# Petition for Writ of Certiorari — Whitman v. American Trucking Assns., Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 531 U.S. 457 ## Text No. Of prs * In the Supreme Court of the Anited States supreme Court, G. 8. 0 FILED 991257 JAN 27 2000 CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI GARY S. GUZY General Counsel ROBERT G. DREHER Deputy General Counsel GERALD K. GLEASON MICHAEL L. Goo AMEY W. MARRELLA JAN M. TIERNEY KEVIN W. MCLEAN Attorneys Environmental Protection Agency Washington, D.C. 20460 SETH P. WAXMAN Solicitor General Counsel of Record LOIS J. SCHIFFER Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General DAVID J. KAPLAN MARY F. EDGAR Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTIONS PRESENTED 1. Whether Section 109 of the Clean Air Act, 42 U.S.C. 7409, as interpreted by the Environmental Pro- tection Agency (EPA) in setting revised National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, effects an unconstitutional delega- tion of legislative power. 2. Whether the court of appeals exceeded its jurisdiction by reviewing, as a final agency action that is ripe for review, EPA’s preliminary preamble state- ments on the scope of the agency’s authority to implement the revised “eight-hour” ozone NAAQS. 3. Whether provisions of the Clean Air Act Amend- ments of 1990 specifically aimed at achieving the long- delayed attainment of the then-existing ozone NAAQS restrict EPA’s general authority under other provi- sions of the CAA to implement a new and more protec- tive ozone NAAQS until the prior standard is attained. (I) II PARTIES TO THE PROCEEDING 1. Petitioners are the respondents in the court of appeals: Carol M. Browner, the Administrator of the Environmental Protection Agency, and the Environ- mental Protection Agency (EPA). The following parties intervened in support of EPA in the court of appeals: the American Lung Associa- tion, the Commonwealth of Massachusetts and the State of New Jersey. The following States appeared as amici curiae in sup- port of EPA in the court of appeals: New York, Con- necticut, New Hampshire and Vermont. 2. Respondents are the petitioners in the court of appeals: Alliance of Automobile Manufacturers (formerly American Automobile Manufacturers Association) American Farm Bureau Federation American Forest and Paper Association American Iron and Steel Institute American Petroleum Association American Portland Cement Alliance American Public Power Association American Trucking Associations, Inc. Appalachian Power Company Baltimore Gas and Electric Company James Bassage Burns Motor Freight, Inc. Carolina Power & Light Company Centerior Energy Corporation Central and South West Services, Inc. Central Hudson Gas & Electric Corporation Central Illinois Light Company Central Illinois Public Service Company Central Power & Light Company III Chamber of Commerce of the United States of America Chemical Manufacturers Association CINergy Corporation Citizens for Balanced Transportation Cleveland Electric Company Columbus Southern Power Company ComEd Company Consumers Energy Company Dayton Power & Light Company Delmarva Power & Light Company The Detroit Edison Company Duke Energy Company Duquesne Light Company Edison Electric Institute Equipment Manufacturers Institute Company Indiana Michigan Power Company Indianapolis Power & Light Company Jacksonville Electric Authority Judy’s Bakery, Inc. Kansas City Power & Light Company Kennecott Energy and Coal Company Kennecott Holdings Corporation Kennecott Services Company Kentucky Power Utilities Louisville Gas and Electric Company IV Madison Gas and Electric Company David Matusow Brian McCarthy Meridian Gold Company The State of Michigan Midwest Ozone Group Minnesota Power Monongahela Power Company National Association of Manufacturers National Association of Home Builders National Automobile Dealers Association National Coalition of Petroleum Retailers National Indian Business Association National Mining Association National Paint and Coatings Association National Petrochemical & Refiners Association National Rural Electric Cooperative Association National Stone Association National Small Business United Nevada Mining Association Newmont Gold Company Non-Ferrous Founders Society Northern Indiana Public Service Company PP&L Resources Public Service Company of New Mexico Richard Romero Salt River Project Agricultural Improvement & Power District Small Business Survival Committee South Carolina Electric & Gas Company Southern Company Tampa Electric Company Toledo Edison Union Electric Company | United Mine Workers of America, AFL-CIO The following parties intervened in support of peti- tioners American Trucking Ass’ns, et al., in the court of appeals: American Road and Transportation Builders Association Atlantic Electric Company — her erty om The following persons appeared as amici curiae in support of petitioners American Trucking Ass’ns, et al., in the court of appeals: Representative Tom Bliley Senator Orrin G. Hatch TABLE OF CONTENTS Page Opinions below 1 Jurisdiction 1 Constitutional, statutory and regulatory provisions involved 2 Statement 2 Reasons for granting the petition 9 Conclusion 30 TABLE OF AUTHORITIES Cases: ALA Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) 12, 14 Abbott Labs. v. Gardner, 387 U.S. 136 (19877 24 American Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999) 23 American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998), cert. denied, 120 S. Ct. 58 (1999) 10 American Petroleum Inst. v. Costle, 665 F 2d 1176 (D.C. Cir. 1981), cert. denied, 455 U.S. 1084 (1982)... 10 American Power & Light Co. v. SEC, 329 U.S. 90 (1946) 12, 13, 14, 17 Bennett v. Spear, 520 U.S. 154 (1997) 21 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 16, 24, 25, 28, 29 Dow Chem. Co. v. EPA, 832 F 2d 319 (5th Cir. 1987) ..... 22 FPC v. Conway Corp., 426 U.S. 271 (1976) 12, 18 Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998) 23 Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980) 10, 15 Lichter v. United States, 334 U.S. 742 (1948) ................... 12 Mistretta v. United States, 488 U.S. 361 (1989) ......... 13, 16 Mobil Exploration & Producing U.S., Inc. v. Depart- ment of the Interior, 180 F.3d 1192 (10th Cir. 1999) 23 VIII Cases Continued: Montana -· Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246 (1951) NBC v. United States, 319 U.S. 190 (1943) Natural Resources Defense Council, Inc. v. EPA, 902 F. 2d 962 (1990) , opinion vacated in part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991) ....... Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998) Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1998) ..... Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989) South Terminal Corp. v. EPA, 504 F.2d 646 (Ist Cir. 1974) Touby v. United States, 500 U.S. 160 (1991) ................. U.S. Bancorp Mortgage Co. v. Bonner Mall Partner- ship, 513 U.S. 18 (1994) Vermont Yankee Nuclear Power Co. v. Natural Re- sources Defense Council, Inc., 435 U.S. 519 1978) Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659 (7th Cir. 1998) Yakus v. United States, 321 U.S. 414 (1944) Constitution and statutes: U.S. Const.: Art. I § 8, Cl. 18 Art. III Act of Nov. 15, 1990, Pub. L. No. 101-549, 104 Stat. 2399 Clean Air Act, 42 U.S.C. 7401 et seq. § 107, 42 U.S.C. 7407 § 107(d), 42 U.S.C. 7407(d) 20, 22, 24, 26, § 107(d)(1), 42 U.S.C. 740d) § 107(d(1X(C), 42 U.S.C. 7407(d 1 (C) § 107(d)(4)(A), Ta ,,“) § 108, 42 U.S.C. 7408 § 108(a)(1A)(B), 42 U.S.C. 740 aN KA-) 2 S w 8 S SSE SS Statutes—Continued: 10800 ), 42 U.S.C. 7408(aX2) Page 8, 18 § 108(aX'2)(A)-(B), 42 U.S.C. 7408(a(2A)-(B) 2, 3, 4, 7, 9, 18, 16, 18, 19 3 § 109, 42 U.S.C. 7409 10900, 42 U.S.C. 7409(b) § 109(b)(1), 42 U.S.C. 7409(b)(1) 3, 7, 18 § 10%(d), 42 U.S.C. 7409(d) § 109(d)(1), 42 U.S.C. 740d § 109(d)(2), 42 U.S.C. 740d) 2) § 10%(d)(2B), 42 U.S.C. 7409(d(2\B) § 110, 42 U.S.C. 7410 § 172, 42 U.S.C. 7502 § 172(a), 42 U.S.C. 7502(a) § 172(aX(1)(B), 42 U.S.C. 7502(aX1(B) § 172(aX1XC), 