Appendix — Whitman v. American Trucking Assns., Inc.

ti, Mtl

193

991257 JAN 27 2000

No. Kt db un CLERM

In the Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

Vv.

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

- APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

GARY S. GUZY *

General Counsel Deputy Solicitor General

JEFFREY P. MINEAR

12 2 a Assistant to the Solicitor

General

ey Sy gam DAVID J. KAPLAN

AMEY W. MARRELLA — F. —

JAN M. TIERNEY —

KEVIN W. MCLEAN Department of Justice

Atturneys Washington, D.C. 20530-0001

Environmental Protection (202) 514-2217

Agency

Washington, D.C. 20460

28e

TABLE OF CONTENTS

Appendix A (court of appeals’ opinion, dated May 14,

1999)

Appendix B:

(court of appeals’ opinion on rehearing, dated

October 29, 1999)

(court of appeals’ dissenting statements on re-

hearing en banc, dated October 29, 1999) ............

Appendix C (regulatory provisions, 40 C.F.R.

50.7)

Appendix D (regulatory provisions, 40 C. F. R.

50.10)

Appendix E (statutory provisions, 42 U.S.C. 7407,

7408, 7409, 7502, 7511, 7607)

(I)

Page

la

70a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1440

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

Consolidated with

Nos. 97-1546, 97-1548, 97-1551, 97-1552, 97-1553,

97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,

97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,

97-1582, 97-1585, 97-1586, 97-1587, 97-1588, 97-1592,

97-1594, 97-1596, 97-1597, 97-1598

(la)

2a

97-1441

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

U.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

Consolidated with

Nos. 97-1502, 97-1505, 97-1508, 97-1509, 97-1510,

97-1512, 97-1513, 97-1514, 97-1518, 97-1519, 97-1526,

97-1531, 97-1539, 97-1566, 97-1568, 97-1570, 97-1572,

97-1575, 97-1584, 97-1589, 97-1591, 97-1595, 97-1619

[Decided May 14, 1999]

[Argued December 17, 1998]

3a

On Petitions for Review of an Order of the

Environmental Protection Agency

BEFORE: WILLIAMS, GINSBURG and TATEL, Circuit

Judges.

Opinion for the Court filed PER CURIAM.”

Separate opinion dissenting from Part I filed by

Circuit Judge Tatel.

PER CURIAM:

Introduction

The Clean Air Act requires EPA to promulgate and

periodically revise national ambient air quality stan-

dards (“NAAQS”) for each air pollutant identified by

the agency as meeting certain statutory criteria. See

Clean Air Act §§ 108-09, 42 U.S.C. §§ 7408-09. For each

pollutant, EPA sets a “primary standard”—a concen-

tration level “requisite to protect the public health”

with an “adequate margin of safety”—and a “secondary

standard”—a level “requisite to protect the public

welfare.” Id. § 7409(b).

In July 1997 EPA issued final rules revising the pri-

mary and secondary NAAQS for particulate matter

(“PM”) and ozone. See National Ambient Air Quality

Standards for Particulate Matter, 62 Fed. Reg. 38,652

(1997) (“PM Final Rule”); National Ambient Air Quality

Standarcs for Ozone, 62 Fed. Reg. 38,856 (1997)

(“Ozone final Rule”). Numerous petitions for review

have been filed for each rule.

Judge Williams wrote Parts I and III.B; Judge Ginsburg

wrote Parts II, III A. and IV. D; Judge Tatel wrote Parts IV.A-C.

4a

In Part I we find that the construction of the Clean

Air Act on which EPA relied in promulgating the

NAAQS at issue here effects an unconstitutional

delegation of legislative power. See U.S. Const. art. I,

§ 1 (“All legislative powers herein granted shall be

vested in a Congress of the United States.“). We

remand the cases for EPA to develop a construction of

the act that satisfies this constitutional requirement.

In Part II we reject the following claims: that

§ 109(d) of the Act allows EPA to consider costs; that

EPA should have considered the environmental dam-

age likely to result from the NAAQS’ financial impact

on the Abandoned Mine Reclamation Fund; that the

NAAQS revisions violated the National Environmental

Policy Act (“NEPA”), Unfunded Mandates Reform Act

(“UMRA”), and Regulatory Flexibility Act (“RFA”).

In Part III we decide two ozone-specific statutory

issues, holding that the 1990 revisions to the Clean Air

Act limit EPA’s ability to enforce new ozone NAAQS

and that EPA cannot ignore the possible health bene-

fits of ozone.

Finally, in Part IV we resolve various challenges to

the PM NAAQS. We agree with petitioners that

EPA’s choice of PM,, as the indicator for coarse particu-

late matter was arbitrary and capricious; we reject

petitioners’ claims that EPA must treat PM,, as a “new

pollutant,” that EPA must identify a biological mecha-

nism explaining PM’s harmful effects, and that the

Clean Air Act requires secondary NAAQS to be set at

levels that eliminate all adverse visibility effects.

5a

The 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).

I. Delegation

Certain “Small Business Petitioners” argue in each

case that EPA has construed §§ 108 & 109 of the Clean

Air Act so loosely as to render them unconstitutional

delegations of legislative power. We agree. Although

the factors EPA uses in determining the degree of

public health concern associated with different levels of

ozone and PM are reasonable, EPA appears to have

articulated no “intelligible principle” to channel its

application of these factors; nor is one apparent from

the statute. The nondelegation doctrine requires such a

principle. See J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 409 (1928). Here it is as though

Congress commanded EPA to select “big guys,” and

EPA announced that it would evaluate candidates

based on height and weight, but revealed no cut-off

point. The announcement, though sensible in what it

does say, is fatally incomplete. The reasonable person

responds, “How tall? How heavy?”

EPA regards ozone definitely, and PM likely, as non-

threshold pollutants, i.e., ones that have some possibil-

ity of some adverse health impact (however slight) at

any exposure level above zero. See Ozone Final Rule,

62 Fed. Reg. at 38,863/3 (“Nor does it seem possible, in

the Administrator’s judgment, to identify [an ozone

concentration] level at which it can be concluded with

confidence that no ‘adverse’ effects are likely to

occur.”); National Ambient Air Quality Standards for

Ozone and Particulate Matter, 61 Fed. Reg. 65,637,

6a

65,651/3 (1996) (proposed rule) (“[T]Jhe single most

important factor influencing the uncertainty associated

with the risk estimates is whether or not a threshold

concentration exists below which PM-associated health

risks are not likely to occur.”). For convenience, we

refer to both as non-threshold pollutants; the indetermi-

nacy of PM’s status does not affect EPA’s analysis, or

ours.

Thus the only concentration for ozone and PM that is

utterly risk-free, in the sense of direct health impacts,

is zero. Section 109(b)(1) says that EPA must set each

standard at the level “requisite to protect the public

health” with an “adequate margin of safety.” 42 U.S.C.

§ 7409(b)(1). These are also the criteria by which EPA

must determine whether a revision to existing NAAQS

is appropriate. See 42 U.S.C. § 7409(d)(1) (EPA shall

“promulgate such new standards as may be appropriate

in accordance with . . . [§ 7409(b)]”); see also infra

Part II.A. For EPA to pick any non-zero level it must

explain the degree of imperfection permitted. The

factors that EPA has elected to examine for this

purpose in themselves pose no inherent nondelegation

problem. But what EPA lacks is any determinate crite-

rion for drawing lines. It has failed to state intelligibly

how much is too much.

We begin with the criteria EPA has announced for

assessing health effects in setting the NAAQS for non-

threshold pollutants.’ They are “the nature and sever-

! Technically, EPA describes the criteria as used only for

setting the “adequate margin of safety.” There might be thought

to be a separate step in which EPA determines what standard

would protect public health without any margin of safety, and that

step might be governed by different criteria. But EPA did not use

7a

ity of the health effects involved, the size of the sensi-

tive population(s) at risk, the types of health informa-

tion available, and the kind and degree of uncertainties

that must be addressed.” Ozone Final Rule, 62 Fed.

Reg. at 38,883/2; EPA, “Review of the National Ambi-

ent Air Quality Standards for Particulate Matter:

Policy Assessment of Scientific and Technical Informa-

tion: OAQPS Staff Paper,” at II-2 (July 1996) (“PM

Staff Paper”) (listing same factors). Although these

criteria, so stated, are a bit vague, they do focus the

inquiry on pollution’s effects on public health. And most

of the vagueness in the abstract formulation melts away

as EPA applies the criteria: EPA basically considers

severity of effect, certainty of effect, and size of popula-

tion affected. These criteria, long ago approved by the

judiciary, see Lead Industries Ass’n v. EPA, 647 F. 2d

1130, 1161 (D.C. Cir. 1980) (“Lead Industries”), do not

themselves speak to the issue of degree.

Read in light of these factors, EPA’s explanations for

its decisions amount to assertions that a less stringent

standard would allow the relevant pollutant to inflict a

greater quantum of harm on public health, and that a

more stringent standard would result in less harm.

Such arguments only support the intuitive proposition

that more pollution will not benefit public health, not

that keeping pollution at or below any particular level is

“requisite” or not requisite to “protect the public

health” with an “adequate margin of safety,” the for-

mula set out by § 109(b)(1).

such a process, and it need not. See NRDC v. EPA, 902 F. 2d 963,

973 (D.C. Cir. 1990). Thus, the criteria mentioned in the text gov-

ern the whole standard-setting process.

8a

Consider EPA’s defense of the 0.08 ppm level of the

ozone NAAQS. EPA explains that its choice is superior

to retaining the existing level, 0.09 ppm, because more

people are exposed to more serious effects at 0.09 than

at 0.08. See Ozone Final Rule, 62 Fed. Reg. at 38,868/1.

In defending the decision not to go down to 0.07, EPA

never contradicts the intuitive proposition, confirmed

by data in its Staff Paper, that reducing the standard to

that level would bring about comparable changes. See

EPA, “Review of National Ambient Air Quality Stan-

dards for Ozone: Assessment of Scientific and Technical

Information: OAQPS Staff Paper,” at 156 (June 1996)

(“Ozone Staff Paper”). Instead, it gives three other

reasons. The principal substantive one is based on the

criteria just discussed:

The most certain O, related effects, while judged to

be adverse, are transient —4 —— —

at O; e ures below 0.08 ppm), and the mo:

— effects with greater immediate and potential

long-term impacts on health are less certain, both as

to the percentage of individuals exposed to various

concentrations who are likely to experience such

effects and as to the long-term medical significance

of these effects.

Ozone Final Rule, 62 Fed. Reg. at 38,868/2.

In other words, effects are less certain and less

severe at lower levels of exposure. This seems to be

nothing more than a statement that lower exposure

levels are associated with lower risk to public health.

The dissent argues that in setting the standard at 0.08,

EPA relied on evidence that health effects occurring

below that level are “transient and reversible, Dissent

at 5, evidently assuming that those at higher levels are

9a

not. But the EPA language quoted above does not

make the categorical distinction the dissent says it

does, and it is far from apparent that any health effects

existing above the level are permanent or irreversible.

In addition to the assertion quoted above, EPA cited

the consensus of the Clean Air Scientific Advisory

Committee (“CASAC”) that the standard should not be

set below 0.08. That body gave no specific reasons for

its recommendations, so the appeal to its authority, also

made in defense of other standards in the PM Final

Rule, see PM Final Rule, 62 Fed. Reg. at 38,677/2 (daily

fine PM standard); id. at 38,678/3 (annual coarse PM

standard); id. at 38,679/1 (daily coarse PM standard),

adds no enlightenment. The dissent stresses the undis-

puted eminence of CASAC’s members, Dissent at 4, but

the question whether EPA acted pursuant to lawfully

delegated authority is not a scientific one. N othing in

what CASAC says helps us discern an intelligible

principle derived by EPA from the Clean Air Act.

Finally, EPA argued that a 0.07 standard would be

“closer to peak background levels that infrequently

occur in some areas due to nonanthropogenic sources of

O, precursors, and thus more likely to be inappropri-

ately targeted in some areas on such sources.” Ozone

Final Rule, 62 Fed. Reg. at 38,868/3. But a 0.08 level, of

course, is also closer to these peak levels than 0.09. The

dissent notes that a single background observation fell

between 0.07 and 0.08, and says that EPA’s decision

“ensured that if a region surpasses the ozone standard,

it will do so because of controllable human activity, not

uncontrollable natural levels of ozone.” Dissent at 6.

EPA’s language, coupled with the data on background

ozone levels, may add up to a backhanded way of saying

10a

that, given the national character of the NAAQS, it is

inappropriate to set a standard below a level that can

be achieved throughout the country without action

affirmatively extracting chemicals from nature. That

may well be a sound reading of the statute, but EPA

has not explicitly adopted it.

EPA frequently defends a decision not to set a

standard at a lower level on the basis that there is

greater uncertainty that health effects exist at lower

levels than the level of the standard. See Ozone Final

Rule, 62 Fed. Reg. at 38,868/2; PM Final Rule, 62 Fed.

Reg. at 38,676/3 (annual fine PM standard); id. at

38,677/2 (daily fine PM standard). And such an argu-

ment is likely implicit in its defense of the coarse PM

standards. See PM Final Rule, 62 Fed. Reg. at

38,678/3-79/1. The dissent’s defense of the fine particu-

late matter standard cites exactly such a justification.

See Dissent at 6 (“The Agency explained that ‘there is

generally greatest statistical confidence in observed

associations . . for levels at and above the mean con-

centration [in certain studies!) (emphasis added in

dissent). But the increasing-uncertainty argument is

helpful only if some principle reveals how much uncer-

tainty is too much. None does.

The arguments EPA offers here show only that EPA

is applying the stated factors and that larger public

health harms (including increased probability of such

harms) are, as expected, associated with higher pollut-

ant concentrations. The principle EPA invokes for each

increment in stringency (such as for adopting the

annual coarse particulate matter standard that it chose

here)—that it is “possible, but not certain” that health

effects exist at that level, see PM Final Rule, 62 Fed.

lla

Reg. at 38,678/3°—could as easily, for any non-threshold

pollutant, justify a standard of zero. The same

indeterminacy prevails in EPA’s decisions not to pick a

still more stringent level. For example, EPA’s reasons

for not lowering the ozone standard from 0.08 to 0.07

ppm—that “the more serious effects . . . are less cer-

tain” at the lower levels and that the lower levels are

“closer to peak background levels,” see Ozone Final

Rule, 62 Fed. Reg. at 38,868/2—could also be employed

to justify a refusal to reduce levels below those associ-

ated with London’s “Killer Fog” of 1952. In that

calamity, very high PM levels (up to 2,500 hg /me) are

believed to have led to 4,000 excess deaths in a week.

Thus, the agency rightly recognizes that the question is

one of degree, but offers no intelligible principle by

which to identify a stopping point.

The latitude EPA claims here seems even broader

than that OSHA asserted in International Union,

UAW v. OSHA (“Lockout/Tagout I’), 938 F.2d 1310

1317 (D.C. Cir. 1991), which was to set a standard that

would reduce a substantial risk and that was not

infeasible. In that case, OSHA thought itself free

either to “do nothing at all” or to “require precautions

that take the industry to the brink of ruin,” with “all

EA did cite qualitative evidence for further support for its

annual standard, and argued that the evidence “does not provide

evidence of effects below the range of 40-50 yg/m’,” the standard

level. PM Final Rule, 62 Fed. Reg. at 38,678/3. The referenced

document, however, bears no indication that the qualitative evi-

dence demonstrates effects at the level of the standard, either.

See EPA, “Air Quality Criteria for Particulate Matter,” at 13-79

(April 1996).

8 See W.P.D. Logan, “Mortality in the London F i

1952,” The Lancet, Feb. 4, 1958, at 336-38. —

12a

positions in between . . . evidently equally valid.“ Id.

Here, EPA’s freedom of movement between the poles

is equally unconstrained, but the poles are even farther

apart—the maximum stringency would send industry

not just to the brink of ruin but hurtling over it, while

the minimum stringency may be close to doing nothing

at all.

In Lockout/Tagout I certain special conditions that

have justified an exceptionally relaxed application of

the nondelegation doctrine were absent, id. at 1317-18,

and they are equally absent here. The standards in

question affect the whole economy, requiring a “more

precise” delegation than would otherwise be the case,

see A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 553 (1935). No “special theories” justify-

ing vague delegation such as the war powers of the

President or the sovereign attributes of the delegatee

have been or could be asserted. Nor is there some

inherent characteristic of the field that bars develop-

ment of a far more determinate basis for decision. (This

is not to deny that there are difficulties; we consider

some below.)

EPA cites prior decisions of this Court holding that

when there is uncertainty about the health effects of

concentrations of a particular pollutant within a par-

ticular range, EPA may use its discretion to make the

“policy judgment” to set the standards at one point

within the relevant range rather than another. NRDC

v. EPA, 902 F.2d 962, 969 (D.C. Cir. 1990); American

Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir.

1981); Lead Industries, 647 F.2d at 1161 (D.C. Cir.

1980). We agree. But none of those panels addressed

the claim of undue delegation that we face here, and

13a

accordingly had no occasion to ask EPA for coherence

(for a “principle,” to use the classic term) in making its

“policy judgment.” The latter phrase is not, after all, a

self-sufficient justification for every refusal to define

limits.

It was suggested at oral argument that EPA’s vision

of its discretion in application of § 109(b)(1) is no

broader than that asserted by OSHA after a remand by

this court and upheld by this court in International

Union, UAW v. OSHA (“Lock-out/Tagout IT’), 37 F.3d

665 (D.C. Cir. 1994). But there, in fact, OSHA allowed

itself to set only standards falling somewhere between

maximum feasible stringency and some “moderate”

departure from that level. Jd. at 669. As our prior dis-

cussion should have indicated, here EPA’s formulation

of its policy judgment leaves it free to pick any point

between zero and a hair below the concentrations

yielding London’s Killer Fog.

