Opposition Brief — Whitman v. American Trucking Assns., Inc.

Supreme Court, U5. |

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Nos. 99-1257, 99-1263, 99-1265, 99-1426, 99-1431, 99-1442 |

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In The Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL..,

Conditional Cross-Petitioners,

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Conditional Cross-Respondents.

On Conditional Cross-Petitions For A Writ Of Certiorari To The

United States Court of Appeals For The District Of Columbia Circuit

BRIEF OF STATE RESPONDENTS IN SUPPORT OF ATA

AND CAA INDUSTRY'S CONDITIONAL

CROSS-PETITIONS

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

FRANK J. REED, JR.

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Flr.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

*Counsel of Record

| Additional Counsel Listed on Inside Cover]

-

MARK J. RUDOLPH

Deputy Chiet

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hanstord Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan

QUESTION PRESENTED

Whether the Clean Air Act requires that the Environmental

Protection Agency must, in setting national air quality

standards, ignore all factors “other than health effects relating

to pollutants in the air,” given that consideration of such

factors would permit both the Agency and reviewing courts

to avoid confronting constitutional nondelegation issues.

TABLE OF CONi ENTS

Page

QUESTION PRESENTED. ........ccccccccsssccrescccsscccccsscccccsesesesees i

TABLE OF AUTHORITIES ....-cccccccscccscccsssccscvcccccccccccsrcees iil

REASONS FOR GRANTING THE

CONDITIONAL CROSS-PETITIONS................005 2

A. This Court Should Avoid Consideration Of The

Non-Delegation Issue By Resolving The

Statutory Cost-Benefit Issue. ............ccccccceeeeneeeeeeeees 4

B. This Court Should Resolve The Impasse Created

For EPA And The States By The District of

Columbia Circuit's Holding That EPA Cannot

Consider Costs When Setting A NAAQS. .............. 8

wk This Court Should Reconcile The Conflicting

Holdings By The District Of Columbia Circuit

Regarding An Administrative Agency's Authority

To Consider Factors Not Mentioned Explicitly In

The Enabling Legislation. .............ccccceecseeeeereeeeeeeees 9

I eccccccecesesesesceseccrscvsesesccosessussssssnsnesssssseseesees 14

ili

TABLE OF AUTHORITIES

Page

CASES

American Petroleum Inst. v. Costle,

665 F.2d 1176 (D.C. Cir. 1981)..............ccccccceeeeeees 10

American Petroleum Inst. v. U.S. EPA,

ee 10

American Trucking Associations, Inc. v.

U.S. EPA, 175 F.3d 1027, modified, 195 F.3d 4

A Ee ee l

Ashwander v. TVA,

EET csstcnnatneninnininnetenstneinnimadineiiontel 4

Chevron U.S.A. v. NRDC,

Se ee Ia icisciccricitnensestaniietniapnsiiaivesiiesnineemanmetanens 7

Ethyl Corp. v. U.S. EPA,

Pe ee Se is Git: SI Rccnreccssscscstecenscsconsties 11

George E. Warren Corp. v. U.S. EPA,

Fae i Ps Gs Di Recccececcccocessessacsvssccoees 11

Gomez v. United States,

4 ae 4

Grand Canyon Air Tour Coalition v. FAA,

TT V1

Lead Industries Ass'n. v. U.S. EPA,

647 F.2d 1130 (D.C. Cir. 1980)...................2.. passim

Michigan Department of Environmental

Quality v. U.S. EPA,

2000 U.S. App. LEXIS 3209

Ee passim

Natural Resources Defense Council v. U.S.

EPA, 824 F.2d 1146 (D.C. Cir.1987) ............. passim

iV

TABLE OF AUTHORITIES - Continued

Page

Natural Resources Defense Council v. U.S.

EPA, 902 F.2d 962 (D. C. Cir. 1990) ...............000008 10

Natural Resources Defense Council v. U.S.

