# Petitioners Reply Brief — Chevron USA Inc. v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0106%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1984 - **Citation:** 467 U.S. 837 ## Text | Office-Supreme Court, U.S. faa FILED AUE 31 1983 Nos. 82-1005, 82-1247 and 82-1591 | ' IN THE Supreme Court of the United States OCTOBER TERM, 1983 CHEVRON U.S.A. INC., a corporation, Petitioner, Ve NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Respondents. AMERICAN IRON AND STEEL INSTITUTE, et al., Petitioners, V. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Respondents. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Petitioner, Vv. NATURAL-RESOURCES DEFENSE COUNCIL, INC., et al., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF OF PETITIONERS AMERICAN IRON AND STEEL INSTITUTE, et al., AMERICAN PETROLEUM INSTITUTE, et al., CHEMICAL MANUFACTURERS ASSOCIATION, GENERAL Motors CorRPORATION, and RUBBER MANUFACTURERS ASSOCIATION August 31, 1983 {Counsel listed on inside cover] RoBertT A. EMMETT Louis E. Tos! (Attorney of Record) WILLIAM L. PATBERG DAVID FERBER FULLER & HENRY REED SMITH SHAW & McCLay 300 Madison Avenue 1150 Connecticut Avenue, N.W. Toledo, Ohio 43603 Suite 900 Washington, D.C. 20036 Attorneys for General (202) 457-6144 Motors Corporation BLAIR S. MCMILLIN REED SMITH SHAW & McCLay CHARLES F. Letrow 747 Union Trust Building CLEARY, GOTTLIEB, Pittsburgh, Pennsylvania 15219 STEEN & HAMILTON (412) 288-3228 1752 N Street, N.W. Washington, D.C. 20036 Attorneys for Petitioners American ge Steel Attorney for the Rubber Institute, et al Manufacturers Association STARK RITCHIE Davip ™. DEAL AMERICAN PETROLEUM INSTITUTE 2101 L Street, N.W. Washington, D.C. 20037 Of Counsel: Attorneys for the American BARTON C. GREEN Petroleum Institute, et al. General Counsel and Secretary THEODORE L. GARRETT American Iron and Steel PaTRIcIA A. BARALD Institute CovINGTON & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 wv A - . al QUESTIONS PRESENTED . Whether the court below impermissibly intruded upon the discretion vested in the states by the Clean Air Act when that court deprived the states of the authority to define the term “source” as an industrial plant for their new source review programs in nonattainment areas, even where such a definition is demonstrated to be consistent with reasonable further progress toward, and timely at- tainment of, national ambient air quality standards. . Whether the court below wrongfully substituted its policy judgment for that of EPA, when it determined, without support in the language or legislative history of the Clean Air Act or in the record before it, that EPA had no authority to define “source” as an industrial plant or to allow the states to adopt a similar definition of “source” for the purposes of new source review programs in non- attainment areas. . Whether the court below erred in vacating EPA’s rescis- sion of “reconstruction,” a regulatory definition not found in the Clean Air Act which hac imposed new source-related preconstruction review requirements upon modifications of industrial facilities. . Whether the court below imposed on EPA an unduly high burden to justify rescission of a portion of its rules implementing Part D of the Clean Air Act. ii LIST OF PARTIES BELOW The Natural Resources Defense Council, Inc. (NRDC), Citizens For A Better Environment, Inc., and the North- western Ohio Lung Association, Inc. were petitioners in the proceedings below. Respondents below were the Environ- mental Protection Agency (EPA) and Anne M. Gorsuch, Administrator of EPA.' The American Iron and Steel Institute and seven of its member companies,” the American Petroieum Institute and thirteen of its member companies,’ the Chemical Manufacturers Association, General Motors Corporation, the Rubber Manufacturers Association and a group of 81 electric power generating companies and two electric utility trade associations‘ were intervenor-respondents below.