The dissent argues that a nondelegation challenge

similar to this one was rejected in South Terminal

Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974), and cites

that case’s language that “the rationality of the means

can be tested against goals capable of fairly precise

definition in the language of science,” id. at 677. See

Dissent at 2. But the action challenged in South Termi-

nal was EPA’s adoption of a plan for ending or pre-

venting violations in Toston of already-established

NAAQS, not its promi gation of the NAAQS them-

selves. Thus, it seems likely that the “means” were the

plan’s provisions—e.g., a prohibition on most new park-

ing in the city, see 504 F.2d at 671, and the “fairly pre-

cise[ly] definſed]ꝰ goals were the NAAQS themselves.

14a

Where (as here) statutory language and an existing

ageney interpretation involve an unconstitutional dele-

gation of power, but an interpretation without the

constitutional weakness is or may be available, our

response is not to strike down the statute but to give

the agency an opportunity to extract a determinate

standard on its own. Lockout/Tagout I, 938 F.2d at

1313. Doing so serves at least two of three basic

rationales for the nondelegation doctrine. If the agency

develops determinate, binding standards for itself, it is

less likely to exercise the delegated authority arbitrar-

ily. See Amalgamated Meat Cutters v. Connally, 337

F. Supp. 737, 758-59 (D.D.C. 1971) (Leventhal, J., for

three-judge panel). And such standards enhance the

likelihood that meaningful judicial review will prove

feasible. See id. at 759. A remand of this sort of course

does not serve the third key function of non-delegation

doctrine, to “ensure[ ] to the extent consistent with

orderly governmental administration that important

choices of social policy are made by Congress, the

branch of our Government most responsive to the popu-

lar will,” Industrial Union Dep’t, AFL-CIO v. Ameri-

can Petroleum Inst., 448 U.S. 607, 685 (1980) (“Ben-

zene”) (Rehnquist, J., concurring). The agency will

make the fundamental policy choices. But the remand

does ensure that the courts not hold unconstitutional a

statute that an agency, with the application of its

special expertise, could salvage. In any event, we do

not read current Supreme Court cases as applying the

strong form of the nondelegation doctrine voiced in

Justice Rehnquist’s concurrence. See Mistretta v.

United States, 488 U.S. 361, 377-79 (1989).

What sorts of “intelligible principles” might EPA

adopt? Cost-benefit analysis, mentioned as a possibility

15a

in Lock · out / Tugout I, 988 F. 2d at 1319-21, is not avail-

able under decisions of this court. Our cases read

§ 109(b)(1) as barring EPA from considering any factor

other than “health effects relating to pollutants in the

air.” NRDC, 902 F. 2d at 973; see also Lead Industries,

647 F.2d at 1148; American Lung Ass’n v. EPA, 134

F.3d 388, 389 (D.C. Cir. 1998); American Petroleum

Inst., 665 F. 2d at 1185 (echoing the same themes).

In theory, EPA could make its criterion the eradica-

tion of any hint of direct health risk. This approach is

certainly determinate enough, but it appears that it

would require the agency to set the permissible levels

of both pollutants here at zero. No party here appears

to advocate this solution, and EPA appears to show no

inclination to adopt it.

EPA’s past behavior suggests some readiness to

adopt standards that leave non-zero residual risk. For

example, it has employed commonly used clinical crite-

ria to determine what qualifies as an adverse health

A zero-risk policy might seem to imply de-industrialization,

but in fact even that seems inadequate to the task (and even if the

calculus is confined to direct risks from pollutants, as opposed to

risks from the concomitant poverty). First, PM (at least) results

from almost all combustion, so only total prohibition of fire or uni-

versal application of some heretofore unknown control

would reduce manmade emissions to zero. See PM Staff Paper at

IV-1. Second, the combustion associated with pastoral life appears

to be rather deadly. See World Bank, World Development Report

1992: Development and the Environment 52 (1992) (noting that

“biomass” fuels (Le., wood, straw, or dung) are often the only fuels

that “poor households, mostly in rural areas” can obtain or afford,

and that indoor smoke from biomass burning “contributes to acute

respiratory infections that cause an estimated 4 million deaths

annually among infants and children.”).

16a

effect. See Ozone Staff Paper at 59-60 (using American

Thoracic Society standards to determine threshold for

“adverse health effect” from ozone). On the issue of

likelihood, for some purposes it might be appropriate to

use standards drawn from other areas of the law, such

as the familiar “more probable than not” criterion.

Of course a one-size-fits-all criterion of probability

would make little sense. There is no reason why the

same probability should govern assessments of a risk of

thousands of deaths as against risks of a handful of

people suffering momentary shortness of breath. More

generally, all the relevant variables seem to range

continuously from high to low: the possible effects of

pollutants vary from death to trivialities, and the size of

the affected population, the probability of an effect, and

the associated uncertainty range from “large” numbers

of persons with point estimates of high probability, to

small numbers and vague ranges of probability. This

does not seem insurmountable. Everyday life compels

us all to make decisions balancing remote but severe

harms against a probability distribution of benefits;

people decide whether to proceed with an operation

that carries a 1/1000 possibility of death, and (simplify-

ing) a 90% chance of cure and a 10% chance of no effect,

and a certainty of some short-term pain and nuisance.

To be sure, all that requires is a go/no-go decision, while

a serious effort at coherence under § 109(b)(1) would

need to be more comprehensive. For example, a range

of ailments short of death might need to be assigned

weights. Nonetheless, an agency wielding the power

over American life possessed by EPA should be capable

of developing the rough equivalent of a generic unit of

harm that takes into account population affected, sever-

ity and probability. Possible building blocks for such a

17a

principled structure might be found in the approach

Oregon used in devising its health plan for the poor. In

determining what conditions would be eligible for

treatment under its version of Medicaid, Oregon ranked

treatments by the amount of improvement in “Quality-

Adjusted Life Years” provided by each treatment, di-

vided by the cost of the treatment.’ Here, of course,

The “quality” of various health states was determined b

tions of various health states with and without the treatment in

question.

Oregon was twice forced to revise its system because

United States Department of Health & Human Services =

mined that the original proposal and a revision violated the Ameri-

cans with Disabilities Act, 42 U.S.C. §§ 12101-12213. The reason

given for this determination was that both versions undervalued

the lives of persons with disabilities: The original plan measured

quality of life according to the attitudes of the general population

rather than the attitudes of persons with disabilities. See HHS

Analysis Under the Americans with Disabilities Act (‘ADA’) of

the Oregon Reform Demonstration” (Aug. 3, 1992), reprinted in 9

Issues in L. & Med. 397, 410, 410 (1994). The revised plan ranked

treatinents leaving the patient in a “symptomatic” state lower than

those leaving the patient asymptomatic, and certain disabling con-

ditions were considered “symptoms.” See Letter from Timothy B.

Flanagan, Assistant Attorney General, to Susan K. Zagame, Act-

ing General Counsel, HHS (Jan. 19, 1993), reprinted in 9 Issues in

L. & Med. 397, 418, 421 (1994). The Department’s determination

was extensively criticized when issued. See Maxwell J. Mehlman e:

al., “When Do Health Care Decisions Discriminate Against Per-

* „ ee 22 J. Of Health Politics, Policy & L. 1385,

8 “deci v

— decision provoked a storm of disbelief and

We take no position on whether HHS’s view was correct, or

if the underlying norm also governs EPA’s decisions under

§ 10%(bX(1). An affirmative answer, however, would not seem to

preclude use of some of Oregon’s approach. The first step would

be giving appropriate weight to the views of persons with

18a

EPA may not consider cost, and indeed may well find a

completely different method for securing reasonable

coherence. Alternatively, if EPA concludes that there

is no principle available, it can so report to the Con-

gress, along with such rationales as it has for the levels

it chose, and seek legislation ratifying its choice.

We have discussed only the primary standards. Be-

cause the secondary standards are at least in part based

on those, see Ozone Final Rule, 62 Fed. Reg. at

38,875/3-76/1; PM Final Rule, 62 Fed. Reg. at 38,680/3,

we also remand the cases to the agency with regard to

the secondary standards as well, for further considera-

tion in light of this opinion.

Il. Other General Claims

The petitioners and amici contend that the EPA erro-

neously failed to consider a host of factors in revising

the PM and ozone NAAQS. We reject each of these

claims in turn.

disabilities. The second might be measuring the seriousness of a

health effect by the absolute level of well-being

that the effect brings about, not by the decrease in level that the

effect causes. In other words, if the maximum well-being level is

100 and the average asthmatic whose asthma constitutes a dis-

ability has a well-being of 80 in the absence of air pollution (accord-

ing to a measure that appropriately considers asthmatics’ own

assessments of their condition), then a response to air pollution

that reduces the asthmatics’ well-being to 70 could be counted as

an effect of magnitude 30 (the difference from full health), rather

than 10 (the difference from the level without the pollution). That

approach would ensure that effects on persons with disabilities

were not underestimated, even in the broad sense of that term

=pparently adopted by HHS.

19a

A. Consideration of Cost in Revising Standards

As this court long ago made clear, in setting NAAQS

under § 109(b) of the Clean Air Act, the EPA is not per-

mitted to consider the cost of implementing those

standards. See Lead Industries, 647 F.2d at 1148 (D.C.

Cir. 1980); see also NRDC, 902 F.2d at 973 (following

Lead Industries in reviewing particulate matter

NAAQS); American Petroleum Inst., 665 F.2d at 1185

(same, in reviewing ozone N AAQS). The petitioners

make four unsuccessful attempts to distinguish Lead

Industries and its progeny.

First, the petitioners claim that in Lead Industries

we held only that the Clean Air Act does not compel the

EPA to consider the costs of implementation in setting

a NAAQS; on the contrary, we held that the Act

precludes the EPA from doing so. See Lead Industries,

647 F. 2d at 1148 (“the statute and its legislative history

make clear that economic considerations play no part in

the promulgation of [NAAQS]”).

Second, that we decided Lead Industries prior to the

Supreme Court’s decision in Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837 (1984) does not, as the petitioners

suggest, require us to revisit the earlier case. The Lead

Industries decision was made in Chevron step one

terms, see id., as the post-Chevron progeny of Lead

Industries have made clear. See NRDC, 902 F.2d at 973

(“Consideration of costs . . . would be flatly incon-

sistent with the statute, legislative history and case law

on this point”); NRDC v. EPA, 824 F.2d 1146, 1158-59

(D.C. Cir. 1987) (in banc) (“Vinyl Chloride”) (“[S)tatute

on its face does not allow consideration of technological

or economic feasibility. . . . Congress considered the

20a

alternatives and chose to close down sources or even

industries rather than to allow risks to health”).

Third, though the petitioners are correct that in Lead

Industries we interpreted § 19b), which governs the

setting of NAAQS, and not § i. d), which governs the

revising of NAAQS, we can discern no legally relevant

difference in the two sections that would make Lead

Industries inapplicable to § 109(d). Section 109(d)(1)

directs the EPA to:

complete a thorough review of the criteria published

under section 7408 of this title and the [NAAQS]

promulgated under this section and [to] make such

revisions in such criteria and standards and promul-

gate such new standards as may be appropriate in

accordance with section 7408 of this title and

subsection (b) of this section.

42 U.S.C. § 7409(d)(1). The petitioners contend that

consideration of costs is one pertinent factor in deter-

mining whether revision of a NAAQS is “appropriate,”

but this argument ignores the clause immediately fol-

lowing “appropriate,” which incorporates § 109(b) and

thereby affirmatively precludes consideration of costs

in revising NAAQS. Section 108(b), 42 U.S.C. § 7408(b),

does require the EPA to provide the States with

information on the cost of implementing NAAQS, but

the reference to § 108 does not permit consideration of

costs in setting NAAQS because it clearly relates back

to the requirement that the EPA “make . . . revisions

in (“the criteria published under section 7408”] . . as

may be appropriate.” And insofar as the air quality

criteria do apply to the setting of NAAQS, they do so

through § 109(b), which (again) precludes the considera-

tion of costs and which is explicitly incorporated into

21a

§ 109(d)(1). See id. § 7409 0b) (I) (primary NAAQS to be

“based on [the air quality] criteria” issued under § 108).

Fourth, the petitioners point to § 109(d)(2), which

creates the CASAC and requires it to advise the EPA

about, among other things, “any adverse public health,

welfare, social, economic, or energy effects which may

result from various strategies for attainment and main-

tenance of such [NAAQS)].” Id. § 7409(d)(2)(C)(iv).

Why, ask the petitioners, would the CASAC be re-

quired to advise the EPA about these matters if the

EPA were not then supposed to consider its advice in

the course of revising the NAAQS? As above, how-

ever, the petitioners overlook that § 109(d)(1) directs

the EPA to review and to revise, as appropriate, the air

quality standards issued under § 108 as well as the

NAAQS promulgated under § 109(b). The advice re-

quired in § 109(d)(2)(C)(iv) is pertinent only to the

EPA’s duty under § 108 to provide the States with

control strategy information.

B. Environmental Consequences of Implementing

NAAQS

The State Petitioners argue that the EPA erred in

failing “to consider the environmental consequences

resulting from the financial impact of the [revised PM.

and ozone NAAQS] on the federal Abandoned Mine

Reclamation Fund Act.” This argument is squarely

foreclosed by our decision in NRDC. In reviewing the

EPA’s previous revision of the PM NAAQS, we

rejected the argument that the EPA “erred in refusing

to consider the health consequences of unemployment

in determining the primary [NAAQS] for particulate

matter” and held that “{i}t is only health effects relating

to pollutants in the air that EPA may consider.” 902

22a

F.2d at 972-73 (emphasis in original). Unlike the

positive health benefits of ozone that we hold (in Part

III.B, below) the EPA must consider, any detrimental

health effects resulting from the financial impact upon

the mine fund, like the health consequences of unem-

ployment, are traceable to the cost of complying with

the revised PM,, and ozone NAAQS and not to the

presence of those pollutants in the air.

C. The National Environmental Policy Act

In challenging both the revised PM,, and ozone

NAAQS, the State Petitioners also argue that the EPA

failed to comply with certain requirements of the

NEPA. The petitioners recognize that the Congress

has exempted all actions under the Clean Air Act,

including the setting of NAAQS, from the central

requirement of the NEPA, namely, the preparation of

an Environmental Impact Statement. Compare 42

U.S.C. § 4882(2)(C)-(D) (agency must prepare EIS in all

“major Federal actions significantly affecting the

quality of the human environment”), with 15 U.S.C.

§ 798(c)(1) (“No action taken under the Clean Air Act

shall be deemed a major Federal action significantly

affecting the quality of the human environment within

the meaning of the [NEPA]”). Nonetheless, they sug-

gest that the EPA is required to complete the func-

tional equivalent of an EIS and also to comply with

other requirements in the NEPA, see 42 U.S.C.

§ 4832(2)(B), (E), (G). State Petitioners’ PM Brief at 20;

State Petitioners’ Ozone Brief at 19. We reject each of

these suggestions.

First, the State Petitioners contend that this court

has “recognized that the [CAA], properly construed,

requires the functional equivalent of a NEPA impact

23a

statement, id. (quoting Portland Cement Ass’n v.

Ruckelshaus, 486 F. 2d 375, 384 (1973)). Our decision in

Portland Cement, however, actually construed only

“section 111 of the Clean Air Act.” By replacing these

words with “(CAA)” in their briefs, the petitioners

misrepresent our interpretation of a single section of

the Clean Air Act, dealing with emission standards for

stationary sources, as an interpretation of the entire

Act. Even if the petitioners were correct, however,

Portland Cement predated, and is now superseded by,

the statutory exemption in 15 U.S.C. § 7938(c)(1), which

the Congress added in 1974.

Second, the State Petitioners contend that a pro-

vision of the NEPA “requires that EPA weigh ‘eco-

nomic considerations.” The section to which the

petitioners refer reads as follows: “all agencies of the

Federal Government shall, identify and develop

methods and procedures. which will insure that

presently unquantified environmental amenities and

values may be given appropriate consideration in

decisionmaking along with economic and technical

considerations.” 42 U.S.C. § 433202) (B). Even if this

section is properly read generally to require an agency

to consider implementation costs, § 109(d)(1) specifi-

cally prohibits the EPA from doing so. And the NEPA

provides that it shall not “in any way affect the specific

statutory obligations of any Federal agency . . . to

comply with criteria or standards of environmental

quality.” 42 U.S.C. § 4834(1). Therefore, § 4832(2)(B)

cannot require the EPA to disregard the prohibition in

§ 109(d)(1) upon the consideration of costs in setting

NAAQS.

24a

The State Petitioners’ remaining arguments—that

the EPA failed to comply with two other sections of the

NEPA—fare little better. Section 4332(2)(E) requires

federal agencies to “study, develop, and describe appro-

priate alternatives to recommended courses of action in

any proposal which involves unresolved conflicts con-

cerning alternative uses of available resources.” As

with § 4332(2)(B), insofar as § 4332(2)(E) can be read to

require the EPA to consider the costs of implementing

NAAQS when revising those standards, contrary to the

prohibition in § 109(d)(1), § 4834(1) prevents it from

having any effect.

If, on the other hand, § 4332(2)(E) is understood in

the context of the Clean Air Act to require the EPA

merely to discuss implementation alternatives, then it,

like the similar § 4332(2)(G) with which the petitioners

also claim the EPA failed to comply, is the functional

equivalent of § 108(b)(1). That section requires the

EPA to provide the States with, among other things,

“such data as are available on available technology and

alternative methods of prevention and control of air

pollution.” As we recognize with regard to the require-

ment that the agency prepare an EIS, “[cjompliance

with NEPA’s . . . requirement/s) has not been con-

sidered necessary when the agency’s organic legislation

mandates procedures for considering the environment

that are ‘functional equivalents’ of the [NEPA’s]

process.” Izaak Walton League of Am. v. Marsh, 655

F.2d 346, 367 n.51 (1981). The rationale for the func-

tional equivalence doctrine is the well-established prin-

ciple that a “general statutory rule usually does not

govern unless there is no more specific rule.” Green v.

Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989); see

also Alabama ex rel. Siegelman v. EPA, 911 F.2d 499,

25a

504-05 (11th Cir. 1990) (citing cases). The NEPA is the

general statute requiring agencies to consider environ-

mental harms, whereas the Clean Air Act is the more

specific and its equivalent provisions apply in place of

those in the NEPA. See Portland Cement, 486 F. ad at

386 (finding functional equivalence when more specific

statute strikes “workable balance between some of the

advantages and disadvant f

NEPA”, ages of full application of

Our analysis of the petitioners’ contentions leads us

to conclude that nothing in the NEPA requires the

EPA in setting NAAQS to consider or to discuss

matters that the Clean Air Act does not already permit

or require.

