Amicus Brief — St. Joe Minerals Corp. v. Environmental Protection Agency (Nos. 80-483, 80-482)

yuprena Court, U.S,

Fieee

No. 80-483 OCT 25 1960

———

IN THE MICHAEL ROBAX, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

St, JOE MINERALS CORPORATION,

- Petitioner,

ENVIRON MENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

ALABAMA POWER CO., ET AL.

IN SUPPORT OF PETITIONER

am

GEORGE C. FREEMAN, JR.

HUNTON & WILLIAMS

P. O. Box 1531

707 East Main Street

Richmond, Virginia 23212

HENRY V. NICKEL

(Attorney of Record)

CHARLES D. OSSOLA

HUNTON & WILLIAMS

1919 Pennsylvania Ave., N.W.

Suite 700

Washington, D.C. 20006

(202/223-8650)

Counsel for Amici

Alabama Power, et al.

October 24, 1980

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.c. 20001

QUESTION PRESENTED

Whether in establishing primary national ambient

air quality standards under Section 109(b) (1) of the

Clean Air Act, the Administrator of the Environmental

Protection Agency must consider the impact of a standard

on the “public . . . welfare and the productive capacity

of [the Nation’s] population” in determining the “ade-

quate margin of safety” to be imposed beyond the limit

which is “requisite to protect the public health.”

(i)

Page

Question Presented ...................-..--.--- Se home a i

EF CI inciicickacctcmnccatconstecnintcsonisinntienabtionines

ens Gr =. ., coniccoacioashsnnmanannieeosooevnennde

Reasons for Granting the Writ ...........-...01...2.2..-.-2:eeeeeeeee- 10

I. The Lower Court Interpreted The “Margin Of

Safety” Language Of Section 109 To Be A Stand-

ardless Delegation Of Legislative Authority...... 11

Il. The Decision Below Is Inconsistent With The

DN Ie Te Fe sviarcsevitsitssisteptcatnbetnnndinsntiniiondas 13

III. The Decision Below Will Have A Pervasive

TRTIIIIIITE »scississieasesitsidancietiateatcuaedseibeulnboneedendsastaeaiasbantigheliens 17

II 5 ois iin Larassiennhaciiedeabiadnibaedalandiian be iadedeatakistiibeniaiitids 19

(iii)

_ PREVIOUS PAGE WAS BLANK }

iv

TABLE OF CITATIONS

CASES: Page

AFL-CIO v. Marshall, 617 F.2d 686 (D.C. Cir.

RAEI A OS brs SARC OR ARR eee A 18

American Iron & Steel Institute v. OSHA, 577 F.2d

825 (8rd Cir. 1978), cert. granted, 100 S.Ct.

ag RANE ee eae ene ee 18

American Paper Institute v. Train, 548 F.2d

828 (D.C. Cir.), cert. dismissed, 429 U.S. 967

EEA RE TS aOR RI Ae TN Es eee ee 12

Appalachian Power Co. v. Train, 545 F.2d 1351

ERTIES A NOUR Ges ale Uae Oe 12

Bowman Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281 (1974).......... 12

Citizens to Preserve Overton Park, Inc. v. Volpe,

Ge ee ee uliikeitinilinae 12

EDF v. EPA, 598 F.2d 62 (D.C. Cir. 1978) .......... 9

FCC v. Nat'l Citizens Comm. for Broadcasting, 436

IR RE ES cs er ec 12

Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir.

IN ESR ERE eA el SR 14

Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.

Cir.), cert. denied, 484 U.S. 829 (1977) .......000..... 12

Industrial Union Dep’t, AFL-CIO v. American

Petroleum Institute, 100 S.Ct. 2844 (1980)........ 11, 12,

15, 17

Panama Refining Co. v. Ryan, 293 U.S. 388

a 11

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d

875 (D.C. Cir. 1978), cert. denied, 417 U.S. 991

RP BN Oe ae Oe ee 2S ARIES RR 12

Public Media Center v. FCC, 587 F.2d 1822 (D.C.

CET agar nn) ARORA ES RES PS 12

Seatrain Int’l v. FMC, 598 F.2d 289 (D.C. Cir.

EB PRA ETN ERI 2 SECO ee SR 12

Schechter Poultry Corp. v. United States, 295

Fe RI SERENO ae ie AED see 11

Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir.

1976) vacated sub nom. Montana Power Co., et

al. v. EPA, 484 U.S. 808 (1977) .......................... 15

Vv

TABLE OF CITATIONS—Continued

Sierra Club v. Ruckelshaus, 344 F.Supp. 253

(D.D.C. 1972), aff’d per curiam, 4 E.R.C. 1815

(D.C. Cir. 1972), aff'd by an equally divided

Court sub nom. Fri v. Sierra Club, 412 U.S. 541

UE > eriiethicjalddadbeltca screen cece al

Train V. NRDC, 421 U.S. 60 (1975) .............

Union Electric Co. v. EPA, 427 U.S. 246 (1976). 6,

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)......

