*1
However,
they
premised upon
posses-
drugs
are
his
from
gov-
insofar as
that house.
backpack
in
any authority
sion of the narcotics
found at
ernment does not cite
for this
Moreover,
simply proposition.
10th
There
precedent
3262A North
Street.
no
in this
requisite
supports
no
circuit
evidence
Windom
such a conclusion.
authority
disposition
to determine the
Regarding the firearm violation al
drugs
backpack.
found in the
Windom
leged
Eight,
in
government argues
Count
present
backpack
in a house where a
gun
that Windom used the
found in the
containing
discovered
heroin and cocaine
protect
house to
the narcotics in the back
and, although
drugs,
he was never seen with
pack.
Appellee
Brief for
at 21. Because the
possessed
he
bill from a controlled
$20.00
firearm
in
Eight
derivative
conviction Count
However,
Herrera,
buy.
as in
the narcotics
Five,
was tied
to Counts Four and
buy
from the controlled
were not linked in
also must be reversed. United States v.
any way
in
backpack.
to the narcotics
Lamon,
(7th Cir.1991).
1183,
930 F.2d
Therefore,
sup-
the evidence is insufficient to
hereby
Since the court
reverses three of
port
convictions on
Windom’s
Counts Four
convictions,
Windom’s
this case is remanded
and Five.
resentencing.3
to the district court for
See
possession
might
of the marked bill
Manzella,
was entitled to the
as his share in the
One, Three,
in
tions
Counts
and Six are
drug transaction. See United States v. Moli
affirmed. Windom’s firearm violation in
(7th Cir.1989).
naro,
1341,
877 F.2d
1348-49
Count
is also affirmed.
Seven
Windom’s
Arguably,
government
could then demon
possession
convictions of
of heroin and co-
authority
drugs
strate Windom’s
over the
in
caine with intent to distribute in Counts Four
backpack if
drugs
it could show that the
reversed,
and Five are
as is his firearm
buy
from the controlled
came from the back
in
Eight.
violation Count
The court remands
Herrera,
(link
pack. See
attempted prove possession way. in this before,
As this court has stated Robert
Frost’s “The Road Not Taken” delivers the
proper message appellate review of crimi- Salazar, COMPANY, Petitioner,
nal cases.
lia, guns unoccupied an otherwise
house, dealing demonstrates that he was case, Sullivan, remanding sentencing.
3. Because the court is See United States v. Cir.1990). (7th arguments regarding need not reach Windom's F.2d 1099 n. 5 *2 Harrington (argued), M. Steven
James T. IL, Hardies, Chicago, Taber, Ross & petitioner. Jensen, Reilly, Lawrence J. K.
William E.P.A., DC, Washington, V. Adam- Valdas kus, E.P.A., Regional Region Office IL, Counsel, Greenberg Chicago, Alan D. Justice, Dept, Environmental (argued), DC, Section, Washington, for E.P.A. Defense Flint, Dept, Greenberg, Myles E. Alan D. Section, Justice, Environmental Defense DC, Browner. Washington, for Carol M. EASTERBROOK, COFFEY, and Before FOREMAN, Judges, and District Circuit Judge.* FOREMAN, Judge. District Company brings peti- The Monsanto Protec- of an Environmental tion for review Agency decision that denied comply with additional time to request for standards under emissions certain hazardous * Illinois, designation. Foreman, sitting by the Southern District Hon. James L. given Air Act. For the reasons Clean could install a adsorption sys- below, petition we and reverse the secondary tem as a filtering means of out the agency’s decision. harmful captured emissions that were not primary system. The EPA denied this proceedings At issue these is Monsan- request, leading second with, pending peti- to the to’s the EPA’s emissions *3 307®) § tion for under of the Clean review (1990). § limit for benzene. 40 61.271 C.F.R. 7607(b)(1). § Air Act. Id. promulgated by This standard was the EPA 14, 1989, September and became effective matter, preliminary As a we must deter- for or new modified sources on date. 42 jurisdiction mine whether this Court has over 7412(b)(1)(C) (1988). However, § U.S.C. pending proceeding. the Federal courts “are sources, apply existing did not such as empowered (1) to hear those cases that Monsanto’s monochlorobenzene manufactur- judicial power are within’ the of the United facility Illinois, ing Sauget, days until 90 States, as defined in III [Article of] the 7412(c)(1)(B)®. § after its effective date. Id. (2) Constitution, and that' have been entrust- gave Air Act Clean also the EPA Admin- by jurisdictional ed to them a grant by Con- authority grant istrator a waiver exist- gress.” 