° ' William D. Ruckelshaus has since replaced Ms. Gorsuch as Administrator of EPA. 2 Allegheny Ludlum Steel Corporation, Armco Inc., Bethlehem Steel Corporation, Carpenter Technology Corporation, Inland Steel Company, Jones & Laughlin Steel Corporation, Republic Steel Corporation, and United States Steel Corporation. Atlantic Richfield Company, Chevron U.S.A. Inc., Continental Oil Company, Exxon Corporation, Gulf Oil Corporation, Marathon Oil Company, Mobil Oil Corporation, Phillips Petroleum Company, Shell Oil Company, Standard Oil Company (Indiana), Texaco Inc., The Standard Oil Company (Ohio), and Union Oil Company of California. * Alabama Power Company, Appalachian Power Company, Ari- zona 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, Columbus and Southern Ohio Electric Company, Commonwealth Edison Company, Consol- idated 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 iii 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, Arkansas Power & Light Company, Louisiana Power & Light Company, Mississippi Power & Light Company, New Orleans Public Service Inc., 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 Mas- sachusetts Electric Company, Northern Indiana Public Service Company, Ohio Edison Company, Pennsylvania Power Company, Ohio Power Company, Ohio Valley Electric Corporation, Oklahoma Gas and Electric Company, Pacific Gas and Electric Company, Pennsylvania Power & Light Company, The Potomac Edison Company, Potomac Electric Power Company, Public Service Com- pany 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 Com- pany, Tampa Electric Company, Texas Utilities Generating Com- pany, 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, the Edison Electric Institute, and the National Rural Electric Cooperative Association. 5 In accordance with Rule 28.1 of the Rules of the Supreme Court, the parent companies of, and the non-wholly owned subsidiaries and affiliates of each corporate party upon whose behalf this Brief is filed are set forth in the Appendix to the Petition for a Writ of Certiorari in I'». 82-1247 at 34a-61la. Corrections of and additions and deletions to the list of non-wholly owned subsidiaries and affiliates of three of the American Petroleum Institute’s member companies, Phillips Petroleum Company, Gulf Oil Corporation, and Mobil Oil Corporation, are set forth in Appendix C hereto. TABLE OF CONTENTS QUESTIONS PRESENTED .................0000. LIST OF PARTIES BELOW ..................... TABLE OF CONTENTS ............... cece cece TABLE OF AUTHORITIES...................45. OPINIONS BELOW ......cccccccccccccccccccccee STURISDICTION ...ccccccccccccccccccccccccccccce STATUTES AND REGULATIONS INVOLVED ... STATEMENT OF THE CASE ..................5. A. The Statutory Framework...............00000: B. EPA’s Regulations Defining the Term “Source”. . 1. EPA’s Pre-1980 Regulatory Treatment of the Term “Source” in Nonattainment Areas .... 2. EPA’s 1980 Imposition of a “Dual” Definition of “Source” in Nonattainment Areas.......... 3. EPA’s 1981 Return to a Plantwide Definition of ewe tI pak ih hos seacdaleceeccoes C. EPA’s Deletion of the “Reconstruction” Provision SUMMARY OF ARGUMENT................0005. ahs 0) Sv don age wes whale nneee de e's I. THE DECISION BELOW CONTRAVENES THE CLEAN AIR ACT AND DECISIONS OF THIS COURT BY DENYING EACH STATE THE RIGHT TO SELECT ITS PREFERRED MIX OF REMEDIAL MEASURES FOR AT- TAINING AMBIENT AIR STANDARDS.... II. THE COURT BELOW IMPERMISSIBLY SUB- STITUTED ITS JUDGMENT FOR EPA'S REASONABLE CONSTRUCTION OF THE Cee ME MER TE Sis beehndnddceéed vécccces A. The Plantwide Definition of “Source” Allows and Encourages Reasonable Economic Growth Consistent with Reasonable Further Prog- ress toward Attainment .................. 12 15 17 19 19 vi B. The Plantwide Definition of “Source” Gives States the Flexibility to Manage their Emis- sions in the Most Efficient and Cost-Effective III. EPA’S DELETION OF THE RECONSTRUC- TION PROVISION WAS PROPER AND SHOULD NOT HAVE BEEN VACATED BY pe en og APPT IV. THE COURT BELOW IMPOSED ON EPA AN UNDULY HIGH BURDEN OF JUSTIFICA- TION FOR RESCISSION OF A RULE...... CAREY ea esccecsccvcccateccccccccccccces APPENDIX A. STATUTORY PROVISIONS................-. B. GLOSSARY OF CERTAIN ABBREVIATIONS AND TECHNICAL TERMS ................ C. REVISIONS TO THE LIST OF CORPORATE PETITIONERS’ PARENT COMPANIES, SUBSIDIARIES AND AFFILIATES SET FORTH, PURSUANT TO SUPREME COURT RULE 28.1, IN APPENDIX C TO THE PE- TITION FOR A WRIT OF CERTIORARI IN Page Al Bl vii TABLE OF AUTHORITIES Page CASES: Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. DP Nites tebnscavaoednqunaneecas 9, 10, 14, 15, 27, 32 ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir. SN tiehadhsds chibdivenictsovubsumegs Ps ESSER SSBRBSRRE SR! KFSSEASS KE SSK C2 “Carnduff Gas Limited” should be deleted. “Central Pipeline Company Limited, The” should be deleted. “Commercial Alcohols Limited” should be deleted. “Compagnie D’Investissement Combustibles De Reac- teurs A Haute Tp” should be deleted. . “Components Industriales Mexicanos, S.A.” should be le deleted. | “ ‘Condor’ Industria Quimica, S.A.” should be deleted. . “Crediton Enterprises, Inc.” should be deleted. “Econ Oil (1977) Inc.” should be deleted. “G&C Realty Limited” should be deleted. “GAE Propane Blanchard Ltee.” should be