STATUTES:

Clean Air Act, 42 U.S.C. §§ 7401 et seq. (Supp.

II 1978)

§ 101(b) (1), 42 U.S.C. § 7401 (b) (1)... 13,

§ 109(a) (1), 42 U.S.C. § 7409(a) (1)

§ 109(b) (1), 42 U.S.C. § 7409(b) (1)

§ 109(c), 42 U.S.C. § 7409(c)

§ 110(a) (2), 42 U.S.C. § 7410(a) (2) 20...

§ 111 (a) (1) (A) (ii), 42 U.S.C. § 7411 (a) (1)

ee ETE SNW SOT DIE ETC

§ 113(b), 42 U.S.C. § 7413 (b) 2.

ee Ee 8 ne

§§ 171-178 42 U.S.C. § 7471-7473 oo.

§ 807(b) (1), 42 U.S.C. § 7607(b) (1) 2.

Water Pollution Control Amendments of 1972,

Pub. L. 92-500, 86 Stat. 816, 33 U.S.C. § 1251

et seq. (1976), as amended, 33. U.S.C. § 1251

et seq. (Supp. I 1977)

ry Ue es OB noes

Occupational Safety and Health Act, 29 U.S.C.

§ 651 et seq. (1976 ed. and Supp. II)

ee I I vi ircscanpiacdcccatalaselabshesinouemsentiosss

A Shr, BD Danse cvccccscenncesesnesseennerens

Page

13, 18

14, 15

14

15

18

vi

TABLE OF CITATIONS—Continued

REGULATIONS:

Cee FR SITE) aevicsicsicescnccsscccnnntsseisirssinesons

FEDERAL REGISTER:

O86 Fol. Reg. 1G0G8 (ISTE). ...........c...00s-c0ccccceeceresnecenee

GD Wath, Tee, SS CIO TI) ncaa nncn nse cscineceenesesn es

45 Fed. Rag. G4IGS (IGGD) ....-.-—-...00.nccccesersecreecernses

MISCELLANEOUS:

PUBLIC UTILITIES FORTNIGHTLY, Vol. 105, No. 113,

I Ic cssshiniiakaieinicisbeavihdniibsnschoevuscnniaiaiataaipaaiactiaiogn

The Environmental Policy Division of the Con-

gressional Research Service of the Library of

Congress, A LEGLISLATIVE HISTORY OF THE

CLEAN AiR ACT AMENDMENTS OF 1970 ................

The Environmental Policy Division of the Congres-

sional Research Service of the Library of Con-

gress, A LEGISLATIVE HISTORY OF THE CLEAN

Arr ACT AMENDMENTS OF 1977 ..............222--2----00+

8,9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-483

ST. JOE MINERALS CORPORATION,

Petitioner,

V.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

ALABAMA POWER COMPANY

APPALACHIAN POWER COMPANY

ARIZONA PUBLIC SERVICE COMPANY

BALTIMORE GAS AND ELECTRIC COMPANY

BOSTON EDISON COMPANY

CAROLINA POWER & LIGHT COMPANY

CENTRAL AND SOUTH WEST CORPORATION

CENTRAL POWER AND LIGHT COMPANY

PUBLIC SERVICE COMPANY OF OKLAHOMA

SOUTHWESTERN ELECTRIC POWER COMPANY

WEST TEXAS UTILITIES COMPANY

CENTRAL HUDSON GAS & ELECTRIC CORPORATION

CENTRAL ILLINOIS LIGHT COMPANY

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY

CENTRAL MAINE POWER COMPANY

2

THE CINCINNATI GAS & ELECTRIC COMPANY

COLUMBUS AND SOUTHERN OHIO

ELECTRIC COMPANY

COMMONWEALTH EDISON COMPANY

CONSOLIDATED EDISON COMPANY OF

NEW YORK, INC.

CONSUMERS POWER COMPANY

THE DAYTON POWER AND LIGHT COMPANY

DELMARVA POWER & LIGHT COMPANY

THE DETROIT EDISON COMPANY

DUKE POWER COMPANY

FLORIDA POWER CORPORATION

FLORIDA POWER & LIGHT COMPANY

GEORGIA POWER COMPANY

GULF POWER COMPANY

GULF STATES UTILITIES COMPANY

HOUSTON LIGHTING & POWER COMPANY

ILLINOIS POWER COMPANY

INDIANA & MICHIGAN ELECTRIC COMPANY

INDIANAPOLIS POWER & LIGHT COMPANY

IOWA-ILLINOIS GAS AND ELECTRIC COMPANY

IOWA POWER AND LIGHT COMPANY

IOWA PUBLIC SERVICE COMPANY

KANSAS CITY POWER & LIGHT COMPANY

KENTUCKY POWER COMPANY

KENTUCKY UTILITIES COMPANY

MADISON GAS AND ELECTRIC COMPANY

MIDDLE SOUTH SERVICES, INC.

ARKANSAS-MISSOURI POWER COMPANY

ARKANSAS POWER & LIGHT COMPANY

LOUISIANA POWER & LIGHT COMPANY

MISSISSIPPI POWER & LIGHT COMPANY

NEW ORLEANS PUBLIC SERVICE, INC.