13 Wright, Charles Alan Arthur R. ing period years for a sources of to two “if Cooper, Miller & Edward H. Federal Prac- period necessary he finds that such is for the (2d 3522, § tice and Procedure at 60 ed. steps installation of controls and that will be 1984). 307(b) ease, § In this of Air the Clean during period taken of the waiver to provides judicial Act review of EPA or- persons assure that health will be relating ders with hazardous protected endangerment.” from imminent fact, emissions standards. In as Monsanto’s 7412(c)(l)(B)(ii). § Id. pointed argument, § counsel out in oral prepared Monsanto comply was not with virtually compelled company to seek an the new benzene standard December 1989 immediate agency’s review of the denial and, therefore, requested a until Au- the waiver or it would lose the defense. See 15, 1990, gust company to allow the to install 7607®)(2) (“Action § 42 U.S.C. of the Admin- scrubbing equipment designed water to satis- respect istrator with to which review could fy granted the standard. The EPA this re- 307(b)(1) have been obtained under [§ ] shall However, quest. equipment after the subject judicial not be review civil or installed, Monsanto discovered that enforcement.”).2 proceedings criminal equipment perform anticipated. did not statutory it seems clear grant that a achieving Instead of percent the 95 emissions jurisdiction exists. complex But a more reduction that the benzene standard re- question presented regard is with to the quires, appeared requirement. constitutional operating percent to be at about an reduc- therefore, company, tion level.1 The Upon asked impression, might first one for an extension of the waiver so think merely seeking that Monsanto is an olina, argues 1. Monsanto showing that its test results were not that documentation conclusive because the EPA had not sanctioned equipment designed percent to achieve a 95 approved points an out, test method. As Monsanto efficiency control would be sufficient to meet the regulations require existing EPA’s sources to requirement. documentation Id. provide demonstrating "[d]ocumentation[ ] being the control device used achieves the re- course, 2. Of if we were to decide that this Court quired efficiency..'..” § control 40 C.F.R. 61.- jurisdiction seeking lacked because Monsanto is 272(c)(l)(i). regulation explain does not advisory opinion, dismissing an an order type required what of documentation is or what petition judicial for review would mean that re test method should be used to determine the view "could [not] been obtained” under efficiency. Because the EPA had not 307(b)(1). § presumably could then method, approved established an test bring the waiver issue as a defense to an enforce argued entirely possible that "it is that this con- However, proceeding by ment the EPA. we need equipment achieving capture efficiency trol required is not reach that issue we because have determined under the benzene [standard]." Mon- and, therefore, fact, controversy that an santo Letter of actual exists June at 4. apparently rendering advisory opinion. Monsanto facility was told research we be EPA’s would not Park, Triangle at Research North Car- ing turn to of Monsanto’s run afoul of the merits which would advisory opinion, petition for review. requirement of Ar- controversy” the “case 96, Cohen, 392 U.S. Flast v. III. See ticle 112(e)(l)(B)(ii) § the Clean Air Under (1968). L.Ed.2d 947 88 S.Ct. “may Act, the Administrator for review was petition time that stationary At the permitting [a a waiver any en- filed, had not commenced period upof after the to two source] against proceedings date of standard to forcement effective standard, period and, prosecutorial dis- he finds that such exercise of its controls” necessary for the installation of cretion, such an against pursuing decide steps in the interim “assure will Moreover, if the altogether. even action persons protected from im- will be health suit, might decided did file the case *4 endangerment.” 