International Harvester Company v. William D. Ruckelshaus, Administrator, Environmental Protection Agency, General Motors Corporation v. William D. Ruckelshaus, Administrator, Environmental Protection Agency, Chrysler Corporation, a Delaware Corporation v. William D. Ruckelshaus, Administrator, Environmental Protection Agency, Ford Motor Company v. William D. Ruckelshaus, Administrator, Environmental Protection Agency

These consolidated petitions of International Harvester and the three major auto companies, Ford, General Motors and Chrysler, seek review1 of a decision by the Administrator of the Environmental Protection Agency denying petitioners' applications, filed pursuant to Section 202 of the Clean Air Act,2 for one-year suspensions of the 1975 emission standards prescribed under the statute for light duty vehicles in the absence of suspension.

The tension of forces presented by the controversy over automobile emission standards may be focused by two central observations:

(1) The automobile is an essential pillar of the American economy. Some 28 per cent of the nonfarm workforce draws its livelihood from the automobile industry and its products.3

(2) The automobile has had a devastating impact on the American environment. As of 1970, authoritative voices stated that "[a]utomotive pollution constitutes in excess of 60% of our national air pollution problem" and more than 80 per cent of the air pollutants in concentrated urban areas.4

Congressional concern over the problem of automotive emissions dates back to the 1950's,5 but it was not until the passage of the Clean Air Act in 1965 that Congress established the principle of Federal standards for automobile emissions. Under the 1965 act and its successor, the Air Quality Act of 1967, the Department of Health, Education and Welfare was authorized to promulgate emission limitations commensurate with existing technological feasibility.6

The development of emission control technology proceeded haltingly. The Secretary of HEW testified in 1967 that "the state of the art has tended to meander along until some sort of regulation took it by the hand and gave it a good pull. . . . There has been a long period of waiting for it, and it hasn't worked very well."7

The legislative background must also take into account the fact that in 1969 the Department of Justice brought suit against the four largest automobile manufacturers on grounds that they had conspired to delay the development of emission control devices.8

On December 31, 1970, Congress grasped the nettle and amended the Clean Air Act to set a statutory standard for required reductions in levels of hydrocarbons (HC) and carbon monoxide. (CO) which must be achieved for 1975 models of light duty vehicles. Section 202(b) of the Act added by the Clean Air Amendments of 1970, provides that, beginning with the 1975 model year, exhaust emission of hydrocarbons and carbon monoxide from "light duty vehicles" must be reduced at least 90 per cent from the permissible emission levels in the 1970 model year.9 In accordance with the Congressional directives, the Administrator on June 23, 1971, promulgated regulations limiting HC and CO emissions from 1975 model light duty vehicles to .41 and 3.4 grams per vehicle mile respectively. 36 Fed.Reg. 12,657 (1971).10 At the same time, as required by section 202(b)(2) of the Act, he prescribed the test procedures by which compliance with these standards is measured.11

Congress was aware that these 1975 standards were "drastic medicine,"12 designed to "force the state of the art."13 There was, naturally, concern whether the manufacturers would be able to achieve this goal. Therefore, Congress provided, in Senator Baker's phrase, a "realistic escape hatch": the manufacturers could petition the Administrator of the EPA for a one-year suspension of the 1975 requirements, and Congress took the precaution of directing the National Academy of Sciences to undertake an ongoing study of the feasibility of compliance with the emission standards. The "escape hatch" provision addressed itself to the possibility that the NAS study or other evidence might indicate that the standards would be unachievable despite all good faith efforts at compliance. This provision was limited to a one-year suspension, which would defer compliance with the 90% reduction requirement until 1976. Under section 202(b)(5)(D) of the Act, 42 U. S.C. Sec. 1857f-1(b)(5)(D), the Administrator is authorized to grant a one-year suspension

only if he determines that (i) such suspension is essential to the public interest or the public health and welfare of the United States, (ii) all good faith efforts have been made to meet the standards established by this subsection, (iii) the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards, and (iv) the study and investigation of the National Academy of Sciences conducted pursuant to subsection (c) of this section and other information available to him has not indicated that technology, processes, or other alternatives are available to meet such standards.