D. The Unfunded Mandates Reform Act

The State Petitioners in the particulate matter case

and Congressman Bliley in the ozone case both contend

that the EPA is required by the Unfunded Mandates

Reform Act, 2 U.S.C. § 1501 et geg., to prepare a Regu-

latory Impact Statement (RIS) when setting a NAAQS,

see id. § 1582, and to choose the least burdensome from

a range of alternative permissible NAAQS, see id.

§ 1535. Even if the petitioners and the amicus are

correct regarding the interaction of the UMRA and the

CAA—a point the EPA strongly contests—we can pro-

vide them with no relief. See id. § 1571(a)(3) (“(Tyhe

inadequacy or failure to prepare Ia RIS] . . shall not

be used as a basis for staying, enjoining, invalidating or

otherwise affecting lan] agency rule”); id. § 1571(b)

(“Except as provided in [§ 1571(a), which does not

mention § 1535,) . . . any compliance or noncompliance

with the provisions of this chapter . . . shall not be

subject to judicial review; and no provision of this

26a

chapter shall be construed to [be]. . . enforceable by

any person in any. judicial action”).

The State Petitioners, recognizing the limitations

upon judicial review in § 1571; contend that the EPA’s

failure to prepare a RIS can nonetheless render

the NAAQS arbitrary and capricious, see 42 U.S.C.

§ 7607(d)(9), relying upon Thompson v. Clark, 741 F.2d

401 (D.C. Cir. 1984). In that case, we interpreted a

statute that, like the UMRA, both specified that the

RIS be included in the record for judicial review and

precluded judicial review of an agency’s compliance

with the RIS requirement. We held that a “reviewing

court will consider the contents of the [RIS], along with

the rest of the record, in assessing not the agency’s

compliance with the [requirement to prepare the RIS],

but the validity of the rule under other provisions of

law.” Id. at 405. No information in a RIS, however,

could lead us to conclude that the EPA improperly set

the PM and ozone NAAQS; the only information such a

statement would add to the rulemaking record for a

NAAQS would pertain to the costs of implementation,

see 2 U.S.C. § 1532(a), and the EPA is precluded from

considering those costs in setting a NAAQS. Accord-

ingly, the failure to prepare a RIS does not render the

NAAQS arbitrary and capricious.

E. The Regulatory Flexibility Act

In both the ozone and particulate matter cases, the

Small Business Petitioners argue that the EPA im-

properly certified that the revised NAAQS would not

have a significant impact upon a substantial number of

small entities. The Regulatory Flexibility Act, 5 U.S.C.

601 et geg., as amended in 1996 by the Small Business

Regulatory Enforcement Fairness Act, Pub. L. No.

27a

104-121, tit. II, 110 Stat. 857-74 (“SBREFA”), requires

an agency, when engaging in notice and comment rule-

making, to “prepare and make available for public

comment an initial regulatory flexibility analysis.

[that] deseribels] the impact of the proposed rule on

small entities,” 5 U.S.C. § 608(a), including small busi-

nesses, small organizations, and smal] governmental

jurisdictions, see id. § 601(6). When promulgating a

final rule, an agency must describe “the „

taken to minimize the significant economic impact on

small entities.” Id. § 604(a)(5). According to the peti-

tioners, if the EPA had complied with the RFA, it

would likely have promulgated less stringent PM and

ozone NAAQS than those actually chosen, which would

have reduced the burden upon small entities.

A regulatory flexibility analysis is not required,

however, if the agency “certifies that the rule will not, if

promulgated, have a significant economic impact on a

substantial number of small entities.” Jd. § 605(b).

Further, the SBREFA made no change in the require-

ment that a regulatory flexibility analysis conducted

pursuant to the RFA include estimates of “the number

of small entities to which the proposed rule will apply”

and of “the classes of small entities which will be sub-

ject to the requirement.” 5 U.S.C. § 608(b)(3)-(4).. We

have consistently interpreted the RFA, based upon

these sections, to impose no obligation upon an agency

“to conduct a small entity impact analysis of effects on

entities which it does not regulate.” Motor & Equip.

Mfrs. Ass'n v. Nichols, 142 F.3d 449, 467 & n.18 (1998).

The EPA certified that its revised NAAQS will “not

have a significant economic impact on small entities

within the meaning of the RFA.” PM Final Rule, 62

28a

Fed. Reg. at 38,702/2; Ozone Final Rule, 62 Fed. Reg. at

38,887/2-8. According to the EPA, the NAAQS them-

selves impose no regulations upon small entities. In-

stead, the severs] States regulate small entities

through the state implementation plans (SIPs) that

they are required by the Clean Air Act to develop. See

42 U.S.C. § 7410. Because the NAAQS therefore regu-

late small entities only indirectly—that is, insofar as

they affect the planning decisions of the States—the

EPA concluded that small entities are not “subject to

the proposed regulation.” See Mid-Tex Elec. Coop.,

Inc. v. FERC, 778 F.2d 827, 342 (D.C. Cir. 1985); see

also id. at 348 (“Congress did not intend to require that

every agency consider every indirect effect that any

regulation might have on small businesses in any

stratum of the national economy.”).

The EPA’s description of the relationship between

NAAQS, SIPs, and small entities strikes us as incon-

testable. The States have broad discretion in deter-

mining the manner in which they will achieve compli-

ance with the NAAQS. The EPA “is required to

approve a state plan which provides for the timely

attainment and subsequent maintenance of anvbient air

standards” and cannot reject a SIP based upon its view

of “the wisdom of a State’s choices of emission limita-

tions,” Train v. NRDC, 421 U.S. 60, 79 (1975) (emphasis

in original), or of the technological infeasibility of the

plan. See Union Elec. Co. v. EPA, 427 U.S. 246, 265

(1976). Therefore, a State may, if it chooses, avoid

imposing upon small entities any of the burdens of

complying with a revised NAAQS. Only if a State does

not submit a SIP that complies with § 110, 42 U.S.C.

§ 7410, must the EPA adopt an implementation plan of

its own, which would require the EPA to decide what

29a

burdens small entities should bear. The ncy has

stated, however, that it will do a — 2

— a a — implementation plan of its

„as i in when proposing such a plan for

Los Angeles. See Ozone Final Rule, 62 Fed. Reg. at

38,891/1; PM Final Rule, 62 Fed. Reg. at 38,705/3.

The responses of the Small Business Petitioners do

not persuade us to reject the EPA’s argument or to

deviate from our holdings in Mid- Teæ and its progeny.

First, the Small Business Petitioners contend that we

must defer to the Small Business Administration’s

interpretation of the Act, as expressed in a letter to the

EPA from the SBA’s Chief Counsel for Advocacy, that

the NAAQS do impose requirements upon small

entities. The SBA, however, neither administers nor

has any policymaking role under the RFA; at most its

role is advisory. See, e.g., 5 U.S.C. $§ 601(3), 602(b),

603(a), 605(b), 609(b)(1), 612. Therefore, we do not

defer to the SBA’s interpretation of the RFA. See

Scheduled Airlines Traffic Offices, Inc. v. Department

of Defense, 87 F.3d 1356, 1361 (D.C. Cir. 1996) (no

Chevron deference owed to agency interpretation of

statute it does not administer). Nor do we defer to the

EPA’s interpretation of the RFA, for it does not

administer the Act either. We do, however, find the

EPA’s interpretation of the statute persuasive.

Second, the Small Business Petitioners e that

the EPA cannot claim both that the NAAQS will have

no effect upon small entities and that it will have posi-

tive health effects. Clearly, however, the EPA can

maintain that the NAAQS will have health effects

because the Clean Air Act empowers the agency to

ensure that such benefits accrue; and it can maintain

30a

that the NAAQS will not directly affect small entities

because it has no authority (short of imposing its own

implementation plan upon a non-complying state) to

impose any burdens upon such entities.

The Small Business Petitioners attempt to distin-

guish the possible effects upon small entities in this

case from the indirect effects that, as we found in Mid-

Tex, are not within the contemplation of the RFA. But

Mid-Tez is not so easily distinguished. The petitioners

in that case argued that the RFA required the FERC

to consider economic effects not only upon regulated

industries but also upon the small entities that are their

wholesale customers, even though the customers were

not directly regulated by the FERC. We rejected that

argument, finding a “clear indication” in the language of

§ 603 that the RFA is “limited to small entities subject

to the proposed regulation.” Mid-Tex, 778 F. 2d at 342;

see also Motor & Equip. Mfrs. Ass’n, 142 F.3d at 467

n.18 (“The RFA itself distinguishes between small

entities subject to an agency rule, to which its require-

ments apply, and those not subject to the rule, to which

the requirements do not apply.”); United Distribution

Cos. v. FERC, 88 F.3d 1105, 1170 (1996) (regulatory

flexibility analysis provision applies only to “small enti-

ties that are subject to the requirements of the rule”)

(emphasis in original). That the Clean Air Act requires

the States to submit SIPs that will achieve compliance

with the NAAQS does not, in view of the States’ nearly

complete discretion to determine which entities will

bear the burdens of a revised NAAQS, make such small

entities as the SIPs may regulate any more subject to

the EPA’s regulation than were the wholesalers in

Mid- Tex subject to regulation by the FERC.

31a

Finally, the Small Business Petitioners suggest that

the Congress in enacting the SBREFA overruled our

prior interpretation of the RFA in Mid-Ter and its

progeny. The SBREFA made a number of changes in

the RFA, but it did not change anything in § 603 upon

which we relied in Mid-Tex. And although the Congress

made a slight modification in § 605(b), we do not under-

stand it to alter our analysis in Mid- Tex. Prior to 1996,

§ 605(b) required an agency to provide “a succinct

statement explaining the reasons” for its certification

that the promulgated rule would not have a significant

economic impact upon small entities. That section now

requires “a statement providing the factual basis for

such certification.” Our decision in Mid-Tex contem-

plates that an agency may justify its certification under

the RFA upon the “factual basis” that the rule does not

directly regulate any small entities. Nothing in the

change to § 605(b) suggests that basis for certification is

no longer permissible. (Indeed, the section of the stat-

ute amending § 605(b) is labeled “Technical and Con-

forming Amendments,” see SBREF A § 243, 110 Stat. at

866.) We therefore conclude that the EPA properly

certified that its NAAQS would not have a significant

impact upon a substantial number of small entities.

III. Ozone

A. Subpart 2 and the Revised Ozone Standard

In 1990 the Congress substantially revised the Clean

Air Act by, among other things, adding specific enforce-

ment provisions for carbon monoxide, particulate mat-

ter, sulfur oxides, nitrogen dioxide, lead, and as perti-

A L

areas o country not attaining the primary

standard, no matter how far from attainment, come into

32a

iance “as e itiously as practicable but not

dier than December 81, 1987." 42 U.S.C. § 7602 (1988).

Many areas had not attained the primary ozone

NAAQS by that date; some were still a long way from

doing so. The Congress responded to the continued

ozone problem by enacting a new enforcement scheme,

which it codified as Subpart 2 of Part D of the Clean Air

Act, 42 U.S.C. 88 7511-7511f, redesignating the original

provisions as Subpart 1.

Sub 2 requires the EPA to classify nonattain-

ment — based upon their design value, which is a

rough measure of whether an area complies with the

0.12 ppm, I-hour primary ozone standard. A table in

ad , the value is the fourth-highest daily

— —— — —

years for which there are sufficient data. If that value is less than

or equal to 0.12 ppm, then an area will have only three expected

values above that level and it will be in attainment with the ozone

NAAQS. See EPA, The Clean Air Act Ozone Design Value Study:

Final Report 1-1 to 1-22 (1994) (filed pursuant to 42 U.S.C.

§ 7511b(g), which required the EPA to conduct “a study of whether

the [existing design value] methodology . provides a

reasonable indicator of the ozone air quality of ozone nonattain-

ment areas”; the EPA concluded it did).

33a

Subpart 2, set out here in the margin,’ establishes

classifications ranging from marginal to extreme, and

provides an attainment date for each class. See id. §

7511(a)(1)-(2). Subpart 2 also specifies, for each class of

nonattainment areas, both measures that the States

must take to reduce emissions of the chemicals that are

precursors of ozone and information that the States

must report to the EPA. See id. § 751la. In short,

Subpart 2 is the Congress’s comprehensive plan for

reducing ozone levels throughout the country.

The State and Non-State Petitioners, along with

Congressman Bliley appearing as an amicus curiae,

This table appears in Clear Air Act § 181(aX(1), 42 U.S.C. §

7511(aX(1):

TABLE 1

Area Class Design value [ppm] Primary standard

attainment date

Marginal ........ 0.121 up to 0. 1389 3 years after

November 15, 1990

Moderate 0.138 up to 0. 1600 6 years after

November 15, 1990

Serious 0.160 up to O. 180 9 years after

November 15, 1990

ee 0.180 up to 0.280....... 15 years after

November 15, 1990

Extreme........ 0.280 and above 20 years after

November 15, 1990

The Severe Area category is later subdivided, creating a sixth

classification for ozone nonattainment areas. See id. § 7511(a)(2)

(“Notwithstanding table 1, [for] a severe area with a 1988 ozone

design value between 0.190 and 0.280 ppm, the attainment date

shall be 17 years . . after November 15, 1990”).

34a

e that Sub 2 precludes the EPA from revising

— —— — ozone NAAQS. We reject

this argument (in Part III. A. I) insofar as it pertains to

the EPA’s continued ability to promulgate a revised

ozone NAAQS or to designate areas as not in attain-

ment with a revised NAAQS. We agree (in Part

III A2) with those petitioners, however, insofar as they

maintain, based upon the text and structure of Sub-

parts 1 and 2, that the EPA is precluded from enforcing

a revised primary ozone NAAQS other than in accor-

dance with the classifications, attainment dates, and

control measures set out in Subpart 2. urther, we

conclude (in Hart III. A.3) that the EPA may not re-

quire a State to comply with a revised secondary ozone

NAAQS in any area that has yet to attain the 0.12 ppm

primary standard.

1. The EPA’s Power to Revise the Ozone NAAQS and

Designate Areas as Nonattainment

The 1990 amendments did not alter the section of the

Clean Air Act that provides for setting and revising

primary and secondary NAAQS. See 42 U.S.C. § 7409.

The Administrator, therefore, still must “at five-year

intervals [from December 31, 1980] . . . complete a

thorough review of . . . the [NAAQS] promulgated

under this section and make such revisions in such

standards as may be appropriate.” Id.

§ 7409(d)(1). The Second Circuit held that this section

continues to “set[ ] forth a bright-line rule for agency

action,” American Lung Ass n v. Reilly, 962 F.2d 258,

263 (1992), and we agree. Nothing in the Act modifies

this “bright-line rule” or otherwise makes it inapplica-

ble to revision of the ozone NAAQS.

35a

To the extent that the 1990 amendments shed any

light upon this question, they suggest that the EPA

retains its authority to revise the ozone NAAQS. For

example, if the EPA relaxes a NAAQS after enactment

of the 1990 amendments, then “the Administrator shall

- + . promulgate requirements applicable to all areas

which have not attained that [relaxed] standard as of

the date of such relaxation. . . which] shall provide

for controls . . not less stringent than the controls

applicable to areas designated nonattainment before

such relaxation.” 42 U.S.C. § 7502(e). Although two

other subsections of § 172 are expressly made inapplica-

ble to the ozone regulations in Subpart 2, see id. §

7502(a)(1)(C), (a)(2)(D), this so-called anti-backsliding

provision contains no such exemption. Accordingly, as

the EPA notes, this section specifically contemplates

that the agency may relax its ozone NAAQS and, there-

fore, necessarily implies that it retains the authority to

revise that NAAQS. Tellingly, neither the petitioners

nor the amicus reply to this point.

The petitioners and amicus raise two other argu-

ments to support their position that the EPA cannot

alter the ozone NAAQS without the approval of the

Congress. We reject both in short order.

First, the Non-State Petitioners contend that Sub-

part 2 renders revision of the ozone NAAQS mappro-

priate” within the meaning of § 109(d)(1), which pro-

vides the EPA shall “make such revisions in suck

Standards . . . as may be appropriate.” 42 U.S.C.

§ 7409(d)(1). This argument, however, pointedly ig-

nores the text immediately following the word “ap-

propriate,” which specifies that appropriateness is to be

determined “in accordance with section 7408 . and

36a

S 7409(b)]” (and which, as we read it, means exclu-

sively in accord with those sections). See, e.g., Ameri-

can Methyl Corp. v. EPA, 749 F. 20 826, 835-36 (D.C.

Cir. 1984). Because Subpart 2 is neither listed in §

109(d)(1) nor incorporated by reference in either § 108,

id. § 7408, or §109(b), it cannot render revision of the

ozone NAAQS inappropriate.

Second, the State Petitioners and Congressman

Bliley argue, based upon the classification table in §

181(a)(1), id. § 7511(a)(1), that Subpart 2 codified the

0.12 ppm ozone NAAQS and, therefore, only the Con-

gress can promulgate a revised NAAQS. Yet not all

areas desigr ated nonattainment for ozone will have

design values of 0.121 ppm or higher. In fact, this was

true of areas designated nonattainment for ozone as a

result of the 1990 amendments, see Ozone Final Rule,

62 Fed. Reg. at 38,884/3, at least in part because of the

stringent criteria in the Clean Air Act for changing the

designation of an area to attainment from nonattain-

ment. See 42 U.S.C. § 7407(d)(8)(E)(iii) (redesignation

permissible only if area’s attainment of NAAQS “is due

to permanent and enforceable reductions in emissions”).

In short, although the numbers in the classification

table are based upon the 0.12 ppm ozone NAAQS, they

are neither equivalent to nor a codification of the

NAAQS.

Not only does the EPA, as we conclude above, retain

authority to promulgate a revised ozone NAAQS; the

agency is still required, “in no case later than 2 years

from the date of promulgation” of a revised NAAQS, to

designate areas as attainment, nonattainment, or

unclassifiable under that NAAQS. Id. § 7407(d)(1)(B).