42 U.S.C. minent Thus, to the waiver. grounds unrelated 7412(e)(l)(B)(ii). contends that § one No the respect any we make with decision exposed any person to “imminent Monsanto consequence would be of no issue waiver endangerment,” question so is whether the forgo proceed- the EPA enforcement arbitrarily in decid- the Administrator acted on other that suit decided ings or should be “necessary” for ing that was not two grounds. stan- Monsanto to with the benzene not render circumstances would But those dard. the advisory opinion. an To decision our initial re- granted The Monsanto’s clearly contrary, Monsanto and appears quest for a waiver. there legal respect adverse interests with have dispute that December be no as of waiver, Mon- request a and for in company needed additional time which to for a determi- petitioned has this Court santo equipment to control install needed its &he EPA’s legal consequences of the nation of the question emissions. The is whether benzene long have rec- “necessary” The federal courts decision. to have an it was for Monsanto setting declaratory judgment
ognized in the
original
of
extension
parties
company
August
in controver-
discovered in
that once the
are locked
events,
pre-
technology
perform as
by past
fixed
it does
control
did not
sy
stakes
with
and, therefore,
company could
dicted
not
litigation. See
matter who initiates the
meeting
it
demonstrate that was
benzene
Wright,
Alan
Arthur R. Miller
10A Charles
emissions standard.
Kane,
Mary Kay
Practice and
Federal
&
ed.1983) (and
(2d
§
Procedure
at 585
deny
request
stating
In
its intent
therein).
holds
The same
the cases cited
extension, the EPA
that Monsanto’s
an
found
Although there
in
situation.
true Monsanto’s
provide
information
request did
sufficient
by
that a
this Court
is some risk
decision
compli-
to show that
additional waiver
nugatory by
made
the EPA’s favor could be
necessary. Many
of the concerns
ance
developments,
no such risk if
later
there is
However,
valid.3
identified
were
if we
we decide in Monsanto’s favor because
subsequently
a thor-
submitted
Monsanto
waiver,
ato
find that Monsanto was entitled
ough response to
these concerns.
each of
subject to
company
not be
explained
designing
then the
would
company
that in
proceedings
system,
of original
enforcement
violation
decided to install a
therefore,
We,
system
find
the emissions standard.
because
proceed-
company
to recover and
jurisdiction
this
would allow
that we have
over
why
adsorp-
following
carbon
defi-
no information as to
3.
vided
The EPA's letter identified
(1)
methods were
request:
at no time
or other alternative control
ciencies in Monsanto's
tion
used;
(5)
upon
and
the fact
Mon-
during
period waiver did Mon-
based
the initial
planning
a carbon ad-
compliance
was now
to install
initial
santo
sorption system,
santo inform
that its
standard; (2)
predicted
and
it could
install-
fail to meet the benzene emissions
months,
indicating
six
the record shows that
provided
ed within
Monsanto
no information
adsorption
have
carbon
Monsanto could
installed
the failure of the initial method
reasons for
foreseeable; (3)
compliance
place
first
and been in
Mon-
whether such failure was
contingency plan
six months after
apparently
the emissions standard within
santo
had no
failure; (4)
pro-
went into effect.
this
the standard
effect in case of
organic
sary”
reuse the benzene and other
chemi-
because Monsanto could have installed
against using
cals. The
decided
carbon
place.
the first
control
adsorp-
alternative
measure
carbon
question
There
no
adsorp-
tion, which uses carbon filters to reduce ben-
technology
available to
emissions,
zene
because
“end-of-the-
originally
Monsanto at the time that
pipe” technology
produce
would
benzene-con-
requested a
waiver of
on De-
short,
taminated
carbon.
instead of re-
cember
although
argues
capturing
benzene,
reusing
presented
major prob-
“several
adsorption would create a hazardous waste
lems.” ...
require special
that would
treatment or dis-
posal.
Monsanto makes no claim that it could not
company similarly
against
decided
in-
installed carbon
under its
cineration
“end-of-the-pipe”
because that
al-
waiver,
initial
disposing
but asserts that
produce
gases.
ternative would
waste
Car-
generated by
waste
the use of carbon ad-
bon
and incineration also had sev-
sorption involved
expense,
considerable
disadvantages
eral
pres-
other
that were not
safety
and raised
and environmental con-
system.4
ent in the water scrubber
“In the
disposed
cerns
it was not
properly.
analysis
final
in keeping
with the U.S.