The statute provides that an application for suspension may be filed any time after January 1, 1972, and that the Administrator must issue a decision thereon within 60 days. On March 13, 1972, Volvo, Inc., filed an application for suspension and thereby triggered the running of the 60 day period for a decision. 37 Fed.Reg. 5766 (March 21, 1972.)14 Additional suspension requests were filed by International Harvester on March 31, 1972, and by Ford Motor Company, Chrysler Corporation, and General Motors Corporation on April 5, 1972. Public hearings were held from April 10-27, 1972. Representatives of most of the major vehicle manufacturers (in addition to the applicants), a number of suppliers of emission control devices and materials, and spokesmen from various public bodies and groups, testified at the hearings and submitted written data for the public record. The decision to deny suspension to all applicants was issued on May 12, 1972.

The Decision began with the statement of the grounds for denial: ". . . I am unable, on the basis of the information submitted by the applicants or otherwise available to me, to make the determinations required, by section 202 (b)(5)(D)(i), (iii), or (iv) of the Act."15 The EPA Decision specifically focused on requirement (iii) that:

the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards . . .,

A Technical Appendix, containing the analysis and methodology used by the Administrator in arriving at his decision, was subsequently issued on July 27, 1972.

The data available from the concerned parties related to 384 test vehicles run by the five applicants and the eight other vehicle manufacturers subpoenaed by the Administrator. In addition, 116 test vehicles were run by catalyst and reactor manufacturers subpoenaed by the Administrator. These 500 vehicles were used to test five principal types of control systems: noble metal monolithic catalysts, base metal pellet catalysts, noble metal pellet catalysts, reactor systems, and various reactor/catalyst combinations.

At the outset of his Decision, the Administrator determined that the most effective system so far developed was the noble metal oxidizing catalyst.16 Additionally, he stated that the "most effective systems typically include: improved carburetion; a fast-release choke; a device for promoting fuel vaporization during warm-up; more consistent and durable ignition systems; exhaust gas recirculation; and a system for injecting air into the engine exhaust manifold to cause further combustion of unburned gases and to create an oxidizing atmosphere for the catalyst."17 It was this system to which the data base was initially narrowed: only cars using this kind of system were to be considered in making the "available technology" determination.

The problem the Administrator faced in making a determination that technology was available, on the basis of these data, was that actual tests showed only one car with actual emissions which conformed to the standard prescribing a maximum of .41 grams, per mile, of HC and 3.4 grams per mile of CO.18 No car had actually been driven 50,000 miles, the statutory "useful life" of a vehicle and the time period for which conformity to the emission standards is required.19 In the view of the EPA Administrator, however, the reasons for the high test readings were uncertain or ambivalent.

Instead, certain data of the auto companies were used as a starting point for making a prediction, but remolded into a more useable form for this purpose. As the Administrator put it:20

Much of the data reports emissions measured by test procedures different from the 1975 Federal test procedure and requires conversion to the 1975 procedure by calculations which cannot be regarded as precise. Emission data was frequently submitted without an adequate description of the vehicle being tested, the emission control systems employed, or the purpose of the test. The fuel and oil used in tests were not always specified. Adjustments made to components of the engine or emission control system were frequently made and seldom fully explained. In most cases, tests were not repeated, even where results departed significantly from established trends, and little or no information was submitted to explain the diagnosis of failure, where test results showed poor results. Most important, only a few test cars were driven to 20,000 miles or more, and no vehicle employing all components of any applicant's proposed 1975 control systems has yet been driven to 50,000 miles. In the face of these difficulties, analysis and interpretation of the data required assumptions and analytical approaches which will necessarily be controversial to some degree. (emphasis added)

In light of these difficulties, the Administrator "adjusted" the data of the auto companies by use of several critical assumptions.

First, he made an adjustment to reflect the assumption that fuel used in 1975 model year cars would either contain an average of .03 grams per gallon or .05 grams per gallon of lead.21 This usually resulted in an increase of emissions predicted, since many companies had tested their vehicles on lead-free gasoline.