Although the 1990 amendments extended by roughly 18

87a

— > maximum time between promulgation of a

— ey and designation of nonattainment

— — t NAAQS, see 42 U.S.C. § 7407(d)(1)-(2)

they made no substantive change in the EPA’s

authority to designate areas as nonattainment under a

revised NAAQS. Therefore, we hold that the EPA

retains the power to designate tainm

under a revised ozone N 4408 9 *

2. The EPA’

- 8s Power to Enforce the Revised Ozone

That the enactment of Sub 2d

—— authority to revise rr

— gnate areas as nonattainment for ozone does not

owever, compel the conclusion that Subpart 2 has no

effect upon the EPA’s authority to enforce a revised

— ozone NAAQS (We consider the enforcement

ore — ozone NAAQS in Part III. X g, below.) In

the text and structure of Subparts 1 and 2 suggest

precisely the opposite conclusion. After designating an

area as nonattainment under a NAAQS, the EPA

—— looks to Subpart 1 for authority to “classify

— area for the purpose of applying an attainment

— 42 U.S.C. § 7502(a)(1)-(2). The cited provisions

owever, do not apply “with respect to nonattainment

any beer — po land attainment dates]

under other provisions of

[Part D of Subchapter 1 of 1 14.

etch tare — the Clean Air Act].“ Id. §

The EPA argues that Subpart 2 specifi

call vi

classifications and attainment dates only for —

ment designations under the 0.12 ppm ozone NAAQS.

38a

iti that

tate and Non-State Petitioners counter

ae Z specifically provides classifications and dates

for all areas designated nonattainment under any ozone

NAAQS. We agree with the petitioners.

The pertinent provision of Subpart 2 reads as follows:

lassification and attainment dates for 1989

EX 1 areas. (1) Each area 1

non- attainment for ozone pursuant to seet 9

7407 (d) of this title shall be classified at the — 0

such designation, under table 1, by operation — law,

as a Marginal Area, a Moderate Area, a Serious

Area, a Severe Area, or an Extreme Area. eae

a)(1). As the petitioners note, § 107(d), 42

ees tate specifies three different — =

which an area can be designated “nonattainmen —

ozone”: immediately following enactment of 4 —

amendments, id. § 7407 d) 4) after the EPA re _

ozone NAAQS, id. § 7407(d)(1); and when an ——

was in attainment, either when the Congress e 2

the 1990 amendments or when the EPA —

revised ozone NAAQS, later ceases to comply, 1

7407(d)(3). The petitioners conclude from —— a

reference to § 107% d) that the classifications 2 — —

ment dates in Subpart 2 apply to areas : * —

under 88 107(d)(1), (3), and (4). The — 1

responds that the reference to § 107d) includes —

subsection (4), but we do not defer to the agen —

interpretation because we find that the —.— 0

spoken on the “precise question at issue” and we *

give effect to the unambiguously expressed — 5

Congress.” Chevron U.S.A. Inc., 467 US. 8387, —

n.9 (1984). We canvass the two reasons that lead us

39a

this conclusion before returning to the EPA’s argu-

ment.

First, the reference to § 107(d) in § 181(a)(1) appears

to have been purposeful and not the drafting error that

the EPA’s interpretation implies. The Congress con-

sidered but did not adopt bills that clearly would have

limited the reach of Subpart 2 to nonattainment desig-

nations made immediately following enactment of the

1990 amendments. The Senate bill contained a version

of Subpart 2 that classified only those areas designated

nonattainment for ozone under its equivalent of

§ 107(d)(4). See S. 1630, 101st Cong. §§ 101, 107, re-

printed in III Legislative History of the Clean Air Act

Amendments of 1990, at 4124-25, 4195 (hereinafter 1990

Legislative History]. The version of Subpart 2 in the

House bill, as originally introduced, similarly referred

only to designations made under its equivalent of §

107(d)(4). See H.R. 3030, 101st Cong. §§ 101(a), 103,

reprinted in II 1990 Legislative History, at 3748-49,

3795-96 The House committee, however, replaced the

specific reference to what is now § 107(d)(4) with a

general reference to § 107(d). See H.R. Rep. No. 101-

490, at 3-6, 17 (1990), reprinted in II 1990 Legislative

History, at 3027-30, 3041. The Conference committee

then reported the text of the House bill rather than

that of the Senate. See H.R. Rep. No. 101-952, at 335

(1990), reprinted in I 1990 Legislative History, at 1785.

Second, our conclusion that the Congress intention-

ally referred to § 107(d) as a whole is supported by a

comparison of Subparts 1 and 2. The Congress enacted

Subpart 2 because of the failure of the controls in

Subpart 1 to bring areas into attainment with the 0.12

ppm standard in the allotted time. See H.R. Rep. No.

40a

101-490, at 145-50, reprinted in II 1990 Legislative

History, at 3169-74. Rather than continue treating all

ozone nonattainment areas alike, the Congress allowed

the various areas between 8 and 20 years to attain the

ozone NAAQS, depending upon the extent of the area’s

ozone problem. See id. at 146-47 (“In 1977, Congress

tried to waive [sic] a ‘magic wand’ and command that all

nonattainment areas [for ozone] will meet the applica-

ble [NAAQS]. . . . by December 31, 1987. [That!

date[ ] hals] come and gone and it is clear that . we had

no ‘magic’ solutions.”), reprinted in II 1990 Legislative

History, at 3170-71. As the petitioners argue, because

the 1990 amendments extended the time for nonattain-

ment areas to comply with the 0.12 ppm ozone NAAQS,

they must preclude the EPA from requiring areas to

comply either more quickly or with a more stringent

ozone NAAQS.

Subpart 1 requires compliance with a primary

NAAQS “as expeditiously as practicable, but no later

than 5 years from the date such area was designated

nonattainment.” 42 U.S.C. § 7502(a)(2)(A). All non-

attainment areas would have until 2012 to comply with

the revised ozone NAAQS if the EPA and the States

were to take the full time authorized in Subpart 1 for

making attainment designations and the EPA were to

approve every possible extension for each area. See id.

§§ 7407(d)(1)(A)-(B), 7502(a)(2)(A), (C). Such wide

discretion is inconsistent, however, with Subpart 2, in

which the Congress stripped the EPA of discretion to

decide which ozone nonattainment areas should receive

more time to reach attainment (with two limited excep-

tions not relevant here, see id. § 7511(a)(4), (5)).

Moreover, under § 181(a) of Subpart 2, Los Angeles, the

nation’s only Extreme Area, has until 2010 to attain the

4la

0.12 ppm ozone NAAQS, and the possibility of e

. xtend-

ing that deadline until 2012. That Los — should

also have to attain a more stringent ozone standard by

that same year, if not earlier, clearly runs counter to

— — enforcement scheme enacted in Sub-

The EPA offers two arguments agai

against this interpre-

tation of Subparts 1 and 2. First, the EPA —

that a recent statute confirms its powe

nonattainment areas under the — thes —

See Pub. L. No. 105-178, § 6108(a), 112 Stat. 465 (1998)

(extending time to two years from one year for gov-

ernor to submit proposed designation under 0.08 ppm

ozone NAAQS). That statute also specifically states

however, that “(nJothing in section[] . . . 6103 shall be

construed by the Administrator of Environmental Pro-

tection Agency or any court . . to affect any pending

litigation or to be a ratification of the ozone . ,

standard[ J.“ Id. § 6104. Further, even if the EPA were

correct that § 6108 confirms the agency’s power to

designate areas under a revised ozone NAAQS, that

power was never in doubt, as we concluded above

Indeed, § 6104 simply does not bear upon the question

we address here: whether Subpart 1 or Subpart 2

provides the applicable enforcement mechanisms for an

* — mene under a revised ozone

Second, the EPA argues that read in co

reference to § 107(d) in § 181(a)(1) relates i howe

ignations made under § 107(d)(4), Because the table in

§ 181(a)(1) classifies areas based upon a design value

that roughly measures attainment of the 0.12 ppm

ozone NAAQS, the EPA contends that the nonattain-

42a

ment designations referenced in § 181(a)(1) are only

those designations made under the 0.12 ppm ozone

NAAQS. This explanation, however, does not square

with either the Congress’s decision not to refer to

§ 107(d)(4) specifically or the long-term nature of the

attainment scheme enacted in Subpart 2; on the EPA’s

interpretation, that scheme would have been stillborn

had the EPA revised the ozone NAAQS immediately

after the Congress enacted the 1990 amendments.

The EPA points next to § 181(b)(1), which specifies

the attainment dates for areas that met the 0.12 ppm

standard when the Congress enacted the 1990 amend-

ments but that later cease to comply. That section,

however, applies only to areas designated under

§ 107(d)(8) that previously were “designated attainment

or unclassifiable for ozone under section [107(d)(4)).”

That § 181(b)(1) provides special rules for such areas,

but not for areas designated under § 107(d)(3) that had

previously been designated attainment for ozone or

unclassifiable under § 107(d)(1), does not support the

EPA’s argument that the phrase in § 181(a)(1) “desig-

nated nonattainment for ozone pursuant to section

107(d)” denotes only those designations made under

§ 107(d)(4). If anything, the specification of § 107(d)(4)

in § 181(b)(1) makes its absence from § 181(a)(1) all the

more striking.

The final bit of context to which the EPA points is

the title of § 181(a): “Classification and attainment

dates for 1989 nonattainment areas.” Because the title

specifies “1989 nonattainment areas,” we are told,

§ 181(a) must refer only to nonattainment designations

made immediately after enactment of the 1990 amend-

ments, that is, designations made under § 107(d)(4).

43a

Although “the title of a statute or section can aid in

resolving an ambiguity in the legislation’s text,” IVS v.

National Ctr. for Immigrants’ Rights, Inc., 502 U.S.

183, 189 (1991), a title cannot be allowed to create an

ambiguity in the first place. See Maguire v. Commis-

sioner of Internal Revenue, 313 U.S. 1, 9 (1941) Arme

title of an act will not limit the plain meaning of the

text.“). The text of § 181(a) clearly encompasses non-

attainment designations made under all subsections of

§ 107(d). There simply is no ambiguity in need of

resolution by reference to the title of the section.

In sum, § 181(a) “specifically provideſs]“ for ifi-

cations and attainment dates — — —

attainment for ozone pursuant to § 107(d)(1). Accord-

ingly, Subpart 2, not Subpart 1, provides the classifica-

tions and attainment dates for any areas designated

nonattainment under a revised primary ozone N AAQS, .

see 42 U.S.C. § 7502(aX(1)(C), (aX2\(D), and the EPA

— any revised primary ozone NAAQS under

3. The Secondary Ozone NAAQS

The Non-State Petitioners briefly contend that

conclusion that Subpart 2 — —

and attainment dates for areas designated nonattain-

ment under a revised primary ozone NAAQS is equally

applicable to the enforcement of a revised secondary

ozone NAAQS. We find it impossible to conclude

however, that Subpart 2 “specifically provide[s]” for

classifications and attainment dates for areas desig-

nated nonattainment with a revised secondary ozone

NAAQS; § 181(a)(1) expressly refers only to primary

NAAQS and Subpart 2 not once mentions secondary

NAAQS. Further, attainment dates in Subpart 1 for

44a

secondary standards are less stringent than for primary

standards, making comparison with the more lenient

dates in Subpart 2 less troubling. Compare id. §

7502(a)(2)(B) (attainment of secondary NAAQS “shall

be. . . achieved as expeditiously as practicable after

the date such area was designated nonattainment”),

with id. § 7502(a)(2)(A) (attainment of primary NAAQS

“shall be . . achieved as expeditiously as practica-

ble, but no later than 5 years from the date such area

was designated nonattainment”). Nonetheless, we un-

derstand Subpart 2 to codify the Congress’s judgment

as to what is “as expeditiously as practicable” in reduc-

ing an area’s level of ozone. Consequently, the EPA is

precluded from requiring any steps toward compliance

with a revised secondary ozone NAAQS prior to an

area’s attainment of the 0.12 ppm standard. In areas

that meet the 0.12 ppm standard, however, Subpart 2

erects no bar to the EPA’s requiring compliance with a

revised secondary ozone NAAQS “as expeditiously as

practicable.”

B. Ozone’s Health Benefits

Petitioners presented evidence that according to

them shows the health benefits of tropospheric ozone as

a shield from the harmful effects of the sun’s ultraviolet

rays—including cataracts and both melanoma and

nonmelanoma skin cancers. In estimating the effects of

ozone concentrations, EPA explicitly disregarded these

alleged benefits.

EPA explained its decision first as a matter of

statutory interpretation. Under the Clean Air Act,

EPA’s ambient standards for any pollutant are to be

“based on [the] criteria” that EPA has published for

that pollutant. 42 U.S.C. § 7409(b)(1) & (2). The “crite-

45a

ria,” in turn, are to “reflect the latest scienti

„are to “ret scientific knowl-

— — useful in indicating the kind and extent of all

identifiable effects on public health or welfare which

—— pr cy from the presence of such pollutant in

- ient air, in varying quantities.” Id. § 7408(a)(2).

reference to “all identifiable effects” would seem on

its face to include beneficent effects.

EPA attempts to avoid this straightforward reading

in several ways. First, it points to the term “such

pollutant, arguing that the statute requires it to focus

exclusively on the characteristics that make the sub-

stance a “pollutant.” But the phrase “pollutant” is

simply a label used to identify a substance to be listed

ee nag does not visibly manifest a congressional

anish considerati

— 1 — nsideration of whole classes of

EPA also relies on the fact that tw

o of th

specified considerations under § 108(a)(2)’s —

mandate refer to “adverse effect[s}”:

The criteria for an air pollutan

1. 41 — 1 a ane

(A) those variable factors (including ing atmospheric

conditions) which of themselves or in combination

with other factors may alter the j

health or welfare of such air pollutants —

(B) the types of air pollutants which, whe pre-

*

sent in the atmosphere, may interact with such

46a

pollutant to produce an adverse effect on public

health or welfare; and

(C) any known or anticipated adverse effects on

welfare.

Id. § 7408(a)(2) (emphasis added). EPA’s — —

would be of uncertain force even if all three ypes —

effects specifically required pe ——

5 * there is

— . — 2 identifiab le effects” of

§ 108(a)(2). But as one of the three — **

refers to “effects” unmodified, id. § 7408(a)( 0 *

can reject EPA’s argument without even reaching —

issue. That Congress qualified “effects” in clauses =

and (C) with “adverse” seems only to strengthen P

supposition that in (A)—and in the — a.

intended to cover all health or welfare e 4 1

fore if petitioners’ contentions are right, 1 —

applies to ozone: the presence of ultraviolet ——

various levels alterls] the effects [of ozone] on 1

health or welfare“ by making them on the whole less

malign— perhaps even beneficial.

PA next argues that Title VI of the Clean Air Act,

4 00 7671-7671, which mandates certain —

preserve stratospheric ozone, represents a r —

consideration of ozone’s beneficial role as a UV b

. d ob ea © OF

poe ay — 14 of the ozone higher in

the atmosphere. EPA points to nothing in the statute

that purports to address tropospheric ozone.

Finally, EPA directs us towards legislative history

from the 1970 and 1990 Clean Air Act Amendments.

47a

The “all identifiable effects” language, however, dates

to the 1967 Amendments. Legislative history from the

1970 and 1990 Congresses cannot be “an authoritative

interpretation of what the [1967] statute meant,” be-

cause it is “the function of the courts and not the

Legislature, much less a Committee of one House of the

Legislature, to say what an enacted statute means.”

Pierce v. Underwood, 487 U.S. 552, 566 (1988).

Under Chevron, we defer to an agency’s interpreta-

tion of a statute if “the statute is silent or ambiguous

with respect to the specific issue” and “the agency’s

answer is based on a permissible construction of the

statute.” 467 U.S. at 843. We find no such ambiguity in

this case. Further, EPA’s interpretation fails even the

reasonableness standard of Chevron’s second part: it

seems bizarre that a statute intended to improve

human health would, as EPA claimed at argument, lock

the agency into looking at only one half of a substance’s

health effects in determining the maximum level for

that substance. At oral argument even EPA counsel

seemed reluctant to claim that the statute justified

disregard of the beneficent effects of a pollutant bear-

ing directly on the health Symptoms that accounted for

its being thought a pollutant at all (suppose, for exam-

ple, a chemical that both impedes and enhances breath-

ing, depending on the person or circumstances); he also

seemed unable to distinguish that case from the one

here—where the chemical evidently impedes breathing

but provides defense against various cancers.

Legally, then, EPA must consider positive identifi-

able effects of a pollutant’s presence in the ambient air

in formulating air quality criteria under § 108 and

NAAQS under § 109. EPA’s other arguments are

48a

technical, and are of two sorts: those that allegedly

show petitioners’ studies to be fatally flawed and those

that allegedly show specific inflation of results in these

studies. We need only consider the first sort, for EPA

chose to give the studies no weight at all.

Petitioners rely primarily on studies by Lutter and

Cupitt. EPA found that these could be ignored because

the marginal benefits are difficult, if not impossible, to

quantify reliably and because there is “no convincing

basis for concluding that any such effects would

be significant.” But these are not the criteria by which

EPA assesses adverse health effects. It does not rigor-

ously or uniformly demand either quantifiability, see,

e.g., Ozone Final Rule, 62 Fed. Reg. at 38,860/3 (admit-

ting that “quantitative risk estimates could not be

developed” for certain adverse effects of ozone on which

EPA regulated); EPA Ozone Brief at 48 (defending con-

sideration of various effects that “played an important

role in the Administrator’s final decision” despite ab-

sence of quantification: “EPA did not estimate the risk

for such effects because information (was) too limited

to develop quantitative estimates, not because there

is doubt the effects occur.”) (alteration and emphasis in

original) (citation omitted), or any specific level of

significance. As we can see no reason for imposing a

higher information threshold for beneficent effects than

for maleficent ones, we have no basis for affirming

EPA’s decision to disregard the studies.

