# Petitioners Reply Brief — American Iron & Steel Institute v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0349%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 956 ## Text Oftic im: Cout. US. Phos ee MAY 18 1983 Alli iniede STEVAS, No. 82-1247 CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1982 AMERICAN IRON AND STEEL INSTITUTE, et al., AMERICAN PETROLEUM INSTITUTE, et al., CHEMICAL MANUFACTURERS ASSOCIATION, GENERAL Motors CORPORATION, and RUBBER MANUFACTURERS ASSOCIATION, Petitioners, ¥i NATURAL RESOURCES DEFENSE COUNCIL, INC., CITIZENS FOR A BETTER ENVIRONMENT, INC., AMERICAN LUNG ASSOCIATION OF NORTHWESTERN Ou10, INc., and ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit PETITIONERS’ REPLY BRIEF RoBertT A. EMMETT OF COUNSEL: (Attorney of Record) BARTON C. GREEN DAVID FERBER AMERICAN IRON AND REED Smitu SHaw & McCay STEEL INSTITUTE 1150 Connecticut Avenue, N.W. Suite 900 Washington, D.C. 20036 (202) 457-6144 May 13, 1983 Additional Counsel listed inside cover. PRESS OF BYRON S. ADAMS PRINTING. INC.. WASHINGTON, D.C. Bair S. McMILLIN REED SMITH SHAW & McC Lay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 (412) 288-3228 Attorneys for Petitioners American Iron and Steel Institute, et al. STARK RITCHIE Davip T. DEAL AMERICAN PETROLEUM INSTITUTE 2101 L Street, N.W. Washington, D.C. 20037 Attorneys for the American Petroleum Institute, et al. THEODORE L. GARRETT PaTRICcIA A. BARALD CovINGTON & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 Attorneys for the Chemical Manufacturers Association Louis E. Tos! WILLIAM L. PATBERG FULLER & HENRY 300 Madison Avenue Toledo, Ohio 43603 Attorneys for General Motors Corporation CHARLES F. LETtrow CLearRY, GoTTLies, STEEN & HAMILTON 1752 N Street, N.W. Washington, D.C. 20036 Attorney for the Rubber Manufacturers Association i TABLE OF CONTENTS Page I. The Court Below Has Decided An Important Ques- tion Of Federal Law Which Should Be Settled By CDT areas eVinecescoscceeccesess 2 II. The Decision Below Conflicts With Applicable Deci- cc cswislivsoccccscescerece 4 III. The Decision Below Raises A Fundamental Issue Of Administrative Law—Whether An Agency Must Produce More Factual Support To Revise A Rule PEE BO PAOEIG EU ccc cscevvcccccccccnes 5 IV. The Possibility That Congress Might Amend The Clean Air Act Is No Basis For Denying Review Of ese b esc ccerccccescccess 7 Ne cc cebvedecvecccercces s TABLE OF AUTHORITIES CASES: Page a Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. D pthimecssbibenekirceeercell clk ceisw ileus Small Refiner Lead Phasedown Task Force v. EPA, —— F.2d __., 18 ERC 1681 (D.C. Cir. 1988) ........ 4 Train V. NRDC, 421 U.S. 60 (1975) ........ceccccees 2,4 Union Electric Co. v. EPA, 427 U.S. 246 (1976) ..... 2,4 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 Sek Ge MIU cri Sn caccrbbiveesscaeleusecaswen STATUTES: Clean Air Act (as amended in 1977): Section 110(a)(2), 42 U.S.C. § 7410(a)(2) ........... 2,4 Section 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D) ..... 4,5 Part D, 42 U.S.C. §§ 7501, et seg. ..........005. 3, 5, 6 Section 307(b), 42 U.S.C. § 7607(b) ............45. 3 FEDERAL REGISTER: 44 Fed. Reg. 3274 (January 16, 1979) ............... 6 44 Fed. Reg. 51924 (September 5, 1979) ............. 6 46 Fed. Reg. 16280 (March 12, 1981) ................ 5, 6 46 Fed. Reg. 50766 (October 14, 1981) .............. 5, 6 IN THE Supreme Court of the United States OCTOBER TERM, 1982 No. 82-1247 AMERICAN IRON AND STEEL INSTITUTE, et al., AMERICAN PETROLEUM INSTITUTE, et al., CHEMICAL MANUFACTURERS ASSOCIATION, GENERAL Motors CORPORATION, and RUBBER MANUFACTURERS ASSOCIATION, Petitioners, Ve NATURAL RESOURCES DEFENSE COUNCIL, INC., CITIZENS FOR A BETTER ENVIRONMENT, INC., AMERICAN LUNG ASSOCIATION OF NORTHWESTERN Oun10, INc., and ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit PETITIONERS’ REPLY BRIEF Despite Respondent NRDC’s protestations to the con- trary, the decision below raises a vital federal question— whether the Clean Air Act prohibits EPA and the states from adopting and applying a plantwide definition of “source” to industrial expansion