Second, the Administrator found that the attempt of some companies to reduce emissions of nitrogen oxides below the 1975 Federal standard of 3.0 grams per vehicle mile22 resulted in increased emissions of hydrocarbons and carbon monoxide. This adjustment resulted in a downward adjustment of observed HC and CO data, by a specified factor.23

Third, the Administrator took into account the effect the "durability" of the preferred systems would have on the emission control obtainable. This required that observed readings at one point of usage be increased by a deterioration factor (DF) to project emissions at a later moment of use. The critical methodological choice was to make this adjustment from a base of emissions observed at 4000 miles. Thus, even if a car had actually been tested over 4000 miles, predicted emissions at 50,000 miles would be determined by multiplying 4000 mile emissions by the DF factor.24

Fourth, the Administrator adjusted for "prototype-to-production slippage." This was an upward adjustment made necessary by the possibility that prototype cars might have features which reduced HC and CO emissions, but were not capable of being used in actual production vehicles.25

Finally, in accord with a regulation assumed, as to substance, in the text of the Decision, but proposed after the suspension hearing,26 a downward adjustment in the data readings was made on the basis of the manufacturers' ability, in conformance with certification procedures, to replace the catalytic converter "once during 50,000 miles of vehicle operation," a change they had not used in their testing.27

With the data submitted and the above assumptions, the Administrator concluded that no showing had been made that requisite technology was not available. The EPA noted that this did not mean that the variety of vehicles produced in 1975 would be as extensive as before. According to EPA, "Congress clearly intended to require major changes in the kinds of automobiles produced for sale in the United States after 1974" and there "is no basis, therefore, for construing the Act to authorizing suspension of the standards simply because the range of performance of cars with effective emission control may be restricted as compared to present cars." As long as "basic demand" for new light duty motor vehicles was satisfied, the applicants could not establish that technology was not available.28

For purposes of judicial review, the initial EPA decision rests on the technology determination. The Administrator did state:29

On the record before me, I do not believe that it is in the public interest to grant these applications, where compliance with 1975 standards by application of present technology can probably be achieved, and where ample additional time is available to manufacturers to apply existing technology to 1975 vehicles. (Emphasis added.)

The statute apparently contemplates the possibility of an EPA denial of suspension for failure to meet criterion (i) of Sec. 202(b)(5)(D) ("essential to the public interest") even though criterion (iii) has been satisfied ("applicant has established that effective control technology . . [is] not available").30 It suffices here to say that the EPA's 1972 "public interest" finding was obviously only a restatement of, and dependent on the validity of, the conclusion of a failure to satisfy standard (iii) by showing that effective control technology is not available.

The Administrator also offered some "comments" on issues pertinent to the required "good faith" determination under standard (ii), as guidance to applications who might seek a one year suspension next year of the 1976 oxides of nitrogen standard. But he explictly disclaimed reaching that question in this proceeding. The thrust of his comment was to call into question the rigid "arms length" relationship structure which vehicle manufacturers imposed on their suppliers, as a source of a halter on progress in developing the required technology.31

After oral argument to this court on December 18, 1972, in a per curiam order issued December 19, 1972, we remanded the record to the Administrator, directing him to supplement his May 12, 1972 decision by setting forth:

(a) the consideration given by the Administrator to the January 1, 1972 Semiannual Report on Technological Feasibility of the National Academy of Sciences; and (b) the basis for his disagreement, if any, with the findings and conclusion in that study concerning the availability of effective technology to achieve compliance with the 1975 model year standards set forth in the Act.

Our remand order was not intended to indicate that we had concluded that an EPA conclusion was required as to clause (iv)-concerning the evaluation based on the NAS study and other information (from sources other than applicants)-when the Administrator had determined under (iii) that the auto companies had not shown technology was not available. We were nevertheless troubled by arguments advanced by petitioners that the methodology used by the Administrator in reaching his conclusion, and indeed the conclusion itself, was inconsistent with that of the Academy. It was our view that if and to the extent such differences existed they should be explained by EPA, in order to aid us in determining whether the Administrator's conclusion under (iii) rested on a reasoned basis.

D. Supplement to the Decision of the Administrator

Our remand of the record resulted in a "Supplement to Decision of the Administrator" issued December 30, 1972. The Administrator in his Supplement stated that "In general I consider the factual findings and technical conclusions set forth in the NAS report and in the subsequent Interim Standards Report dated April 26, 1972 . . to be consistent with my decision of May 12, 1972."32

The Report made by the NAS, pursuant to its obligation under 202(b)(5) (D) of the Clean Air Act, had concluded: "The Committee finds that the technology necessary to meet the requirements of the Clean Air Act Amendments for 1975 model year light-duty motor vehicles is not available at this time."33

The Administrator apparently relied, however, on the NAS Report to bolster his conclusion that the applicants had not established that technology was unavailable. The same NAS Report had stated:34

. . . the status of development and rate of progress made it possible that the larger manufacturers will be able to produce vehicles that will qualify, provided that provisions are made for catalyst replacement and other maintenance, for averaging emissions of production vehicles, and for the general availability of fuel containing suitably low levels of catalyst poisons.