Such concerns do not allow Monsanto to
*5
‘preferred
EPA’s
policy,
waste treatment’
emitting
continue
benzene into the air in
sought
first,
to eliminate wastes
NESHAP,
violation of the
beyond
benzene
second,
recycle or
re-Use
and
if those
by
required
the date which it was
to dem-
available,
options
two
‘dispose’
were not
of
compliance_
onstrate
adsorp-
Carbon
19, 1992,
August
the waste.” Letter of
at 3.
available,
acknowledged
was
and is
by
having
achieved “more than
company
The
EPA
informed the
95% consistent removal.”
... Monsan-
through computer modeling
previous
and a
scrubbing
to’s choice of water
as its control
type
of
equipment,
test
Monsanto had
technology
7, 1989,
on December
allowed
predicted
system
the water scrubber
continued emissions of benzene into the air
could
percent
achieve more than a 95
reduc-
Monsanto,
by
in
amounts
excess of the
fact,
tion in benzene emissions.
In
in the
NESHAP,
thereby threatening
public
test,
previous
equipment
achieving
was
health and the environment.
percent
close to 99
emissions reduction.
However,
complete,
after construction was
EPA’s Letter of Oct.
at 4.
Monsanto’s tests showed for the first time
expressly rejected
The
Monsanto’s
equipment
actually
removing
was
“proceeded
claim
reasonably
that it
in terms
percent
less than 80
of the benzene. The
developing
implementing controls,”
and
.company
promptly
then
contacted the EPA and
that carbon
was “a choice' of
began
process
requesting
an ex-
last resort because it
oppor-
offered the least
company
tension of its waiver so that
tunity for
great-
waste immunization and the
secondary system,
could install a
using car-
Id. at 5.
safety[.]”
est concern for
absorption
capture
bon
to
the benzene that
The CAA does not authorize the Adminis-
escaped through
trator to
compliance
waiver of
system. Monsanto, therefore, provided the
order to
“pro-
allow source more time to
lacking
information that
original
was
in its
reasonably”
ceed
in experimenting with
request.
technologies, saving
the various available
upholding
preliminary
its
technologies
decision to
those
the source believes
deny
extension,
expense”
maintained its
cause “considerable
and increase
for-last_
position that additional
“safety
time was not “neces-
concerns”
If a source
system,
age
4. Unlike the water
equipment.
scrubber
neither in-
to the
Both alternatives also
cineration nor
posed special safety
e.g.,
would control
the hazards
concerns —
(HCL).
hydrochloric aoid
having
open
both
al-
the incinerator's
flames in a de-
require
scrubbing prior
ternatives
partment
large
would
HCL
quantities
to
that handles
of flam-
entry
adsorption system prevent
into
to
dam-
mable materials.
management approaches.”
over
technology that
other
will control
install
can
ferred
added).5
(emphasis
must;
Id.
emissions,
only if
time
additional
“is
required
date
beyond the
Act re-
recognize that the Clean Air
We
controls,”
necessary
installation of
companies
comply
quired
like Monsanto to
grant it additional
may the Administrator
standards,
by
possible,
if
with the emissions
time.
Therefore,
if Monsanto
December 1989.
by
its
the means
emissions
acknowledges that car-
In that Monsanto
date, may
required
implement
have been
facility
at its
adsorption could be used
bon
strategy
if that
would
those means —even
that,
oper-
in December
environmentally
have been less
desirable
facility
greater
it did
at
achieve
ation
system.
proposed
water
than
scrubber
removal,
U.S.
than 95% consistent
However, the
shows that Monsanto
record
beyond
time
that additional
cannot find
have
controls
did not
needed
original
was
granted in' the
time;
standard at that
benzene
“necessary
controls.”
the installation of
clearly
ap-
needed additional time to install
Id.
