Did Safer Really Have to Be Later for Big Cars?

What can one say about a U.S. Circuit Court of Appeals judge who opens his opinion in an important auto safety case by likening the two plaintiffs on opposing sides of the issue to Scylla and Charybdis? Especially since one of the plaintiffs was this writer.

Well, one can extend the Homeric metaphor to its geographic home between Italy and Sicily and say that Judge Skelly Wright gave motorist safety an impulsive boot. Or, one an be saddened by the shallow cavalier quality of his judgment.

The case involved the mid-1977 decision by Secretary of Transportation Brock Adams to require passive restraints on all new large cars by 1982 models, all middle-sized cars by 1983 models and all small-size cars by 1984 models. The auto companies were free to meet the standard, designed to protect car occupants in a crash, by using air bags, passive belts or any other engineering system that could comply.

Pacific Legal Foundation, a business-front law firm, sued to overturn the standard on the ground that passive restraints were not proven effective. Judge Wright rejected their contention by citing test results and other evidence to the contrary.

We challenged Secretary Adams’ decision because we believed that the auto safety law did not authorize the secretary to phase in safety standards for passenger cars based on wheelbase size and that the nature of the phase-in (small cars last) was capricious. We also showed that the initial effective date–giving the industry four years to start complying with large cars–was insupportable. The secretary’s own auto safety agency wanted an earlier date.

Our counsel, Alan B. Morrison, argued further that Secretary Adams took the possibility of a one-House congressional veto as a factor in his long lead-time decision and, since such a veto was unconstitutional, the secretary’s decision should be set aside.

Judge Wright took only four pages to dispose of all these arguments, and it showed. As one who followed the legislative track of the 1966 auto safety bill step by step, I was astonished to read the judge’s interpretation of the phrase “type of motor vehicle” to include types of passenger car size. The idea that they were authorizing a department to set safety standards that were weaker for VW cars than for Chevrolet Impalas would have shocked the members of Congress in 1966.

The court did not say a word in rebuttal to Morrison’s argument that since the standard could be met by a passive belt system almost immediately, there was no justification for condoning a four- to six-year lead time on the basis that air bags required that kind of development time.

The latter allegation weighed heavily on Judge Wright_ Neither the Justice Department attorneys nor the Ford Motor Company attorney, John H. Pickering, volunteered or were asked about auto industry research on air bags in middle- and small-size cars. Ford Motor Co., for example, effectively tested air bags on Pintos as far back as 1971.

So deferential are the courts to government agency findings of fact that most lawyers do not argue the facts. Instead they try to upset an agency decision by arguing that it was made contrary to law. This is a double handicap in front of a judge like Skelly Wright whose career has drawn heavily on the Roman dictum “Out of the Fact Comes the Law.”

The handicap applied as well to the argument that Secretary Adams improperly permitted his decision on lead time to be affected by the possibility of a congressional veto. We had eyewitness accounts of top department officials admitting that the veto prospect was an important factor in delaying the standard’s effective date. But one federal judge prohibited our taking depositions of these officials and even disallowed the filing of affidavits by the witnesses.

Judge Wright’s decision virtually destroys the vehicle safety standards program of the Department of Transportation. With a four- to six-year phased-in lead time as a precedent upheld by his court, Judge Wright has provided the auto industry with a dilatory response capability of decisive proportions. Henceforth when the department proposes a standard, auto companies can request phase-ins based on vans, big cars, small cars, middle-size cars and any dozen other distinctions which their superfluous product differentiation imaginations can concoct.

Auto safety administrators will come and go between the time a standard is proposed and when it is issued. It will have taken almost 13 years for the passive restraint standard to have been partially issued. The auto moguls can now chortle and say, “You haven’t seen anything yet.”

Automobile reporter Charles Ewing recently noted that Joan Claybrook, Secretary Adams° auto safety chief, used to be called the “Dragon Lady” in Detroit. Now, he says, the industry, viewing Claybrook’s “developing maturity,” is “more likely to refer to her as Big Sister.” Perhaps the auto companies also will tip their hat to Judge Wright and, in their habitually inverted way, call him “St. George.”