The Administrator pointed out that two of NAS's provisos-catalytic converter replacement and low lead levels-had been accounted for in his analysis of the auto company data, and provision therefor had been insured through regulation.35 As to the third, "averaging emissions of production vehicles,"36 the Administrator offered two reasons for declining to make a judgment about this matter: (1) The significance of averaging related to possible assembly-line tests, as distinct from certification test procedure, and such tests had not yet been worked out. (2) If there were an appropriate assembly-line test it would be expected that each car's emissions could be in conformity, without a need for averaging, since the assembly line vehicles "equipped with fresh catalysts can be expected to have substantially lower emissions at zero miles than at 4000 miles."37

The Administrator also claimed that he had employed the same methodology as the NAS used in its Interim Standards Report, evidently referring to the use of 4000 mile emissions as a base point, and correction for a deterioration factor and a prototype-production slippage factor.38 The identity of methodology was also indicated, in his view, by the fact the EPA and NAS both agreed on the component parts of the most effective emission control system.

The Administrator did refer to the "severe driveability problems" underscored by the NAS Report, which in the judgment of NAS "could have significant safety implications,"39 stating that he had not been presented with any evidence of "specific safety hazard" nor knew of any presented to the NAS. He did not address himself to the issue of performance problems falling short of specific safety hazards.

II. REJECTION OF MANUFACTURERS' GENERAL CONTENTIONS

We begin with consideration, and rejection, of the broad objections leveled by petitioners against EPA's over-all approach.

We cannot accept petitioners' arguments that the Administrator's determination whether technology was "available," within the meaning of section 202(b)(5)(D) of the Act, must be based solely on technology in being as of the time of the application, and that the requirement that this be "available" precludes any consideration by the Administrator of what he determines to be the "probable" or likely sequence of the technology already experienced. Congress recognized that approximately two years' time was required before the start of production for a given model year, for the preparation of tooling and manufacturing processes.40 But Congress did not decide-and there is no reason for us to do so-that all development had to be completed before the toolingup period began. The manufacturers' engineers have admitted that technological improvements can continue during the two years prior to production.41 Thus there was a sound basis for the Administrator's conclusion that the manufacturers could "improve, test, and apply" technology during the lead time period.42

The petitioners' references to the legislative history are unconvincing. None of the statements quoted in their briefs specifically states that "available" as used in the statute means "available in 1972." There is even comment that points to a contrary interpretation.43 In any event, we think the legislative history is consistent with the EPA's basic approach and evidences no ascertainable legislative intent to the contrary.

While we reject the contention as broadly stated, principally by General Motors, we hasten to add that the Administrator's latitude for projection is subject to the restraints of reasonableness, and does not open the door to " 'crystal ball' inquiry."44 The Administrator's latitude for projection is unquestionably limited by relevant considerations of lead time needed for production.45 Implicit also is a requirement of reason in the reliability of the EPA projection. In the present case, the Administrator's prediction of available technology was based on known elements of existing catalytic converter systems. This was a permissible approach subject, of course, to the requirement that any technological developments or refinements of existing systems, used as part of the EPA methodology, would have to rest on a reasoned basis.

Chrysler has advanced a due process claim based upon two principal features of the proceeding, the inability to engage in cross-examination and the inability to present arguments against the methodology used in the Technical Appendix of the Administrator, which served as a basis for his decision.

The suspension provision of Section 202(b)(5)(D) does not require a trial type hearing. It provides:

Within 60 days after receipt of the application for any such suspension, and after public hearing, the Administrator shall issue a decision granting or refusing such suspension.

First, this provision for a "public hearing" contrasts significantly with other provisions that specifically require an adjudicatory hearing.46 More importantly, the nonadjudicatory nature of the "public hearing" contemplated is underscored by the 60 day limit for a decision to be made. The procedure contemplated by Congress in its 1970 legislation must be appraised in light of its concern with "avoidance of previous cumbersome and time-consuming procedures," see Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 234, 462 F.2d 846, 849 (1972).