question
be-
The
then
propriate controls.
grossly mischarac-
follow its
explanation
EPA’s
comes whether the
The
by
approach.
prevention policy
allowing Mon-
pollution
terizes
strategy
with the various
the control
that was
“experimenting”
santo
choose
rather,
designed
it had
a scienti-
to meet the benzene standard
technologies;
made
environmentally
manner or
environmentally
to most
.sound
fically and
sound decision
required
use the
whether Monsanto was
system.
proceed with the water scrubber
strategy.
designed to
better
achieve
removal re-
percent
than the 95
emissions
appears
suggest
The EPA’s
decision
performed
and had
quired
the statute
a car-
that Monsanto could
installed
*6
during a limited test.
to those standards
adsorption system in
time than it
bon
less
Monsanto,
EPA,
as
as well
system,
to install the water
took
scrubber
company
that
every reason
believe
to
then the EPA would find that
it was
installing technology that would control
“necessary”
addi-
give
to
Monsanto whatever
emissions.
system
time
tional
the water scrubber
would
words,
require.
other
EPA seems to be
fact
ignores the
The EPA’s
also
decision
available,
saying
“quick
if a
fix” is
sys-
chose the water scrubber
“quick
required
employ
sources are
pollution
with the EPA’s own
tem
regard
its
fix” without
adverse environ-
policy.
Pollution Prevention
prevention
See
viewpoint
is
mental
ramifications. This
(Jan. 26,
Statement,
Policy
Fed.Reg.
54
3845
short-sighted
policy.
bad environmental
and
1989).
working “EPA committed to
is
eliminating
an
Instead
environmental
.
(both public
organizations
individuals and
merely
problem,
“quick
the EPA’s
fix” would
and as
private)
and
to make source reduction
problem i.e.,
change the
form of
—
environmentally
preference,
sound
a second
from
would remove the environmental hazard
major
recycling,
focus
future environ-
disposal
the air but create a hazardous waste
strategies.”
“The
protection
Id.
mental
problem.
(in-
Agency believes that source reduction
in-plant recycling) can
cluding closed-loop,
Obviously,
agency’s interpretation
an
great
in a
implemented
risk
be
of a federal statute is entitled to
defer
reduce
and should
pre-
generally
It is
and “a court
its own
efficient manner.
ence
substitute
cost
ble; pollution
prevented
be
re-
policy
codified in the Pollution
that cannot
or
5. This
has been
§§
environmentally
42
13101-
cycled
Act of
U.S.C.
Prevention
should be treated in an
(1993),
feasible;
which declares that
is
disposal
safe manner whenever
policy
of the United States
the national
other
should
release into
environment
prevented
pollution
at
be
or reduced
employed
a
should be
be
as
last resort and
feasible; pollution that
the source whenever
environmentally
conducted
an
safe manner.
recycled
prevented
in an
cannot be
environmentally
should be
13101(b).
§Id.
manner,
feasi-
safe
whenever
statutory provision
construction of a
system.
its
provides
The record
no
interpretation
reasonable
made
the ad-
foundation for this conclusion. See Motor
U.S.A.,
Chevron,
agency.”
ministrator of an
Vehicle
Ass’n v. State Farm Mut.
Mfr.’s
Council,
Co.,
Inc. v. Natural Resources
29, 43,
Auto. Ins.
463 U.S.
103 S.Ct.
Defense
837, 844,
467 U.S.
(1983) (“Normal-
S.Ct.
scale.
judicial procedure that
system, that
Like rules of
water scrubber
mon.
perience with its
time,
judges
litigants
necessarily
permit
grant
correct.
more
assumption is not
they permit
person
charge
in
to exercise
the
sum,
original
choice
Monsanto’s
7412(c)(l)(B)(ii)
Nothing
§in
discretion.
environmentally
system was
any
regulations
sets out criteria
system was
scientifically sound. The
anyone
waiver.
under which
is entitled to a
full
within
designed
achieve
“may” grant
but
The Administrator
waivers
granted by the
period
EPA.
the initial waiver
rights
within her
limit them
would be
up to its full
Although
system did not live
extraordinary
Inc. v.
cases. Chevron U.S.A.
promptly asked the
expectations, Monsanto
Council, Inc.,
Natural Resources Defense
time to add a carbon
EPA for additional
837,
2781-82,
842-44, 104
2778,
467
S.Ct.