As we said above, we are remanding to EPA to for-

mulate adequate decision criteria for its ordinary object

of analysis—ill effects. We leave it to the agency on

remand to determine whether, using the same approach

as it does for those, tropospheric ozone has a beneficent

49a

effect, and if so, then to assess ozone’s

„ ’ net ad

health effect by whatever criteria it adopts. ti

IV. Particulate Matter

A. PM. as Coarse Particle Indicator

We now turn to petitioners’ challen

Agency’s regulation of coarse — PP ong

Both the 1987 NAAQS and the proposed standards

regulate all particles with diameters under 10 microme-

ters, signified by the indicator PM, The PM, spec-

trum includes both coarse and fine particles. While the

main distinction between coarse and fine particles is the

process by which they are produced, EPA and epidemi-

ologists who study the health effects of particulate pol-

lution identify coarse and fine particles through rough

approximations of those particles’ diameters. —

particles, which become airborne usually from the

crushing and grinding of solids, generally have diame-

ters between 2.5 and 10 micrometers and can thus be

identified by the indicator PM. Fine particles, in-

dicated in these new NAAQS by PM., come mainly

from combustion or gases and

———

Despite EPA’s conclusion that coarse and fin parti

e -

— pose independent and distinet threats to public

Pn, the Agency chose not to adopt an indicator, such

as PMioas, that would measure only the coarse fraction

of PM,» Petitioners make two arguments: that there is

no scientific basis for coarse particles at all

= that even if there were, retention of the PM,,

— simultaneously with the establishment of the

new fine particle indicator is unsupported by evidence

50a

in the record and arbitrary and capricious. We agree

with this latter argument.

inning with petitioners’ first challenge, we think

on pce beer ag sufficient evidence to justify —

Agency’s decision to regulate coarse — po ;

tion. While the relationship between PMio oe — —

adverse health effects justifying the 1987 — — — 5

well-established, see NR DC v. EPA, 902 F — . —

68 (D.C. Cir. 1990), two studies contained + e — =

of these proceedings concentrated specifically : 1—

health effects caused by the coarse ec — *

pollution. See Mary Ellen Gordian et al., P —

Air Pollution and Respiratory Disease in An —

Alaska,” 104 Envtl. Health Persp. 290 (1996) (s —

voleanic ash); Brockton J. Hefflin et al., *

for Dust Storms and Respiratory Diseases > *

ton State, 1991,“ 49 Archives of Envtl. He

(1994) (studying fugitive — > pgp os — =

i least nine multivaria

— significant relationships with health ——

for both PM,, and PM,, suggesting that * po — .

PM,, pollution unaccounted for by PM. (i. e., —

particles) explains some of the observed wee gto ~

effects. In other words, because regression ys ;

holds the PM,, component constant, the PMy e —

recognized in these equations actually evidences res

from coarse particulate pollution. To be sure, peti-

tioners have pointed to some evidence to the contrary.

But given that our review is limited to —

that the choices made by the Administrator were =

sonable and supported by the record, and does b .

clude “judg{ing] the merits of competing expert ews,

Lead Industries, 647 F.2d at 1160, we find ample sup-

5la

port for EPA’s decision to regulate coarse particulate

pollution above the 1987 levels.

Having found independent health consequences from

coarse particulate pollution, EPA nevertheless decided

to regulate the coarse fraction of PM,, indirectly, using

PM, (which includes both coarse and fine PM) as a

“surrogate for coarse fraction particles.” PM Final

Rule, 62 Fed. Reg. at 38,668/2. While recognizing that

PMs would have served as a satisfactory coaise

particle indicator, EPA offers three justifications for its

decision to use PM,, instead: (1) Both the Gordian and

Hefflin studies used PM., not PM,,»;, as the variable in

their models, (2) the PM, standards will work in

conjunction with the PM, standards by regulating the

portion of particulate pollution not regulated by the

PM, standards, and (3) a nationwide monitoring pro-

gram for PM, already exists. We find none of these

explanations persuasive.

As to the first argument, while acknowledging that

the indicator used in the studies captures both coarse

and fine particles, EPA nevertheless maintains that

PM, is an effective indicator for the regulation of

coarse particulate pollution. “Adopting the indicator

used in the studies,” the Agency says, “increases the

likelihood that the level selected will result in the

health protections predicted.” But as EPA’s own staff

paper suggests, PM,, is “inherently confounded” by the

presence of PM,, particles, meaning that any regulation

of PMio pollution will include both coarse and fine

particles. See PM Staff Paper at V-59. Using PM,,as

the coarse particle indicator, instead of PMioo5, will

thus regulate more than just the coarse fraction of

PM,, and the amount of coarse particulate pollution

52a

permitted will depend (quite arbitrarily) on the —

of PM. pollution in the air. For example, —

50 microgram annual PM,, level adopted by the Agency

i 35 micro-

‘culate (PMjo25) pollution from exceeding

— in an area with only 5 micrograms ——

pollution, the NAAQS would permit coarse part

pollution to reach as high as 45 micrograms.

EPA’s second argument—that the PM. — will

work in conjunction with the PM.; ea

from the same deficiency. Accepting EPA’s

V-59, such that each

d fine PM, PM Staff Paper at ,

— independent 1 2 7 —

ly how a PM, stan , ,

— will work alongside a 7 oe om —

arse fraction o 10 \

21 — to aid us in understanding its decision. In

fact, as the example above — —— — —

sence of a separate PM,, stan oo te

the PM,, indicator arbitrary and cap .

aa working in conjunction to regulate coarse —

cles, PM, and PM. indicators, when used toge . —

lead to “double regulation” of the PM,, componen —

PM,, and potential underregulation of the Panes = “

ponent since the amount of PMs =

always depend on the amount of PM,, in N

EPA’s final argument is pragmatic. It maintains os

PM,, is a better indicator than PMs for — —

ticulate pollution because a nationwide ——

rogram for .,» already exists. But as EPA —

— elsewhere in its brief, NR DC bars EPA from

53a

considering factors unrelated to publie health in setting

air quality standards. Echoing our decision in Vinyl

Chloride, NRDC held that “the Administrator may not

consider cost and technological feasibility in determin-

ing what is ‘safe’; such a determination ‘must be based

solely upon the risk to health.“ NRDC, 902 F. ad at 973

(quoting Vinyl Chloride, 824 F.2d 1146, 1166 (D.C. Cir.

1990) (in banc)); see also American Petroleum Inst. v.

Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981); Lead

Industries, 647 F.2d at 1148-55. The administrative

convenience of using PM,, cannot justify choosing an

indicator poorly matched to the relevant pollution

agent.

In view of our conclusion that PM,, amounts to an

arbitrary indicator for coarse particle pollution, we

need not address petitioners’ separate challenge to the

PM,, levels or secondary standards. We note, however,

that whatever levels the Agency ultimately selects for

coarse particle pollution will need to comply with the

requirements set forth in Part I of this opinion.

B. Fine Particles as “New Pollutant”

The Attorneys General of Ohio, Michigan, and West

Virginia (“state petitioners”) argue that EPA is regu-

lating PM., for the first time. Because they consider

PM. to be a “new pollutant,” they argue that § 108 of

the Clean Air Act requires EPA to conduct further

research on PM,,’s health effects before listing it as a

pollutant, to issue an air quality criteria document

reflecting the latest science on the health effects of the

pollutant, and to assist states by developing “data

relating to the cost of installation and operation, energy

requirements, emission reduction benefits, and environ-

54a

mental impact of the emission control technology.”

42 U.S.C. § 7408(b)(1).

Although EPA never responds to this argument, —

northeastern states (as yen pena 1 tere

ici) do. Pointing out that pre

yn included PM., these attorneys general —

the EPA’s decision not to list PM,, separately as an

pollutant. We agree.

te petitioners cannot escape the fact that the

r rs for particulate pollution using ——

Suspended Particulates (TSP) as indicator, 4 — —

the 1987 NAAQS that — — 1 —

i i eters an , ,

—— — often dominate PM,, ap

tion. See PM Staff Paper at V-63. By 1 —

NAAQS to focus on smaller particles that E * —

posed distinct threats to public health, EPA 0

t 965-66.

tes to PM, See NR DC, 902 F. 2d a

— to update the NAAQS to focus on Pies

merely continues a trend based on evolving — -

does not violate the provisions of § 108 of the Clean

Act.

cal Mechanism for

C. Failure to Identify a Biologi

Particulate Pollution’s Relationship to Adverse

Health Effects

cle

challen the establishment of a fine parti

aan — petitioners argue that yo 4 —

to explain the biological mechanism through w ~ oy

ticulate pollution causes adverse health effects.

epidemiological studies show robust statistical relation-

55a

ships between pollution and health effects, they say, the

absence of proof of causation—i.e., how particles actu-

ally interact with cells and organs to cause sickness and

death—is fatal to the standard. We disagree.

To begin with, the statute itself requires no such

proof. The Administrator may regulate air pollutants

“emissions of which, in his judgment, cause or contri-

bute to air pollution which may reasonably be antici-

pated to endanger public health or welfare.” 42 U.S.C.

§ 7408(a)(1)(A) (1994) (emphasis added). Moreover, this

court has never required the type of explanation peti-

tioners seek from EPA. In fact, we have expressly held

that EPA’s decision to adopt and set air quality stan-

dards need only be based on “reasonable extrapolations

from some reliable evidence.” NRDC v. Thomas, 805

F.2d 410, 432 (D.C. Cir. 1986). Indeed, were we to

accept petitioners’ view, EPA (or any agency for that

matter) would be powerless to act whenever it first

recognizes clear trends of mortality or morbidity in

areas dominated by a particular pathogen.

The numerous epidemiological studies appearing in

this record, some of which EPA also used to support

the 1987 NAAQS, easily satisfy the standard articu-

lated in the statute and emphasized repeatedly in

decisions of this court. Covering diverse geographic

locations with widely varying mixes of air pollution, the

studies found statistically significant relationships

between air-borne particulates signified by a variety of

indicators and adverse health effects. Given EPA’s

statutory mandate to establish standards based on “the

latest scientific knowledge,” 42 U.S.C. §§ 7408(a)(2),

7409(d), the growing empirical evidence demonstrating

a relationship between fine particle pollution and

56a

adverse health effects amply justifies establishment of

new fine particle standards.

D. Visibility Effects

The Environmental Petitioners challenge kph —

decision to set the secondary PM.; gr pe —

equivalent to the primary NAAQS. wp

petitioners, the EPA’s failure to set the ——

NAAQS at more stringent levels will result —

visibility impacts” in parts of the 2 — —

lusion in Part I, above, that the

adequately explained te pine pe which Te

i ing the levels in the .

— main thrust of the petitioners —-

the secondary NAAQS. On the other — —

Environmental — ＋ = fer ah 9 —

tutory interpretation, the

2 — the EPA if it revisits its decision to set the

secondary PM,, NAAQS.

In the PM Final Rule, the EPA decided — ——

the welfare effects of PM on visibility 1 .

secondary standards identical to the suite o . —

mary standards, in conjunction with the esta — t

f a regional haze program under § 169A of the —

PM Final Rule, 62 Fed. Reg. at 38,679/3. Section 1 —

“declares as a national goal the —— . —

the remedying of an ee ome 7 bo

mandatory class I Federal areas

manmade air pollution.” 42 U.S.C. § 7491. r —

class I areas include all international — 1— —

tional parks and wilderness areas of a ce . =>

42 U.S.C. § 7472(a). The EPA concluded — —

of PM., levels in class | areas would bene — —

rounding areas as well because the same

57a

degrades visibility within or looking out from a national

park also degrades visibility outside it.” PM Final

Rule, 62 Fed. Reg. at 38,682/1.

The Environmental Petitioners argue that §

109(b)(2), 42 U.S.C. § 7409(b)(2), requires the EPA to

set secondary NAAQS at a level sufficient to eliminate

all adverse visibility effects and that it leaves the EPA

no discretion to decide that some visibility impairment

is better remedied through another program. This

argument must be wrong. For, as the EPA argues, the

Congress required the EPA to implement a regional

haze program specifically in order to address adverse

visibility effects that persist in class I areas after

attainment of the secondary NAAQS. See 42 U.S.C.

§ 7470(1) (purpose of this part of Clean Air Act is “to

protect public . . . welfare from any actual or potential

adverse effect which . . . may reasonably be antici-

pate(d] to occur. . . notwithstanding attainment and

maintenance of all [NAAQS]”). Accordingly, we con-

clude that the Congress did not intend the secondary

NAAQS to eliminate all adverse visibility effects and,

therefore, that the EPA acted within the scope of its

authority in deciding to rely upon the regional haze

program to mitigate some of the adverse visibility

effects caused by PM.,

Conclusion

We remand the cases to EPA for further con-

sideration of all standards at issue. We do not vacate

the new ozone standards because the standard is un-

likely to engender costly compliance activities in light of

our determination that it cannot be enforced by virtue

of Clean Air Act § 181(a), 42 U.S.C. § 7511(a). We

vacate the challenged coarse particulate matter stan-

58a

because EPA will have to develop different

— he when it corrects the arbitrarily —

indicator. As to the fine particulate matter oan — —

we invite briefing on the question of remedy: possi —

ties include but are n«i mited to vacatur, „

subject to application te vacate, and non-vacatur.

order giving the briefing particulars will follow.

Because of the substantial investment of time this

i lved issues

has required and the many unreso

— on —— of whatever standards may

ill i i judicial

, this el will in the interest of ju

— — — over the cases following

remand. See Sierra Club v. Gorsuch, 715 F.2d 653, 661

(D.C. Cir. 1983).

59a

TATEL, Circuit Judge, dissenting from Part I:

The Clean Air Act has been on the books for decades,

has been amended by Congress numerous times, and

has been the subject of regular congressional oversight

hearings. The Act has been parsed by this circuit no

fewer than ten times in published opinions delineating

EPA authority in the NAAQS-setting process. Yet this

court now threatens to strike down section 109 of the

Act as an unconstitutional delegation of congressional

authority unless EPA can articulate an intelligible

principle cabining its discretion. In doing so, the court

ignores the last half-century of Supreme Court non-

delegation jurisprudence, apparently viewing these

permissive precedents as mere exceptions to the rule

laid down 64 years ago in A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495 (1935). Because

section 109’s delegation of authority is narrower and

more principled than delegations the Supreme Court

and this court have upheld since Schechter Poultry, and

because the record in this case demonstrates that

EPA’s discretion was in fact cabined by section 109, I

respectfully dissent.

Section 109 requires EPA to publish air quality

standards “the attainment and maintenance of which in

the judgment of the Administrator, based on such

criteria and allowing an adequate margin of safety, are

requisite to protect the public health.” 42 U.S.C. §

7409(b)(1) (1994). Compare section 109 to the

of section 303 of the Communications Act of 1984, which

gave the FCC authority to regulate broadcast licensing

in the “public interest,” and which the Supreme Court

sustained in National Broadcasting Co. v. United

States, 319 U.S. 190, 225-26 (1943). The FCC’s general

60a

authority to issue regulations “as public convenience,

interest, or necessity requires” was sustained in United

States v. Southwestern Cable Co., 392 U.S. 157, 178

(1968). The Supreme Court has sustained equally broad

delegations to other agencies, including the Price

Administrator’s authority to fix “fair and equitable”

commodities prices, Yakus v. United States, 321 U.S.

414, 426-27 (1944), the Federal Power Commission’s

authority to determine “just and reasonable” rates,

FPC v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944),

the War Department’s authority to recover “excessive

profits” earned on military contracts, Lichter v. United

States, 334 U.S. 742, 778-786 (1948), and the Attorney

General’s authority to regulate new drugs that pose an

“imminent hazard to public safety,” Towby v. United

States, 500 U.S. 160, 165 (1991). See also Milk Indus.

Foundation v. Glickman, 132 F.3d 1467, 1475 (D.C. Cir.

1998) (upholding delegation to Secretary of Agriculture

to approve interstate compacts upon a& finding of “com-

pelling public interest”).

Given this extensive Supreme Court precedent sus-

taining general congressional delegations, no wonder

the First Circuit rejected a similar nondelegation chal-

lenge to the Clean Air Act’s “requisite to protect the

public health” language:

The power granted to EPA is not “unconfined and

vagrant”. [Schechter Poultry, 295 U.S. at 551 (Car-

dozo, J., concurring).] The Agency has been given a

well defined task by Congress—to reduce pollution

to levels “requisite to protect the public health”, in

the case of primary standards. The Clean Air Act

outlines the approach to be followed by the Agency

and describes in detail many of its powers. . . Let

6la

there are many benchmarks to gui

ar! guide the Agen

— courts in determining whether or not EPA

4 ceeding its powers, not the least of which is that

— e rationality of the means can be tested against

goals capable of feiily preci 7 wel

language of science. y precise definition in the

Administrative agencies are created

* * * b Co

because it is impossible for the 2

— A sufficient information to manage each detail

* 12 process of extirpating the abuses identi-

— y the legislation; the Agency must have

— to implement the congressional mandate

erefore, although the delegation to EPA was a

broad one, . we have little difficul

pene t i

that the delegation was not excessive. re

South Terminal

neat 1 Corp. v. EPA, 504 F. 2d 646, 677 (1st

I do not agree with my coll

eagues that /nternational

Union, UAW v. OSHA, 988 F.2d 1310 (D.C. Cir. 1991)

(“Lockout/Tagout ) requires a diffi

" erent result.

— — to OSHA for a more precise — of

on 308) of the Occupational Safety and Health Act

to provide safe or healthful employment or places of

standards that are “requisite” to

protect the j

health. In other words, EPA must set ——

dards at levels necessary to protect the public health,

62a

whether “reasonable” or not, whether appropriate or

not.

i “requisite to protect

reover, in setting standards requisite t

* public health” EPA discretion is not — =

Clean Air Act directs EPA to oo — — 4 a

iteria” that “accurately re

— — — > reg —

t of all identifiable effec

— ened may be expected from the — 5

such pollutant in the ambient air, in varying = —

ties.“ 42 U.S.C. 8 74084) (2); see id. § — —

— — A = we br — on—(A)

the extent practicable, cc ——

iable factors (including atmosphe

— which of themselves or in ——— — —

factors may alter the effects on public 7211 —

pollu

of such air pollutant; (B) the types o —

i here, may inte

which, when present in the atmosp . been

i h pollutant to produce an adverse ,

— health or welfare; and (C) any known or ——

ted adverse effects on welfare”). Indeed, the p

— constraining EPA discretion are at least as —

as those this court sustained in Lockout/Tagout II, i...

that OSHA must identify a “ ‘significant safety —

enact a safety standard that provides a high 2

worker protection’.” International oe he 5

OSHA, 37 F.3d 665, 669 (D. C. Cir. 1994) ae .