As to legislative history of this provision, the starting point is the provision in Senate Bill 4358:47

Upon receipt of such application, the Secretary shall promptly hold a public hearing to enable such manufacturer or manufacturers to present information relevant to the implementation of such standard. The Secretary, in his discretion, may permit any interested person to intervene to present information relevant to the implementation of such standard.

This was dropped in conference, along with a provision permitting six months for a suspension decision. The resulting legislation both expedited the decision-making, and contemplated EPA solicitation of a wide range of views, from sources other than the auto companies, though the companies' applications and presentation would surely be the focus of consideration. Underlying this approach of both shortening time for decision and enlarging input lies, we think, an assumption of an informative but efficient procedure without mandate for oral cross examination.

In context, the "public hearing" provision amounts to an assurance by Congress that the issues would not be disposed of merely on written comments, the minimum protection assured by the Administrative Procedure Act for rulemaking, but would also comprehend oral submissions of a legislative nature. These are required even for rule-making when "controversial regulations governing competitive practices" are involved. American Airlines, Inc. v. CAB, 123 U.S. App.D.C. 310, 317, 359 F.2d 624, 631 (en banc 1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966); Walter Holm & Co. v. Hardin, 145 U.S.App. D.C. 347, 449 F.2d 1009 (1971). Even assuming oral submission, in a situation where "general policy" is the focal question, a legislative-type hearing is appropriate.48

A complication is presented by the case before us in that the general policy questions became interfused with relatively specific technical issues. Yet within the context of a quasi-legislative hearing and the time constraints of the statute, we do not think the absence of a general right of cross-examination on the part of the companies was a departure from "basic considerations of fairness." Walter Holm & Co. v. Hardin, supra, 145 U.S.App.D.C. at 354, 449 F. 2d at 1016. Hearings ran for two weeks and a wide range of participants was included within the proceeding: manufacturers, vendors of the control devices and public interest groups. The auto companies were allowed to submit written questions to the Hearing Panel to be asked to various witnesses. Opportunity to prepare written questions is not as satisfactory to counsel as the opportunity to proceed on oral cross-examination, with questions that develop from previous answers. But examination on interrogatories has long been used in the law when necessary, albeit second best. And interrogatories to a live witness-often arranged in private lawsuits by use of a commission-avoid the peril of "canned" affidavits and counsel-assisted, or even counsel-drafted, responses to interrogatories. Their availability was a reasonable attempt by EPA to elicit the facts and at the same time cope with the time constraints. We do not think more was required. There was a meaningful opportunity to be heard. The specific nature of a "hearing" varies with circumstances. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), cited with approval in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L. Ed.2d 287 (1970). Whether particular attributes of forensic presentation are not only salutary but also mandatory must also depend on circumstances. The heft of the hearing problem, including the time constraints on decisions, convinces us that the assertion of a broad right of cross-examination cannot be successfully maintained.

We distinguish between the assertion of a broad right of cross-examination, such as that argued to this court, and a claim of a need for cross-examination of live witnesses on a subject of critical importance which could not be adequately ventilated under the general procedures. This is the kind of distinction that this court made in its en banc opinion in American Airlines v. CAB, supra, 123 U.S.App.D.C. at 318-319, 359 F.2d at 632-633. We see no principled manner in which firm time limits can be scheduled for cross-examination consistent with its unique potential as an "engine of truth"-the capacity given a diligent and resourceful counsel to expose subdued premises, to pursue evasive witnesses, to "explore" the whole witness, often traveling unexpected avenues.

Given the variances in counsel, the reality that seasoning and experience are required even for trial judges who seek to avoid repetitive and undue crossexamination, the enhancement of difficulties encountered with the breadth of issues involved in a "public interest" proceeding, the fairly-anticipated problem of provision for redirect (and recross) and the interplay of different cross-examinations, there is not insignificant potential for havoc. What is most significant is that these complications are likely to be disproportionate to the values achieved, in a proceeding focusing on technical matters where other techniques generally are sufficient to adduce the pertinent information as to both what is known and unknown.

In context, we consider that the technique, adopted by EPA, of pre-screening written questions submitted in advance is reasonable and comports with basic fairness as the general procedure. This approach permits screening by the hearing officer so as to avoid irrelevance and repetition, permits a reasonable estimate of the time required for the questioning, and aids scheduling and allocation of available time among various participants and interests.49 The record reveals that the hearing officers did not propound the pre-submitted questions like robots; they were charged with conducting a hearing for the purpose of focusing information needed for decision, and they quite appropriately "followed up" on questions.