MINNESOTA POWER

MISSISSIPPI POWER COMPANY

MONONGAHELA POWER COMPANY

NEVADA POWER COMPANY

NEW ENGLAND POWER COMPANY

NEW YORK STATE ELECTRIC & GAS CORPORATION

NIAGARA MOHAWK POWER CORPORATION

NORTHEAST UTILITIES SERVICE COMPANY

THE CONNECTICUT LIGHT AND POWER COMPANY

THE HARTFORD ELECTRIC LIGHT COMPANY

HOLYOKE WATER POWER COMPANY

WESTERN MASSACHUSETTS ELECTRIC COMPANY

NORTHERN INDIANA PUBLIC SERVICE COMPANY

NORTHERN STATES POWER COMPANY

OHIO EDISON COMPANY

PENNSYLVANIA POWER COMPANY

OHIO POWER COMPANY

OHIO VALLEY ELECTRIC CORPORATION

OKLAHOMA GAS AND ELECTRIC COMPANY

PACIFIC GAS AND ELECTRIC COMPANY

PACIFIC POWER & LIGHT COMPANY

PENNSYLVANIA POWER & LIGHT COMPANY

PORTLAND GENERAL ELECTRIC COMPANY

THE POTOMAC EDISON COMPANY

POTOMAC ELECTRIC POWER COMPANY

PUBLIC SERVICE COMPANY OF INDIANA, INC.

PUBLIC SERVICE ELECTRIC AND GAS COMPANY

ROCHESTER GAS AND ELECTRIC CORPORATION

SALT RIVER PROJECT

SAN DIEGO GAS & ELECTRIC COMPANY

SOUTHERN CALIFORNIA EDISON COMPANY

TAMPA ELECTRIC COMPANY

TEXAS UTILITIES GENERATING COMPANY

TOLEDO EDISON COMPANY

TUCSON ELECTRIC POWER COMPANY

UNION ELECTRIC COMPANY

VIRGINIA ELECTRIC AND POWER COMPANY

WEST PENN POWER COMPANY

WISCONSIN ELECTRIC POWER COMPANY

WISCONSIN POWER AND LIGHT COMPANY

WISCONSIN PUBLIC SERVICE CORPORATION

EDISON ELECTRIC INSTITUTE

NATIONAL RURAL ELECTRIC COOPERATIVE

ASSOCIATION

4

In compliance with this Court’s Rule 36, Alabama

Power Company, et al. (“Electric Utilities”) have ob-

tained the written consents of counsel for the parties to

file this brief as amici curiae. Copies of the consents

have been filed with the Clerk.

INTEREST OF AMICI CURIAE

Alabama Power Company and the other 86 individual

electric utilities which join in this amici brief generate

most of the electricity produced in the United States.

Amicus Edison Electric Institute is the trade association

of investor-owned electric utilities. Amicus National

Rural Electric Cooperative Association represents the

interests of rural electric cooperatives throughout the

United States. This brief is submitted in support of the

petition for certiorari filed by St. Joe Minerals Cor-

poration on September 25, 1980."

Electric Utilities operate, or represent operators of,

fossil fuel-fired electric generating plants that are sub-

ject to regulation under the Clean Air Act (“the Act’’).?

As a group, Electric Utilities have collectively partici-

pated in all major rulemakings and litigation under the

Act affecting the electric utility industry.

Electric Utilities’ participation in these proceedings

has frequently been prompted by a concern that the pro-

visions of the Act be interpreted and implemented in

accordance with its fundamental purposes. To this end,

Electric Utilities have consistently advocated that, to the

fullest extent possible, regulatory decisions under the Act

1St. Joe Minerals Corporation v. Environmental Protection

Agency, et al., Petition for Certiorari, No. 80-483 (U.S., filed Sep-

tember 25, 1980) (hereafter “St. Joe Petition’’).

242 U.S.C. §§ 7401 et seg. (Supp. II 1978). For convenience, all

references will be to the section numbers of the Act rather than the

United States Code; references to both appear in the Tabie of

Citations.

5

reflect a balance of competing considerations. Underlying

this theme of balancing is the presumption that, unless

specifically prohibited from doing so, the Environmental

Protection Agency (“EPA” or “the Agency”) must at

least consider competing factors before making such

decisions.

Nowhere in the Act is consideration of these competing

factors more important than in developing national pri-

mary ambient air quality standards under section 109.

These national standards define the maximum permissi-

ble concentrations of airborne pollutants necessary to

protect the public health from adverse effects with “an

adequate margin of safety.” * This “margin of safety” re-

quirement, therefore, determines the stringency of EPA-

promulgated primary standards.

Under section 110 of the Act, these ambient standards

are translated into direct regulatory controls. Specific

emission limitations are prescribed by the states (or

EPA, if the states default) in regulatory programs known

as state implementation plans. The more stringent the

ambient standards, the more costly and burdensome the

emission control requirements established under the sec-

tion 110 state implementation plans. Concomitantly, the

more stringent the standards, the greater the restrictions

on new economic growth.‘ Criminal and civil sanctions

8Clean Air Act §109(b)(1) (emphasis added).

*The level of the air quality standard determines whether

industrial facilities will be able to attain the standard, and if not,

what steps must be taken to attain the standard. A finding of non-

attainment means, at a minimum, that emissions from existing

sources will be prohibited until the state or EPA imposes additional

control requirements or restrictions on production at existing

sources. See Clean Air Act §§ 171-178.

In attainment areas, which are subject to the “prevention of

significant deterioration” (“PSD”) requirements, ambient stand-

ards impose a “ceiling” on pollution which can curtail new growth.

Clean Air Act § 163. In these “clean air” areas, the PSD provisions

6

are provided for any violation of these emission require-

ments implementing ambient standards.°

In the case of Electric Utilities, the costs of these

controls are ultimately passed through to consumers and

industrial users of electricity in the form of higher rates.

Under the scheme of the Act, the time at which the im-

pact of these costs is evaluated is critical. This Court’s

decision in Union Electric Co. v. EPA, 427 U.S. 246

(1976), established that claims of technological and eco-

nomic feasibility must be disregarded by the Administra-

tor in deciding whether to approve a state implementa-

tion plan. Economic and technological feasibility may be

considered by state agencies responsible for formulation

of implementation plans, if there are alternative control

strategies that will attain the standard.* However, if

there are no alternatives, the states must impose what-

ever controls are needed to achieve the primary standards

even though compliance may be uneconomic or infeasible.

Accordingly, if economic and other factors are not con-

sidered by EPA when it selects the margin of safety for

a primary ambient standard, there may be no opportunity

later to have these factors influence the requirements that

individual sources must meet.

In holding that economic and technological feasibility

may play no role in the development of margins of safety

for primary ambient standards, the District of Columbia

Circuit misinterpreted section 109 and distorted the bal-

ance Congress sought to promote in the Act. This ruling

will have a significant and immediate impact on the

electric utility and other industries.

of the Act prohibit new growth that would cause the ambient ceiling

or the PSD “increments” to be exceeded. Thus, the more stringent

the ambient standard, the lower the growth rate in those clean

air areas where the ambient ceiling is the governing constraint.

5Clean Air Act § 113(b).

6 Union Electric Co. v. EPA, 427 U.S. 246, 266 (1976); Train v.

NRDC, 421 U.S. 60, 79 (19756).

7

As required by section 109(a) (1) of the Act, existing

ambient standards for sulfur dioxide, particulates, and

nitrogen oxides are presently under review by the Ad-

ministrator.’ A decision by EPA on proposed revisions

to these standards is scheduled for mid-1981.° In addi-

tion, the Administrator is required by the Act to establish

a new “short-term” standard for nitrogen dioxide unless

he finds such a standard is not needed to protect the

public health. EPA began developing this standard

shortly after passage of the 1977 Amendments, and a pro-

posal is expected in 1981. For the past three years, Elec-

tric Utilities have been engaged in a review of informa-

tion developed by EPA for these future section 109 rule-

making proceedings and have submitted, and are continu-

ing to develop, health effects data and information on the

social, economic and other consequences of achieving al-

ternative ambient standards.

Standards for sulfur oxides, particulate matter and

nitrogen oxides affect the operation of every fossil fuel-

fired power plant and industrial facility in the country.

Should revisions to these standards occur in the face of

a judicial injunction against consideration of the eco-

nomic and social consequences of ambient standards-

setting, serious disruption to the economy in general, and

to the electric utility industry in particular, may result.

Ambient standards set without regard to economic and

technological feasibility may require Electric Utilities to

curtail the operation of existing generating plants or

even shut them down entirely. Planned conversions from

oil and natural gas to coal may have to be abandoned.

New coal-fired plants necessary to meet increased demand

for electrical service or to reduce the Nation’s depend-

ence on foreign oil may never be built. These restric-

7 These standards are set forth at 40 C.F.R. Part 50 (1979).

8 EPA’s earlier schedule called for completion of this review by

late-1980. See 45 Fed. Reg. 44108 (1980).

* Clean Air Act § 109(c).

8

tions affecting the production of electricity would endanger

not only the already precarious financial health of the

electric utility industry,° but also the continued growth

and expansion of all sectors of the economy on which

hopes for reduced unemployment now rest.

STATEMENT OF THE CASE

Section 109 of the Act directs the Administrator to

establish national primary ambient air quality standards

at the level required to protect the public health with “an

adequate margin of safety.” "' In order to fulfill its re-

sponsibilities under this section, EPA must first identify

the level at which a pollutant causes adverse effects upon

the public health. Such effects are identifiable at the

point which they have been “observed” or “proved.” ”

After the level of observed adverse effects has been

10 See PUBLIC UTILITIES FORTNIGHTLY, Vol. 105, No. 113 at 109,

June 19, 1980.

