0 5 3 2 7 6 7IFIED US Department of 005327617 Date 03 03 2015 United States Department of State Wishington D C 20520 June 4 1987 IN MEMORANDUM a T0 0E8 Ambassador Negroponte FROM David Colson 651 SUBJECT Eva luation of Litigation Risks in Relation to Government Decisions on the Regulation of Ozone-depleting Substances The attached assessment has been prepared by Debbie Kennedy I concur with it It is our best judgment that in light of the statements on the record that there is a large risk of ozone depletion if CFC use continues at present levels a decision to take no action would not be sustained The front office has not reviewed this memo cc - Ms Verville - Mr Adolph Eisner Senior Reviewer i Qi ib UNCLASSIFIED U S Department of 305327617 Date 03 03 2015 FEB us Department of 005327591 Date 03 03 2015 This memorandum is subject to the attorne13client privilege QUESTION - What are the chances that an EPA decision to take no action to regulate ozone depleting substances or to impose -minimal regulations on these substances would be upheld if challenged - DISCUSSION NRDC Litigation and Standard for Review of Decision -Under a modification of the schedule that was imposed by an order of the D C federal district court approving settlement of the NRDC v Thomas litigation the EPA eAdministrator must issue proposed regulations for the control of CFCS or a basis for a proposed decision to take no action by December 1 1987 Final regulations or a final decision to take no action must be issued by August 1 1988 An important point to note about the district court's order is that it only requires that a decision one way or the other be made by a certain date it does not address at all what that decision should be I The EPA Administrator's final action may be challenged within sixty days from the date that the notice of the action appears in the Federal Register by filing a petition for 5 review in the United States Court of Appeal for the District of Columbia Circuit 42 7607 b 1 The sustainability of the Administrator's decision depends largely on the information con ained in the administrative record facts collected 85 documents prepared by and information submitted'to the Administrator in connection with his review EPA's decision will not be overturned by the court unless it is judged to be arbitrary and capricious Under this standard of review the agency's determination is afforded substantial deference -The decision will be upheld if the agency considered all of the relevant factors and demonstrated a reasonable connection between the facts on the record and the resulting policy choice A memorandum that I prepared in July 1986 provides additional background information on the NRDC suit and the Court of Appeals standard of review I have attached a copy of this memo for your convenience REVIEW AUTHORITY Adolph Eisner Senior Reviewer UNCLASSIFIED US Department of C05327591 Date 03 03 2015 FIED U S Department of 005327619 Date 03 03 2015 United States Department of State Washington 11C 20520 July I4 1986 PELEASEDINFULH MEMORANDUM To OBS - John Negroponte THROUGH LIOES - David - Richard Benedick anon - Deborah Kenneayx SUBJECT CFC Litigation In response to your request this memorandum reports on the lawsuit filed by the Natural Resources Defense Council Inc against the EPA Administrator challenging the agency' 5 failure to propose regulations for the control of chlorofluorocarbons It also outlines the terms of a settlement agreement entered in the case describes EPA's flexibility in deciding whether to impose additional domestic controls on CFCs and discusses the statutory provision which permits judicial review of BPA's ultimate decision regarding CFC controls BACKGROUND On November 27 filed an action against the Administrator of EPA in the United States Dsitrict Court for the District of Columbia Judge Richey presiding seeking an order requiring EPA to promulgate regulations controlling emissions of CFCs NRDC based it complaint on an Advance Notice of Proposed Rulemaking ANPRI issued by EPA in October 1980 in which the Administrator stated I that continued global emissions of CFCs are considered a significant and increasing threat to human health and the environment and 2 that substantial CFC emissions reductions are the only acceptable long-term strategy given substantial evidence indicating that the ozone layer is threatened with depletion 45 Fed Reg 66726 66729 close REVIEW AUTHORITY Adolph Eisner Senior Reviewer UNCLASSIFIED U S Department of 305327619 Date 03 03 2015 FEED US Department of 005327619 Date 03 03 2015 NRDC argued that section 157 of the Clean Air Act 42 U S C 7457 requires the Administrator to promulgate regulations to control any substance which he determines may reasonably be anticipated to affect the stratosphere especially the stratospheric ozone layer if the stratospheric effects reasonably could endanger public health or welfare citing the statements contained in the 1980 ANPR NRDC thus contended that pursuant to section 157 the Administrator had a mandatory non discretionary duty to promulgate regulations for the control of Shortly after the suit was filed EPA and NRDC entered into settlement negotiations To ensure its active involvement in these negotiations and in further litigation if agreement could not be reached the Alliance for Responsible CFC Policy Inc Alliance requested the Court's permission to intervene as a defendant in the action This request was granted on March 1 1985 In December 1985 EPA and NRC agreed on the terms of settlement and jointly moved the Court to enter a proposed order which established a timetable for scientific review and documentation and regulatory analysis of stratospheric atone protection leading to a final agency decision on control of by November 1987 While the CFC Alliance did not object to the schedule outlined in the prOposed order it remained neutral on entry of the order Although the rationale for -'adopting this noncommittal stance is not altogether clear it 'may have been prompted by a desire to avoid conceding that the deadline established in the proposed order represented a sufficient amount of time to arrive at a reasoned decision on CFC regulation $1 With respect to its 1980 ANPR and in justification of its postponing_a decision on further regulation of domestic CFC production or use EPA has noted that the scientific summarized in that notice was soon superseded by more recent work in the field which revealed that in the ozone layer are affected by a more complex array of - physical and chemical forces than previously thought and that substantial uncertainties remain to be resolved before such changes can be predicted with confidence 51 Fed Reg 1257 1986 As you know the agency is currently engaged in activities designed to d eveloy the scientific technical and economic information needed to make a decision concerning further control of CFCs UNCLASSIFIED US Department of 305327619 Date 03 03 2015 9F1ED US Department of 005327619 Date 03 03 2015 Terms of the Settlement On May 17 1986 Judge Richey entered an order approving the settlement of the litigation The order requires EPA to take the following actions - No later than the week of October 27 1986 to request that its Science Advisory Board convene if it is necessary to review staff papers presenting EPA's assessment of scientific information on the health and environmental effects of stratospheric perturbants Not later than May 1 1987 to issue a Federal Register notice proposing regulatory action on CPCs or presenting a basis for a proposed decision to take no action 0 Not later than November 1 1987 to issue a Federal Re ister notice promulgating final regulations to control CFCs or announcing a final decision to take no action 0 Beginning on July 15 1986 to file a status report on the agency's implementation of the above schedule Although the order differs from the proposed order jointly filed by NRDC and EPA in some reapects the differences are essentially inconsequential For example the Court's Order makes no mention of a sponsorship of and participation in a series of domestic and international workshops and conferences on scientific technical and economic issues related to stratospheric ozone protection Some of these programs were completed and preparations for others well advanced however by the time this Order was entered The NRDC litigation currently stands dismissed but the parties retain the right to reopen the case upon oral request for the Court to examine BPA's compliance with the schedule outlined in the Order or for the Court to consider motions related to the schedule motions to modify the schedule EPA Regulatory Options The essence of the settlement decree is the establishment of a timetable and a deadline for EPA to reach a determination on additional regulation of domestic CFC production or use The Court's Order preserves option not to promulgate UNCLASSIFIED U S Department of C05327619 Date 03 03 2015 IED US Department of 005327619 Date 03 03 2015 1'5- I additional regulations to control CFC emissions In short the settlement decree neither requires EPA to take nor prohibits the agency from taking regulatory action to control CFC emissions It clearly contemplates nevertheless that EPA's final desision will be determined by available scientific information regarding the health and environmental effects of CFCs Judicial Review of EPA Regulatory Decision A final action of the EPA Administrator under the Clean Air Act may be challenged by filing a petition for review in the United States Courts of Appeals 42 U S C i 7607 b where that action has national application scope or effect the apprOpriate-forum is the United States Court of Appeal for the District of Columbia The settlement agreement reached by NRDC and EPA does not affect HRDC's right to invoke this provision to petition the Court of Appeals for review of EPA's ultimate decision regarding further regulation of CFC emissions Similarly the CFC Alliance is not prevented from seeking judicial review of the Administator's final action in the Court of Appeals 2 Standard of Court of Appeals Review If the challenge to EPA's final determination regarding controls on CFC emission is based on an allegation that the decision is not supported by substantial evidence _the decision will not be reversed unless it is arbitrary and capricious See Sierra-Club v Castle 657 F 2d 298 323 0 0 Cir 1981 nine this standard of review the agency's determination is afforded substantial deference and the decision will be upheld if the agency considered all of the relevant factors and demonstrated a reasonable connection between the facts on the record and the resulting policy choice Sierra Club 657 F 26 at 323 Lead Industries Ass'n 9 EPA 64 F 23 1130 1145 to c Cir cert denied 449 0 8 $042 1980 In cases involving procedural challenges the alleged procedural error must also be arbitrary and capricious for the reviewing court to reverse action taken by EPA under the Clean Air Act In the procedural context the 'aribitrary and 3 Procedural or substantive challenges to the final - determination regarding CFC controls would be reviewed by th Court of Appeals The District Court s jurisdiction would extend over any allegations that EPA failed to comply with the terms of the settlement agreement -- the timetable for reaching its decision UNCLASSIFIED US Department of 005327619 Date 03 03 2015 U S Department of Date 03 03 2015 a capricious standard means that the court must affirm reasonable EPA decisions regarding the implementation of procedures See Small Refinery Lead Phase-down Task Force v Egg 705 F 25 506 523 D C Cir 1983 Exhibiting Congress' concern that EPA's action not be casually overturned for procedural reasons the Clean Air Act also provides that a rule may be invalidated because of procedural error only if the errors were no serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made 42 0 8 0 57607tdltal Comment The connection between EPA's obligation pursuant to the lawsuit settlement to make a decision on further domestic CFC regulations and the international CFC initiative is obvious The two tracks can proceed independently or they can be coordinated but at some point it makes sense for them to come together '#14220 UNCLASSIFIED US Department of 005327619 Date 03 03 2015                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu