Petition — Edison Electric Institute v. Costle
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Su Court, U.S.
tai | FIL ED
80-649 OCT 20 1980
IN THE MICHAEL RODAK, JR.. CLER
Supreme Comet of the United States
OCTOBER TERM, 1980
EDISON ELECTRIC INSTITUTE, et al.,
Petitioners,
if
DouGLAS M. COSTLE, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
GEORGE C. FREEMAN, JR.
HUNTON & WILLIAMS
P. O. Box 1531
707 East Main Street
Richmond, Virginia 23212
HENRY V. NICKEL
(Attorney of Record)
F. WILLIAM BROWNELL
HUNTON & WILLIAMS
P. O. Box 19230
1919 Pennsylvania Ave, N.W.
Washington, D.C. 20036
(202) 223-8650
Counsel for Petitioners
Edison Electric Institute, et al.
October 20, 1980
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_ TEES SE
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WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
(1) Whether the due process clause of the Fifth
Amendment is violated by construing § 307(b) of the
Clean Air Act, which requires that petitions to review be
filed in the Court of Appeals within 60 days of a review-
able action, to foreclose judicial review of a final regula-
tion where the Agency’s interpretation of that final rule
was unclear at the time of promulgation, and where the
Agency, after expiration of the 60 day period, reinter-
‘preted the rule to change substantially the rights of
regulated parties.
(2) Whether EPA’s response to a formal request for
a definite interpretation of the Administrator’s regula-
tions, which response results in an interpretation of the
rule which changes substantially the rights of regulated
parties, can provide the basis for a petition to review
under § 307(b) (1) of the Clean Air Act.
(i)
Questions Presertied ......-..------2.--e---cenveeeneveecernnecnsen
Statutory Provisions Involved .............-...--------------+-----++-
i sc anenenvataceeresameninessanes
~ Reasons for Granting the Writ .............-.--------.----.------
I. Precluding Judicial Review of Definitive Agency
Il.
ITI.
GS SES EE ee
Interpretations of Ambiguous Regulations
Raises Serious Questions of Fundamental Fair-
Requiring Immediate Appeal of Ambiguous Reg-
ulations Is Injurious to the Administration of
This Court Should Exercise Its Power of Super-
vision Because The District of Columbia Circuit
Has Departed From Sound and Established
EST ERIE SRE Oe ae eR
The Decision Below Directly Conflicts With The
Decision of This Court In Harrison v. PPG In-
i ois seenalsintenreenmnape bones
(iii)
13
14
18
7%
iv
TABLE OF AUTHORITIES
CASES: Page
Alabama Power Co. v. Costle, ——— F.2d ——, No.
78-1006 (D.C. Cir. Dec. 14, 1979) ................... bare 19
Adamo Wrecking Co. v. U.S., 484 U.S. 275 (17
G5 PRON TEER ASSIA asta sie Vs Bytes A ON, RO 17
Atlantic Richfield v. FTC, 567 F.2d 96 (D.C. Cir.
| 5 1 a Rae eal OME NMOS Ne BBey irre Ae Se LS OO 15,18
Bowman Trans. V. Arkansas-Best Freight, 419
8 Ae: | | BR Ames Ax, caso eee = yee VON 17
Detroit Edison v. EPA, 496 F.2d 244 (6th Cir.
1974) PPAR RES FATE: OE ID tap eS AN 22
Donner Hanna Coke Corp. v. Costle, 464 F. Supp.
Eh CUE ee TE sccksieet ne casconctneiee 22
Harrison v. PPG Industries, Inc., —— U.S. ——,
48 U.S.L.W. 4585 (May 27, 1980) ...................... 13, 22
Johnson V. Robison, 415 U.S. 861 (1974) -............... 17
Moragne v. States Marine Lines, 398 U.S. 375
is | a ARR SAE CR be Tec RET A ne a NN 16, 20
National Automatic Laundry & Cleaning Council
v. Shultz, 443 F.2d 689 (D.C. Cir. 1971) ........... : 22
Ohio Bell Co. v. Public Utilities Comm’n, 301 U.S.
SO IE dah ene i ee 17
Oljato Chapter of the Navajo Tribe v. Train, 515
Pome G6. CDG. COROUID LOTR) seein. 15,18
Union Electric Co. v. EPA, 427 U.S. 246 (1976) ..6, 14, 16
Utah Power & Light v. EPA, 553 F.2d 215 (D.C.
Cr i elite 15,18
U.S. v. Rumely, 345 U.S. 41 (1958) -......-...-.....-........ 18
U.S. v. Thirty-Seven Photographs, 345 U.S. 41
RI Sinn cocnsmsapmasinlipnbiaeiohcs tedubbiie sade dieamciaasounte 18
STATUTES
Administrative Procedure Act, 5 U.S.C. § 551(4)
POSER IN TR NE toe MCN MIEN ENE. HRN 10
Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp. I
Lf ROAR AEIE ae SPE ISR ip aL NaS aS SAIN EW MOOD Ov
# Ye hte CA jeter y ene rene IO 5
© SI Ae. See Oe oli castes cectimiicchcte hte 5
Vv
TABLE OF AUTHORITIES—Continued
Page
§ 110(a) (2) (c), 42 U.S.C. § 7410(a) (2) (ec) .......... 8
Oy 5
§ 168, 42 U.S.C. § 7468 .................... lade 6
§§ 171-178, 42 U.S.C. §§ 7471-7478 _. 6
§ 801(a), 42 U.S.C. § 7601 (a) 2. eee 10
fo RR RS oe ), Sma ces ener 9, 12,16
See I co 9
REGULATIONS:
40 C.F.R. § 50.4 and Appendix A, 7.1.2 (1979) .... 7
GO CARB. SERRE) (1GTD) once ccccccccccsccccescecccecsceuses 10
FEDERAL REGISTER:
oe | Eb. | een 8
44 Fed. Reg. 27568 (1979) __.... iasdevtiligugetanensiatacas 8
GD ts PO IPE CEU aici cccneecicsescecsecnsicecsensteces 8
45 Fed. Reg. 44108 (1980) oo... ooo ccc ccccececeeeeee 7
RULES:
Rules of the Supreme Court, Rule 17.1(a) _............ 12
MISCELLANEOUS:
ACKERMAN & HASSLER, Beyond the New Deal:
Coal and the Clean Air Act, 89 YALE L.J. 1466
6 GARRET EES to isha eR RR OE NRCS IE eee 6
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
No.
EDISON ELECTRIC INSTITUTE
NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION
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
% THE CINCINNATI GAS & 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 DETRO!'T EDISON COMPANY
DUKE POWER COMPANY
FLORIDA POWER CORPORATION
FLORIDA POWER & LIGHT COMPANY
GEORGIA POWER COMPANY
2
GULF POWER COMPANY
GULF STATES UTILITIES COMPANY
HousToN LIGHTING & POWER COMPANY
ILLINOIS POWER COMPANY
INDIANA & MICHIGAN ELECTRIC COMPANY
INDIANAPOLIS POWER & LIGHT COMPANY
IoOWA-ILLINOIS GAS AND ELECTRIC COMPANY
IOWA POWER AND LIGHT COMPANY
8 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 & LIGHT COMPANY
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 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 DieGco 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,
Petitioners,
Vv.
DOUGLAS M. COSTLE, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
Edison Electric Institute, et al., (hereafter “Electric
Utilities”) respectfully petition for a writ of certiorari to
review the judgment of the United States Court of Ap-
peals for the District of Columbia Circuit entered in this
proceeding on June 17, 1980. Order, Edison Electric In-
4
stitute, et al. v. Environmental Protection Agency, No.
80-1441 (D.C. Cir., June 17, 1980).
OPINION BELOW
A motions panel of the District of Columbia Circuit
(Judges Mikva and Edwards participating) dismissed
Electric Utilities’ petition to review without opinion.
Electric Utilities thereupon filed a Suggestion for Rehear-
ing En Banc, which was denied without opinion. Copies
of the order of dismissal and the denial of the Suggestion
for Rehearing En Banc appear in the Appendix hereto
(hereinafter referenced as “App. ——’”).
JURISDICTION
The judgment of the Court of Appeals for the D.C.
Circuit was entered on June 17, 1980 (App. 3). A timely
Suggestion for Rehearing En Banc was denied on July
22, 1980 (App. 4), and this petition for certiorari was
filed within 90 days of that date. This Court’s jurisdic-
tion is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The following statutory and regulatory provisions are
set forth in the Appendix:
1. Clean Air Act §§ 109, 110(a), 307(b), 42 U.S.C.
§§ 7409, 7410(a), 7607(b) (Supp. I 1977) (App.
5-14).
2. 40C.F.R. Part 58 (App. 15-91).
40 C.F.R. Part 50 (App. 92-116).
4. 40 C.F.R. Part 53 (App. 117-131).
ad
STATEMENT OF THE CASE
Under § 109 of the Clean Air Act, EPA has established
federal ambient air quality standards that define the
maximum permissible concentrations of airborne pollut-
ants necessary to protect the public health. These stand-
ards are codified at 40 C.F.R. Part 50.? Section 110
directs that each state have a detailed regulatory pro-
gram designed to assure the attainment and maintenance
of these standards. If the states fail to act, EPA must
step in and promulgate a program. Regulatory programs
implementing § 109 standards, known as “state imple-
mentation plans,” include both legally enforceable limits
on emissions from existing plants and constraints on the
construction of new plants. Violation of these require-
ments results in the imposition of criminal and civil
sanctions.*
Petitioners, the Edison Electric Institute, the National
Rural Electric Cooperative Association, and 84 individual
utilities, either operate or represent operators of electric
generating facilities throughout the United States. Those
existing facilities owned by Electric Utilities and those
under construction or planned are required to meet emis-
sion limitations implementing the ambient air quality
standards. The more stringent the air quality standard,
the more costly and burdensome the emission control re-
quirement under the state implementation plans. In addi-
tion, the stringency of the standard will determine the
pace of economic growth in many areas of the country.‘
1 42 U.S.C. § 7409 (Supp. I 1977). For convenience, all references
to the-C'ean Air Act hereafter will be to the section numbers of the
Act ratner than the United States Code; citations to both appear
in the Table of Citations.
*The Appendix to this petition contains the original Federal
Register promulgation, which designated these regulations as Part
410 of 42 C.F.R. These regulations were later redesignated as
Part 50 of 40 C.F.R. (86 Fed. Reg. 22884 (1971)) but were not
substantively changed. References will hereafter be made to the
Part 50 regulations, with parallel references to the original section
number when helpful.