42 U.S.C. TS § 172(aX(2), 42 U.S.C. 7502(aX2) § 172(aX2X(D), 42 U.S.C. 7504 D) § 172(c), 42 U.S.C. 7502(c) § 181, 42 U.S.C. 7511 18100, 42 U.S.C. 7511(a) § 181(aX(1), 42 U.S.C. 7511(aX1) 181000), 42 U.S.C. 7511(aX3) § 181(aX(5), 42 U.S.C. 7511(aX5) $§ 181-191, 42 U.S.C. 7511-7514 $§ 181-192, 42 U.S.C. 7511-7514 § 302(h), 42 U.S.C. 7602(h) § 307(b), 42 U.S.C. 7607(b) § 307(b)(1), 42 U.S.C. 7807 ) § 307(d), 42 U.S.C. 7607(d) § 307(d\(3), 42 U.S. C. 7607(d\3) § 307(d(6\X(b), 42 U.S.C. 780, 807d) 9), 42 U.S.C. 7607(d (9) Miscellaneous: 61 Fed. Reg. (1996): p. 66,716 pp. 65, 719-65, 721 pp. 65, 727-66, 728 Miscellaneous—Continued: 62 Fed. Reg. (1997): pp. 38,579-38,655 5 5 85 S 2 88 : : 3 & — — — KK Wk 860. pp. 38, 884-38, 885 8, 21, 27 H. R. Rep. No. 294, 95th Cong., Ist Sess. (1977) * 15 S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) 15 1 Staff of the Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Act Amendments of 1970 (Comm. Print 1974) 15 In the Supreme Court of the Anited States No. CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS vz. AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Solicitor General, on behalf of Carol M. Browner, Administrator of the Environmental Protection Agency, et al. (EPA), respectfully petitions for a writ of certio- rari to review the judgments of the United States Court of Appeals for the District of Columbia Circuit in these two sets of identically-captioned consolidated cases. OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-69a) is reported at 175 F.3d 1027. The opinion on petitions for rehearing and dissenting statements on denial of rehearing en banc (Pet. App. 70a-102a) are reported at 195 F. 3d 4. JURISDICTION The decision of the court of appeals was entered on May 14, 1999. Petitions for rehearing were granted in part and denied in part on October 29, 1999. The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). (1) 2 CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED Article 1 of the United States Constitution states in pertinent part as follows: All legislative Powers herein granted shall be vested in a Congress of the United States. The relevant sections of the Clean Air Act, 42 U.S.C. 7401 et seq., are set forth in the Appendix at Pet. App. 105a-126a. The EPA rules at issue in this case are set forth in the Appendix at Pet. App. 102a-104a. STATEMENT Respondents American Trucking Associations, Inc., et al. (ATA), petitioned under Section 307(b) of the Clean Air Act (CAA), 42 U.S.C. 7607(b), for review of two final EPA rules establishing revised National Am- bient Air Quality Standards (NAAQS) for particulate matter and ozone under Section 109 of the CAA, 42 U.S.C. 7409. On May 14, 1999, the court of appeals is- sued a single opinion for the two sets of consolidated cases. No. 97-1440 (particulate matter); No. 97-1441 (ozone). A divided panel found that Section 109 of the CAA, 42 U.S.C. 7409, as interpreted by EPA in setting the ozone and particulate matter NAAQS, effected an unconstitutional delegation of legislative authority. The court remanded both rules with instructions that EPA should articulate an “intelligible principle” for determining the degree of residual risk to public health permissible in setting revised NAAQS. Although EPA had taken no final agency action to implement the revised ozone NAAQS, the court also issued an opinion, later modified, on the scope of EPA’s implementation authority. 3 1. The CAA directs EPA to promulgate NAAQS, which establish the maximum permissible levels, in the outside air, of a limited number of pervasive pollutants that have adverse effects on public health and welfare. CAA § 109, 42 U.S.C. 7409. Section 109 directs EPA to promulgate “primary” NAAQS to protect human health and “secondary” NAAQS to protect “public welfare.” See CAA § 109(b), 42 U.S.C. 7409(b). See also CAA § 302(h), 42 U.S.C. 7602(h) (defining welfare interests). EPA has promulgated NAAQS for six pollutants: sulfur dioxide, carbon monoxide, nitrogen oxide, lead, ozone, and particulate matter M. The CAA directs EPA to establish NAAQS at spe- cific levels. Primary NAAQS must be set at levels that, “in the judgment of the [EPA] Administrator, * * * and allowing an adequate margin of safety, are requi- site to protect the public health.” CAA § 109(b)(1), 42 U.S.C. 7409(b)(1). Secondary NAAQS must be set at levels that, “in the judgment of the Administrator,” are “requisite to protect the public welfare from any known or anticipated adverse effects.” CAA § 109(b)(1), 42 U.S.C. 7409(b)(1). In making those judgments, EPA must develop and rely on “air quality criteria” that “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambi- ent air.” CAA § 108(a)(2), 42 U.S.C. 7408(a)(2). EPA must review the air quality criteria and NAAQS every 1 PM embraces airborne particles of varying size and composi- tion. See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652, 38,653 (1997). PMio denotes inhalable particulate matter up to ap- proximately 10 micrometers in diameter, while PM.; denotes PM up to approximately 2.5 micrometers in diameter. See 62 Fed. Reg. at 38,654 n.1, 38,666-38,667. 4 five years and revise them as “appropriate” in accor- dance with Sections 108 and 109. 42 U.S.C. 7409(d)(1). The CAA sets out an implementation process, resting on principles of federal-state cooperation, to ensure that the air throughout the Nation “attains” the NAAQS. Within three years of promulgating a new or revised NAAQS, EPA must “designate” prescribed areas of the country as either attainment areas or nonattainment areas for each NAAQS pollutant depending on whether the NAAQS has been met. CAA § 107(d)(1), 42 U.S.C. 7407(d)(1). Once EPA designates an area as nonattain- ment for a NAAQS, EPA must establish the date by which the nonattainment area must attain the NAAQS in question (the attainment date). See generally CAA § 172(a), 42 U.S.C. 7502(a). The States are generally responsible for determining what measures are neces- sary within their borders to achieve and maintain the NAAQS. The CAA allows each State to develop, for approval by EPA, a State Implementation Plan (SIP) that sets forth pollution control measures necessary, among other things, for nonattainment areas within the State to attain all NAAQS by the applicable attainment dates. See CAA §§ 110, 172(c), 42 U.S.C. 7410, 7502(c). Congress has amended the CAA on several occa- sions, including an extensive revision in 1990. See Pub. L. No. 101-549, 104 Stat. 2399 (the 1990 Amendments). The 1990 Amendments recognized, among other things, that many areas of the country had failed to attain the existing NAAQS, including the primary ozone NAAQS, set in 1979, of 0.12 parts per million (ppm) averaged over one hour (the one-hour standard). The 1990 Amendments revised the CAA’s implementation pro- cess in certain respects, creating a new procedure for classifying nonattainment areas based upon pertinent factors (such as the severity of the nonattainment prob- lem) and revising the method for setting attainment — 5 dates. See generally CAA § 172, 42 U.S.C. 7502. The 1990 Amendments also imposed specific implementa- tion measures for areas designated nonattainment for various pollutants. See CAA §§ 181-192, 42 U.S.C. 7511-7514a In the case of ozone, the 1990 Amendments established mandatory classifications and attainment dates for the primary one-hour ozone standard. See CAA § 181(a)(1), 42 U.S.C. 7511(a)(1). 