and modification proj- ects in nonattainment areas. At issue here are regulatory measures affecting plant construction and modification in over 30 of the 50 states. The decision below also conflicts 2 with two prior decisions of this Court, Train v. NRDC and Union Electric Co. v. EPA, which held that EPA must approve state plans demonstrating timely attain- ment of applicable ambient air standards and meeting the enumerated requirements of Section 110(a)(2) of the Act. Finally, the decision below raises an important, generally applicable issue of administrative law—whether an agen- cy must produce greater factual support to justify revi- sion of a rule than that required when adopting it. I. The Court Below Has Decided An Important Question Of Federal Law Which Should Be Settled By This Court The D.C. Circuit has addressed the plantwide source issue' in the context of three different Clean Air Act programs with confusing, contradictory results. See Chevron Pet. at 7-10; EPA Pet. at 21-23; AISI Pet. at 15-17. In the instant case, the court below did not even purport to decide whether the plantwide definition of “source” should, as a matter of law, be applied to new ‘Respondents charge (NRDC Opp. at 4, footnote 8) that AISI “mischaracterizes” the EPA plantwide definition. AISI’s “characterization” of the plantwide definition or the “bubble concept” associated with it is not in error. AISI’s description of the “netting” aspects of the “bubble concept” is identical to that used by the court of appeals in Alabama Power Co. v. Costle, 636 F.2d 323, 401-402(D.C. Cir. 1979). NRDC is confusing the “netting” of emission increases and decreases with EPA's decision to specify “significance levels” below which de minimis plant emission increases do not trigger new source review. NRDC’s quarrel is with EPA as to whether the significance level amounts listed at page 4, footnote 9 of its Opposi- tion are in fact insignificant. NRDC itself, at page 5, footnote 9 of its Opposition, seriously mischaracterizes EPA’s regulations, however, when it erroneously states that the de minimis increases can occur many times at a source rather than, as is in fact the case, as a single, cumulative total over a five-year period. See Chevron Reply at 4, footnote 1. 3 source review in nonattainment areas’ but rather held itself “constrained” to reach the final result based on two prior decisions which do not support that result. Since no other courts of appeals can address this issue’ and be- cause the D.C. Circuit has declined the opportunity to resolve these inconsistent results, only this Court can untangle the present morass. Resolution of the source issue is crucial. If the decision below is not reversed, the plans of at least 31 states (over 60% of the country) for the cleanup of nonattainment areas will be overturned. See EPA Pet. at 13-14, 21-22. Forcing the states to adopt a “dual” definition of the term “source” will delay plant replacement and modernization 2? NRDC consumes twelve pages of its Opposition (at 10-21) defend- ing the decision below on the basis of the Act’s legislative history. The court below, however, reviewed this history and the statutory language and concluded that neither “squarely addressed” Congress’ view of “stationary source” for purposes of the Part D permit process and construction moratorium. Chev. App. at A-8. NRDC’s emphasis on legislative history arguments not: relied upon by the court below suggests that NRDC is not comfortable with the “bright line” test announced by that court as the basis for its decision. In fact, neither the statute nor its legislative history requires EPA to adopt a partic- ular definition of “source” and neither precludes EPA from adopting the plantwide definition. 