11 Clean Air Act § 109(b) (1).

12 See H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 112 (1977)

(hereafter “H.R. Rep.”), The Environmental Policy Division of the

Congressional Research Service of the Library of Congress, A

LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF

1977 (hereafter “1977 Lecis. HisT.”), at 2579; The Environmental

Policy Division of the Congressional Research Service of the

Library of Congress, A LEGISLATIVE HISTORY OF THE CLEAN AIR

Act AMENDMENTS OF 1970 (hereafter “1970 Lecis. HisT.”’), at 1185

(testimony of Dr. John T. Middleton, Commissioner, National Air

Pollution Administration, Departinent of Health, Education and

Welfare) (hereafter “Middleton testimony”). It is important to

note that the public health is to be ascertained collectively, not by

reference to each individual member of the population. In other

words, the fact that a pollutant has an adverse effect on a particu-

larly sensitive individual does not mean that the pollutant is ad-

versely affecting the public health. S. Rep. No. 91-1196, 31st Cong.,

2d Sess. 10 (1970) (hereafter “S. Rep.’”’), 1970 Lecis. HIST., supra

at 410.

9

identified, the “margin of safety” requirement of section

109 comes into play.

The traditional function of a margin of safety is to

provide an added degree of protection beyond what is

necessary to avoid a known hazardous condition. See

EDF v. EPA, 598 F.2d 62, 81 (D.C. Cir. 1978). Con-

sistent with the traditional use of the term, Congress in-

cluded the margin of safety language in section 109 to

protect the public “against hazards which research has

not yet identified.” ’* In other words, the “margin of

safety” requirement provides protection against possible

adverse effects which may have been reasonably hypothe-

sized but not yet proven. Thus, once a level of known

adverse effects upon the public health is identified, EPA

will use “margin of safety” determinations under section

109 to set standards below that proven level.’

Acting pursuant to this directive, the Administrator

promulgated a final rule setting primary and secondary

ambient air quality standards for lead at 1.5 micrograms

per cubic meter of air.“ Electric Utilities did not par-

ticipate in rulemaking proceedings leading to promulga-

tion of this rule because ambient standards for lead do

not substantially affect their interests. The final rule,

however, rested in large part upon the Administrator’s

interpretation of the “margin of safety” language of sec-

13§. Rep., supra note 12, at 10, 1970 Lecis. HIST., supra note 12,

at 410.

14H.R. Rep., supra note 12, at 112, 1977 Leais. HIST., supra

note 12, at 2579; 1970 LEGIs. HIST., supra note 12, at 1185 (Middle-

ton testimony). Dr. Middleton’s testimony recognized that the

“margin of safety” requirement meant that standards will be

set at a point “less than the minimum observed effect level.” 1970

LEGIS. HIST., supra note 12, at 1185.

15 43 Fed. Reg. 46246 (1978). See St. Joe Petition, App. B.

10

tion 109, and the significance of that interpretation far

transcends the specific context of lead ambient standards.

Specifically, the Administrator refused to consider eco-

nomic and technological feasibility in determining the

adequacy of the margin of safety incorporated into the

primary ambient air quality standard for lead. In

sustaining the validity of the final rule, the District

of Columbia Circuit upheld this interpretation, holding

that the Administrator is neither required nor allowed

to consider economic and technological feasibility in de-

termining the appropriate margin of safety to be incor-

porated in ambient standards.”*

REASONS FOR GRANTING THE WRIT

Electric Utilities urge this Court to grant the petition

for certiorari filed by St. Joe Minerals Corporation be-

cause the lower court’s interpretation of section 109

renders that provision unconstitutional, is inconsistent

with the fundamental purposes of the Act, and can sig-

nificantly and adversely affect the Nation’s economy and

the public interest.

The urgent need for this Court to review and correct

this faulty interpretation of section 109 is made even

more compelling because the Clean Air Act provides that

petitions for review of ambient standards may be filed

only in the District of Columbia Circuit.’ The existence

of this exclusive venue provision ensures that the “margin

of safety” issue decided by the Court of Appeals in this

case will never be presented for resolution in other forums.

Accordingly, review by this Court affords the only oppor-

tunity to correct a District of Columbia Circuit decision

16 St. Joe Petition, App. A at 32a-38a, 33a n.37. All references

to the lower court’s opinion are to Appendix A to the St. Joe

Petition.

17 Clean Air Act § 807(b) (1).

11

that will have profound and pervasive economic and

social consequences if left undisturbed.

I. The Lower Court Interpreted the “Margin of Safety”

Language of Section 109 to be a Standardless Delega-

tion of Legislative Authority

Under the Constitution, executive agencies may exer-

cise quasi-legislative powers pursuant to an act of Con-

gress so long as the act establishes standards to govern

the exercise of the agency’s discretion. In other words,

under our constitutional scheme, when Congress enacts

a statute which requires an agency to exercise discretion,

Congress must identify factors to guide that discretion.