2. In July 1997, after extensive rulemaking proceed- ings, EPA issued revised NAAQS for particulate matter and ozone in light of new scientific knowledge about the adverse health effects of those pollutants. See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652 (1997); NAAQS for Ozone, 62 Fed. Reg. at 38,856.” a. EPA found that the 1987 NAAQS for particulate matter, which employed the indicator PM,, to regulate all inhalable particles (see note 1, supra), were inade- quate to protect public health. EPA based its finding on more than 60 epidemiological studies showing seri- ous adverse health effects at particulate matter con- centrations below the 1987 NAAQS. Those health effects included premature death, increased hospital admissions, and respiratory illnesses, particularly among the elderly, people with respiratory and cardio- vascular diseases, asthmatics, and children. EPA found that the health effects observed at concentrations below the 1987 NAAQS were likely associated with “fine” particles PM.) and therefore revised the 1987 NAAQS to establish new PM,, standards. EPA also revised the PM,, standards to continue to address other health effects from larger (coarse) particles. See 62 Fed. Reg. at 38-579-38,655. 2 Copies of those Federal Register notices have been lodged with the Clerk of the Court. 6 b. Similarly, EPA found that the 1979 one-hour ozone NAAQS was inadequate to protect public health based on clinical studies and other evidence linking prolonged ozone exposures (from six to eight hours) to numerous adverse health effects, including decreases in lung function, coughs and chest pain, potential aggrava- tion of asthma, lung inflammation, increased suscep- tibility to respiratory infection, increased doctor and emergency room visits and hospitalizations, and possi- ble permanent lung damage from repeated exposures. Children and asthmatics are particularly at risk. EPA therefore promulgated a more stringent ozone NAAQS of 0.08 ppm, averaged over an eight-hour period (the eight-hour standard). See 62 Fed. Reg. at 38,859- 38,878. 3. Numerous industry groups, a public interest group, and several States and individuals challenged the revised particulate matter and ozone NAAQS. The court of appeals rejected many of the challenges, but nevertheless remanded the revised NAAQS to EPA and instructed the agency to “develop a constitutional construction of the act.” Pet. App. 4a, 5a. Relying on a theory that was not extensively briefed by the parties, the court found that EPA’s interpretation of Section 109 of the CAA “effects an unconstitutional delegation of legislative power.” Id. at 4a. The majority reasoned that, because there is no scientifically determinable “threshold” below which adverse health effects from ozone can be ruled out, and because there “likely” is no similar threshold for PM, EPA must provide a “deter- minate criterion for drawing lines” for any “non-zero” standard. Id. at 5a-6a. According to the majority, EPA’s interpretation of the CAA leaves it “free to pick any point between zero and a hair below * * * London’s Killer Fog,” a notorious 1952 incident in which approximately 4000 deaths over four days were attrib- 7 uted to air pollution. Jd. at 18a. Judge Tatel dissented from that portion of the opinion, emphasizing that the majority “ignore[d] the last half-century of Supreme Court nondelegation jurisprudence” upholding numer- ous congressional enactments containing fewer guiding principles than Section 109. Jd. at 59a. In the ozone case, the court of appeals rejected the industry petitioners’ argument that Congress’s 1990 Amendments to the CAA, which established mandatory classifications and attainment dates for the primary one-hour ozone standard then in effect, see CAA § 181, 42 U.S.C. 7511, precluded EPA from revising the ozone NAAQS. Pet. App. 34a-37a. That ruling resolved the issue before the court. The court of appeals neverthe- less went on to direct what EPA may and may not do when it proceeds—in the future—to implement the ozone NAAQS. The court ruled that EPA cannot set nonattainment classifications and attainment dates for the revised ozone NAAQS through Section 172 (42 U.S.C. 7502), but must instead employ the classifica- tions and attainment dates set out in Section 181(a) (42 U.S.C. 7511(a)), and this precluded EPA from imple- enting a more protective ozone NAAQS. Pet. App. 34a, 37a-44a.* 4. EPA and other parties filed petitions for re- hearing and suggestions for rehearing en banc. The panel denied EPA’s petition for rehearing on the non- issue. Pet App. 72a. It expressly rejected EPA’s view that the relevant provisions of the CAA, 8 The court of appeals resolved some, but not all, of the other challenges to EPA’s rules. See Pet. App. 4a-5a. The court con- cluded that “[tJhe remaining issues cannot be resolved until such time as EPA may develop a constitutional construction of the act (and, if appropriate, modify the disputed NAAQS in accordance with that construction).” Id. at 5a. 8 including Section 109(b)(1)’s direction that NAAQS must be based on air quality criteria and “set at levels requisite to protect the public health,” 42 U.S.C. 7409(b)(1), set out intelligible principles that limit the agency’s discretion. Pet. App. 72a-89a. Judge Tatel dissented. Id. at 89a. In the ozone case, the pane’ g anted rehearing in part, to modify its opinion regarding EPA’s authority to implement the revised NAAQS. Pet. App. 7la-72a, 76a- 82a. The panel rejected EPA’s argument that, because EPA had yet to take final action implementing the revised NAAQS, the court lacked jurisdiction to consider which provision of the CAA would govern EPA’s implementation, including the specification of classifications and attainment dates. Jd. at 77a-79a. The court found that EPA’s statements on that issue in the regulatory preamble accompanying the revised ozone NAAQS, made in response to industry comments challenging EPA’s authority to promulgate that standard, see 62 Fed. Reg. at 38,884-38,885, constituted final agency action on the question of implementation that was ripe for judicial review. Pet. App. 77a-79a. On the merits, the panel modified its opinion to state that “EPA can enforce a revised primary ozone NAAQS only in conformity with [Section 181).” Id. at Sla. Judge Tatel wrote separately because he with the panel’s reasoning. Id. at 83a-89a. He found the statute ambiguous and would have deferred to EPA’s interpretation. Id. at 84a. Judge Tatel nevertheless concurred in the judgment because, in his view, the modified decision allows EPA to implement the revised ozone NAAQS in a nonattainment area once the area has attained the one-hour standard in accordance with Section 181. Jd. at 89a. The court also denied EPA’s suggestion for rehearing en banc, with five of the court’s eleven active judges (Chief Judge Edwards, and Judges Silberman, Rogers, Tatel, and Garland) voting in favor of rehearing en banc, and four (Judges Williams, Ginsburg, Sentelle, and Randolph) voting against it. Pet. App. 90a-92a. Judge Silberman and Judge Tatel each wrote a state- ment dissenting from the denial of rehearing en banc on the nondelegation issue. Id. at 92a-96a (Silberman, J., dissenting); id. at 97a-99a (Tatel, J., dissenting). Chief Judge Edwards and Judge Garland joined in Judge Tatel’s statement. Id. at 97a. The court of appeals has rejected EPA’s revision of the particulate matter and ozone NAAQS, ruling that Section 109 of the CAA as interpreted by EPA effects an unconstitutional delegation of legislative power. The court’s decision presents an issue of immense practical importance to the health of the American public. In addition, the court’s ruling raises issues of extraordi- nary governmental concern. First, the court’s decision represents a radical departure from settled law re- specting the nondelegation doctrine. The court’s ruling conflicts with this Court’s decisions upholding congres- sional enactments containing far broader grants of authority than that contained in Section 109 and, as a consequence, raises questions respecting the constitu- tionality of a broad range of federal statutes requiring agencies to draw lines based on scientific judgments. Second, the court’s approach would unjustifiably ex- pand the role of the courts in reviewing agency action. In this instance, the court has directed EPA to revisit and artificially narrow the discretion that EPA has 10 previously been entitled to exercise under Section 109 of the CAA. The court's decision respecting EPA's authority to implement a revised