8 Clean Air Act § 113.
* The leval of the air quality standard determines whether or not
industrial facilities will be able to attain the standard, and if not,
It will also affect the feasibility and expense of converting
existing generating capacity fired with imported oil to
domestic coal, given the high sulfur content of most
Eastern coal.®
The petition to review filed by Electric Utilities in the
court below challenged EPA’s response to a request for
an official interpretation by the Administrator of EPA
of the existing Part 50 sulfur dioxide (SO,) ambient
standard. In its response to Electric Utilities’ request,
EPA indicated that reporting requirements, promulgated
in May 1979 and appearing at 40 CFR Part 58 (App.
15-91), changed the method for determining compliance
with the Part 50 SO, ambient standard. This change
results in a substantial tightening of the SO, standard.®
what steps must be taken to attain the standard. A finding of non-
attainment means, at a minimum, that emissions from existing
sources must be reduced at considerable cost and that construction
of new sources will be prohibited until the state or EPA imposes
additional requirements for installation of control technology or
limitation of production at existing sources which will insure attain-
ment of the ambient standard. See Clean Air Act §§ 171-173. A
“scrubber” used to remove sulfur dioxide from the stack gas of a
power plant, for example, can cost hundreds of millions of dollars.
And in some instances, compliance may require shut-down of the
noncomplying facility. See Union Electric Co. v. EPA, 427 U.S.
246, 271-72 (1976) (Powell, J., concurring).
In attainment areas, which are subject to the “prevention” of sig-
nificant deterioration” (“PSD”) requirements, a lower effective
ambient ceiling will curtail new growth. Clean Air Act § 163. This is
so because, in these “clean air” areas, the PSD provisions of the Act
prohibit new growth that would cause the ambient ceiling or the
PSD “increments” to be exceeded, whichever is more limiting. Thus,
the lower the ambient standard, the lower the growth permitted in
those clean air aras where the ambient ceiling is the governing
constraint.
5 See ACKERMAN & HASSLER, Beyond the New Deal: Coal and the
Clean Air Act, 89 YALE L.J. 1466 (1980).
6 See text at 11 infra.
**
T
Electric Utilities intended to argue below that EPA’s in-
terpretation of its own rules was incorrect, and that, if
EPA’s interpretation were accepted, the Part 50 SO,
standard would have to be set aside on procedural and
substantive grounds. Since Electric Utilities’ petition to
review was dismissed without consideration of their brief
on the merits, these substantive issues were never con-
sidered by the lower court. As the following statement
of facts shows, the issues on the merits are closely inter-
twined with the jurisdictional issue raised by this peti-
tion.
In 1971, EPA promulgated a 24-hour national ambient
air quality standard for SO,. Those Part 50 regulations
provide that compliance with the 24-hour standard is to
be determined using “calendar day” averages. The 24-
hour ambient standard and associated compliance deter-
mination method determines the stringency of the stand-
ard.’
In 1978, EPA began the process of gathering data to
determine whether revisions to the Part 50 SO, ambient
standard would be necessary. This review is required by
§ 109(a) (1) of the Clean Air Act, as amended in 1977.
Electric Utilities have been active participants in the
Agency’s ongoing effort to collect data and analyze
whether the standard should be made more or less strin-
gent. EPA originally indicated that it would reach a
decision on whether revisions were necessary, and if so
what revisions, by late-1980,° but recently revised its
projection to mid-1981.
See 40 C.F.R. § 50.4 (originally 42 C.F.R. § 410.4) and Ap-
pendix A, 7.1.2 (1979) (App. 99, 109). Under the 24-hour SO,
standard, a violation occurs upon finding a second exceedance of
the specified ambient concentration in a given year. With the
calendar day compliance method, a maximum of 865 compliance
periods a year is examined in determining whether the standard
has been met. If the compliance determination method is changed
to a running average method, the standard becomes more stringent.
See text at 11 infra; App. 188-186.
8 See 46 Fed. Reg. 44108 (1980).
g
Wholly apart from its study of the need for revisions
to the Part 50 SO, standard, EPA promulgated in May
1979 its Part 58 regulations for reporting ambient air
quality monitoring data under §§110 and 319 of the
Act.* The stated purpose of the new Part 58 regulations
was to standardize monitoring and reporting practices.”
A footnote in an appendix to the final Part 58 regula-
tions referenced a document which, when read with the
footnote in the appendix, indicates that 24-hour SO, con-
centrations should be reported using a “running average”
method whenever continuous monitoring data are avail-
able." Electric Utilities, having no objections to require-
ments for reporting SO, data, did not file a petition to
review the Part 58 regulations.”
® See App. 7. Section 110(a) (2) (c) of the Act requires that state
implementation plans include “provision[s) for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to (i) monitor, compile, and analyze data on ambient air
quality and, (ii) upon request, make such data available to the
Administrator. .. .” (App. 9). Section 319 provides for establish-
ment of standardized monitoring systems and reporting require-
ments, which must be incorporated into state implementation plans
under § 110 “as soon as practicable.”
© See, e.g., 44 Fed. Reg. 27558 cols. 1-2, 27567 col. 3, 27597 cols.
2-8 (1979) (App. 15-16, 53-54, 86-87). See also Electric Utilities’
Request f- Clarification of Interpretation (App. 137-139).
