of Although they in do differ inous.46 repair,”50 did at least use the consumer triggering agents individual —the words “useful life.” But it did so in such a warranty repairs agen or the in the case of as, way practice, in read the useful life obligations cy in of recalls—both the case limitation out of the statute. As the fore years or are limited in duration to the five going demonstrated, discussion has Con 50,000 useful life. miles of vehicle’s gress clearly contemplated some increase reading legislative history of the If this in a car’s emissions once a vehicle has earlier, (and, plain of the as demonstrated surpassed Correspondingly, life. meaning statutory language with of the just clearly, Congress provided as for a consistent, history thoroughly is which obligation limitation on a manufacturer’s correct, just one task remains: the deter repair nonconforming recall and cars that precise point in the recall mination ques had exceeded their useful lives. The process all-important “useful whether, presented by this case is thus apply. asserts, That determi life” limitation should majority as the the recall nation, course, agency, long obligation reasonably is for the so “can be considered to “sufficiently reasonable.”47 extend to all vehicles as its action is 2979, 2988, (1970), (quoting reprinted in 1 82 L.Ed.2d 107 44. See 116 Cong.Rec. 29, 63, Patterson, Legislative History, supra note Co. v. American Tobacco (remarks (House debate) Stag Representative 6, 1534, 6, 72 n. 102 S.Ct. 1539 n. 71 L.Ed.2d 748 42,385, 42,382, gers); reprinted id. at in 1 1970 (1982)). Legislative History, supra note 134-35 debate) (remarks Muskie). (Senate of Senator Campaign 47. FEC v. Democratic Senatorial 38, 46, Comm., 454 U.S. 102 S.Ct. Cong., Rep. 2d Sess. 42 45. H.R. 91st No. L.Ed.2d 23 (1970), Cong. pp. U.S.Code & Admin.News Legislative reprinted Histo- in 1 1970 Maj. op. at 1572 n. 16. ry, supra No mention of note liability of a manufacturer’s extension nonconforming five- agree, p. supra 49. Nor can I as noted warranty period year/50,000-mile limits of the provi- with the of the recall anywhere in the Conference Committee is made goes opinion sion offered GM. As this on to Report. authority suggest, EPA’s enforcement need not all, significantly, my be constrained if at recently Supreme reaf 46. As the Court has provisions. reading of the Clean Air Act’s recall Congress “Had in firmed in another context: pp. infra distinction, it would tended so fundamental clearly expressed the statuto that intent have 36,396-97 30, 1980) Fed.Reg. (May (pres- 50. 45 language legislative history.” ry Securi or the 85.1803, ently App. A to codified at 40 C.F.R. Ass’n v. Board Governors ties Indus. (1982)). subpart — S U.S. —, —, Sys., Fed. Reserve which, yond interpretation. mere class”51 Even rule, nonconformity if, “experienced majority suggests, mind, my during their useful lives.” To good practical rule “makes sense” and is unreasonable about the rule is light what is in “sensible” of the Clean Air Act’s may compulsorily vehicles be not that some purpose, disparity its plain evident with the expense repaired at a manufacturer’s “re meaning statutory language leg age mileage gardless of their or at the time history require, islative would seem to at a (GM’s in repair” position), many but that of minimum, legislative rulemaking with at manufacturer will be unable rea cases a procedures.54 tendant notice and comment particular sonably determine whether a noncomplying during vehicle became its B. Some Reasonable Alternatives long after.52 useful life concluding agency In that the acted un May promulgated, 30 rule as Under reasonably promulgating in its 30 in brought in whenever a car for has rule, terpretative I emphasize wish to life, useful the manufacturer exceeded its interpretation urged upon by this court to demonstrate whether a will be unable equally GM seems to me at least unreasona