ozone NAAQS also warrants re- view. The court’s ruling is not only important from a public health perspective, but also raises a core juris- dictional question of far-reaching significance. The court adopted a test for finality that is inconsistent with the test applied by this Court and other courts of appeals. Furthermore, by asserting jurisdiction before the agency action is ripe for review, the court of appeals has deprived EPA of the opportunity to develop fully its interpretation and to reconcile any tensions that may arise in the future respecting implementation of the revised NAAQS. The court’s premature review of EPA’s implementa- tion authority has also resulted in an erroneous resolution of the merits, which additionally warrants this Court’s review. The court’s mistaken interpreta- tion would inappropriately force EPA to delay pro- tecting the public from the very health consequences As Judge Tatel observed, It he Act has been parsed by [the District of Columbia Circuit) no fewer than ten times in published opinions delineating EPA authority in the NAAQS-setting pro- cess.” Pet. App. 59a. See, e. g., American Lung Ass'n v. EPA, 134 F.3d 388, 389, 392 (D.C. Cir. 1998) (sulfur dioxide), cert. denied, 120 S. Ct. 58 (1999); Natural Resources Defense Council, Inc. v. EPA, 902 F.2d 962, 969 (1990) (particulate matter), opinion vacated in part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991); American Petroleum Inst. v. Costle, 665 F 2d 1176, 1185 (D.C. Cir. 1981) (ozone), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1161 (D.C. Cir.) (lead), cert. denied, 449 U.S. 1042 (1980). The majority acknowledged that those decisions recognized EPA’s broad discretion to make policy judgments in setting NAAQS, but summarily discounted their relevance on the ground that “none of those panels addressed the claim of undue delegation that we face here.” Pet. App. 12a. a 11 that warrant a NAAQS revision in the first place, until areas attain an air quality standard that EPA has concluded is inadequate to protect public health. 1. The court of appeals’ rejection of EPA’s revised NAAQS for particulate matter and ozone presents an important federal question with profound implications for the health of the American public and the effective- ness of the CAA. Because the NAAQS are the founda- tion of key CAA programs, the current uncertainty regarding the validity of the revised PM,; and ozone NAAQS will disrupt federal and state programs to achieve and maintain air quality. Based on the latest scientific knowledge, EPA has determined that the pre- existing PM and ozone standards are inadequate to protect public health. The Clean Air Scientific Advi- sory Committee (CASAC)—a body created by Con- gress to render independent scientific advice on NAAQS decisions, 42 U.S.C. 7409(d)(2)(B)—has con- curred in EPA’s scientific findings in that regard. The court of appeals’ decision frustrates EPA’s efforts to revise the PM and ozone NAAQS and thus unnecessar- ily prolongs the exposure of millions of Americans to unhealthy pollutant levels. See, e.g., Pet. App. 56a (finding that evidence in the rulemaking record “amply justifies establishment of new fine particle standards”). a. The court of appeals’ decision is a striking depar- ture from this Court’s nondelegation jurisprudence. Section 109’s grant of authority is “far more specific than the sweeping statutory delegations consistently upheld by the Supreme Court for more than sixty years.” Pet. App. 97a (Tatel, J., dissenting from denial of rehearing en banc); see also id. at 93a (Silberman, J., dissenting from denial of rehearing en banc) (Section 12 109 does not “raise a serious constitutional problem”). The court has overlooked this Court’s instruction that the starting point for analysis of a nondelegation claim should be the statute’s language, purpose, history, and context. American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). The majority brushed aside the CAA’s terms in two conclusory sentences, holding that the statute, as interpreted by EPA, is unconstitutional because it does not provide a “determinate criterion for drawing lines.” Pet. App. 6a.’ This Court has repeatedly held that Congress does not violate the Constitution “merely because it legis- lates in broad terms, leaving a certain degree of discre- tion to executive or judicial actors.” Towby v. United States, 500 U.S. 160, 165 (1991); see, e.g., Yakus, 321 5 Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-219 (1989), cites pertinent examples: Lichter v. United States, 334 U.S. 742, 778-786 (1948) (recovery of “excessive profits” on military con- tracts); American Power & Light Co., 329 U.S. at 104 (prevention of “unfair{] or inequitable[]” distribution of security holder voting power); Yakus v. United States, 321 U.S. 414, 420 (1944) (setting of “fair and equitable” commodities prices); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600-601 (1944) (determination of “just and reasonable rate”); NBC v. United States, 319 U.S. 190, 225-226 (1943) (regulation of broadcast licensing in “the public interest”). 6 The threshold question in the Court’s nondelegation cases, including A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), has been whether Congress has authorized the agency to exercise nondelegable legislative functions. Id. at 530 (“[W]e look to the statute to see whether Congress has over- stepped these limitations * * [or] has itself established the standards of legal obligation, thus performing its essential legisla- tive function.”). 7 See Pet. App. 5a (“EPA appears to have articulated no ‘intel- ligible principle’ to channel its application of [public health factors); nor is one apparent from the statute.”); id. at 14a (“Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power * * *.”). 13 U.S. at 425 (Congress may authorize agencies to engage in activities that “call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework”). It is “‘constitutionally sufficient if Congress clearly deline- ates the general policy, the public agency which is to apply it, and the boundaries of this delegated author- ity.” Mistretta v. United States, 488 U.S. 361, 372-373 (1989) (quoting Ame icun Power & Light Co., 329 U.S. at 105); Skinner, 490 U.S. at 218-219. Had the court fully considered the terms of the stat- ute, its history, purpose, and context, the court would have found that Section 109 amply satisfies that test. Section 109(b)(1) of the Act requires that primary NAAQS be set at levels “requisite to protect the public health” with an “adequate margin of safety.” 42 U.S.C. 7409(b)(1). To warrant the setting of a NAAQS, a pollutant must “reasonably be anticipated to endanger public health or welfare” and be emitted from “numer- ous or diverse * * sources.” CAA § 108(a)(1)(A)-(B), 42 U.S.C. 7408(a)(1)(A)-(B). Each NAAQS must be based on “air quality criteria” that reflect “the latest scientific knowledge,” 42 U.S.C. 7408(a)(2), including information on “variable factors” that “may alter the effects on public health,” as well as interactions with other pollutants “to produce an adverse effect on public health or welfare.” 42 U.S.C. 7408(a)(2)(A)-(B). Fur- ther, the CAA establishes and prescribes the composi- tion of CASAC and requires EPA to develop the “crite- ria” with extensive CASAC review. CAA § 109(d)(2), 42 U.S.C. 7409(d)(2).° 8 The CAA’s directives plainly require a high degree of protec- tion and cannot reasonably be construed, as the court claimed, to allow EPA such broad discretion as to authorize pollutant levels ranging from zero to “a hair below” the infamous London Killer 14 Moreover, Congress has prescribed rulemaking pro- cedures through Section 307(d) of the CAA that ensure extensive public participation and the availability of arbitrary-and-capricious review for EPA’s NAAQS decisions. See 42 U.S.C. 7607(d). EPA must discuss the data, methodology, and major legal and policy inter- pretations underlying proposed NAAQS and explain any significant departure from CASAC’s advice, 42 U.S.C. 7607(d)(3); respond to significant comments, 42 U.S.C. 7607(d)(6)(b); and provide a reasoned explana- tion adequate to withstand judicial review. 