We revert to our observation that a right of cross-examination, consistent with time limitations, might well extend to particular cases of need, on critical points where the general procedure proved inadequate to probe "soft" and sensitive subjects and witnesses. No such circumscribed and justified requests were made in this proceeding.

A more serious problem, at least from the point of an informed decision-making process, is posed by the inability of petitioners to challenge the methodology of EPA at the hearing. In other contexts, it is commonplace for administrative proceedings to focus in detail on agency methodology,50 and such elucidation is salutary, of particular aid to a reviewing court. Again, however, we cannot ignore the problem of time. In part, EPA developed its methodology on the basis of submissions made by the companies at the hearings, as to the parameters of its various data. The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions.51 Given the circumstances, we cannot hold the absence of the right to comment on the methodology a violation of the statute or due process, though such opportunity would certainly have been salutary.

While the statute makes no express provision therefor, we assume that Congress contemplated a flexibility in the administrative process permitting the manufacturers to present to EPA any comments as to its methodology, in a petition for reconsideration or modification. However, this opportunity does not permit invocation of the doctrine of failure to exhaust administrative remedies as a bar to these appeals, for those petitions could not have affected or deferred the finality of the EPA decision or the time for seeking judicial review. The opportunity is noted to obviate any possibility that the law, or our comments, may be misunderstood to require a rigid procedure of prompt and unshakeable decision-making. Our own December remand requesting clarification of the Decision illustrates that while this statute imposes some unusual time restraints it does not jettison the flexibility and capacity of reexamination that is rooted in the administrative process. American Airlines v. CAB, supra, 123 U.S. App.D.C. at 319; 359 F.2d at 633.

As matters have shaped up, the central technical issue on this appeal concerns the reliability of EPA's methodology. While we do not say that the failure to provide reasonable opportunity to comment on EPA methodology invalidates the EPA Decision for lack of procedural due process, or similar contention, we must in all candor accompany that ruling with the comment that the lack of such opportunity has had serious implications for the court given the role of judicial review.

We shall subsequently develop the legal questions, primarily questions of EPA's burden of proof, that arise with respect to EPA methodology. We preface these with admission of our doubts and diffidence. We are beset with contentions of petitioners that bear indicia of substantiality. Yet we have no EPA comment on the specific questions raised, apart from some discussion by counsel which is not an adequate or appropriate substitute.52 Our December 1972 remand opened the door to a candid discussion of these matters, but EPA fashioned a carefully limited response.

The EPA might have indicated that it desired to take a fresh look at its methodology on the basis of petitioners' criticisms, in which case, on an adaptation of the Smith v. Pollin,53 procedure, this court might have remanded the case to the agency. This remand would come during the course of our judicial review and would not conflict with the 60-day statutory time limit for the hearing and decision on the applications for suspension.

Indeed, the fact that the Administrator issued the Technical Appendix almost three months after his Decision, at a time when judicial review had already begun to run its course, indicates that the agency did not believe that agency consideration was frozen from the moment that the suspension decision was rendered, a view we approve. The EPA had latitude to continue further consideration even without requesting a court remand (under Smith v. Pollin) that would suspend judicial consideration.

This case ultimately involves difficult issues of statutory interpretation, as to the showing required for applicants to sustain their burden that technology is not available. It also taxes our ability to understand and evaluate technical issues upon which that showing, however it is to be defined, must rest. At the same time, however, larger questions are at stake. As Senator Baker put it, "This may be the biggest industrial judgment that has been made in the United States in this century." 116 Cong.Rec. 33,085 (1970). This task of reviewing the suspension decision was not assigned to us lightly. It was the judgment of Congress that this court, isolated as it is from political pressures, and able to partake of calm and judicious reflection would be a more suitable forum for review than even the Congress.54

Two principal considerations compete for our attention. On the one hand, if suspension is not granted, and the prediction of the EPA Administrator that effective technology will be available is proven incorrect, grave economic consequences could ensue. This is the problem Senator Griffin described as the "dangerous game of economic roulette." 116 Cong.Rec. 33,081 (1970). On the other hand, if suspension is granted, and it later be shown that the Administrator's prediction of feasibility was achievable in 1975 there may be irretrievable ecological costs. It is to this second possibility we first turn.