11 See note 16 infra. Using the running average technique
8,787 24-hour periods in a year are reported.
12 There is no inconsistency between reporting data using run-
ning averages and determining compliance using “calendar day
averages,” since running average data will include the 365 calendar
day periods upon which compliance is determined. See Brief of
Petitioners Edison Electric Institute, et al. (June 10, 1980), at 14
n.18, 17 n.22 [hereafter “EEI Br.”]. (This brief was submitted to
the lower court pursuant to Rule 3l1(a) of the Federal Rules of
Appellate Procedure, and was appended to Electric Utilities’ Sugges-
tion for Rehearing En Banc. See App. 144 n.3.) In the past, EPA
has introduced new reporting requirements in order to develop data
9
Electric Utilities learned in the fall of 1979, after the
period for filing a petition to review the Part 58 regula-
tions had expired, that a petition to review these regula-
lations had been filed and was being pursued by PPG
Industries."* According to counsel for PPG Industries,
this petition was based on a statement by a lawyer in the
General Counsel’s office that, in this attorney’s view, the
Part 58 regulations changed the method for evaluating
compliance with the SO, standards from calendar day
averages to running averages. In Electric Utilities’
for use in future rulemakings to modify existing rules. See
App. 138 n.10. Since EPA did not mention Part 50 in this rule-
making, did not make any of the findings required by § 109 of the
Act to modify Part 50 regulations, and currently had under study
whether revisions to the Part 50 SO, standard would be necessary,
Electric Utilities did not suspect that these new Part 58 rules could
be considered anything other than what they purported to be—
reporting requirements. See also note 16 infra.
18 PPG v. Costle, Nos. 79-1708 et al. (D.C. Cir.). Under § 807 (b)
of the Act, a petition to review final agency action must be filed
within 60 days of that action unless the “grounds” for review
arise after the 60th day. Failure to raise challenges to final agency
action within the prescribed time results in the preclusion of such
challenges in future judicial review proceedings and in enforcement
actions.
14 PPG’s petition was filed initially as a “protective” matter be-
cause it appeared that EPA Region V may have used running
averages in determining that the 24-hour standard had been vio-
lated in Summit County, Ohio. After filing their petition, PPG
counsel met with an attorney in EPA’s General Counsel’s office
to discuss the petition. At that meeting, EPA covnsel stated that,
in his view, Part 58 was intended to impose running averages as
the method for determining compliance with the SO, 24-hour stand-
ard. See EEI’s Opposition to Motion to Dismiss (May 19, 1980),
at 5 n.5 (hereafter “EEI Opposition”).
The Administrator of EPA has not delegated to the EPA regions
or the General Counsel’s Office the final responsibility to construe
definitively EPA’s Clean Air Act regulations or to resolve conflicts
among them. Indeed, the Clean Air Act would seem to prohibit such
a general delegation of responsibility since rulemaking authority is
10
view, this unofficial interpretation was not supported by
the language of Part 58, conflicted with Parts 50 and 53
of EPA’s regulations,’® and was inconsistent with § 109
of the Act.**
vested exclusively in the Administrator. Clean Air Act § 301 (a) (1).
Under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
(1976) (hereafter “APA”), a rule is defined to include “an agency
statement of general or particular applicability ... designed to...
interpret ... law or policy... .” 6 U.S.C. § 551(4) (1976). In the
context of the Clean Air Act, therefore, it is appropriate to seek
a definitive construction of EPA’s regulations from the Adminis-
trator when faced with an informal interpretation of his sub-
ordinates. Finally, the case law of the District of Columbia Circuit
indicates that a petition to review based upon an interpretation of
a subordinate will be remanded for an official interpretation. See
note 22 infra.
15 Part 58 of EPA’s regulations permits the use of measurement
devices for purposes of compliance determination which are shown
to produce equivalent results to the reference method. Thus, a can-
didate method for SO,, to be equivalent, must produce a single
integrated value each calendar day. Accordingly, the equivalency
regulations direct that ‘no more than... one (1) 24-hour measure-
ment shall be made per day.” 40 C.F.R. § 53.82(f) (1979) (App.
129).
16 See App. 5-7; EEI Br. at 49-58. As noted above, the language
of Part 58 talks only of reporting continuous monitoring data on a
running average basis. See also App. 187-189. Significantly, the
discussion of the running average method appears in a separate
“guidelines” document which is only referenced in a footnote to an
appendix to the Part 58 regulations, which was never incorporated
by reference into the Part 58 regulations, and which, to Electric
Utilities’ knowledge, never has been circulated publicly. Further,
this guidelines document does not purport to amend the Part 50
standards, but only recommends a “change” in the method of deter-
mining compliance with the SO, standard to the running average
technique in certain situations. The guidelines document notes
that this change would result in a significant tightening of the
standard, but cites no studies or data to support the need for, or
benefits associated with, such a change. See App. 158-159.