Without such guidance, a statute would have the effect

of delegating legislative powers that are reserved by the

Constitution to Congress. Action taken under color of a

standardless statute would not be executive but legisla-

tive. Thus, without congressional standards, a statute,

and actions taken pursuant to it, violates the separation

of powers doctrine.*®

The Court below ignored this fundamental constitu-

tional principle in interpreting section 109 of the Act.

The District of Columbia Circuit’s opinion does not iden-

tify any factors that must be considered by EPA in mak-

ing “margin of safety” determinations, nor does it de-

scribe how EPA’s discretion is to be exercised in deter-

mining those margins of safety. The only constraint on

the Administrator’s discretion imposed by the court below

is a negative one: he cannot consider the social and eco-

nomic consequences of his actions. Thus, according to the

District of Columbia Circuit, so long as the Administra-

tor ignores these factors, he may do as he wishes in de-

termining the stringency of ambient standards.

18 See Industrial Union Dep’t, A.F.L.-C.1.0. v. American Petro-

leum Institute, 100 S.Ct. 2844, 2866 (1980) (plurality op.); id.

at 2880 (Rehnquist, J., concurring); Schechter Poultry Corp. v.

United States, 295 U.S. 495, 539 (1935); Panama Refining Co. v.

Ryan, 298 U.S. 388 (1985).

12

By interpreting section 109 as an “open-ended grant,”

the lower court has conferred upon the Administrator

unlimited discretion to set ambient standards anywhere

on the “continuum of relative safety” * that he concludes

provides an “adequate” margin of safety. Under the

lower court’s interpretation of section 109, therefore,

future primary ambient standards will be based upon

purely legislative judgments that cannot be tested against

any statutory standard which identifies the factors to be

considered in deciding how much protection is “adequate”

protection. As a result, the Administrator’s “margin of

safety” judgments under section 109 will, from industry’s

standpoint, be wholly insulated from judicial review.”

Review of the District of Columbia Circuit’s decision by

this Court is essential to avoid unconstitutional exercises

of legislative authority by the Administrator and to en-

sure that his future actions are subjected to judicial

scrutiny.

19 Industrial Union Dep’t, AFL-CIO v. American Petroleum Insti-

tute, 100 S.Ct. 2844, 2866 (1980) (plurality op).

20 Jd. at 2881 (Rehnquist, J., concurring).

21 The primary function of judicial review is to ascertain whether

the agency engaged in reasoned decision-making. Bowman Trans-

portation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281,

285-86 (1974); Public Media Center v. FCC, 587 F.2d 1322, 1332

(D.C. Cir. 1978); Appalachian Power Co. v. Train, 545 F.2d 1351,

1367 (4th Cir. 1976); Portland Cement Ass’n v. Ruckelshaus, 486

F.2d 375, 402 (D.C. Cir. 1973), cert. denied, 417 U.S. 991 (1974).

Under the decisions of this Court, reasoned decision-making

requires consideration of relevant factors. See FCC v. Nat'l Citi-

zens Comm. for Broadcasting, 436 U.S. 775, 803 (1978); Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Accord, Seatrain Int’l v. FMC, 598 F.2d 289, 292 (D.C. Cir. 1979) ;

Home Box Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Ciz.), cert.

denied, 434 U.S. 829 (1977); American Paper Institute v. Train,

548 F.2d 328, 338 (D.C. Cir.), cert. dismissed, 429 U.S. 967 (1976).

Therefore, if there are no relevant factors, there can be no judicial

review.

13

II. The Decision Below Is Inconsistent With the Purposes

of the Act

The fundamental objective of the Act is to protect the

public health in a manner which is consistent with eco-

nomic and social interests. This objective is reflected in

the legislative history of the Act” and is made explicit

in its statement of general purposes.* The decision of

the court below prohibits the Administrator from consid-

ering economic and social interests in determining how

far to go below the level of known adverse effects in set-

ting ambient standards. By this prohibition, the Admin-

istrator will be precluded from exercising his discretion

under section 109 in a manner which assures that the

Act’s fundamental objective will be realized. The court

below erred in compelling such a result.

In framing certain provisions of the Act, Congress

itself chose between health and other interests and re-

stricted the exercise of the Administrator’s discretion to

consideration of health factors alone. Thus, section 109

requires the Administrator to consider only health data

in determining whether an ambient standard will protect

the public health against known adverse effects. Text at

8 supra.

In other provisions of the Act, Congress gave the Ad-

ministrator greater discretion to balance competing fac-

tors, but nevertheless limited that discretion by requiring

that he consider only certain enumerated factors. Thus,

in section 111, the Administrator is directed to establish

new source performance standards on the basis of his

consideration of three factors: cost, energy, and any non-

air quality health and environmental impacts.*

22 See St. Joe Petition at 9 n.9.

23 Clean Air Act § 101(b) (1). See text at 15-17 infra.

24 Clean Air Act § 111(a) (1) (A) (ii). Once factors are enumer-

ated, an agency may lack discretion to consider additional factors.