3 NRDC misleadingly cites two cases, one each in the Fourth and Ninth Circuits, as having “rejected” application of the plantwide definition. NRDC Opp. at 6, footnote 10. At issue in those cases was not the scope nor even the application of the plantwide source defini- tion, but rather the commencement date of construction of new boilers. In any event, both courts lacked jurisdiction to consider the legality of EPA’s source definition, an issue left by Section 307(b) of the Clean Air Act to the exclusive purview of the D.C. Circuit. ‘When the court below struck down the plantwide source defini- tion, it did so by vacating, not remanding, EPA’s October 14, 1981 regulations deleting the “dual” source definition which had been in 4 projects or, where the construction moratorium applies, can preclude modernization altogether, effectively put- ting the brakes on economic recovery for large industrial sectors of the economy.’ II. The Decision Below Conflicts With Applicable Decisions Of This Court The decision below requires EPA to disapprove at least 31 state plans demonstrating timely attainment of appli- cable ambient air standards and meeting the specific re- quirements of Section 110(a)(2) using the the plantwide definition of source. In contending that the decision below does not conflict with this Court’s decisions in Train v. Natural Resources Defense Council, 421 U.S. 60 (1975), and Union Electric Co. v. EPA, 427 U.S. 246 (1976), which held that state plans meeting the above require- ments must be approved regardless of the means chosen by the state to achieve attainment, Respondent NRDC mistakenly equates adoption of the plantwide sourée definition with failure to establish a Section 110(a)(2)(D) new source review program. The two are not equivalent. The plantwide definition affects only the scope of a new l effect since August, 1980. In so doing, the court of appeals apparently intended to reinstate the previous “dual” definition which forced EPA and the states to define a source as a plant and each component thereof. See Small Refiner Lead Phasedown Task Force v. EPA, —— F.2d —, 18 ERC 1681, 1682 (D.C. Cir. 1983) (cites decision below as “inplicitly assuming that EPA will return to its previous regulation defining ‘source’ under the Clean Air Act”). ° As statistics cited by NRDC clearly show, virtually all major industrial development projects undertaken in nonattainment areas (590 out of 604 such projects—98%—over the five year period be- tween 1976 and 1980) take place at existing plants rather than at wholly new sites. NRDC Opp. at 4, footnote 7. 5 source review program, not the existence of such a pro- gram. Each of the 31 states that has adopted the plantwide definition of source was required to demonstrate to EPA that it has in place a new source review program meeting the requirements of Section 110(a)(2)(D) and Part D. Those states were able to make that showing by demon- strating that they have developed a series of emission reduction strategies designed to achieve applicable ambient standards. None of those demonstrations were dependent upon a new source review program utilizing the “dual” source definition. III. The Decision Below Raises A Fundamental Issue Of Administrative Law—Whether An Agency Must Pro- duce More Factual Support To Revise A Rule Than In- itially To Adopt It NRDC mischaracterizes AISI’s administrative law argument at 17-19 of AISI’s petition as a claim that “the lower court applied an improper standard of review when it failed to defer to EPA’s reversal of position on a factual assertion. . .” NRDC Opp. at 9. NRDC misses the point entirely: Both EPA’s August 7, 1980 “dual” definition of “source” and its October 14, 1981 plantwide “source” definition were based on policy considerations, not factual studies.* The lower court objected to what it perceived to 6 In its March 12, 1981 Federal Register proposal, EPA cited seven reasons for deleting the dual definition, one of which was the modernization disincentive factual assertion noted by NRDC. 46 Fed. Reg. 16281. In its October 14, 1981 promulgation, however, EPA itself dismissed this consideration as “speculative” (see AISI Petition, App. 27a) and instead cited two policy-related concerns for adopting the plantwide definition: (1) to eliminate confusion and promote regulatory simplicity by adopting the same definition of 6 be EPA’s lack of factual support for amending the “source” definition, despite the complete absence of fac- tual support for the original “dual” definition.’ AISI does not contend and has never contended that courts must “defer” to unsubstantiated “factual asser- tions” made by administrative agencies. AISI does con- tend, however, that where, as here, EPA acknowledges that its prior policy judgment was incorrec: and, with a full explanation supported by extensive public comments, rationally determines that a different policy better imple- ments Part D, deference should be accorded to the Agen- cy. By requiring more, the court below impermissibly imposed procedural obligations on the Agency. See Ver- mont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 548 (1978). An agency revision or rescission of policy should not be ° subjected to a harsher standard than that accorded the original exercise of the Agency’s policy judgment. If any- thing, greater deference should be given to the agency’s subsequent decision, which reflects accumulated knowl- edge and experience gained from implementing the initial decision. The heavy burden imposed by the court below prevents agencies from benefiting from their experience source for both the PSD and the nonattainment programs, and (2) to allow states to play their proper primary role in controlling pollution within state boundaries by giving them flexibility in developing their nonattainment area new source review programs and attainment demonstrations. AISI Petition, App. 23a-24a. 7In fact, EPA received public comment on the “source” definition on three separate occasions. 44 Fed. Reg. 3274 (Jan. 16, 1979), 44 Fed. Reg. 51924 (Sept. 5, 1979), and 46 Fed. Reg. 16280 (March 12, 1981). The overwhelming majority of commentators, including states, each time supported the plantwide source definition. 7 in administering regulations and correcting their mis- takes. IV. The Possibility That Congress Might Amend The Clean Air Act Is No Basis For Denying Review Of The Decision Below NRDC suggests that, because the Congress may while reviewing and reauthorizing the Clean Air Act amend that Act, review by this Court is unnecessary. The princi- ple asserted by NRDC—that parties aggrieved by a low- er court decision should be denied access to this Court if the statute in question is subject to amendment—is fundamentally unsound. Any federal statute may be amended by the Congress. This possibility is pure speculation* and provides no basis for precluding aggrieved parties from obtaining redress from this Court. *The fact that the Congress is considering amendments to the Clean Air Act is no guarantee that such amendments will be enacted or that any amendments which may be enacted will include a defini- tion of “source” specifically applicable to the nonattainment program. The Clean Air Act has been up for reauthorization the last two sessions of Congress and no new legislation has resulted from either session. 8 CONCLUSION For the foregoing reasons, in addition to those stated in the original petition, the petition for a writ of certiorari should be granted. OF COUNSEL: BARTON C, GREEN AMERICAN IRON AND STEEL INSTITUTE May 13, 1983 Respectfully submitted, RoBerT A. EMMETT (Attorney of Record) DAVID FERBER REED SMITH SHAW & McCLAy 1150 Connecticut Avenue, N.W. Suite 900 Washington, D.C. 20036 (202) 457-6144 BLAIR S. MCMILLIN REED SMITH SHAW & McCLay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 (412) 288-3228 Attorneys for Petitioners American Iron and Steel Institute, et al. STARK RITCHIE DaviID T. DEAL AMERICAN PETROLEUM INSTITUTE 2101 L Street, N.W. Washington, D.C. 20037 Attorneys for the American Petroleum Institute, et al. 9 THEODORE L. GARRETT PaTRICIA A. BARALD COVINGTON & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 Attorneys for the Chemical Manufacturers Association Louis E. Tos! WILLIAM L. PATBERG FULLER & HENRY 300 Madison Avenue Toledo, Ohio 43603 Attorneys for General Motors Corporation CHARLES F. LETTow CLEARY, GOTTLIEB, STEEN & HAMILTON 1752 N Street, N.W. Washington, D.C. 20036 Attorney for the Rubber Manufacturers Association --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0349%3A3. Public record. Not legal advice.