It is curious that none of the participants in the Part 58 rule-
making would have discussed this alleged change to the Part 50
11
The central fact of this litigation therefore is that com-
pliance with the 24-hour standard promulgated in 1971
was to be determined on a calendar day basis, and the
language which, in 1971, established calendar day com-
pliance has never been changed. Under the calendar day
method, a violation occurs upon finding a second exceed-
ance out of 365 possible values whereas, under the run-
ning averages method, a violation occurs upon finding a
second exceedance from 8,737 possible values. EPA ad-
mits that, by increasing the number of compliance periods
from 365 to 8,737, the stringency of the SO, standard
would increase by up to 30-40 percent.’ Given the serious
consequences of this entirely unanticipated application of
the Part 58 rules, Electric Utilities petitioned the Admin-
istrator in Nuvember 1979 for an official, definitive
interpretation of the Part 50 ambient standard to con-
firm that this standard required enforcement using calen-
dar day averages.'*®
Electric Utilities asked the Administrator to act
promptly on their request for interpretation of the Part
50 standards, citing the pending petition filed by PPG
Industries for review of the Part 58 regulations. EPA
ambient standards. An examination of the statement of basis and
purpose of the final rules, however, sheds some light on this lack
of comment. Nowhere in the statement of basis and purpose are
the Part 50 standards discussed or are any of the findings required
by § 109 of the Act to change the Part 50 standards (i.e., that such
revisions “are requisite to protect the public health” with an ade-
quate margin of safety) made. I» addition, the procdural require-
ments of § 307(d) of the Act which app.y ‘n proceedings to amend
ambient standards were not followed. Indeed, since EPA was in-
volved in wholly separate activity to determine whether revisions
to the Part 50 standards were necessary, it seemed unreasonable to
interpret the Part 58 rulemaking to effect changes to the Part 50
SO, standards.
17 See App. 148 n.18, 159.
18 App. 182-140,
12
éounsel indicated to counsel for Electric Utilities, how-
ever, that the request for interpretation raised substantial
questions that could not be responded to before the dead-
line for petitioners’ briefs in the PPG case. Accordingly,
Electric Utilities filed an amici brief in the PPG case
informing the court below of the pending request for in-
terpretation which, if acted upon favorably, could render
moot the PPG petition.
The Administrator refused to respond personally to
the request for interpretation and told his Counsel’s
Office to prepare a response. In March of 1980, EPA’s
Office of General Counsel, acting under authority of the
Administrator, rejected Electric Utilities’ interpretation
and cited the respondents’ brief in the PPG case, filed
on March 14, 1980, as setting forth the Agency’s official
interpretation of these rules.*® That brief construes the
Part 50 and 58 rules as requiring enforcement of the
Part 50 SO, standard on a running average basis.
On April 25, Electric Utilities petitioned the Court of
Appeals for the D.C. Circuit to review the Part 50 SO,
standard and Part 58 regulations as construed by EPA.
The basis for this petition was two-fold. First, the Ad-
ministrator’s response to Electric Utilities’ request was
a final interpretation of the Part 50 and 58 rules. Such a
final interpretation constitutes “final action” reviewable
under § 307(b) (1). Second, EPA’s March response gave
Electric Utilities notice for the first time that the Admin-
istrator would enforce the Part 50 standard on a running
average basis. Thus, this official interpretation provided
“grounds” to review the Part 50 standards that arose
after the sixtieth day.”
19 See App. 1-2. Briefing in the PPG case has been completed but
argument has not been scheduled.
20 Section 307(b) (1) provides in part that “if such petition is
based solely on grounds ariisng after such sixtieth day, then any
petition for review under this subsection shall be filed within sixty
days after such grounds arise.” See also note 13 supra.
13
On May 9, 1980, EPA filed a motion to dismiss Electric
Utilities’ petition to review, contending that the Court of
Appeals had no jurisdiction over Electric Utilities’ peti-
tion under § 307(b) (1) of the Act. Counsel for EPA
argued that Electire Utilities were appealing arguments
advanced in the respondent’s brief filed by EPA in the
pending PPG case, which arguments are not “final agency
action.”
On May 19, 1980, Electric Utilities filed an extensive
response pointing out that there would have been no basis
for the motion to dismiss had the Administrator person-
ally prepared a reasoned response and that EPA should
not be allowed to defeat jurisdiction simply by choosing
to respond to a request for interpretation by referencing
a brief rather than preparing an independent response.
Electric Utilities further explained why the court had
jurisdiction over a petition to review that was based upon
EPA’s response to Electric Utilities’ good faith request.
On June 10, 1980, Electric Utilities filed their brief on
the merits in accordance with Rule 31(a) of the Federal
Rules of Appellate Procedure.
On June 17, 1980, a motions panel of the District of
Columbia Circuit granted without opinion EPA’s motion
to dismiss Electric Utilities’ petition to review. In acting
on the motion, the court did not consider Electric Utili-
ties’ brief on the merits. Electric Utilities then filed a
Suggestion for Rehearing En Banc, which was denied
without opinion on July 22, 1980.
REASONS FOR GRANTING THE WRIT
Petitioners come to this Court because the dismissal
without opinion of Electric Utilities’ petition for review
raises substantial questions of fundamental fairness,
creates serious problems for the administration of justice,
and directly conflicts with this Court’s decision in Harvri-
son V. PPG Industries, Inc., —— U.S. ——, 48 U.S.L.W.
4585 (May 27, 1980).
14
Under section 307(b)(1) of the Act, the Court of
Appeals for the District of Columbia Circuit has exclu-
sive jurisdiction to review ambient air quality standards
and other nationally applicable final agency actions under
the Clean Air Act. Under § 307(b) (2) of the Act, Elec-
tric Utilities may not challenge the validity of such ac-
tions in subsequent civil or criminal enforcement proceed-
ings. Thus, no other court (save this Court on certiorari)
may pass on the validity of these agency actions. This
grant of exclusive jurisdiction imposes on the D.C.