EPA, 937 F.2d 641 (D.C, Cir, 1991) ............. 11, 12

Union Electric Co. v. U.S. EPA,

EE 10

STATUTES

Clean Air Act §107;

| ke eT 8

Clean Air Act §108(b);

(og) oy EE 8

Clean Air Act, §109(b);

G2 UDA. FEO cececeecccscevecccsvscccssessssssesesesoues passim

Clean Air Act, §109(b)( 1);

(| ky a AS

Clean Air Act §1 10;

| Tene 8

Clean Air Act §1 12;

le, neurone enone 11

Clean Air Act §211;

ST III: TTD -sctnsrsnrepseusdanepanennmnantentiatiinbimienasands 1]

Clean Air Act §307(b)(1);

pe | a A

Clean Air Act §307(d)(1);

Be is SEE OD ccccncensevnsensecessensensnsnsestemmanesnenens 7

Clean Air Act §307(s);

ly er 7

V

TABLE OF AUTHORITIES - Continued

FEDERAL REGISTER

62 Fed. Reg. at 38,688 (July 18, 1997). ccccccceceeeeeeees 4

62 Fed. Reg. at 38,883 (July 18, 1997) ....ccccccccccccceeseeeeees 4

62 Fed. Reg. at 38,863/3 (July 18, 1997). ccececeeeeeees 5

MISCELLANEOUS

Letter from Dr. George T. Wolff, Chair CASAC, to

Hon. Carol M. Browner (Nov. 30, 1995) Ozone

JA 237, OAQPS Staff Paper, PMJA 2068............... 4

Appalachian Power Company, et al. and American

Trucking Associations, Inc., et al. (*CAA Industry and ATA

conditional cross-petitioners” or “conditional cross-

petitioners”) have submitted Conditional Cross-Petitions in

this case, which arises from petitions for writ of certiorari to

review American Trucking Associations, Inc. v. U.S. EPA,

175 F.3d 1027, modified, 195 F.3d 4 (D.C. Cir. 1999). The

Conditional Cross-Petitions concern the scope of authority of

the United States Environmental Protection Agency (“EPA”

or “the Agency”) to promulgate or revise a National Ambient

Air Quality Standard (“NAAQS” or “standard”) under the

Clean Air Act (“CAA” or “the Act”). At issue in EPA’s

petition is whether the Act as construed by EPA creates an

excessive delegation of rulemaking authority. The

conditional cross-petitioners argue that, if the Court grants

review to consider the delegation issue, the Court should also

review the related question whether the statute has been

properly construed to prevent EPA from considering the

costs, as well as the benefits, of regulation.

Respondent States of Michigan and West Virginia

. Oppose question one, and all three Respondent States oppose

questions two and three of EPA’s petition for certiorari. See,

Respondent States’ Brief in Opposition to Petitions for

Certiorari. At the same time, however, Respondent States

agree with conditional cross-petitioners’ Conditional Cross-

Petitions, urging this Court, if it crants certiorari on any of

these questions, to also grant certiorari on the issue of

whether EPA is authorized to consider factors other than

health in setting or revising a standard under Section 109(b)

of the Clean Air Act, 42 U.S.C. 7409(b); EPA App. II 1a. '

' Respondent States of Ohio, Michigan and West Virginia do not support

the cross-petition of Citizens for Balanced Transport.

2

REASONS FOR GRANTING THE

CONDITIONAL CROSS-PETITIONS

The Clean Air Act provides that the only mechanism

for review of ambient air standards is to petition in the

District of Columbia Circuit. CAA §307(b)(1); 42 U.S.C.

7607(b)\(1). Review by this Court is, therefore, the only

procedure by which to correct a long-standing erroneous

decision by the District of Columbia Circuit on EPA’s

consideration of costs in setting ambient standards under the

Clean Air Act. In addition, a correct interpretation of EPA’s

authority under the Act will avoid altogether the need to

reach the nondelegation issue in the first question presented

of EPA’s petition.

The case below represents the latest in a line of cases

from the D.C. Circuit, following Lead Industries Ass'n. v.

U.S. EPA, 647 F.2d 1130 (D.C. Cir. 1980)(“Lead

Industries”), and holding that the EPA is bereft of discretion

to consider the social, economic and environmental costs of,

as well as the public health benefits of, a standard under

Section 109. Lead Industries was wrongly decided,

primarily because the language of Section 109 and related

sections indicates that EPA has the authority to consider

factors other than health when setting an air standard. Under

Section 109, “ambient air quality standards” are set, “the

attainment and niaintenance 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); EPA App. 11 la (emphasis

supplied). The word “criteria” refers to Section 108; Section

108(a) includes a non-exclusive list of factors for setting

criteria, and Section 108(b) requires EPA to collect

information on cost and technological _ feasibility

simultaneously with establishing a standard. In addition,

Congress's direction in Section 109(d)(1) that EPA revise

standards “as may be appropriate” in accordance with

3

Section 109(b) and Section 108, gives EPA discretion to

consider factors such as costs. Finally, Section 109(d)(2)(c)

requires an “independent scientific review committee” to

advise the Administrator of any “adverse public health,

welfare, social, economic or energy effects” that may result

from revision of a standard. Lead Industries and its progeny

were, therefore, wrongly decided.