deleted. “GEA/Power Cooling Systems, Inc.” should be deleted. . “Glen Park Gas Pipe Line Company Limited” should be deleted. . “Gobles Oil and Gas Limited” should be deleted. “Kaisha” should be deleted. “Ice Pinturas, S.A.” should be deleted. “Ico Pinturas, S.A.” should be deleted. “Industrias Veneedor, S.A.” should be deleted. “Interprovincial Pipe Line Limited” should be deleted. “Interquimica S.A.” should be deleted. “Iranian Oil Participants Limited” should be deleted. “Iranian Oil Services (Holdings) Limited” should be ted. “Kuwait Oil Company Trustees Limited” should be de- leted. “Maple Insurance Limited” should be deleted. “Mid-Atlantic Chemical Corporation S.A.” should be de- leted. “Montreal Pipe Line Limited” should be deleted. “Morrow Fuel Oil Sales Ltd.” should be deleted. “Mozambique Gulf Oil” should be deleted. “Newfoundland Propane Limited” shouid be deleted. “Northward Development Ltd.” should be deleted. “Northwest Propane Ltd.” should be deleted. FSSSASHRESS SSSASKHEER SSRESR A BB 70 C3 . “Northwest Terminals Ltd.” should be deleted. “Nova, An Alberta Corporation” should be deleted. “Panindustrial, S.A.” should be deleted. “Peace Pipe Line, Ltd.” should be deleted. “Penrith Enterprises, Inc.” should be deleted. “Permapint, S.A.” should be deleted. “Petromont, Inc.” should be deleted. “Polyquimicos, S.A.” should be deleted. “Produtos Quimicos Somox, Ltda.” should be deleted. “Redwater Water Disposal Company Limited” should be deleted. “Resinas Andinas S.A.” should be deleted. . “Rimbey Pipe Line Co., Limited” should be deleted. . “Ripon Enterprises, Inc.” should be deleted. “Servico Limited” should be deleted. “Sorrenio Electronics, Inc.” should be deleted. . “Superior Propane Limited” should be deleted. . “Synerude Canada, Ltd.” should be deleted. . “faiwan Plasticizer Corporation” should be deleted. . “Trans Mountain Pipe Line Company, The” should be deleted. “Trans-Northern Pipe Line Company” should be deleted. “Western G.M.C. Pontiac Buick Ltd.” should be deleted. “Forenade Svenska Oljeimportorers AB” should be added. “Gulf Oil Corporation ERISA” should be added. “Gulf Oil Terminals (Ireland) Limited” should be added. “Harshaw - Bryce & Co. Pty. Ltd.” should be added. “Insco Holding & Finance Company N.V.” should be added. “Plastijal Sociedad Anonima” should be added. “Solvo Finanzierungs-Und Beteiligungs AG” should be added. “Valley Pines Associates” should be added. Mobil Oil Corporation 1. “AIMCO (Blasbjerg) Limited” should be added. RE C4 “Arabian International Maritime Company” should be added. “Compania Colombiana De Forestacion S.A.” should be added. “Constructura Calle 67, Limitada” should be added. “East Texas Sal Water Disposal Company” should be added. “Handelmaatschappij Jugenholtz & Co. B.V.” should be spelled “Handelmaatschappij Hugenholtz & Co. B.V.” “Inmunizadoras Unidas, S.A.” should be added. “Mobil Oil de Mexico, Sociedad Anonima” should be added. “New Zealand Synthetic Fuels (Housing) Corporation Limited” should be added. . “S.A. Ets. George DUBOIS” should be added. . “Societe Africaine de a should be spelled “So- ciete Africaine de . “Societe Jean Roussel S.A.” ’ should be added. . “Societe Tehadienne D’Entreposage de Produits Petro- liers” should be spelled “Tchadienne D’Entreposage de Produits Petroliers.” . “Wadohjushi Kabushiki Kaisha” should be spelled “Wa- kohjushi Kabushiki Kaisha.” . “City Point Oil Terminal, Inc.” should be deleted. . “Australasian Petroleum Company Proprietary Limited” should be deleted. “Croager Bros. Limited” should be deleted. . “Fountain Garage (Alfreton Road)” should be deleted. . “Fountain Garage (Leyton)” should be deleted. . “H.E. Oils Limited” should be deleted. . “Highgate Associates, Ltd.” should be deleted. . “Industria de Carbon del Valle Cauca, S.A.” should be deleted. » “Island Exploration Company Proprietary Limited” should be deleted. . “Michael Beecham Limited” should be deleted. . “Mobil Oil Angola, SARL” should be deleted. go bo -SSENS C5 “Mobil Tyco Solar Energy Corporation” should be deleted. “Modern Buildings Membranes, Ltd.” should be deleted. “Motrate Products Limited” should be deleted. “Ragosine Oil Company Limited” should be deleted. “Roe Lubricants Limited” should be deleted. “Societe d’Entreposage d’Hydrocarbures de Bingo (SEHBI)” should be deleted. an Petroleum Company . “Kanai LNG Corporation” should be spelled “Kenai LNG Corporation.” “Phillips Gas Supply Corporation” should be deleted. . “Phillips Pacific Cheemical Corporation” should be spelled “Phillips Pacific Chemical Corporation.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0106%3A07. Public record. Not legal advice.