Circuit a special obligation to insure that § 307(b) is
applied in a manner that assures fair treatment to those
whose rights are affected substantially by actions re
viewable only in the D.C. Circuit.** Where this obliga-
tion has not been fulfilled, this Court, as the only court
which can review the decisions of the D.C. Circuit, should
use its supervisory powers to correct unfairness. Here,
the petitioners have followed the applicable precedents of
the lower court. That court, without opinion, forever
barred petitioners from securing review of a significant
revision to an important regulation. Fundamental fair-
ness, aS well as considerations related to the proper ad-
ministration of justice, should lead this Court to review
the decision below.
I. Precluding Judicial Review of Definitive Agency Inter-
pretations of Ambiguous Regulations Raises Serious
Questions of Fundamental Fairness
Electric Utilities come to this Court having had their
petition to review EPA’s Part 50 ambient standard and
EPA’s official interpretation of that standard dismissed
21 This is especially important where the regulations in question
have substantial economic implications. As members of this Court
have noted, the risk of civil and criminal penalties, as well as
possible citizens’ suits under the Act, coupled with overly stringent
standards could lead to the shutdown of an urban area’s electric
service. See Union Electric Co. v. EPA, 427 U.S. 246, 271-72 (1976)
(Powell, J., concurring).
15
without opinion by the only court in the United States
with jurisdiction to hear Electric Utilities’ challenge.
In attempting to secure from the head of the administra-
tive agency his official interpretation of what appeared
to be a readily resolvable conflict between two sets of
administrative regulations, Electric Utilities followed the
well established law of the D.C. Circuit encouraging,
wherever possible, administrative resolution of such is-
sues.** The interpretation suggested by Electric Utilities
was consistent with the plain meaning of the Agency’s
regulations and with well established rules of construc-
tion.** At no time did EPA suggest that the request for
interpertation was filed in bad faith. Indeed, EPA coun-
sel indicated that a quick response to the request was not
22 See Atlantic Richfield v. FTC, 567 F.2d 96 (D.C. Cir. 1977);
Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir.
1975). See also Utah Power & Light v. EPA, 553 F.2d 215, 219 n.17
(D.C. Cir. 1977). In Atlantic Richfield, the D.C. Circuit held that
an interpretation of a regulation proferred by both industry counsel
and agency counsel in litigation could not be accepted by the court
because of “(t]he salutory and settled rule of administrative law
that the Agency, and not the reviewing court, is to be accorded
the first opportunity to construe its own regulations.” 567 F.2d at
103 (emphasis added). Accordingly, the D.C. Circuit remanded
the rule to the Commission for “a clear and definitive interpreta-
tion... .” Id. In view of this holding, it was incumbent upon
Electric Utilities to give the Administrator the opportunity to
construe his Parts 50, 53 and 58 regulations before asking the
lower court for review.
Similarly, in Oljato, the D.C. Circuit stated that before petitioning
to review a previously promulgated rule on the basis of post 60-day
developments, the Administrator of EPA should be given the oppor-
tunity to resolve the matter. 515 F.2d at 665-66. Oljato therefore
required Electric Utilities to present to the Administrator the re-
ported interpretation of his subordinates and to reques*+ “hat he
reject that interpretation. Only after Electric Utilities’ request
was denied by the Administrator, giving rise to a definitive and
official Agency position on these rules, could Electric Utilities ask
the lower court to pass on the validity of the Parts 50 and 58
regulations and the Agency’s construction of them.
23 See note 16 supra.
16
possible due to the substantiality of the issues.* Thus,
Electric Utilities properly sought the Administrator’s in-
terpretation before attempting to invoke the jurisdiction
of the D.C. Circuit.
In spite of Electric Utilities’ good faith effort to obtain
administrative resolution of an apparent conflict in regu-
lations created by an unofficial and informal interpreta-
tion of a subordinate of the Administrator, the court
below has refused to hear any of Electric Utilities’ argu-
ments on the merits.» The court below did not even
issue an opinion explaining the reasons for dismissing
Electric Utilities’ petition.”
Under § 307(b) (1), as applied by the court below,
Electric Utilities are barred forever from challenging the
validity of a change to the Part 50 SO, standard even
though that change significantly increases the stringency
of the standard. As a result, Electric Utilities must ac-
cept whatever emission requirements are adopted under
§ 110 if those requirements are needed to insure attain-
ment of maintenance of the more stringent standard.”
Nor, under § 307(b) (2), may Electric Utilities attack
such emission requirements in subsequent civil or crimi-
nal enforcement proceedings on grounds relating to the
validity of the SO, standard. In view of the pervasive
24 See text at 11-12 supra.
25 This is curious, since resolution of the jurisdictional issue
here in favor of EPA requires taking some position on the merits
of the case—i.e., whether or not the Part 58 rulemaking did amend
the Part 50 SO, ambient standard. For this reason, Electric Utili-
ties suggested that the lower court defer ruling on the jurisdic-
tional issue until having heard the merits. See EEI Opposition to
Motion to Dismiss at 20, 21 (May 19, 1980). The lower court, how-
ever, did not consider Electric Utilities’ brief on their merits.