U.S.
bring
sys-
that would
adsorption process
(1984);
Under 42 U.S.C. U.S.C. 1990; “may grant Act of 42 Ú.S.C. a lution Prevention Administrator 7401(c) II), pe- § Air permitting stationary (Supp. a added the Clean [a source] riod of after the effective Amendments Act of 1990. After it discover- to two scrubbing comply stan- that the it had date of a with the ed water standard dard, necessary rather period if such installed removed 80% of the benzene he finds that is 95%, steps necessary and that than the Monsanto told for the installation controls” considering incinera- in the “assure that the health of EPA that was both interim will adsorption as persons protected supplementary imminent en- tion and carbon will be from technologies remaining dangerment.” “May” grant, “must” ben- remove After settled carbon ad- grant. finding A that more time is “neces- zene. Monsanto on carbon, necessary slurry sary” sorption is a leaves a rules —which benzene, and be a condition of a waiver. other substances that must but not sufficient disposed applicant persuade Administra- or otherwise of—the must buried Ac- request that a turned down its for more time. tor favorable exercise of discretion is 1209 cording denying equal to the EPA’s letter the re- take an accomplish, time to then the time, quest preferred for additional Monsanto could former should be pro- because it duces have installed carbon at the less toxic waste units and because the initial scrubbing stage put faster, can beginning, bringing place compliance itself into reducing aggregate emissions.- with the benzene standard less time than Monsanto submits that the EPA arbitrarily in por- the 24 months it wanted. As acted Monsanto denying enough complete time to events, the sec- trays “penalized” these the EPA thus stage (a), strategy ond when it would have scrubbing. it for its initial choice of water afforded the 24 months needed strategy might problem There be a if the'EPA had (b). nothing Yet sug- EPA’s decisions something give you said like: We will 24 gests that it would have allowed 24 months you months if want to install adsorp- (b). strategy contrary, To the the EPA (dirty) technology only but 11 months (b) believed strategy would itself have (clean). you scrubbing want to use water months, taken making a full 24- said, however, itWhat is that Monsanto unnecessary. month waiver Monsanto thinks could have months to install water scrub- the EPA’s belief about the time that bing and no additional time to add carbon necessary would have been to install carbon adsorption. Any thumb on the scale favored adsorption from unsupported, the start is however, technology. Actually, the cleaner making its decision an abuse of discretion. there nowas thumb at all. The EPA did not did not Monsanto furnish the EPA with the technology; favor either it allowed Monsanto necessary facts support position, how- to choose and then insisted that Monsanto ever. Instead providing, say, engi- keep comply by August its word that it would (b) report .showing why neer’s strategy would apt If apply “penalty” 1990. it is the word months, have taken Monsanto submitted sequence, penalized to this then the event this rhetoric: gave The EPA enough failure. A second assumption incorrect that the technology time to install a control of Mon- U.S. EPA on relies is that “the record choosing. strategy santo’s When this indicates that Monsanto could have been in flopped, the EPA concluded that Monsanto compliance within six months after Decem- public pay rather than the price. ber, 1989.” It bases this conclusion on the Although Monsanto contends it acted in fact that “once Monsanto decided to use a the best of computer modeling faith —that absorption unit [sic] as its contrbl work, scrubbing showed that water would technology, project it could that it would dismayed and that it was predic- when the ‘up have the unit running’ within four insist, may tions did not come true —the months, and that it would be in final com- pollution do, generally statutes pliance within six ignores months.” This- EPA, results. Union Electric Co. v. 427 U.S. the fact that the modifications to the water 246, 257-60, 2518, 2525-27, 96 S.Ct. place scrubbers remain in and are the (1976). L.Ed.2d 474 An A for effort primary method of control. The carbon affect the of penalty selection in an enforce- adsorption unit is additional control so (or proceeding ment may influence the exer- with the Benzene NESH- prosecutorial discretion), cise of but