Tagout IT). By directing EPA to set NAAQS at *

requisite“ - not — — — —

blic health with “an adequate margin :

Clean Air Act tells EPA exactly the same thing, i.e.,

ensure a high degree of protection.

63a

Although this court’s opinion might lead one to think

that section 109’s language permitted EPA to exercise

unfettered discretion in choosing NAAQS, the record

shows that EPA actually adhered to a disciplined

decisionmaking process constrained by the statute’s

directive to set standards “requisite to protect the

public health” ba: ed on criteria reflecting the “latest

scientific knowledge.” To identify which health effects

were “significant enough” to warrant protection, EPA

followed guidelines published by the American Thoracic

Society. See National Ambient Air Quality Standards

for Ozone: Proposed Decision, 61 Fed. Reg. 65,716,

65,722/1 (1996). It then set the ozone and fine particle

standards within ranges recommended by CASAC, the

independent scientific advisory committee created

pursuant to section 109 of the Act. See 42 U.S.C. §

7409(d)(2).

CASAC must consist of at least one member of the

Nation- al Academy of Sciences, one physician, and one

person representing state air pollution control agencies.

See id. § 7409(d)(2)(A). In this case, CASAC also in-

cluded medical doctors, epidemiologists, toxicologists

and environmental scientists from leading research

universities and institutions throughout the country.

EPA must explain any departures from CASAC’s re-

commendations. See id. § 7607(d)(3). Bringing scien-

tific methods to their evaluation of the Agency’s

Criteria Document and Staff Paper, CASAC provides

an objective justification for the pollution standards the

Agency selects. Cf. Daubert v. Merrell Dow Pharma-

ceuticals, Inc., 509 U.S. 579, 598 (1998) (“Scientific

methodology today is based on generating hypotheses

and testing them to see if they can be falsified; indeed,

this methodology today is what distinguishes science

64a

— itted).

ther fields of human inquiry. ) (citation omitt

can federal agencies with rulemaking —

in technical fields also rely heavily on the —

tions, poliey advice, and critical review that ee ;

advisory committees provide. See, e. g., 21 * 0 *.

355(n) (describing scientific advisory panels ae

Food and Drug Administration); 49 U.S.C. 8 ——

(ereating a scientifie advisory panel for the e

Aviation Administration).

ginning with CASAC’s ozone recommendations—

1 — recommended going below 08 —

EPA gave two perfectly rational explanations for —

level it selected. First, it set the annual level —

the different types of health effeets observed above —

below .08 ppm. Particularly below .08, the >

termined, “(t]he most certain — 0 —

while judged to be adverse, are transient a — —

ble.” National Ambient Air Quality Standa 2

Ozone, 62 Fed. Reg. 38,856, 38,868/2 (1997) (emp isis

added). Characterizing this explanation as saying

nothing more than that “lower exposure levels are =

sociated with lower risk to public health, Maj. 2 —

10, my colleagues find the Agency’s — —

gible. But EPA did not find simply that public eon

risks decrease at lower levels. Instead, it > —

public health effects differ below .08 ppm, I. e., y

are “transient and reversible.”

i should not be

Second, EPA explained that the leve ,

set below naturally occurring background ozone =

centrations. The Agency selected .08 ppm because i

found that “a 0.07 ppm level would be closer to peak

background levels that infrequently occur in some areas

due to nonanthropogenic sources of [ozone] precursors,

65a

and thus more likely to be inappropriately targeted in

some areas on such sources.” 62 Fed. Reg. at 38,868/3.

Of course, any level of ozone pollution above back-

ground concentrations is closer to background levels

than one just above it. See Maj. Op. at 11. But as I read

EPA’s explanation, the Agency found that peak

background levels sometimes occur at .07 ppm, not at

08 ppm. Indeed, the data EPA provided in its Re-

sponses to Significant Comments” show a range of

background concentrations from a low of .042 ppm in

Olympic National Park in Washington to a high of .075

ppm in Quachita National Forest in Arizona. No region

registered background levels above .075 ppm. See U.S.

ENVIRONMENTAL PROTECTION AGENCY, RE-

SPONSES TO SIGNIFICANT COMMENTS ON THE 1996

PROPOSED RULE ON THE NATIONAL AMRIENT

AIR QUALITY STANDARDS FOR OZONE 94-96 (July

1997). In other words, by setting the annual standard

at .08 rather than .07 ppm, EPA ensured that if a region

surpasses the ozone standard, it will do so because of

controllable human activity, not because of uncontrolla-

ble natural levels of ozone.

EPA offered an equally reasonable explanation for

the fine particle pollution standard. Again limiting

itself to the range approved by CASAC, EPA set the

annual standard for PM,, pollution at the lowest level

where it had confidence that the epidemiological evi-

dence (filtered through peer-reviewed, published stud-

ies) displayed a statistically significant relationship

between air pollution and adverse public health effects.

Recognizing that its decision must “accurately reflect

the latest scientific knowledge useful in indicating the

kind and extent of all identifiable effects on public

66a

th,” 42 U.S.C. § 7408(a)(2), EPA focused on three

— in the record that displayed a ‘Statistically

significant relationship between fine particle —

and adverse health effects: Joel Schwartz et al., 8

Daily Mortality Associated Specifically with Fine

Particles?, 46 J. AIR & WASTE MGMT. ASS’N 927

(1996); Joel Schwartz et al., Acute Effects of Summer

Air Pollution on Respiratory Symptom Reporting "

Children, 150 AM. J. RESPIRATORY & CRITICA ;

CARE MED. 1234 (1994); and Douglas W. Dockery e

al., An Association between Air Pollution and *

ity in Sir U.S. Cities, 329 NEW ENG. J. MED. 2

(1993). The Agency explained that there is generally

greatest statistical confidence in observed — 2

[between fine particle pollution and adverse healt

effects] for levels at and above the mean r

[of pollution observed in the studies that show 4 a

statistically significant relationship]. National Am —

ent Air Quality Standards for Particulate —

Fed. Reg. 38,652, 38,678 /1 n. 42 (1997) (emphasis add

Allowing “an adequate margin of safety, EPA then se

the annual fine particle standard just below the lowest

mean pollution levels observed in those studies, at 15

ug/m®. See id. at 38,676/1 (“An examination of the long-

term means from the combined six city analyses of daily

mortality [Schwartz et al. (1996)] and morbidity

[Schwartz et al. (1994)], together with those ——

studies in individual cities for which statistically

significant PM-effects associations are reported *

finds mean concentrations ranging from about *

about 21 ug/ m. . .”); id. at 38,676/2 (“[The —

Paper assessment of the 1 —

[from Dockery et al. (1998) ], concluded that the —

dence for increased risk was more apparent at ann

concentrations at or above 15 pg/m’. . . ).

67a

In a passage directly answering this court’s concerns,

see Maj. Op. at 11-12, the Staff Paper explained why the

long-term mean served as a reasonable level for setting

the fine particle NAAQS:

The mean (or median) concentration may serve as a

reasonable cutpoint of increased PM health risk

since at this point there is generally the greatest

confidence (i.e., the smallest confidence intervals) in

the association and the reported [relative risk]

estimates. The mean concentration considered by

staff as most informative to test implications of

potential alternative concentration-response func-

tions is the minimum mean concentration associ-

ated with a study or studies reporting statistically

Significant increases in risk across a number of

study locations.

OFFICE OF AIR. QUALITY PLANNING AND

STANDARDS, U.S. ENVIRONMENTAL PROTECTION

AGENCY, REVIEW OF NATIONAL AMBIENT AIR

QUALITY STANDARDS FOR PARTICULATE MAT-

TER: POLICY ASSESSMENT OF SCIENTIFIC AND

TECHNICAL INFORMATION, at E-4 (1996) (emphasis

added).

EPA thus did not, as my colleagues charge, arbitrar-

ily pick points on the ozone and particulate pollution

continua indistinguishable from any other. Instead,

acting pursuant to section 109’s direction that it estab-

lish standards that, based on the “latest scientific

knowledge” are “requisite” to protect the public health

with “an adequate margin

within ranges approved by CASAC, the Agency set the

ozone level just above peak background concentrations

where the most certain health effects are not transient

of safety,” and operating

68a

and reversible, and the fine particle level at the lowest

long-term mean concentration observed in studies that

showed a statistically significant relationship between

fine particle pollution and adverse health effects.

Whether EPA arbitrarily selected the studies it relied

upon or drew mistaken conclusions from those studies

(as petitioners argue), or whether EPA failed to live up

to the principles it established for itself (as my col-

leagues believe, see Maj. Op. at 9-12), has nothing to do

with our inquiry under the nondelegation doctrine.

Those issues relate to whether the NAAQS are arbi-

trary and capricious. See NRDC v. EPA, 902 F.2d 962,

969, 971 (D.C. Cir. 1989). The Constitution requires

that Congress articulate intelligible principles; Con-

gress has done so here.

A final point. Unlike OSHA, which Lockout/Tagout I

recognized has authority to reach into every workplace

to dictate what is safe, to impose extensive civil and

criminal penalties, and “to decide which firms will live

and which will die,” Lockout/Tagout J. 938 F.2d at 1318,

EPA regulates primarily by setting standards for

states to develop their own plans. See 42 U.S.C. §

7401(a)(3) (Congress finds “that air pollution prevention

and air pollution control at its source is the

primary responsibility of States and local govern-

ments.”). Indeed, because states have three years to

submit implementation plans, which are themselves

subject to notice, comment, public hearing, and fre-

quent renegotiation, we will not know for years pre-

cisely how the ozone and particle NAAQS will actually

affect individual businesses. Only if a state fails to

produce an acceptable plan can EPA terminate federal

highway funds or impose its own implementation plan.

Because the Clean Air Act gives politically accountable

69a

state governments primary responsibility fo

— how to distribute the burdens of ——

uction and therefore how the NAAQS will affect

specific industries and individual businesses, courts

have less reason to second-guess the specificity of the

congressional delegation. Moreover, if the states

— with the standards EPA has set, they have

representatives in Congress to turn to for help. In

— legislation to overturn the very NAAQS at issue in

* was introduced in the last Congress. See H. R.

, 105th Cong. (1997) (“A bill to provide for a four-

— — on the establishment of new stan-

— — pod ry and fine particulate matter under the

—— et, pending further implementation of the

= Act Amendments of 1990, additional review

and air quality monitoring under that Act.”); S. 1084

105th Cong. (1997) (“A bill to establish a research and

— program for the national ambient air quality

8 ards for ozone and particulate matter and to

reinstate the original standard

Act, and for other purposes.“) s under the Clean Air

70a

APPENDIX B

PEALS

UNITED STATES COURT OF AP

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1440

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

_ 97-1440, 97-1546, 97-1548, 97-1551 to 97-1558,

| 97.1585, 97-1559, 97-1561, 97-1562, 97-1565, —

97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,

97-1582,97-1585 to 97-1588, 97-1592,

97-1594, 97-1596 to 97-1598

’ -1508 to 97-1510,

Nos. 97-1441, 97-1502, 97-1505, 97

97-1512 to 97-1514, 97-1518, 97-1519, 97-1526, even.

97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,

97-1584, 97-1589, 97-1591, 97-1595, 97-1619

[Filed October 29, 1999]

BEFORE: WILLIAMS, GINSBURG, AND TATEL, Cir-

cuit Judges.

Opinion PER CURIAM on petitions for rehearing.

71a

Opinion concurring in partial grant of rehearing and

dissenting in part from the panel’s denial of rehearing

filed by Circuit Judge TATEL.

ORDER

PER CURIAM

This matter is before the court for consideration of

respondent Environmental Protection Agency’s (EPA)

petition for panel rehearing in Nos. 97-1440 and 97-

1441, the responses thereto, and the petitions for panel

rehearing of intervenors-respondents New J ersey and

Massachusetts in Nos. 97-1440 and 97-1441, Citizen for

Balanced Transportation, et al. in No. 97-1440, and the

American Lung Association in Nos. 97-1440 and 97-

1441. Upon consideration of the foregoing, it is

ORDERED that the petitions of EPA, New Jersey

and Massachusetts, and the American Lung Association

be granted in part. The court accordingly modifies

Parts III.A.2 & 3 and the conclusion of the court’s

original opinion as set forth in the opinion of the court

filed herein this date. It is

FURTHER ORDERED that the remainder of EPA,

New Jersey and Massachusetts, and the American

Lung Association’s petitions be denied and that Citizen

for Balanced Transportation’s petition be denied.

72

Opinion for the Court filed PER CURIAM:

The Environmental Protection Agency petitions for

rehearing, challenging this court’s holdings that: (1)

with respect to the factors the agency uses to deter-

mine the degree of public health concern associated

with different levels of a pollutant, it “appears to have

articulated no ‘intelligible principle’ to channel its

application of these factors; nor is one apparent from

the statute,” American Trucking Ass us v. United

States Environmental Protection Agency, 175 F.3d

1027, 1034 (D.C. Cir. 1999); (2) “Subpart 2, not Subpart

1, provides the classifications and attainment dates for

any areas desi nonattainment under a revised

primary ozone NAAQS, and the EPA must enforce any

revised primary ozone NAAQS under Subpart 2,” id. at

1050; and (3) “EPA must consider positive identifiable

effects of a pollutant’s presence in the ambient air in

formulating air quality criteria under § 108 and NAAQS

under § 109,” id. at 1052. For the following reasons, we

grant the petition for rehearing in part and deny it in

part.

I. Delegation

In the EPA’s petition for rehearing, counsel for the

agency argue that § 109 of the Clean Air Act contains

the following principle limiting the agency's discretion:

“The levels [set in a NAAQS) must be necessary for

public health protection: neither more nor less strin-

gent than necessary, but ‘requisite.”” EPA Pet. at 8

(emphases in original). Further, counsel claim that in

setting the NAAQS at issue in this case the agency

73a

applied corollaries of this principle :

mr oer oto —

; In denying the EPA’s petition for rehearing on this

issue, we note that the agency previously put forward

neither the assertedly intelligible principle its counsel

now claim to find in the statute nor the corollaries its

counsel now implicitly derive therefrom. To be sure, in

the rulemakings that set the NAAQS, the EPA men-

— — propositions its counsel now claim

as intelligible limiting princi but the agency

did net identify clther os ——

EPA never suggested that it could not (or in a later

rulemaking would not) base a NAAQS upon evidence

that did not meet the 95 percent confidence level or

that revealed adverse but transient effects. In its

briefs defending the NAAQS, the EPA merely asserted

that the Clean Air Act provides an intelligible principle;

it failed both to state that principle and to argue that its

revised NAAQS were promulgated in accordance with

that principle. EPA PM Brief at 145-49; EPA Ozone

Brief at 77-80. Indeed, the EPA’s briefs in each of

these two cases contained the same four sentences

For particulate matter, counsel now state that

’ the E „

decision was determined by the norm of “the 9 percent confidence

to separate results that could be the product of chance from

more convincing evidence of causation.” EPA Pet. at 15. For

ozone, counsel now state that EPA inferred the existence of effects

below 0.08 ppm, but nonetheless concluded that they were “less

— because they are ‘transient and reversible EPA Pet. at

2 The court’s opinion mentioned EPA’s observation

cord thet effects of csone concentrations below the standard ce

— GN RS mete” B15 P28 6 20, bes ealy

this was the the dissent’s suggestion, see id. at 1069, that

controlling principle. '

74a

uring che court that the statute provides a principle

without — what the agency understands that

principle to be: eal

jon] 109(b)(1) requires EPA to promulga

1 on air quality criteria — =

§ 108 that are “requisite to protect 8

health” with an adequate margin of safety. a. .

language and related legislative history Le

directions for EPA to follow in setting the — :

Moreover, EPA has consistently interpre ad

109(b)(1) to provide farther docisionmaling \ — —

to guide the standard setting Process. Jew

CAA provides a more than sufficient aay :

principle” to guide EPA’s discretion. EPA n

Brief at 78; see also EPA PM Brief at 148.

These sentences begged the key question about that

intelligible principle: “What is it?”

—— -_

As we noted in our first opinion in this case, W '

“statutory language and an existing agency — —

tion involve an unconstitutional delegation o —

but an interpretation without the — = :

ness is or may be available, our response is not ~

down the statute but to give the agency an *

to extract a determinate standard on its own.

from

the statute what they contend is an intelligible principle

75a

mated Meat Cutters v. Connally, 337 F. Supp. 737, 759

(D.D.C. 1971) (Leventhal, J., for three-judge panel).

A final word about our nondelegation holding: The

Supreme Court has long held that an ambiguous

principle in a statute delegating power to an agency can

gain “meaningful content from the purpose of the Act,

its factual background and the statutory context in

which lit] appear{s].” American Power & Light Co. v.

SEC, 329 U.S. 90, 104 (1946); see also Federal Radio

Comm'n v. Nelson Bros. Bond & Mort. Co, 289 U.S.

266, 285 (1933) (upholding delegation to Federal Radio

Commission to grant licenses “as public convenience,

interest or necessity requires” in light of “its context

land] the nature of radio transmission and reception”;

Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (upholding

delegation to the Federal Home Loan Bank Board to

promulgate regulations for the appointment of a

conservator for savings and loan associations in view of

the banking industry’s “well-defined practices for the

appointment of conservators”). This court has done the

same. See, e.g., National Ass’n of Broadcasters v.

Copyright Royalty Tribunal, 675 F.2d 367, 376 n.12

(1982) (finding an intelligible principle to guide the

tribunal in disbursing cable royalty fees in “specific

statements in the legislative history and in the general

philosophy of the Act itself”); Amalgamated Meat

Cutters, 337 F. Supp. at 747-49 (interpreting the Eco-

nomic Stabilization Act of 1970 in light of “the historic

context of government stabilization measures” in order

to “negative[ ] a conclusion that the whole program was

set adrift without a rudder”). To choose among per-

missible interpretations of an ambiguous principle, of

course, is to make a policy decision, and since Chevron

it has been clear that “[tJhe responsibilities for assess-

76a

i i ch policy choices . are not

—— — — OSA Inc. v. NRDC, 467 U.S.