In fact, the Lead Industries line of cases, including

the case below, seemingly contradicts other cases from the

District of Columbia Circuit interpreting other, similar

provisions of the Act, as well as other administrative

decisions. See Michigan Department of Environmental

Quality v. U.S. EPA, 2000 U.S. App. LEXIS 3209 (D.C. Cir.

2000) (“NOx SIP call”); Natural Resources Defense Council

v. U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (“Vinyl

Chloride”). This Court can correct that conflict.

But perhaps most important to the Respondent States,

this Court must overrule the D.C. Circuit's erroneous holding

because its (and EPA’s) interpretation of Section 109

potentially puts the States into an impossible box. Sections

108 and 110 of the Act, under recent D.C. Circuit decisions,

require the States to consider economic and technological

feasibility when implementing a standard for non-threshold

pollutants, but the lower court’s interpretation of Section 109

in this case precludes EPA from doing so. 175 F.3d at 1041;

EPA App. 20a-2la. This interpretation creates a potential

impasse between EPA and the States in implementing an air

standard, The EPA, armed with complete discretion over a

non-threshold pollutant and unable to consider economic or

technological feasibility, could set a standard that its own

data might demonstrate is realistically impossible for the

States to achieve when cost and available technology are

considered.

4

In order to resolve this impasse, if the Court grants

certiorari in one or more of the petitions submitted in this

case, it should also grant certiorari to the Conditional Cross-

Petitions of the CAA Industry and ATA conditional cross-

petitioners. In addition, the proper interpretation of Section

109 will preclude consideration of the delegation issue.

A. The Court Should Avoid Consideration Of The

Non-Delegation Issue By Resolving The Statutory

Cost-Benefit Issue.

As this Court has made clear on numerous occasions,

it is the “settled policy to avoid an interpretation of a federal

statute that engenders constitutional issues if a reasonable

alternative interpretation poses no constitutional question.” |

Gomez vy. United States, 490 U.S. 858, 864 (1989);

Ashwander v. TVA, 297 U.S. 288, 346-48 (1936) Brandeis,

J., concurring). This case presents just such a situation. As

demonstrated below, if the Court grants certidrari on the first

question presented in EPA's petition, it should resolve the

case by granting and resolving the issue presented in the

Conditional Cross-Petitions, and avoiding the constitutional

nondelegation issue presented by EPA.

The lower court correctly found that EPA has failed

to find an “intelligible principle” for selecting a standard for

ozone. 175 F.3d at 1034; EPA App. Sa. It therefore

correctly remanded the revised standard to the EPA “to give

the agency an Opportunity to extract a determinate standard

on its own.” 175 F.3d at 1038; EPA App. I4a. However, in

* The Respondent States focus here on the ozone standard. However,

most of the statements made for ozone apply equally to the standard tor

coarse and fine particulate matter (PM), and PM,). See, e.g., 62 Fed.

Reg. at 38,688 uly 18, 1997) (PM); 62 Fed. Reg. at 38.883 (uly 18,

1997) (ozone); Letter from Dr. George T. Wolff, Chair CASAC, to Hon,

Carol M. Browner (Nov. 30, 1995), Ozone JA 237, OAQPS Staff Paper,

PMJA 2068.

5

so doing, it was constrained by Lead Industries to deny EPA

the one tool that would most help the Agency in selecting an

ozone standard: cost-benefit analysis.

Ozone is a “non-threshold” pollutant; that is, there is

no threshold amount, above which deleterious health effects

- are certain, and below which no or few health effects are

known. As the lower court stated, “EPA regards ozone

definitely, and PM likely, as non-threshold pollutants, i.e.

ones that have some possibility of some adverse health

impact (however slight) at any exposure level above zero.”

175 F.3d at 1034 (EPA App. 5a), citing Ozone Final Rule, 62

Fed. Reg. at 38,863/3 (July 18, 1997). See also Vinyl

Chloride, 824 F.2d at 1148 (a “non-threshold” pollutant is

one which “appears to create a risk to health at all non-zero

levels of emission”). Cf. Lead Industries, 647 F.2d at 1137-

41 (discussing various thresholds for lead exposure used to

support the air standard for lead). The court below also noted

that “the only concentration for ozone . . . that is utterly risk-

free, in the sense of direct health impacts, is zero.” 175 F.3d

at 1034; EPA App. 6a.