In Union Electric v. EPA, 427 U.S. 246 (1976), this Court held that

14

Finally, in still other provisions of the Act, Congress

did not specify the factors to be considered by the Ad-

ministrator. In other words, in these provisions, Con-

gress did not restrict the Agency’s consideration of fac-

tors. Where factors are not enumerated, the Administra-

tor has the responsibility to consider all factors relevant

to achieving the overall objectives of the Act as stated in

its purposes section and legislative history. The “margin

of safety” language in section 109 is an example of such

a provision which does not contain an enumeration of

specific factors.

section 110(a) (2) of the Act, which set forth eight criteria to be

satisfied by state implementation plans, did not authorize the Ad-

ministrator to reject such plans on grounds of technological or eco-

nomic feasibility. The Court’s reasoning was based upon language

of section 110(a) (2) which provided that the Administrator “shall

approve” proposed state plans if the eight criteria were satisfied. In

light of the specificity of this mandatory language, the Court ana-

lyzed the Administrator’s authority to reject a plan on economic or

technological grounds solely in reference to the eight criteria set

forth in the statute, none of which permitted consideration of such

factors. In Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978), the

District of Columbia Circuit reached a similar conclusion based on

analysis of a statute that required EPA to take into account six

factors in proposing toxics standards under the Federal Water Pollu-

tion Control Amendments of 1972, Pub. L. 92-500, 86 Stat. 816, 33

U.S.C. § 1817(a) (1976), as amended, 33 U.S.C. § 1817(a) (Supp. I

1977). The dispositive element of the District of Columbia Cir-

cuit’s analysis in Hercules was the “clear statutory wording” of

section 307 which expressed “the congressional selection of fac-

tors... .” 598 F.2d at 112. Placing controlling weight on the

explicit congressional selection of some factors and not others, the

Hercules court found the meaning of the statute to be clear in not

requiring consideration of economic and technological feasibility. Jd.

25 See Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). In Whirl-

pool, Justice Stewart, writing for a unanimous Court, analyzed the

validity of an agency’s regulation by examining its conformance

with the “fundamental objective” of the Occupational Safety and

Health Act. Jd. at 11. The regulations authorized an employee to

refuse to perform assigned tasks which caused “a reasonable appre-

15

Had the court below looked to the purposes section of

the Act, as it should have in interpreting the “margin of

safety” requirement, it would have found that social,

economic, and technological factors are all relevant to a

decision on how much protection is “adequate” protection

under section 109. It would also have avoided the serious

constitutional problems posed by its failure to identify

any factors relevant to “margin of safety” determina-

tions. See text at 11-12 supra; see also Industrial Union,

100 S.Ct. at 2866.

Section 101(b) (1) of the Act states that the purpose

of the Act is “to protect and enhance the quality of the

Nation’s air resources so as to promote the public health

and welfare and the productive capacity of its popula-

tion.” Clean Air Act § 101(b) (1) (emphasis added). In

hension of death or serious injury coupled with a reasonable belief

that no less drastic alternative is available.” Jd. at 3-4, citing 29

C.F.R. § 1977.12 (footnote omitted). In upholding the validity of this

regulation, the Whirlpool Court embraced an analysis that should

have been applied by the lower court in interpreting § 109 of the

Clean Air Act. First the Court determined that the regulation fur-

thered the general purpose of the Occupational Safety and Health

Act as set forth in its preamble. Jd. at 18. See 29 U.S.C. § 651(b)

(1976). Then the Court found that the regulation rationally com-

plemented the overall remedial orientation of the legislation. 445

U.S. at 13. Finally, the Court refused to infer from the legislative

history a congressional intent to preclude such a regulation. /d.

at 13-21.

Previously the lower court had itself illustrated the overriding

importance of the purposes section of the Clean Air Act by ruling

that section 101(b) (1) imposed upon the Administrator the obliga-

tion to establish a regulatory program that was not mentioned in

the operative provisions of the Act. See Sierra Club v. EPA, 540

F.2d 1114 (D.C. Cir. 1976), vacated sub nom. Montana Power Co.

v. EPA, 4384 U.S. 809 (1977); Sierra Club v. Ruckelshaus, 344

F. Supp. 253 (D.D.C.), aff'd per curiam, 4 E.R.C. 1815 (D.C.

Cir. 1972), aff’d by an equally divided Court, sub nom. Fri v. Sierra

Club, 412 U.S. 541 (19738). Here Electric Utilities urge that the

purposes section be used in a more traditional sense—to define the

contours of general language in the Act’s operative provisions.

16

other words, the purposes section contemplates that ac-

tions taken to protect and enhance air quality promote

each of the three objectives of the Act (public health,

welfare, and productive capacity) in a manner that en-

sures that no one of them is exalted over or sacrificed

to the other.

Framing agency action to accommodate three different

objectives calls for balancing. Accordingly, in determin-

ing the appropriate margin of safety, the Administrator

must consider and balance all factors relevant to the

health, welfare and productive capacity of the public.

Therefore, since economic and technological factors in-

fluence, among other things, whether a particular level of

control promotes the productive capacity of the popvla-

tion,?* these factors must be considered by the Adminis-

trator in determining the adequacy of the margin of

safety incorporated into ambient standards.”