42 U.S.C. 7607(d)(9). The availability of such review weighs strongly in favor of the constitutionality of Section 109’s grant of agency authority. See American Power & Light Co., 329 U.S. at 105 (“(pjrivate rights are pro- tected by access to the courts to test the application of the policy in the light of the[] legislative declarations”); Touby, 500 U.S. at 170 (Marshall, J., concurring); see also Schechter Poultry, 295 U.S. at 532-533 (distinguish- ing cases upholding broad legislative authorizations be- = e. g., statutes provided notice and hearing proce- ures). Fog episode. Pet. App. lla. For example, EPA found, based on new evidence in the 1997 rulemaking, that the 1987 NAAQS for particulate matter were inadequate to protect public health. That finding effectively dictated that the upper bound for the Adminis- trator’s consideration for revised standards had to be at least as protective as the 1987 NAAQS, which were set far below “Killer Fog” levels. See, e. g., 62 Fed. Reg. at 38,656-38,666, 38,674-38,675. EPA made a similar finding regarding the inadequacy of the exist- ing ozone NAAQS. 61 Fed. Reg. 65,716, 65,719-65,721 (1996). In each instance, EPA established the lower limit based on an exten- sive examination of the best available scientific evidence of ad- verse health effects, see 62 Fed. Reg. at 38,674-38,677; 61 Fed. Reg. at 65,727-65,728, and the range of alternatives considered was far narrower than the range suggested by the court. See also Pet. App. 66a (Tatel, J., dissenting). 15 The CAA’s legislative history, which the majority also failed to consider, provides further guidance to the agency. That history indicates that the health effects justifying a NAAQS must be “adverse,” Lead Indus. Ass 'n, 647 F.2d at 1152 (citing S. Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970)), and therefore must be medi- cally significant and not merely detectable. To provide an “adequate margin of safety,” standards must be “preventative or precautionary,” reflecting an emphasis on the “predominant value of protection of public health.” Ibid. (quoting H.R. Rep. No. 294, 95th Cong., Ist Sess. 49 (1977)); id. at 1155 (EPA must “err on the side of caution”). EPA cannot consider the economic or technological feasibility of attaining NAAQS. Id. at 1148-1151. Finally, public health is distinct from indi- vidual health; NAAQS must protect “sensitive” popula- tions, such as asthmatics, id. at 1152, but not the most sensitive individuals within those populations. See S. Rep. No. 1196, supra, at 10 (EPA must consider effects by reference to “a representative sample of persons comprising the sensitive group rather than to a single person in such a group.”), reprinted in 1 Staff of the Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Act Amendments of 1970, at 410 (Comm. Print 1974). Drawing on the legislative guidance, EPA has developed de- cisional criteria” that it considers in the course of developing NAAQS. The public health factors considered include the nature and severity of health effects, the types of health evidence, the kind and degree of uncertainties involved, and the size and nature of the sensitive populations at risk. The District of Columbia Cir- cuit first approved EPA’s use of those factors almost 20 years ago, Lead Indus., 647 F.2d at 1161; EPA has since employed them in numerous NAAQS rulemakings; and even the panel majority found them reasonable. Pet. App. 5a-7a. 16 This Court’s decisions on the nondelegation doctrine reflect “a practical understanding that in our increas- ingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta, 488 U.S. at 372. The court of appeals lost sight of that crucial practical understanding and, in doing so, opened to potential constitutional attack not only Section 109 of the CAA, but also numerous other federal statutes containing similarly broad grants of authority to administrative agencies. b. The court of appeals’ decision departs from estab- lished law by transforming the nondelegation doctrine from a means for preserving the separation of powers by ensuring that Congress has not abdicated, by delegating to another Branch or to private parties, its power to “make * * * Laws,” U.S. Const. Art. I, § 8, Cl. 18, into a basis for otherwise unwarranted judicial supervision of the exercise of administrative discretion. See Pet. App. 14a. The court directed EPA to “de- velop[{] determinate, binding standards for itself” to reduce the likelihood that EPA would “exercise the delegated authority arbitrarily” and to “enhance the likelihood that meaningful judicial review will prove feasible.” Ibid. Neither Chevron U.S.A. Inc. v. Natu- ral Resources Defense Council, Inc., 467 U.S. 837 (1984), nor any other decision of this Court, justifies that novel utilization of the nondelegation doctrine. See Pet. App. 92a (Silberman, J., dissenting from the denial of rehearing en banc) (“I do not think that [the non- delegation] doctrine can be employed to force an agency to narrow a broad legislative delegation from Con- gress.”). As a practical matter, the court of appeals’ decision would initiate a fundamental change in the nature of 17 judicial review of agency standard-setting. The court concluded that the nondelegation doctrine requires Congress, or agencies interpreting the intent of Con- gress, to delineate a “determinate criterion for drawing lines” or, by implication, a quantitative rule for deciding the precise degree of protection required for a given health or safety standard. See Pet. App. 6a. In effect, the panel demanded that either the CAA or EPA supply a principle that would allow a reviewing court to conclude that EPA reached what is, in the court’s view, exactly the “right” result. That approach would effec- tively supplant the concept that courts review agency determinations based on an arbitrary and capricious standard. As Judge Silberman recognized, it would “implicitly assert{] a greater role for a reviewing court than is justified.” Id. at 96a. See also note 4, supra. The court’s direction to EPA to develop “determi- nate, binding standards” to govern the agency’s NAAQS decisions (Pet. App. 14a) is inconsistent with this Court’s instruction in American Power & Light Co., 329 U.S. at 106: Nor is there any constitutional requirement that the legislative standards be translated by [an agency] into formal and detailed rules of thumb prior to their application to a particular case. If that agency wishes to proceed by the more flexible case-by-case method, the Constitution offers no obstacle. Cf. Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543-545 (1978). The court’s rationale for its approach—to make arbitrary agency action less likely and to enhance meaningful judicial review (Pet. App. 14a)—is ade- quately addressed through the arbitrary and capricious standard for judicial review of agency action, including review to determine whether the agency has ade- 18 quately explained any departures from past practices or decisions. See id. at 68a (Tatel, J., dissenting) (those issues “relate to whether the NAAQS are arbitrary and capricious” and “ha[ve] nothing to do with our inquiry under the nondelegation doctrine”).”” Neither the Constitution, the CAA, nor any prior ju- dicial decision requires EPA to supply the “determinate criterion for drawing lines,” Pet. App. 6a, that would produce the precision the majority demanded here. See also id. at 10a (standard prescribing “how much uncer- tainty is too much”). Instead, EPA must consider the factors that the CAA prescribes and provide a reasoned explanation, based on scientific evidence, for its deci- sion. As this Court explained in reviewing rates set by the Federal Power Commission under a statute requir- ing rates to be “just and reasonable”: [Tyhere is no single cost-recovering rate, but a zone of reasonableness: “Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high.” FPC v. Conway Corp., 426 U.S. 271, 278 (1976) (quoting Montana-Dakota Util. Co. v. Northwestern Pub. Serv. 10 The court’s extraordinary, policy-based suggestion that EPA could employ a quantitative “generic unit of harm” based on Oregon’s approach to Medicaid (Pet. App. 16a-17a & n.5) would not solve the constitutional problem the court perceived; EPA would still have to draw lines. Even if we assume that such a quantita- tive approach were possible, the policy judgments necessary to establish a “generic unit of harm” and to determine how many such units are permissible under the CAA would be similar to those EPA has traditionally made in its NAAQS proceedings; these judgments would merely be made under a different framework that would likely be more confusing and difficult for the public and a reviewing court to evaluate. 