present emissions excess is attributable to ble,55 could, view, my and that EPA in performance erosion of the sanctioned af readily remedy by the defect one of three 50,000miles, Congress ter 5 approaches.56 alternative clearly acknowledged likely so as and ex First, EPA might interpreta- its reword plicitly provided through concept for way tive rule in such a reasonably as to life, nonconformity a or to which did interpret history in fact exist the vehicle’s useful If, provision. example, recall the rule essence, life.53 In the EPA’s rule establish provide were to for the recall and presump es an absolute and irrebuttable vehicles within their useful lives at among tion that all older cars were time the notice issued percentage failing to meet standards dur manufacturers, Congress the intent of ing practice, their useful lives. the lan vindicated, would be and manufacturers guage of the statute —“If the Administra delay would have little or no incentive to a a tor determines that substantial number by strategic lawyer- valid means of ... do not conform”—would be rewritten Quite ing. contrary, any not frivolous “might to read “did conform” or not delay penalized Even if or bad-faith have conformed.” the establish would be presumption only by expense inherent ment of such a or the enforce but the fact any nonconforming ultimately ment of such construction were within that vehicles authority, go and, requiring repair pre- the EPA’s actions be older would be 51. however, doing, Maj. op. majority opinion In so 1571. in job "it sists that is not the of the courts to supra pp. 52. See propose they prefer agency rules that would true, Maj. op. That is adopt." at 1567n. 8. to course, best, 53. At manufacturers would be forced to true, equally but and this court has indulge expensive, unwieldy, in customer-alien- recently reemphasized, adoption that where the ating, fact-specific concerning controversies particular beyond agency's of a rule is statu car, given when a presented its useful life when tory authority, obligation it is our to vacate the repair, first exhibited excessive question. rule in Union Concerned Scien Cf. emissions. Comm'n, Regulatory tists v. Nuclear 735 F.2d (D.C.Cir.1984) J.) (little (Wald, defer Maj. op. 54. at 1571. agency’s interpretation proce ence accorded requirements, normally dural the area in which p. supra 55. See deference, an because deserves most grant “Congress did not the Commission discre has, sense, suggested majority in issue____”). tion to remove so material an 36; Maj. op. supra fourth. See note at 1568n. 9. bring Any promulgated rule sumably, expensive more into con- statute.”59 procedural the wake such full safe formity with emissions standards. course, would, guards entitled to interpre- of such an The reasonableness weight than the rule to underscored rule would be tative I majority inappropriately, which the be — Act's important passage of the today defers. lieve— man- history. The comments of House well, note, In this I context would bill, the 1970 included the Con- agers of has discre the Administrator substantial explicitly Report, state: ference Committee regulation defining by the useful The Senate ... authorized [bill] lives of Act. Section Administrator, if he determined that 202(d) “light defines the useful of lives category of vehicles or class or duty period vehicles” as “a of use of five applicable emission did not conform with (or fifty equiv thousand miles standards, to manufacturers to occurs____”60 alent), first whichever purchasers nonconformity. notify of such parenthetical phrase, equivalent,” “or the discovered if manufacturer surely authorizes the Administrator to es during the nonconformity term such tablish, essence, a “constructive useful warranty required under any Senate life,” by legislative promulgating regula notify purchas [bill], required to he was how prescribing five-year/50,000 tions nonconformity and to ers of the mile useful life will be for recall measured no cost nonconformity at to example, age purposes. For a vehicle’s owner.57 mileage “tolled” could be whenever the then, provision, warranty Even as to order for of its issues a recall (if, provision as to the recall and a fortiori tolling provision pro class. Such a would believes, majority there is dis as the system tect the from manufacturer- two), Congress con tinction between the delays. majority induced acknowl that of “useful life” templated the notion edges possibility this but to en “decline[s] applied time the to be at the manufac inquiry regulatory ter into the of which nonconformity.58 of a turer became aware scheme balance all the interests would best open agency, to the A second alternative agree this I role on field.”61 that it is the noted, legislative would full rule- as be a courts, agency, of the and not of the If, hearing all making. after sides and make such a But it determination. record, agency making a believed that “reject role the courts to administrative May rule its 30 remained contrary to clear constructions which are judicial where, on justifiable, congressional it would sustained Especially be intent.” here, agency promulgates found to be “arbi- an in review unless were as rule, manifestly contrary terpretative, legislative, rather than a trary, capricious, or Cong., only rarely, Rep. be be 2d Sess. 50 resorted to and would 91st No. 57. H. (1970), Legislative reprinted History, in 1 1970 reasonable under circumstances. added). (emphasis supra note Council, Chevron U.S.A. v. Natural Res. Def. here, If, suggested the manufacturer’s obli- 58. — —, —, U.S. nonconforming gation to recall and L.Ed.2d 694 agency time the makes a vehicle attaches nonconformity gives no- determination 7521(d)(1) 1981). (Supp. 60. 42 V U.S.C. tice, may cars their useful lives some be particular they repaired. by If a the time Maj. of the determination op. vehicle’s status the time at 1572 n. 16. contested, however, easily could its be were sale, bill of reference to the — ascertained Chevron, at — S.Ct. at n. rebuttably presumed mileage could its be 2782 n. 9. throughout period uniformly have increased ownership. presumption would need Such a is not for an administrative on its technical it relies “[i]t and where ‘fill congressional action or to preempt on expertise but federal action is it believes some in’ where has made it Court alone, Supreme needed.” deference is not abundantly “clear ... signifi emasculates the to be a device III. Conclusion review.”63 judicial cance opinion, discussed For the reasons course, EPA and other in- Finally, of I vacate EPA’s would far-reaching affirm, however, recall au a more I terpretative rule. would advocates by Congress finding provided order part of the June thority than satisfactory may seek fresh con had failed submit amended that GM the Act as respect to certain 1975 plan issues raised remedial attention gressional as of lives interpreta Cadillacs within reasonable A more this case. the date on which March along suggested rule, the lines crafted tive officially notified GM Administrator inadequate; may deemed opinion, in this number of a substantial rule- similarly, the alternative those vehicles. unsatisfac somehow may prove making so, impose a who would If those tory. upon far-reaching automobile burden purity of our ensure