26The Administrator has long recognized the importance of

economic and other factors to fulfillment of the Act’s objectives

set forth in § 101(b) (1). Thus, in proposing the PSD regulatory

program implementing §101 (see note 25 supra), the Adminis-

trator observed that the Agency cannot, and should not, decide on

a regulatory approach without “full consideration of its economic

and social implications.” 38 Fed. Reg. 18986 (1973) (emphasis

added).

27 Contrary to the lower court’s understanding, this interpreta-

tion of § 109 does not permit the Administrator to establish a

primary standard above the level required to protect the public

health against adverse effects. Only health data may be considered

in determining this level. Text at 8-9 supra. Economic and other

factors are only relevant to establishing margins of safety. These

margins determine how far below the level of known harm the

standard will be set. In this regard, it should be emphasized that

consideration of economic and other factors in setting the margin

of safety may influence whether the health and welfare objectives

of the Act are fulfilled. For example, if the safety margin is estab-

lished without regard to economic and technological feasibility, shut-

17

In summary, since factors governing the exercise of

EPA’s discretion in setting a margin of safety are not

enumerated in section 109, implementation of this provi-

sion must be guided by the Act’s overall objective—an

objective that requires the Administrator to seek a bal-

ance among competing interests. The court below held

that the Administrator is precluded from considering

factors that are plainly relevant to striking such a bal-

ance. Unless this Court exercises its discretionary juris-

diction to review this case, national ambient standards

. will continue to be established without regard to their

social or economic consequences—indeed, without regard

to whether they will even produce a net benefit to the

public health.”*

III. The Decision Below Will Have a Pervasive Impact

The lower court’s decision disregards the need to pur-

sue protection of the public health on innumerable fronts,

with finite resources. As one member of this Court re-

cently recognized in another context,” a profligate com-

mitment of money and technology to guard against one

set of risks would ensure inadequate means to cope with

other hazards. Effective allocation of resources depends

on identifying where the greatest protection is available

per dollar spent. Without consideration of the unavoid-

able relationship between the costs of goods produced and

the capacity of the public to purchase such goods, strin-

gent margins of safety designed to protect against

hypothetical risks may have the effect of denying to the

poor and those on fixed incomes products such as elec-

down of basic industries and limitations on the supply of essential

products such as energy for heating and air conditioning can result.

The health risks created by such curtailments may be far greater

than the health risks posed by slightly higher pollution levels.

28 Id.

29 See Industrial Union Dep’t., AFL-CIO v. American Petroleum

Institute, 100 S.Ct. 2844, 2878 (1980) (Powell, J., concurring).

18

tricity that are essential to a healthy environment. As a

result, the lower court’s decision may spawn regulation

that produces only theoretical benefits for society while

causing it concrete harm.”

Recently this Court has exhibited an awareness of the

need for it to resolve questions of this nature in the

context of the Occupational Safety and Health Act

(OSHA).** While the Clean Air Act and Occupational

Safety and Health Act both provide for health-related

standards-setting, their structure and language are dis-

similar.” Moreover, the pervasive reach of ambient stand-

ards under the Clean Air Act suggests that resolution of

the question presented in St. Joe’s Petition for Certiorari

has transcendent importance to the public at large and

the economy as a whole. Therefore, a compelling need

exists for the Court to supplement its resolution of cost-

benefit issues under the Occupational Safety and Health

Act by deciding the Clean Air Act questions set forth in

St. Joe’s petition.

80 In Union Electric, Justice Powell recognized that “the shut-

down of an urban area’s electrical service could have an even more

serious impact on the health of the public than that created by a

decline in ambient air quality.” 427 U.S. at 272 (Powell, J.,

concurring).

81 See 100 S.Ct. 8054 (1980), granting review of two certiorari

petitions from the decision in American Iron and Steel Institute

v. OSHA, 577 F.2d 825 (8d Cir. 1978); 49 U.S.L.W. 3208-09

(October 7, 1980), granting review of two certiorari petitions from

the decision in AFL-CIO v. Marshall, 617 F.2d 6386 (D.C. Cir.

1979).

82 The two cases accepted for review involve interpretation of

section 6(b) (5) of OSHA which contains an explicit reference to

feasibility. 29 U.S.C. § 655(b) (5) (1976). It is the absence of such

a specific reference in section 109 of the Clean Air Act that has

given rise to this litigation.

19

CONCLUSION

For the reasons stated, the petition for certiorari filed

by St. Joe Minerals Corporation should be granted.

Respectfully submitted,

GEORGE C. FREEMAN, JR.

HUNTON & WILLIAMS

P. O. Box 1531

707 East Main Street

Richmond, Virginia 23212

HENRY V. NICKEL

(Attorney of Record)

CHARLES D. OSSOLA

HUNTON & WILLIAMS

1919 Pennsylvania Ave., N.W.

Suite 700

Washington, D.C. 20006

Counsel for Amici

Alabama Power, et al.

(202/223-8650)