19 Co., 341 U.S. 246, 251 (1951)). That is also the approach the District of Columbia Circuit has followed in re- viewing prior decisions under Section 109, such as the 1987 particulate matter standard. See Natural Re- sources Defense Council, Inc. v. EPA, 902 F.2d 962, 972 (D.C. Cir. 1990) (CAA does not require EPA to identify “the clear and sole appropriate standard,” but rather a standard that is reasonable in light of the record evi- dence). The court of appeals’ decision marks a profound change in the ground rules that shape not only EPA’s air quality and other programs, but also those of other federal agencies. Many, if not most, of the rules and decisions under those programs are reviewed in the District of Columbia Circuit. This Court should review the court of appeals’ decision and determine, before EPA and other agencies refocus the analyses that they have traditionally employed under the arbitrary and capricious standard, whether those new ground rules are appropriate.” 2. The court of appeals also significantly erred in assuming jurisdiction to decide the scope of EPA’s 1 The court of appeals’ decision cannot give rise to a square conflict among the courts of appeals, because Section 307(b) of the CAA vests the District of Columbia Circuit with exclusive juris- diction to review EPA’s decisions to promulgate and revise the NAAQS. See 42 U.S.C. 7607(b). Nevertheless, as Judge Tatel noted, the majority’s decision is inconsistent with the reasoning of a First Circuit decision that addressed a nondelegation challenge in the course of reviewing a CAA implementation issue (a trans- portation plan aimed at achieving a NAAQS). See Pet. App. 60a- 61a. See also pp. 19-20, infra (describing the CAA provisions that direct implementation challenges to the regional courts of appeals). The First Circuit stated, in that context, that Section 109’s “requi- site to protect the public health” standard is not an unconstitu- tional and excessive delegation of legislative authority. South Terminal Corp. v. EPA, 504 F.2d 646, 677 (1974). 20 authority to implement and enforce the revised ozone NAAQS. Pet. App. 37a-44a. Section 307(b)(1) of the CAA authorizes the District of Columbia Circuit to review “action of the Administrator in promulgating any [NAAQS]” and other “nationally applicable regula- tions promulgated, or final action taken, by the Ad- ministrator.” 42 U.S.C. 7607(b)(1). Section 307(b)(1) further states, however, that the regional courts of ap- peals shall have authority to review “the Administra- tor’s action in approving or promulgating any imple- mentation plan under [Section 110 of the Act].” 42 U.S.C. 7607(b)(1). The CAA makes clear, by expressly deferring challenges to EPA’s classification decisions until EPA takes final action on a State’s submission (or failure to submit) a SIP, that the question of how to classify areas for purposes of setting attainment dates for the revised ozone NAAQS is reviewable only as part of the post-NAAQS-promulgation process of im- plementation planning. See CAA §§ 172(a)(1)(B), 181(a)(3), 42 U.S.C. 7502(a)(1)(B), 7511(a)(8). Consistent with the procedural steps set out in the CAA, EPA did not take final action in the 1997 ozone rulemaking to implement or enforce the revised ozone NAAQS. EPA has not, for example, designated areas as attainment or nonattainment for the eight-hour stan- dard under Section 107(d), and it has neither classified any nonattainment areas nor established attainment dates under either Section 172(a) or Section 181(a)(1). See 42 U.S.C. 7502(a), 7511(a)(1). The issue of implementation arose solely because ATA argued that Congress, by establishing a scheme in Section 181(a)(1) for implementing the then-current one-hour ozone standard, implicitly prohibited EPA from ever promulgating any revised ozone NAAQS. EPA re- sponded to that argument in the rulemaking preamble (and later in its court of appeals brief) by explaining, in 21 the course of showing why the Section 181(a) scheme does not prevent EPA from promulgating a revised NAAQS, how it would implement such a standard. See 62 Fed. Reg. at 38,884-38,885. The only issue before the court of appeals, therefore, was whether the statutory provisions at issue precluded EPA from promulgating the revised standard. Once the court answered this question in the negative, Pet. App. 34a-37a, its task was done. It should not have gone on to consider prema- turely whether and how EPA could implement the revised NAAQS. The court of appeals’ decision to address prematurely the question of NAAQS implementation has important consequences that warrant this Court’s review. The court of appeals has departed from the requirement that the reviewing court restrict its inquiry to the agency’s final actions, and it has adopted a test for finality that is inconsistent with the test applied by this Court and other courts of appeals. The court has also violated similarly well-established ripeness principles and deprived the agency charged with implementing a complex statute of the opportunity fully to develop its interpretation and resolve any tensions within the statutory scheme. a. The panel erroneously concluded that the views that EPA had expressed in the rulemaking preamble regarding its implementation authority constitute final action. Pet. App. 77a-78a. In Bennett v. Spear, 520 U.S. 154 (1997), this Court explained that two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consum- mation” of the agency’s decisionmaking process it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow” * * . Id. at 177-178 (citations omitted). In this case, the court of appeals determined, notwithstanding Bennett, that preamble statements that merely express EPA’s future intentions are final agency actions. The court effec- tively reconfigured each prong of this Court’s test in a way that would significantly broaden the domain of final agency actions. The court of appeals ruled that EPA’s statements respecting NAAQS implementation satisfied the “con- summation” prong because the court concluded that EPA’s description of how it would implement the rule would likely not change. See Pet. App. 77a-78a. Under Bennett, however, the proper inquiry is not merely whether the agency has any present intention to alter its position. Rather, the question is whether the agency has completed its decisionmaking process under the governing statute for the specific agency action at issue. Here, EPA has not designated nonattainment areas, classified those areas, or set attainment dates in accordance with the CAA’s statutorily prescribed deci- sionmaking process. See, e.g., CAA $§ 107(d), 172(a), 42 U.S.C. 7407(d), 7502(a). The court of appeals’ approach of focusing on the certainty of EPA’s preamble state- ments, without considering whether the statements consummate the statutory decisionmaking process for implementing the ozone NAAQS, distorts the Bennett test and conflicts with the finality jurisprudence of other courts of appeals.” 