26 When departing from an accepted practice, the court below
should at least explain the reasons for rejecting that practice. See
Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970). See also
text at 20 infra.
27 See Union Electric Co. v. EPA, 427 U.S. 246 (1976).
17
impact that ambient standards have or the future obli-
gations of Electric Utilities, serious constitutional ques-
tions are posed by precluding judicial review of a change
to the SO, standard where Electric Utilities lacked notice
that such a change had taken place until after the expira-
tion of the 60 day period.**
It is inevitable that the meaning, scope and effect of
every aspect of a new EPA regulation may not be clear
at the time of its promulgation. Later interpretation is
needed to resolve these ambiguities. In addition, a regu-
lation may be seemingly clear at the time of promulgation
and later given an interpretation which changes its
apparent meaning. Applying § 307(b) so as to preclude
judicial review when this occurs would enable the Agency
to evade judicial scrutiny by “clarifying” or reinterpreting
its rules without regard to the substantive impacts of
such “clarifications.”
In the instant case, Electric Utilities followed the
established precedents of the lower court in seeking a
definite administrative interpretation of ambiguous regu-
lations before involving the jurisdiction of that court.
If the order of the court below is allowed to stand, Electric
Utilities will never be able to obtain review of the sig-
nificantly more stringent standard resulting from the
Agency interpretation of March 1980. Given the obvious
28 See Adamo Wrecking Co. v. U.S., 484 U.S. 275, 289-90 (1978)
(Powell, J., concurring). As Justice Powell noted in his concurring
opinion, the “limitation on judicial review imposed by the Clean
Air Act would afford precariously little time for many affected
persons even if some adequate method of notice were afforded.”
Id. at 290. In this case, the total lack of notice that Part 50 stand-
ards were being amended by the Part 58 rulemaking (see note 16
supra) should militate against acceptance of EPA’s and the lower
court’s reading of § 307(b). See also Bowman Trans. v. Arkansas—
Best Freight, 419 U.S. 281, 288 n.4 (1974) ; Ohio Bell Co. v. Public
Utilities Comm’n, 301 U.S. 292, 300 (1987). Electric Utilities, of
course, are not arguing that every agency interpretation is review-
able, but only those which substantially change the rights and obli-
gations of regulated parties.
18
constitutional problems raised by this approach, § 307 (b)
must be read to permit judicial review in this and simi-
lar cases.” The failure of the lower court to write an
opinion in this case, and the uncertainty this has created
for those involved in practice before the administrative
agencies and that court, make it all the more important
that this Court decide the important question of the effect
of § 307(b) of the Act in situations involving administra-
tive interpretation of ambiguous regulations.
Il. Requiring Immediate Appeal of Ambiguous Regula-
tions Is injurious to the Administration of Justice
In a broader sense, the order of the lower court sets a
serious precedent affecting the administration of justice
in future cases under the Clean Air Act. Electric Util-
ities have been active participants in all major rule-
makings and litigation arising under the Clean Air Act
since the Act was amended in 1977. Before this decision,
Electric Utilities, as well as other participants in major
environmental rulemakings, would decide whether to chal-
lenge a rule (and, if so, which issues to brief) on the
basis of a fair and reasonable construction of the regu-
lations in question. If ambiguity existed, petitioners
would seek administrative clarification before invoking
the jurisdiction of the federal courts.® Dismissal of Elec-
tric Utilities’ petition to review is fundamentally incom-
patible with this approach to litigation.
29 It is well established that a statute must not be read to create
constitutional problems when other readings are possible. See,
e.g., Johnson v. Robison, 415 U.S. 361, 367 (1974); U.S. v. Thirty-
Seven Photographs, 402 U.S. 363, 369 (1971); U.S. v. Rumely, 345
U.S. 41, 45 (1953).
80 This approach, of course, is the one suggested by the recent
decision of this Court in Harrison v. PPG Industries, Inc.,
US. , 48 U.S.L.W. 4585 (May 27, 1980), and by the previous
decisions of the D.C. Circuit in Oljato Chapter of the Navajo Tribe
v. Train, 515 F.2d 654 (D.C. Cir. 1975); Atlantic Richfield v. FTC,
567 F.2d 96 (D.C. Cir. 1977); and Utah Power & Light v. EPA,
553 F.2d 215 (D.C. Cir. 1977).
-
19
Since the lower court is the exclusive forum for review
of numerous major actions of the Administrator of EPA
under the Clean Air Act, the approach suggested by the
lower court’s dismissal of Electric Utilities’ petition will
affect Electric Utilities’ participation in all future Clean
Air Act litigation involving national regulations. Under
the lower court’s decision, a new interpretation of a rule
issued more than 60 days after its promulgation cannot
be appealed no matter how unreasonable. To avoid fore-
closure of judicial review, therefore, Electric Utilities
will be forced to examine each regulation promulgated by
EPA to determine its most unreasonable constructions.
As a result, Electric Utilities will be forced to file “pro-
tective” petitions to protect their right to review, and they
will be forced to brief more issues, based on suspected
interpretations, in any appeal. Given the breadth and
scope of the issues raised in major EPA rulemakings and
the burdens imposed on the federal courts and those ad-
versely affected by such rules in the management of such
appeals," such a proliferation of speculative and un-
wieldy litigation is highly undesirable.** Thus, it is criti-
cal that this Court decide whether the interpretation
given § 307(b) by EPA and the court below is correct.