837 866 (1984). Accordingly, just as we must defer to

an agency’s reasonable interpretation of an ——

statutory term, we must defer to 1 = —

able interpretation of a statute containing o — —

biguous principle by which — pees *

713 (1969) (arguing that “judicial inquiries ec —

nondelegation doctrine} should shift * 8 — —

standards to administrative ae ~ —

Benzene case,

eee healt ‘deatified an intelligible principle in —

ambiguous statute, has given way to the 5 — —

Chevron. See Industrial Union Dep't v. —

Swen, ene üntetpretng J 58) ofthe Oer

ns, J., plurality 0

—— Health and Safety Act to require “a —

finding that significant risks are present, ereby

finding in the statute an intelligible principle).

Il. Subpart 2 and the Revised Ozone Standard

In its petition for rehearing, the EPA challenges the

holdings in Parts III.A.2 and III. A. 3 of our —

opinion, see 175 F.3d at 1048-51, as well as our juris-

* tossed into the analysis . °° to help justify

— —

Benzene, we do not see how a lower court can properly rest

jurisprudence on the rejection of a Supreme Court decision.

77a

diction to reach those issues. We address the juris-

dictional point first. ;

A. Jurisdiction

The EPA argues that because it has taken no final

action implementing the revised NAAQS this court

lacks jurisdiction to reach the question whether Sub-

part 2 prevents the agency from implementing a

revised ozone NAAQS under Subpart 1. See 42 U.S.C.

§ 7607(b) (limiting this court’s jurisdiction to review of

“nationally applicable regulations promulgated, or final

agency action taken, by the Administrator”); see also

Sierra Club v. Thomas, 828 F.23 783, 792 (D.C. Cir.

1987).* That this claim is raised for ihe first time in a

petition for rehearing does not, of course, alter our

obligation to “satisfy [our)self . . . of [our] own juris-

diction.” Steel Co. v. Citizens for a Better Environ-

ment, 118 S. Ct. 1008, 1012-138 (1998).

Whether agency action is final for purposes of

§ 7607(b) entails a functional, not a formal, inquiry. See

NRDC v. EPA, 22 F.8d 1125, 1182-88 (D.C. Cir. 1994);

Ciba-Geigy Corp. v. EPA, 801 F.2d 480, 486 (D.C. Cir.

1986) (“Once the agency publicly articulates an une-

quivocal position . . . and expects regulated entities to

alter their primary conduct to conform to that position,

the agency has voluntarily relinquished the benefit of

postponed judicial review”). In this case, “there is

nothing tentative about the EPA’s interpretation of

78a

2); it is unambiguous and devoid of any sug-

— sy it might be subject to subsequent ora

sion.” Her Majesty the Queen ex rel. — — —

912 F.2d 1525, 1532 (D. C. Cir. 1990); see dal — —

National Ambient Air Quality Standards for Ozone,

— 1 135 — hy the —

ions 181 or N

— a different [ozone] standard under 3

ity li. e., Subpart 1); those provisions — ~ . *

simply govern the implementation of the — —* . 7

ppm O, standard”). Moreover, by prom — he

revised ozone NAAQS the EPA has triggered 8 —

visions of §§ 107(d)(1) > bern Aa sorte —

irements upon the s 0 i :

— of each state — eee hee

resently comply wi e re ;

— that — not comply will ultimately be —— ad —

do so. The EPA, therefore, has reached a fin —

regarding its power to implement its revised

standard, which this court has jurisdiction to review.

IP.”

triggers sanctions . . . [after] a state fails to submit a S

EPA Pet. at 19. The section to which the EPA 1 — —

follows: The Administrator shall publish a notice Pe —

Register announcing each [attainment or nonattainment] —

tion. _ Such classification . . . shall not be subject to judi

ee eee

a

oes ae. — — or nonattainment is not

— — because the EPA published ——

in the Federal Register. Neither this section nor — a

§ 7511) 3), to which the EPA also cites, prevents a

79a

The EPA also argues that the statements in its

preamble regarding implementation are not “ripe for

review,” a point which it raised in a single sentence in

its original brief to this court. EPA Pet. at 19; EPA

Ozone Brief at 74. The question whether Subpart 2

prevents the EPA from designating an area as non-

attainment under its revised ozone standard or from

implementing that designation except in conformity

with Subpart 2 is a pure question of law, the resolution

of which would not benefit from a more concrete

setting. As the agency’s action is undoubtedly final, the

question is fit for review. See Rio Grande Pipeline Co.

v. FERC, 178 F.3d 533, 540-41 (D.C. Cir. 1999).

B. Subpart 2 and the EPA’s Authority to Enforce a

Revised Ozone Standard

The EPA’s arguments in its petition for rehearing do

not convince us that we erred in rejecting the EPA’s

contention that-“the reference to §107(d) in §181(a)(1)

relates only to designations made under § 107(d)(4),”

175 F.3d at 1050, and in holding instead that Ҥ 181(a)

clearly encompasses nonattainment designations made

under all subsections of § 107(d).” Id. Indeed, we note

that the EPA has abandoned its original position,

arguing now that the “most logical reading” of § 181(a)

is that the reference to § 107(d) includes §§ 107(d)(1)(C)

and 107(d)(4). EPA Pet. at 24. We find this new read-

ing no more persuasive than the old. As the EPA

notes, all five Subparts of the Clean Air Act providing

requirements for nonattainment areas begin with a

reference to § 107(d). See 42 U.S.C. §§ 7502(a)(1)(A),

7511(a)(1), 7512(a)(1), 7513(a), 7514(a). It is by no

deciding, prior to the classification of a particular area, whether

the agency has validly promulgated a revised standard.

—

80a

means clear, however, that the references to § 107(d) in

Subparts 1 and 3 through 5 include only designations

made under 88 107(d)(1)(C) and (d)(4). Not only dos

the EPA never argue that they are so limited, but on

its theory the reference to § 107(d) in Subpart 1 also

encompasses designations made under § 107(d)(1)(A).

EPA Pet. at 25. Accordingly, we reject the EPA’s new

interpretation of § 181(a), for it is contrary to “the nor-

mal rule of statutory construction that identical words

used in different parts of the same act are intended to

have the same meaning.” Gustafson v. Alloyd Co., 513

U.S. 561, 570 (1995).

Still, the EPA does raise two points relating to

Subpart 2 which lead us to grant the EPA’s petition for

rehearing in part and to make the following revisions to

our opinion.

The EPA correctly points out that we erroneously

treated the attainment dates in the table in Subpart 2

as representing the Congress’s judgment about what is

“as expeditiously as practicable” in reducing the level of

ozone in an area; in fact, those dates represent what the

Congress set as outer limits. See 42 U.S. C. S 7511(a)(1)

(For each area elassified under this subsection, the

primary standard attainment date for ozone shall be as

expeditiously as practicable but not later than the date

provided in table 1”). EPA Pet. at 25 n.35. Accord-

ingly, we grant the EPA’s petition for rehearing to the

extent of deleting the final three sentences of Part

III. A. 3, see 175 F.3d at 1051, and substituting for them

the following sentence:

Therefore, we conclude that Subpart 2 erects no bar

to the EPA’s requiring compliance with a revised

8la

secondary ozone NAAQS “as iti

— Q expeditiously as

The EPA also contends that the conclusio

ITT.A.2, see id. at 1050 (“the EPA must — Angin

revised primary ozone NAAQS under Subpart 2”)

conflicts with our description of that same conclusion at

the end of the opinion, see id. at 1057 (revised ozone

NAAQS “cannot be enforced by virtue of [Subpart 2]”).

We agree that the two sentences are in tension. To

clarify the matter, we grant the EPA’s petition for

rehearing to the extent of making the following two

—— to our original opinion. First, we replace the

—— a of Part ITI.A.2, see id. at 1050, with the

In sum, because the reference to §

„ 107(d

181(a)(1) includes the designation of an — 4 14.

attainment for ozone under a revised ozone N AAQS

that is, under § 107(d)(1), the EPA can enforce a

revised pri ozone N i i

— ri ne NAAQS only in conformity

Second, we replace the second se

clusion, see id. at 1057, with the — reer

We do not vacate the new ozone standard

the parties have not shown that the oe

likely to engender costly compliance activities in

light of our determination that it can be enforced

only in conformity with Subpart 2.

As with the PM.; NAAQS, our decision not to vacate

— ozone NAAQS “is without prejudice to the ability of

ny party to apply for vacatur in the future, should

circumstances develop in which the presence of this

82a

standard threatens a more imminent harm.” American

Trucking Ass’ns, Inc. v. EPA, No. 97-1440 (D.C. Cir.

Jun. 18, 1999).

III. Beneficent Health Effects

The arguments in the EPA’s petition for rehearing

ive us no reason to doubt the correctness of our con-

gi

clusion that “all identifiable effects,” as used in CAA

§108(a)(2), “on its face . include{s] beneficent

effects.” 175 F.3d at 1051. Nur do those arguments

warrant consideration in a published opinion. We ex-

press no opinion, of course, upon the effect, if any, that

studies showing the beneficial effects of tropospheric

ozone, see id. at 1052, might have upon any ozone

standard the EPA may promulgate on remand.

IV. Conclusion

For the above reasons, the EPA’s petition for

rehearing is

Granted in part and denied in part.

83a

TATEL, Circuit J *

senting in part: udge, concurring in part and dis-

I : 8

i — in the partial grant of rehearing with respect

— * of the revised ozone standard because

— » “he opinion now leaves open the possibilit

— — can ag — the new ozone N AA 8 —

pny ng wi Subpart 2’s classifications and attain-

ates. While I too think that we have jurisdiction

N *

— it “has no effect upon the EPA’s authority to

Trucking ytd gd — NAAQS.” American

R , v. , 175 F.3d 102

CATA”). That interpretation, the panei held, not ony

histo — section 7511(a)(1)’s text and legislative

ye = — — 175 F. 3d at 1048-49, but by leaving the

quickly or sha eee — — ＋

defied Congress’s clear in — thet an

tent to “extend[ ] the ti

nonattainment areas to i —

NAAQS” Id. ot 1049 comply with the 0.12 ppm ozone

holding meant that areas not covered by Table 1 in

84a

i design values

2—i.e. those with one-hour ozone

— ppm- were completely exempt + —

ozone regulation whatsoever. Although the p =

acknowledged that EPA must — 4 * —

id. at 1047, it conclu vised

— — enforced by virtue of [Subpart 2].

Id. at 1057.

1 ; the

reading EPA’s petition for rehearing and

* — — I no longer believe that it *

unambiguously expressed intent of nes age —

mand EPA to revise the ozone standards, 7 a r ny

ing it the power to enforce them. Chevron | — —

v. VNR DC, 467 U.S. 837, 842. Table 1 — y 1—

vides classifications and attainm ent dates —＋4—.—

areas, but as EPA points out, it establishes — —

ment dates or elassifications for —— ew

with ‘design values’ lower than 0.121 ppm.’ — pa

cg Ae — — . 1

see how Su 5

— — ent dates for areas that are — a

attainment under the new standard but * — — —

by Table 1. See id. at 22-24. This gap in able 1

it at least ambiguous whether Subpart 2 — —

provide[s]” classifications and attainment row —

areas exceeding the revised 0.08 ppm ozone 5

EPA also points out that treating Subpart 1 —

exclusive enforcement scheme for all areas 3

“irrational and contradictory consequences. — —

Subpart 2 provides that le lach area — — —

attainment for ozone pursuant to section 7 —

title shall be classified . . . under table 1, by —

oflaw. .. 42 U.S.C. § 7511(a)(1). Even if ——

is correct that the reference to section 7407 (d) in

85a

designations under a revised N AAQS pursuant to

section 7407(d)(1)(A), see Slip Op. on Reh’g at 9-10, the

fact remains that the only “nonattainment areas for

which classifications [and attainment dates] are specifi-

cally provided under” Table 1 are those having one-

hour ozone design values of 0.121 ppm or greater.

ATA, 175 F.3d at 1048 (quoting 42 U.S.C. §

7502(a)(1)(C), (a 2 D). Classifying other areas under

table 1, by operation of law” is thus impossible or, at the

very least, not “unambiguously” “specifically provided

for.” And although, as the panel noted, “a title [of a

Statute or section] cannot be allowed to create an

ambiguity in the first place,” id., at 1050, the ambiguity

in this statute—Can section 751 1(a)(1) be applied

literally to areas that have attained the old standard

but fail to meet the new one?—appears in the text of

Subpart 2 itself.

Moreover, EPA has offered a plausible interpretation

of the statute that reasonably reconciles the provisions

of Subparts 1 and 2. In its Petition for Rehearing, the

Agency states that “Subpart 2 addresses continued

nonattainment for the primary one-hour ozone stan-

dard,” EPA Pet. Reh’g at 20, while Subpart 1 provides

implementation authority for the new ozone standard in

areas that have already attained the old one, see id. at

20-22. The Agency articulated this same reading of the

statute in its original brief, stating that “consistent with

Congress’ intent, EPA interpreted the Subpart 2

provisions to remain in place for areas not attaining the

one-hour standard, and concluded the one-hour stan-

dard should continue to apply until EPA determines

that an area attains that standard, thus facilitating

continued implementation of the relevant Subpart 2

measures.” EPA Ozone Brief at 72. The final

86a

rulemaking—the Agency action we are reviewing

here—is even clearer about the relationship between

Subparts 1 and 2:

[An the time of the proposal of the new O, stan-

dard, EPA had proposed an interpretation of the

Act in the proposed Interim Implementation Policy

(61 FR 65764, December 13, 1996) under which the

provisions of subpart 2 of part D of Title I of the Act

would not apply to existing O, nonattainment areas

once a new O, standard becomes effective.

In light of comments received regarding the inter-

pretation proposed in the Interim Implementation

Policy, EPA has reconsidered that interpretation

and now believes that the Act should be interpreted

such that the provisions of subpart 2 continue to

apply to O, nonattainment areas for purposes of

achieving attainment of the current I-hour stan-

dard. As a consequence, the provisions of subpart 2,

which govern implementation of the 1-hour Os;

standard in O, nonattainment areas, will continue to

apply as a matter of law for so long as an area is not

attaining the 1-hour standard. Once an area attains

that standard, however, the purpose of the pro-

visions of subpart 2 will have been achieved and

those provisions will no longer apply. However, the

provisions of subpart 1 of part D of Title I of the Act

would apply to the implementation of the new 8-

hour O, standards.

To facilitate the implementation of those provi-

sions and to ensure a smooth transition to the im-

plementation of the new 8-hour standard, the 1-hour

standard should remain applicable to areas that are

not attaining the 1-hour standard. Therefore, the 1-

87a

1 0 , :

EPA detarei Will remain applicable to an area until

— 5 mines that it has attained the 1-hour

| dard, at which point the 1-hour standard will

onger apply to that area.

62 ,

2 —— P13 er cone in EPA Ozone Brief at

F. R. ’ continui

one-hour 0.12 ppm standard until it is steed) *

To be sure, EPA’s original brief di

sure, i rief did seem to

— position the panel rejected that in —

— — NAAQS, the Ageney is free to —

1 7 Subpart 2’s timetable. See EPA Ozone Brief

— iven the clarity of the final rule, however, |

no longer believe that EPA actually intended to arg.

= it could subvert Subpart 2’s schedule in —

—— = ozone N AAQS. When EPA’s lawyers said in

— —— brief that Subpart 2 is inapplicable to

nattainment areas under the new ozone standard, I

— 12 have meant that even under the new

o> fans — part 2 continues to apply to areas covered

Viewed this mesg ayer state and ——

i . ri its petiti

4 1 — are perfectly consistent with the final

—7 unn es interpret the Act to mean that Subpart 2

— — an area until it attains the one-hour 0.12

This interpretation puts to rest the

The Agency’s petition also explains the practical

the i -

2 of its interpretation of Subpart 2. Although

may not enforce a stricter ozone standard in Los

Angeles earlier than the year 2012, see id. at 1049, the

88a

Agency need not wait for Los Angeles to achieve the

old standard before requiring the rest of the country to

move toward cleaner air. Cf. EPA Pet. Reh’g at 25

(suggesting that Los Angeles “is the only area of the

nation” where compliance with the 0.08 ppm NAAQS

under Subpart 1 could possibly be required at the same

time as compliance with the 0.12 ppm NAAQS under

Subpart 2). In other words, Table 1 functions as a safe

harbor for areas like Los Angeles whose ozone levels

exceed 0.121 ppm.

To sum up, the panel rejected what it was led to

believe was EPA’s view that Subpart 2 applied only to

nonattainment areas under the old standard but no

longer applies at all under the new standard. The panel

held instead that Subpart 2 applies to all nonattain-

ment areas under any standard, foreclosing imple-

mentation of a new standard in any area not covered by

Table 1. EPA has now clarified its interpretation of the

Act. A middle ground originally articulated in its final

rulemaking, the Agency’s position harmonizes its gen-

eral enforcement authority under Subpart 1 with the

specific provisions of Subpart 2. Subpart 2 continues to

govern those areas covered by Table 1, just as it did

under the old NAAQS, but in areas that have attained

the old standard, nothing precludes enforcement of the

new standard under Subpart 1.