2 For example, in Dow Chemical Co. v. EPA, 832 F 2d 319 (Sth Cir. 1987), the court explained that “EPA’s construction of [the regulatory provision) is ‘final’ only in the sense that no one at the agency currently plans to revise it. The same could be said of countless other instances of legal interpretation. Id. at 323-324. The court of appeals’ decision also distorts the second Bennett factor. The court concluded that EPA’s pre- amble statements respecting the agency’s future imple- mentation plans constitute final agency action even though no legal consequences flow from EPA’s expres- sion of its views regarding the statutory provisions that govern implementation of a revised ozone NAAQS. See Pet. App. 78a. ATA will not be affected by EPA’s views on implementation of the revised ozone NAAQS until the agency takes actual steps to implement the NAAQS by designating and classifying nonattainment areas and setting attainment dates. ATA will be able to obtain judicial review of EPA’s judgments on those the statutorily prescribed mechanism (see pp. 19-20, supra)—once EPA takes such final binding action on those specific matters. The court of appeals erred in overlooking these decisive considera- tions and treating the legal effects of NAAQS Instead, to satisfy the definitiveness requirement, the relevant ad- ministrative decisional process must be complete. American Airlines, Inc. v. Herman, 176 F.3d 283, 291-292 (5th Cir. 1999). Other courts of appeals have taken varying approaches to whether certainty alone, or an evaluation within the broader statutory con- text, is necessary to determine whether the first factor under Bennett has been satisfied. Compare, ¢.g., Hindes v. FDIC, 137 F.3d 148, 162 (3d Cir. 1998) (because notification issued by FDIC was the first step of a multi-step process, it did not constitute FDIC's definitive statement and thus was not final), and Mobil Exploration & Producing U.S., Inc. v. Department of the Interior, 180 F.3d 1192, 1198-1199 (10th Cir. 1999) (although agency letter may have concluded that an audit should begin under the statute, that did not consummate the decisionmaking process within the overall statutory scheme that would satisfy the first prong for finality), with Western Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 663 (7th Cir. 1998) (agency letter characterizing situation as a joint employee relationship, establishing the agency’s “enforcement position,” satisfies the first prong of finality because it is “not at all tentative”). promulgation as if they were a consequence of EPA’s preamble statements respecting implementation.” b. Even if it is assumed that EPA’s preamble state- ments respecting implementation constitute final agency action, that action would not be ripe for judicial review. The court of appeals’ concern over how to reconcile Sections 172 and 181 is not yet fit for review because the matter is too abstract and general: EPA has neither fully developed its interpretation nor attempted to exercise its implementation authority. See, e. g., Ohio Forestry Ass n v. Sierra Club, 523 U.S. 726, 732-738 (1998); Abbott Labs. v. Gardner, 387 U.S. 136, 148-149 (1967). The interplay among Section 107(d), Section 172, Sec- tion 181, and other relevant provisions of the CAA is complex. Judicial exploration of these issues would be on much surer footing if the reviewing court had the benefit of EPA’s full thinking and explanation of how and why it has implemented a NAAQS in a particular way, in a particular context, after the completion of the relevant decisional process (including public notice and comment) that actually implements the standard. Fur- The court suggested that EPA's statements were final action because by “promulgating a revised ozone NAAQS the EPA has triggered the provisions of §§ 107(d)(1) and 172, which impose a number of requirements upon the states * * [and] those areas that do not comply will ultimately be required to do so.” Pet. App. 78a. But the triggered events are solely a consequence of promul- gation of the revised NAAQS and have nothing to do with EPA’s preamble statements respecting implementation. Indeed, it is doubtful whether the dispute over implementa- tion is sufficiently concrete to constitute a case or controversy within the meaning of Article III. See Reno v. Catholic Social Servs., Inc., 509 U.S. 48, 57 n.18 (1998) (the ripeness doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction”). 25 thermore, deferring review would allow EPA the op- portunity to work through the various implementation provisions, reconcile any conflicts, and make any policy judgments and apply its expertise as necessary to re- solve ambiguities in the statute. See Ohio Forestry Ass n, 523 U.S. at 783-734; Chevron, 467 U.S. at 842- 845. The importance of such a concrete setting for judi- cial review is underscored by the court’s own confusion regarding EPA’s interpretation, compare Pet. App. 48a, 44a, with id. at 80a-8la, and the extreme breadth and generality of the court’s conclusion that “EPA can enforce a revised primary ozone NAAQS only in con- formity with [Section 181“ Id. at 81a.” 3. In our view, the jurisdictional preconditions of final agency action and ripeness should have prevented the court of appeals from reaching the merits of any NAAQS implementation dispute. But even if the court of appeals could have overcome those obstacles, its decision on the merits is wrong. Congress “has not di- rectly addressed the precise question” of the relation- ship between Section 172 and Section 181 (see Chevron, 467 U.S. at 843); instead, it has left a gap for the agency to fill (id. at 843-844); and the question is whether EPA’s conclusion that Section 172 and Section 181 can be applied simultaneously “represents a reasonable accommodation of conflicting policies that were com- mitted to the agency’s care by the statute” (id. at 845). We first describe the origins of the relevant provisions, including the terminology of “Subpart 1” and “Subpart © The court, on rehearing, erroneously concluded that this issue “would not benefit from a more concrete setting,” apparently be- cause the issue is legal in nature. See Pet. App. 80a. The presence of a legal issue does not, by itself, render review appropriate be- fore the issue arises in a concrete case or controversy. See, ¢.g., U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 21 (1994). 2.” We then explain the difference between EPA’s and the court’s understanding of those provisions. Finally, we briefly summarize why, if the issue must be decided at this juncture, the court of appeals’ understanding is flawed. a. When Congress first enacted the CAA in 1970, and authorized EPA to promulgate and revise NAAQS, it expected that the various regions of the country would meet the NAAQS in a relatively short period of time. Attainment proved more difficult than expected, and when Congress enacted the 1990 CAA Amend- ments, it specifically addressed certain aspects of the nonattainment problem. First, Congress preserved (with some modifications) EPA’s general authority to revise NAAQS at five-year intervals and to designate nonattainment areas. See CAA §§ 107(d), 109(d), 42 U.S.C. 7407(d), 7409(d). Next, Congress enacted a new Subpart 1, Part D, Title I of the CAA, which granted EPA additional authority, set out in Section 172(a), to classify nonattainment areas and to set attainment dates under all new or revised NAAQS. 42 U.S.C. 7502(a). Section 172(a) makes clear that this authority applies unless “classifications [or attainment dates] are specifically provided under other provisions” of the Act. 42 U.S.C. 7502(a)(1)(C) and (2D). In addition, Con- gress enacted a series of other new Subparts, encom- passing Sections 181 to 191 of the CAA, to address the problems raised by nonattainment of particular NAAQS. Subpart 2 addresses the ozone NAAQS. Sec- tion 181(a)(1) therein sets out a schedule establishing “classification and attainment dates for 1989 nonattain- ment areas.” 