it does AP is demonstrable. The four month and compel give polluter the EPA to six month deadlines refer to the installa- permitted by maximum waiver law. tion of equipment, additional control contends, majority and the be- the installation of a carbon unit lieves, that origi- misunderstood the as the method of control. Be- *9 possibilities. nal Suppose adsorption pri- Monsanto had cause a carbon unit two as the (a) mary choices: scrubbing equip- install water method of control would have to be and, geometrically successful, larger, the completely design ment if this not time for is geometri- and installation would have add a been small carbon unit to remove cally longer. gasses get past benzene from that the scrub- (b) ber; larger install a 9, August Letter empha- of at with pollution unit as the sole control If method. original. sis and brackets What does it strategies equally costly these two are say: and mean to “Because a carbon judiciary cies than the the task of method of control would rather unit as the safety larger, regulation. of maximizing the time for the benefits geometrically have Martin, geo- would have been v. F.2d design American Dental Ass’n and installation (7th Cir.1993). larger? longer.”? How much metrically Monsanto does 825-27 say. The letter does longer? not How much stor- challenge not the NESHAP benzene is a Why EPA believe that there assume, therefore, age must vessels. We n between the size of geometric relation desirable, expeditious compliance is and needed to it? the time install mechanism and judgment must EPA’s accept we say. majority not The The letter does speedy compliance exceeding has benefits “It unfortunate writes: is using costs of somewhat “dirtier” control longer how as to much specific not more strategies. greater gains from the larger system.” install would take to rule, person rational would sacri- more a is an under- Opinion at 1207. “Unfortunate” sooner; yet Mon- fice achieve an can it be abuse of discre- How statement. safety of the santo does not assess effects Mon- request? a flatulent turn down By refusing rule. storage benzene vessel persuasion; of sub- santo the burden bore waiver, put extend Monsanto to (presumably air ben- nothing hot mitted but possibility Delay a choice. created the- of zene-free) so must lose. and expedite It spend fines. could more com- majority’s opinion is an Undergirding the pliance, pay or it could the fines. Monsanto of dif- independent merits evaluation efforts; speed elected now we not to strategies. Two pollution-control ferent paying excuse from fines. Given the struc- judges Monsanto “made a scien- believe Act, Air an incentive to ture Clean environmentally sound decision tifically and an cannot be abuse of discre- sooner system” proceed the water scrubber tion. 1206) that the (opinion EPA’s view at stingy to be The EPA was entitled policy” and bad environmental “short-sighted evaluating application. second Monsanto’s 1206). Yet the record in this case (opinion at granting The EPA need not continue exten- sys- that Monsanto’s does demonstrate wrong sions to firm that bets on the tech- the EPA’s view is tem is “sound” My nology, colleagues as Monsanto did. ex- policy”. It contains es- “bad environmental given plain why they would have (al- subjects these sentially no evidence time; they more that the do demonstrate though brief is full of self-con- contrary decision Administrator’s my colleagues gratulation, have which swal- abuse of lowed). discretion. engineers in no and are areWe con- position the evidence it does to evaluate
tain, persons are all events we not the and at delegated Congress the estimation
to whom
of costs and benefits. much to for in may answer America, UNITED STATES Accord- design of benzene rules. Plaintiff-Appellee, Management Budget, ing to the Office v. costs NESHAPs create several benzene per premature million high as $168.2 ROSALEZ-CORTEZ, Jesus Regulatory Program death averted. Defendant-Appellant. Government, April 1991— United States No. 93-1239. SI, range at 12. Costs in this March Appeals, United Court States likely people they protect. than imperil moré Circuit. Seventh Higher associated with nu- income is better care; regulations creating trition and medical Argued Nov. 1993. per (directly) exceeding million costs life $7.6 24, 1994. Decided March yield greater loss of saved well indirect Breyer, Breaking Vi- Stephen life. See (1993) (citing empirical stud- cious Circle
ies). Nonetheless, Congress agen- vested