I would have granted rehearing and held that the

Agency’s position represents a reasonable interpreta-

tion of an ambiguous statute. See Chevron, 467 U.S. at

844 (upholding EPA’s construction of NAAQS attain-

ment provisions of the Clean Air Act, stating that “a

court may not substitute its own construction of a

statutory provision for a reasonable interpretation

89a

made by the administrator of an agency.”). I none-

theless concur in the 3

eless judgment beca

Opimion s statement that “the EPA — rd ang —

—— nae | ozone NAAQS only in conformity with

eaves open the possibility that the new

ozone standard can be i :

attained the old — 222

For the reasons set forth in

8 my state j j

from the denial of rehearing en can coe

dissent from the denial of rehearing as to Part I of the

panel opinion (“Delegation”), ;

90a

PEALS

UNITED STATES COURT OF AP

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1440

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

vz.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

. 97-1440, 97-1546, 97-1548, 97-1551 to 97-1553,

1 n 97-1559, 97-1561, 97-1562, 97-1565, —

97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,

97-1582,97-1585 to 97-1588, 97-1592,

97-1594, 97-1596 to 97-1598

97-1441

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

91a

Nos. 97-1441, 97-1502, 97-1505, 97-1508 to 97-1510,

97-1512 to 97-1514, 97-1518, 97-1519, 97-1526, 97-1531,

97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,

97-1584, 97-1589, 97-1591, 97-1595, 97-1619

On Respondent EPA’s Suggestion for Rehearing

En Banc

[Filed October 29, 1999]

Before: EDWARDS, Chief Judge, WALD, SILBERMAN,

WILLIAMs, GINSBURG, SENTELLE, HENDERSON,

RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit

Judges.

Circuit Judges WALD and KAREN LECRAFT

HENDERSON did not participate in this matter.

Chief Judge Harry T. EDWARDS and Circuit Judges

SILBERMAN, ROGERS, TATEL, and GARLAND would

grant the suggestion.

A statement of Circuit Judge SILBERMAN dissenting

from the denial of rehearing en banc is attached.

A statement of Circuit Judge SILBERMAN dissenting

from the denial of rehearing en banc is attached.

A statement of Circuit Judge TATEL dissenting from

the denial of rehearing en banc, in which Chief Judge

EDWARDS and Circuit J udge GARLAND join, is

attached.

PER CURIAM

Respondent EPA’s Suggestion for Rehearing En

Banc and the responses thereto have been circulated to

the full court. The taking of a vote was requested.

Thereafter, a majority of the judges of the court in

regular active service did not vote in favor of the

suggestion. Upon consideration of the foregoing, it is

ORDERED that the suggestion be denied.

SILBERMAN, Circuit Judge, dissenting from the

denial of rehearing en banc:

The panel’s reliance on the nondelegation doctrine to

reject EPA’s interpretation of section 109 of the Clean

Air Act is rather ingenious, but I regret that it seems to

me to be fundamentally unsound. I do not think that

doctrine can be employed to force an agency to narrow

a broad legislative delegation from Congress.

The doctrine, as Judge Tatel in dissent pointed out,

American Trucking Associations v. EPA, 175 F.3d

1027, 1057-58 (D.C. Cir. 1999) (“ATA”) (Tatel, J., dis-

senting in part), is at this stage of constitutional

“evolution” not in particularly robust health. Justice

Rehnquist heroically attempted to inject vitality into

the doctrine in his powerful concurrence in the Benzene

case, see Industrial Union Dep't, AFL-CIO v. Ameri-

can Petroleum Inst., 448 U.S. 607, 671 (1980). But, sad

to say, his view is not shared by a majority of the Court

which has acknowledged only a theoretical limitation on

the scope of congressional delegations to the executive

branch. See Mistretta v. United States, 488 U.S. 361,

416 (1989) (Scalia, J., dissenting) (“What legislated stan-

dard, one must wonder, can possibly be too vague to

93a

survive judicial Scrutiny, when w

\ q e have re

held, in various contexts, a ‘public interest’ — A

plurality opinion (not, of course, an opini

, » ano

* would bind us) reveals that — — —

jain — tossed into the analysis, in light —

— — quist's concurrence, to help justify th

esult. The plurality, disturbed at the seemingly —

* *

* * of his interpretation of the statute

— —.— The latter concern is not really german ö

the oe indeed, the Secretary was actually —

ing he less discretion than the plurality thought he

plurality opinion gives

tion to the executive branch j

remain only diml -

7 I agree with Judge Tatel that —

section of the Clean Air Act does not come —

close to those boun 8 2 7

tional problem. daries to raise a serious constitu-

94a

case . has given way to the approach of Chevron.”

Slip Op. on Reh’g at 8. The Supreme Court’s opinion in

Rust v. Sullivan, 500 U.S. 178, 191 (1991), is to the

contrary. See also infra at 16 (Tatel, J., dissenting from

denial of rehearing en banc) (citing Mistretta, 488 US.

at 373 n. 7). In other words, the constitutional avoidance

canon trumps Chevron deference. But that principle is

not relevant to this case. Even assuming the statute

was problematic, the panel was not faced with two

competing constructions, one of which might be thought

to avoid constitutional difficulty. Indeed, the panel

concluded that there are no intelligible principles “ap-

parent from the statute” that brought EPA’s discretion

within constitutionally acceptable limits. ATA, 175

F.3d at 1034. If the panel believed that was so, it

should have held the statute unconstitutional. Instead

the panel, purporting to rely on Chevron, remanded to

EPA directing that agency to come up with an artifi-

cially narrow interpretation with various suggestions

offered by the panel to accomplish that end. Id. at

1038-40. By so doing, I believe the panel undermines

the purpose of the nondelegation doctrine.

That purpose is, of course, to ensure that Congress

makes the crucial policy choices that are carried into

law. The ability to make those policy choices (even if

only at a broad level of generality) is what is meant by

legislative power. See U.S. Const. art. I, § 1 (“All

legislative Powers herein granted shall be vested in a

Congress of the United States.”). It hardly serves—

indeed, it contravenes—that purpose to demand that

1 Like the plurality opinion in Benzene, these suggestions seem

more directed to encouraging wiser policy choices than inter-

preting the statute at issue.

95a

EPA! .

g — in * draft a different, narrower version of the

pepe et. Under that view Congress would be

elegate almost limitless policymaking authority

to an agency, so lon

: , g as the :

sistently applies an “intelligi ble, — and con-

That is not to say that EPA ĩs totall reise

— — at any point on the — con-

* * Congress delegated to it in the Clean Air

— — — trative Procedure Act’s arbitrary and

we have observed = Ar tha — —

* 4 =

2 delegation the more likely that the — —

ices will be confined by the APA, rather ih ag the

able, in accordance with th

in ac e APA’s general i

na capricious standard, or whether itis to be —

> a interpretation of the statute vel non

pends, at least theoretically, on the scope of the

1038 (citing Amalgamated Meat

Cutters v. C

— —ͤ— arsine

8 s primary function of i

— cp Areva bh, died airden cms

purpose, see id., nnecti octrin

Pea Mh ne nerd that has any co on to the doctrine’s

3 It is true that we used imi roach ‘ustrial

à similar a i }

jag A ae 227 — 709858 520 — (D.C.

rests on a similarly flawed analysis of the doetray. *

96a

ion impli ). In that

i ional delegation implicated. ).

— —— whether EPA's ä

choice meets that test. Judge Tatel’s — —

agency's extensive ————

he question. It would not matte —

— Secale adhered to a disciplined a

— process,” ATA, 175 F.3d at 1059, if its fin

product was unreasonable. If we were to rehear the

case, I would focus on that issue.

Doctrine aside, then, what is the +4 —

between my approach and the panel’s? . e an to

think, is that the panel engages—and y r

jurisdiction promises to continue to — +

1057—in a more — — * — ed

and capricious standard would permit. B. oe

tutory interpretation question

—— — the panel 1 a

greater role for a reviewing court than is jus >

* * *

I respectfully dissent from our denial of rehearing en

banc.

97a

TATEL, Circuit Judge, with whom HARRY I.

EDWARDS, Chief Judge, and GARLAND, Circuit Judge,

join, dissenting from the denial of rehearing en banc:

In explaining why they remain convinced that the

Clean Air Act contains an unconstitutional delegation of

legislative power, my colleagues merely repeat that

EPA has failed to articulate a sufficiently limiting prin-

ciple. See Slip Op. on Reh’g at 6-7. They then launch

into a discussion of the proper remedy once a court

encounters a problematic legislative delegation and

conclude that “the approach of the Benzene case . =

has given way to the approach of Chevron.” Slip Op. on

Reh’g at 8. But see supra at 14-15 (Silberman, J., dis-

senting from the denial of rehearing en banc); Mistretta

v. United States, 488 U.S. 361, 373 n.7 (1989) (“In recent

years, our application of the nondelegation doctrine

principally has been limited to the interpretation of

statutory texts, and more particularly, to giving narrow

constructions to statutory delegations that might other-

wise be thought to be unconstitutional. See, e. g., [the

Benzene case. ]“).

The issues discussed by my colleagues have no

relevance to the constitutional question we face. As I

pointed out in my dissent, the Clean Air Act’s require-

ment that EPA set air quality standards “requisite to

protect the public health” with “an adequate margin of

safety” based on criteria that “accurately reflect the

latest scientific knowledge” is far more specific than the

Sweeping statutory delegations consistently upheld by

the Supreme Court for more than sixty years. 42

U.S.C. § 7409(b)(1), § 7408(a)(2). See, e. g., National

Broadcasting Co. v. United States, 319 U.S. 190, 225-26

(1943) (upholding delegation to the FCC to regulate

98a

broadcast licensing in the “public interest”); American

Trucking Associations, Inc. v. EPA, 175 F.3d 1027,

1057-58 (D.C. Cir. 1999) Tatel, J., dissenting in part)

(collecting cases). In language particularly relevant to

the highly technical and scientific process of setting

national ambient air quality standards, the Supreme

Court in Mistretta said this about the nondelegation

doctrine: I Olur jurisprudence has been driven by a

practical understanding that in our increasingly com-

plex 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.” 488 U.S. at 372. Such extensive

and unambiguous Supreme Court precedent is more

than enough to sustain the Clean Air Act’s delegation of

authority to the EPA. For purposes of constitutional

analysis, we thus have no need to require that EPA

state “a far more determinate basis for decision”

beyond the intelligible principle Congress provided in

the Clean Air Act. ATA, 175 F.3d at 1037. Nor have

we any reason to consider what remedies might be

available were we faced with a statute that failed to

meet constitutional standards. Unless petitioners can

persuade the Supreme Court to return to the days of

Schechter Poultry, this “inferior” court has no authority

to demand anything more from either EPA or

Congress.

Neither American Lung Ass n v. EPA, 134 F.3d 388

(D.C. Cir. 1998), nor the Benzene case, both heavily

relied upon by petitioners in their opposition to the

suggestion for rehearing en banc, supports the panel’s

opinion. No one in American Lung doubted the consti-

tutionality of section 109’s directive that EPA establish

NAAQS “requisite to protect the public health.” Ap-

99a

2 7 familiar arbitrary and capricious standard

je — hey . Ageney, in setting the sulfur

ide , ailed ad t in i

application of section 109. ry — he — 184

harm.” 448 U.S. at 641. In su rt of this i

— — pointed to the — — N

— — history, see id. at 642-45, adding that a

— * might“ amount to an unconstitutional

— gation, id. at 646. The conclusion that Congress

— — — — 1 — to OSHA to

0 a 0 hardly supports th

panel's holding that Congress —— .

delegate authority to EPA to — NA 2

1 the public health a standard more restri

0 than the one the Supreme Court deri d 0

approved in the Benzene case. nen

The panel’s nondelegation holdi j i

question of exceptional — —

— 2 R. App. P. 350 a). Not only did the panel

—— m a half century of Supreme Court separa-

—— Powers Jurisprudence, but in doing so, it

stripped the Environmental Protection Agency of much

100a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1440

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

U.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

Nos. 97-1440, 97-1546, 97-1548, 97-1551 to 97-1553,

97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,

97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,

97-1582,97-1585 to 97-1588, 97-1592,

97-1594, 97-1596 to 97-1598

97-1441

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

PETITIONERS

U.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

101a

Nos. 97-1441, 97-1502, 97-1505, 97-1508

| , 97-1508 to 97-1510,

97-1512 to 97-1514, 97-1518, 97-1519, 97-1526, 97-1531

97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,

97-1584, 97-1589, 97-1591, 97-1595, 97-1619

On Respondent EPA’s Suggestion for Reheari

En Bane

[Filed October 29, 1999]

BEFORE: EDWARDS, Chief Judge; WALD, S

* I , ILBER-

MAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON

— ROGERS, TATEL and GARLAND, Cireuit

Circuit Judges WALD and KARE RAFT

N

HENDERSON did not participate in this —

ORDER

PER CURIAM

Upon consideration of the petitions for reheari

banc of intervenors-respondents New Jersey —

sachusetts in Nos. 97-1440 and 97-1441, Citizens for

Balanced Transportation, et al. in No. 97-1440 and the

oo — 2 — — in Nos. 97-1440 and 97.

. e absence of a request b

the court for a vote, it is ee

ORDERED that the petitions be denied.

102a

APPENDIX C

The final rule revising the National Ambient Air

Quality Standards for Particulate Matter provides:

Therefore, 40 CFR Chapter I is amended as

follows:

PART 50—NATIONAL PRIMARY AND SECONDARY

AMBIENT AIR QUALITY STANDARDS

R * *

4. Section 50.7 is added to read as follows:

§ 50.7 National primary and secondary ambient air

quality standards for particulate matter.

(a) The national primary and secondary ambient air

quality standards for particulate matter are:

(1) 15.0 micrograms per cubic meter (ug/m*) annual

arithmetic mean concentration, and 65 pg/m* 24-hour

average concentration measured in the ambient air as

PM, (particles with an aerodynamic diameter less than

or equal to a nominal 2.5 micrometers) by either:

(i) A reference method based on Appendix L of this

part and designated in accordance with part 53 of this

chapter; or

(ii) An equivalent method designated in accordance

with part 53 of this chapter.

(2) 50 micrograms per cubic meter (ug/m*) annual

arithmetic mean concentration, and 150 g/m 24-hour

average concentration measured in the ambient air as

103a

PMio (particles with an aerodynamic diameter less than

or equal to a nominal 10 micrometers) by either:

(i) A reference method based on Appendix M of this

part and designated in accordance with part 53 of this

chapter; or

(i) An equivalent method designated in accordance

with part 53 of this chapter.

(b) The annual primary and secondary PM,, stan-

dards are met when the annual arithmetic mean concen-

tration, as determined in accordance with Appendix N

of this part, is less than or equal to 15.0 micrograms per

cubic meter.

(c) The 24-hour primary and secondary PM,, stan-

dards are met when the 98th percentile 24-hour concen-

tration, as determined in accordance with Appendix N

of this part, is less than or equal to 65 micrograms per

cubic meter.

(d) The annual primary and secondary PM,, stan-

dards are met when the annual arithmetic mean concen-

tration, as determined in accordance with Appendix N

of this part, is less than or equal to 50 micrograms per

cubic meter.

(e) The 24-hour primary and secondary PM,, stan-

dards are met when the 99th percentile 24-hour concen-

tration, as determined in accordance with Appendix N

of this part, is less than or equal to 150 micrograms per

cubic meter.

R * *

62 Fed. Reg. 38,711 (July 18, 1997).

104a

APPENDIX D

The final rule revising the National Ambient Air

Quality Standards for Ozone provides:

Therefore, for the reasons set forth in the preamble,

title 40, chapter I, part 50 of the Code of Federal

Regulations is amended as follows:

PART 50—NATIONAL PRIMARY AND SECONDARY

AMBIENT AIR QUALITY STANDARDS

R * *

3. Section 50.10 is added to read as follows:

§ 50.10 National 8-hour primary and secondary ambient

air quality standards for ozone.

(a) The level of the national 8-hour primary and

secondary ambient air quality standards for ozone,

measured by a reference method based on Appendix D

to this part and designated in accordance with part 53

of this chapter, is 0.08 parts per million (ppm), daily

maximum 8-hour average.

(b) The 8-hour primary and secondary ozone

ambient air quality standards are met at an ambient air

quality monitoring site when the average of the annual

fourth-highest daily maximum 8-hour average ozone

concentration is less than or equal to 0.08 ppm, as

determined in accordance with Appendix I to this part.

R * *

62 Fed. Reg. 38,894 (July 18, 1997).

105a

APPENDIX E

Section 107(d) of the Clean Air Act provides:

§ 7407. Air quality control regions

E * „ „„ &

(d) Designations

(1) Designations generally

(A) Submission by Governors of initial des

ignations

following promulgation of new or revised standards

By such date as the Administrator may reasonabl

require, but not later than 1 year after — of

a new or revised national ambient air quality standard

for any pollutant under section 7409 of this title, the

Governor of each State shall (and at any other time the

Governor of a State deems appropriate the Governor

may) submit to the Administrator a list of all areas (or

portions thereof) in the State, designating as—

(i) nonattainment any area that does not m

’ eet

(or that contributes to ambient air quality in a

nearby area that does not meet) the national pri-

mary or secondary ambient air qualit

the pollutant, q y standard for

(ii) attainment, any area (other than an area

identified in clause (i)) that meets the national pri-

mary or secondary ambient air qualit

the pollutant, or . 5

(iii) unclassifiable, any area that cannot b

classified on the basis of available information —

meeting or not meeting the national primary or

106a

secondary ambient air quality standard for the

pollutant.

The Administrator may not require the Governor to

submit the required list sooner than 120 days after

promulgating a new or revised national ambient air

quality standard.

(B) Promulgation by EPA of designations

i) Upon promulgation or revision of a national

IX — — standard, the Administrator shall

promulgate the designations of all areas (or portions

thereof) submitted under subparagraph (A) as expedi-

tiously as practicable, but in no case later than 2 years

from the date of promulgation of the new or revised

national ambient air quality standard. Such period may

be extended for up to one year in the event the Ad-

ministrator has insufficient information to promulgate

the designations.

** * * *

(C) Designations by operation of law

(i) Any area designated with respect to any air

pollutant under the provisions of paragraph (1)(A), (B),

or (C) of this subsection (as in effect immediately before

November 15, 1990) is designated, by operation of law,

as a nonattainment area for such pollutant within the

meaning of subparagraph (A)(i).

(ii) Any area designated with respect to any air

pollutant under the provisions of paragraph (DE) (as in

effect immediately before November 15, 1990) is desig-

nated by operation of law, as an attainment area for

107a

such pollutant within the meaning of subparagraph

(A)(ii).

(ili) Any area designated with respect to any air

pollutant under the provisions of paragraph (1)(D) (as in

effect immediately before November 15, 1990) is

designated, by operation of

This text is long and has been trimmed here. Open the source document for the complete record.