42 U.S.C. 7511( a). That schedule estab- lishes those classifications and attainment dates based on the one-hour ozone standard then in effect and sets attainment dates that run from the enactment of the 1990 Amendments. 27 b. In response to public comments, EPA described the relationship between Section 107, Subpart 1, and Subpart 2. It stated in the ozone rulemaking that, once EPA completes promulgation of a revised ozone NAAQS, those provisions collectively require that EPA: (1) designate nonattainment areas in accordance with Section 107(d), and establish classifications and attainment dates and take other implementing actions for the revised ozone NAAQS under Subpart 1; and (2) simultaneously continue to implement the provisions of Subpart 2 for areas that have not yet attained under the prior one-hour ozone standard. See 62 Fed. Reg. at 38,884-38,885. The court of appeals properly rejected ATA’s argument that EPA lacked any authority to revise the ozone NAAQS in light of the Subpart 2 classifications and attainment dates. Pet. App. 34a-37a. But the court went on to conclude (prematurely, in our view, see pp. 21-25, supra) that Subpart 2 precluded implementation of a more protective ozone NAAQS. See id. at 37a-44a. When EPA explained on that the court’s construction would lead to irrational results, the court revised its decision to state that “EPA can enforce a revised primary ozone NAAQS only in conformity with Subpart 2,” id. at 82a, which apparently means that EPA can enforce its revised ozone NAAQS under Subpart 1 once an area attains the one-hour standard under Subpart 2, id. at 89a (Tatel, J., concurring). See p. 8, supra. c. The court of appeals’ reasoning, even as modified on rehearing and interpreted by Judge Tatel, is flawed. Contrary to the court’s suggestions, Pet. App. 37a, the CAA does not precisely address how to reconcile Sub- part 1—which authorizes EPA to set new classifications and attainment dates for revised NAAQS—with Sub- part 2—which establishes a specific timetable for com- pliance with the one-hour ozone standard in effect in 28 1989. The CAA surely does not dictate the result the court of appeals has required. Under Chevron, “if the statute is silent or ambiguous with respect to the specific issue, the question for the 16 The court believed that the CAA specifies how those provi- sions should be reconciled because Subpart 1 provisions do not apply if “classifications [or attainment dates) are specifically pro- vided under other provisions” of the CAA, see CAA § 172(a)(1)(C) and (2)(D), 42 U.S.C. 750 ca C) and (2)(D). Pet. App. 37a. In the court’s view, Subpart 2 provides classifications and attainment dates for any ozone standard, including any revised ozone NAAQS. That view, which is based on a highly technical argu- ment, is wrong. The court reasoned that, because Section 181(a) of Subpart 2 states that an “area designated non-attainment for ozone pursuant to [Section 107(d)] * * * shall be classified at the time of such designation” in accordance with the table in Section 181(a); and because Section 107(d) addresses designations under both the one-hour ozone standard in effect in 1989 and future NAAQS revisions; then Subpart 2 must govern the implementa- tion of any ozone NAAQS. See id. at 38a-4la. That reasoning is flawed because Section 181(a)’s reference to Section 107(d) is cabined by the context of Subpart 2. It is clear from the statutory context that Section 181(a) refers only to Section 107(d) designa- tions of nonattainment areas under the one-hour ozone standard that was in effect in 1989. For example: (1) Section 181(a)’s cap- tion denotes that the Section addresses “Classification and attain- ment dates for 1989 nonattainment areas” (emphasis added); (2) Section 181(2) bases attainment dates and classification on an area’s “design value,” specifically codifying the methodology of the one-hour ozone standard then in existence; (3) Section 181(a) pro- vides classification and attainment dates only for nonattainment areas with ozone levels in excess of .012 ppm — the “design value” in effect in 1989-1990 under the one-hour standard; and (4) Section 181(a) bases attainment dates by reference to 1990 and imposes attainment deadlines that, for most areas, have already passed. See 42 U.S.C. 7511(a)(1). Hence, the text and context of Section 181(a) indicate that Congress intended to provide classifications and attainment dates only for nonattainment areas designated under Section 107(d) for the then-current one-hour ozone standard. See 42 U.S.C. 7407(d)(1)(C) and (4)(A). court is whether the agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 848. EPA has reasonably concluded that Congress in- tended that EPA would implement a revised ozone NAAQS under Subpart 1 for all members of the Ameri- can public, including those members that reside in nonattainment areas governed by Subpart 2, “as expe- ditiously as practicable.” See CAA § 172(a)(2), 42 U.S.C. 7502(a)(2); CAA § 181(a)(1), 42 U.S.C. 7511(a)(1). There is no warrant for imposing a categorical requirement that EPA must ensure compliance with the inadequately protective one-hour ozone standard before it can require efforts to attain the more protec- tive revised ozone NAAQS.” To the extent that there is a conflict between Subpart 1 and Subpart 2, it is up to EPA to harmonize the applicable provisions, and the courts must defer to EPA’s reasonable judgment on the matter. Chevron, 467 U.S. at 845.” 17 For example, it may be “practicable”—and preferable from an implementing State’s perspective—to achieve both the one-hour ozone standard and the revised ozone NAAQS at the same time. There is no reason to believe that Congress intended to preclude that approach. 18 The court of appeals expressed concern that a practical con- flict could conceivably arise for the Los Angeles nonattainment area between Subpart 1’s attainment date for the revised ozone NAAQS and Subpart 2’s attainment date for the one-hour ozone standard. In the court’s view, Congress would not have intended that Los Angeles comply with the revised ozone NAAQS before Subpart 2’s statutory deadline for compliance with the one-hour standard. See Pet. App. 4la. That concern, however, is over- stated. The time deadlines set out in Section 181(a)(1) establish the outer time limits for attaining the one-hour standard, see 42 U.S.C. 7511(aX(1). Los Angeles would be required to attain the re- vised NAAQS under Subpart 1 no later than the same year that marks the outer time limit for attaining Subpart 2’s one-hour ozone standard. Compare CAA § 172(a)(2), 42 U.S.C. 7502(a)(2), with 30 In our view, EPA’s preliminary statements respect- ing implementation do not constitute final agency action and are not ripe for judicial review. But if the Court concludes otherwise, then it should proceed to address the merits of this important issue. On the merits, the court of appeals erred in ruling that the CAA categori- cally precludes the EPA from implementing the revised ozone NAAQS under Subpart 1 until the nonattainment areas described in Subpart 2 have attained Subpart 2’s one-hour ozone standard. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. SETH P. WAXMAN Solicitor General Gary S. GUZY Lots J. SCHIFFER Genera! Counsel Assistant Attorney General ROBERT G. DREHER LAWRENCE G. WALLACE Deputy General Counsel Deputy Solicitor General GERALD K. GLEASON JEFFREY P. MINEAR MICHAEL L. Goo Assistant to the Solicitor AMEY W. MARRELLA General JAN M. TIERNEY DAVID J. KAPLAN KEVIN W. MCLEAN MARY F. EDGAR Attorneys 8 Enos Attorney. Agency JANUARY 2000 CAA § 181(a)(1) and (5), 42 U.S.C. 7511(a)(1) and (5). In any event, the question of how EPA should reconcile any competing compli- ance deadlines is clearly the type of issue that should first be addressed by EPA through the implementation process, including public notice and comment, and subject to judicial review in the appropriate regional court of appeals. See CAA § 307(b), 42 U.S.C. 7607(b). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A02. Public record. Not legal advice.