51 See, e.g., Alabama Power Co. v. Costle, —— F.2d ——, No. 78-
1006 (D.C. Cir. Dec. 14, 1979).
82 Recent major cases under the Clean Air Act in which Electric
Utilities were involved, such as the Alabama Power case, would have
involved more parties and more issues had all those potentially
affected by the rules hypothesized “worst case” interpretations
instead of seeking administrative interpretations where doubt ex-
isted as to the meaning of the rule. In signalling that this practice
should end, the lower court’s decision will make the management of
such cases substantially more difficult.
20
Ill. This Court Should Exercise Its Power of Supervision
Because the District of Columbia Circuit Has Departed
From Sound and Established Precedent
As noted above, in attempting to secure from the head
of the administrative agency his official interpretation
of the regulation in question, Electric Utilities followed
the well-established law of the D.C. Circuit encouraging
administrative resolution of such issues before invoking
the jurisdiction of the federal courts.” As this Court has
recognized : |
Very weighty considerations underlie the principle
that courts should not lightly overrule past decisions.
Among these are the desirability that the law furnish
a clear guide to the conduct of individuals, to enable
them to plan their affairs with assurance against
untoward surprise; the importance of furthering fair
and expeditious adjudication by eliminating the need
to relitigate every relevant proposition in every case;
and the necessity of maintaining public faith in the
judiciary as a source of impersonal and reasoned
judgments. The reasons for rejecting any estab-
lished rule must always be weighed against these
factors.™
In this case, the lower court’s departure from its
previous practice of encouraging administrative resolu-
tion of ambiguous regulations has forever barred Electric
Utilities from obtaining review of a significant revision
to an important regulation. As discussed above, the
action of the lower court raises serious constitutional
questions as to the validity of the judicial review provi-
sions of the Act as applied ® and creates substantial un-
certainty as to how participants in future administrative
activities should proceed.”
83 See note 22 supra and accompanying text.
%4 Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).
85 See text at 16-17 supra.
36 See text at 18-19 supra.
21
Where the lower court has “departed from the accepted
and usual course of judicial proceedings,” this Court
should exercise its power of supervision to insure that the
departure by the lower court from established practices
has not compromised the rights of individual parties.’
This is especially important in this case, given the exclu-
sive jurisdiction that the Clean Air Act vests in the D.C.
Circuit to review nationally-applicable actions of the
EPA. Where, as here, the lower court has failed to
give any reason for departing from its established prac-
tice, this Court should exercise its discretionary juris-
diction to require the lower court to adhere to its estab-
lished precedents and practice.
IV. The Decision Below Directly Conflicts With the Deci-
sion of This Court in Harrison v. PPG Industries, Inc.
Electric Utilities’ petition sought review of an official
interpretation of EPA’s regulations issued under the
authority of the Administrator and in response to a
formal request for such an interpretation filed by Electric
Utilities. Dismissal of such a petition conflicts directly
with the recent decision of this Court in Harrison v. PPG
Industries, Inc., —— U.S. ——, 48 U.S.L.W. 4585 (May
27, 1980). In that case, decided eight days after Electric
Utilities filed their Opposition to the Motion to Dismiss,
this Court held that the response of a Regional EPA Ad-
ministrator to a request for interpretation falls within
the “any other final action” language of § 307(b) (1), and
as such constitutes an adequate jurisdictional basis for
a petition to review under § 307(b) (1) of the Act.**
The parties in the PPG Industries case did not dispute
that the Administrator’s response to the request for in-
87 See Rules of Supreme Court, Rule 17.1(a).
38 48 U.S.L.W. at 4587.
'%
s
terpretation in that case was “final action” as that
term is used in the Administrative Procedure Act.” In
this case, EPA admits that if the Part 58 regulations are
read as compliance determination requirements, the Part
50 SO, ambient standard is rendered substantially more
stringent. There is little question that Agency action
which clarifies or interprets previous regulations so as to
change the substantive obligations of regulated parties is
“final agency action”.“’ The instant case therefore is
substantially similar to the PPG Industries case.’ Be-
cause of the conflict between the PPG Industries decision
and the action of the lower court in the instant case, this
Court should exercise its discretionary jurisdiction to
review this case.
89 Id.
40 See, e.g., National Automatic Laundry & Cleaning Council v.
Shultz, 443 F.2d 689, 698-702 (D.C. Cir. 1971); Detroit Edison v.
EPA, 496 F.2d 244, 248-49 (6th Cir. 1974); Donner Hanna Coke
Corp. v. Costle, 464 F.Supp. 1295, 1303-05 (W.D.N.Y. 1979).
41 Indeed, in the PPG Industries case, the Agency response to the
petitioners’ request for interpretation was found to be sufficient to
vest jurisdiction even though the response merely reaffirmed a
previous EPA determination. 48 U.S.L.W. at 4586. In the instant
case, the response to the EEI request for interpretation represented
the first official pronouncement by the Agency on the matter.
23
CONCLUSION
For the reasons stated, the petition for certiorari
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)
F, WILLIAM BROWNELL
HUNTON & WILLIAMS
P. O. Box 19230
1919 Pennsylvania Ave., N.W.
Washington, D.C. 20086
(202) 223-8650
Counsel for Petitioners
Edison Electric Institute, et al.
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