manufacturers na recourse to our have air will

nation’s may be desirable It well legislators.

tion’s to recall liable manufacturers

to hold produced that ever every vehicle standards emissions

may have violated compensate “to in order

many years before during the time of caused pollution

for the fear, however, that I

its violation.”64 forgotten that majority has

this case v. Federal Ener Consumers’ Counsel Governors Ass’n v. Board Indus. Securities Office of Comm’n, gy Regulatory 1132, 1152 655 F.2d the Fed. Reserve Sys., — U.S. —, —, (D.C.Cir.1980). 82 L.Ed.2d S.Ct. Maj. at 1568. op. notes nonconformity, issued its notification of have years modify majority appears would have been between nine and ten point At one arguing analysis, old. own "classwide" its “[tjhere least, is, very time this definite at the may testing be consumed in and in- must con- 39. Months on the Administrator: he limitation nonconforming vestigating potentially class testing the entire recall class before clude his Maj. op. age.” prior a recall order. EPA to the issuance of five exceeded has average approximates spent slightly time in such agree be a I that this would n. 9. While investigations & n. as nine months. See J.A. 268 of the EPA’s reasonable investigation began authority authority, In this case the EPA assert- it is not case, such a issued its notice of and no hint of ed the EPA in this negotiated the details of GM’s plain March is contained in limitation rule, through validity plan See J.A. remedial December 1979. of which is

Case Details

Case Name: General Motors Corporation, a Delaware Corporation v. William D. Ruckelshaus, Administrator, United States Environmental Protection Agency, (3 Cases)

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 7, 1984

Citation: 742 F.2d 1561

Docket Number: 80-1868, 80-2027 and 81-1029

Court Abbreviation: D.C. Cir.