In the absence of a health threshoid for a pollutant, it

is not surprising that EPA has difficulty articulating an

“intelligible principle” based on health alone for its ozone

standard, as any presence of the pollutant presents some

threat to health. As the lower court stated, all the relevant

variables related to health with regard to ozone “seem to

range continuously from high to low.” 175 F.3d at 1039;

EPA App. 16a. Despite this acknowledgment, the lower

court insists that EPA should be able to develop some health-

based principle by which a standard can be developed. 175

F.3d at 1039; EPA App. I6a. And, also despite this

acknowledgment, the lower court insists on its interpretation

of Section 109(b), first articulated in Lead Industries, that

EPA is barred from considering any factor other than health.

175 F.3d at 1038; EPA App. I4a-15Sa.

lronically, the model suggested by the D.C. Circuit

for EPA’s use in “building blocks for a principled structure”

is the Oregon plan for health care for the poor, This plan

involves a ranking of treatments by a measure of the amount

of improvement in health divided by the cost of the treatment.

175 F.3d at 1039; EPA App. l6a-17a. In other words, the

principal model suggested by the lower court for EPA to

follow in developing an “intelligible principle” for the ozone

standard is itself a cost-benefit analysis.

Another alternative suggested by the lower court is

for EPA to “report to Congress, along with such rationales as

it has for the levels it chose, and seek legislation ratifying its

choice.” /d.; EPA App. 18a. And indeed, if Lead Industries

is correct, returning to Congress may be EPA's only legal

alternative.

The interpretation of Section 109(b) of the Act

suggested by EPA and supported by the lower court logically

requires only one of two equally untenable results. The first

is that EPA has no discretion and must set the standard for a

non-threshold pollutant at zero. The second is that because no

factor other than direct health effects can be considered, EPA

has complete discretion to select any standard for a non-

threshold pollutant. 175 F.3d at 1038; EPA App. I4a.

The first’ possible result of the lower court's

interpretation of Section 109 for a aon-threshold pollutant is

both untenable and inconsistent with Congress's intent. If

health is truly the only factor to be considered, then the only

way to prevent any risk of direct adverse health effects is to

set the standard at zero. “Thus the only concentration for

ozone and PM that is utterly risk-free, in the sense of direct

health impacts, is zero.” 175 F. 3d at 1034; EPA App. Sa.

;

Of course, consideration of health as a criterion does

not necessarily mean that the concentration chosen should be

“utterly risk free.” But “for EPA to pick any non-zero level

it must explain the degree of imperfection permitted.” 175

F.3d at 1034; EPA App. 6a. All of EPA’s stated criteria are

vague references to “the nature and severity” of health

effects, “the size of the sensitive populations at risk,” and the

“kind and degree of uncertainties. that must be addressed.”

175 F.3d at 1034-35; EPA App. 6a-7a, citing Ozone Final

Rule, 62 Fed. Reg. at 38,883/2.

Aside from their vagueness, these factors do not

provide a principled method for drawing a line identifying a

level of air quality that is “requisite” to protect the “public

health.” How many deaths or adverse affects in the

“sensitive population” is EPA willing to tolerate in the name

of “public health’? How severe must a “health effect” be for

EPA to consider it in setting a NAAQS designed to protect

the “public health”? If direct health risks alone are to be

considered, there simply is no principled way to draw a line,

below which the effects are acceptable from a “public health”

standpoint, and above which they are not. As a consequence,

if factors other than direct health effects may not be

considered, it is impossible to articulate or discern an

intelligible principle for establishing a standard, at any level

other than zero, for a non-ihreshold pollutant.

EPA’s NAAQS determinations, as with all agency

determinations, are subject to judicial review under the

standard articulated in Chevron U.S.A. v. NRDC, 467 U.S.

837 (1984). CAA §307(b)(1), (dl), (s); 42 U.S.C.

7607(b)(1), (d)C1), (s); EPA App. 120a-21a. Under a non-

zero-risk regime with direct health risk as the only criterion,

EPA must pull a number out of tiin air in setting a standard

for ozone. As there is complete discretion in setting a

standard under this theory, it is impossible for EPA to

commit an abuse of discretion. This renders the standard

8

essentially unreviewable by the courts. Although the

Chevron analysis is ¢eferential to administrative agencies, it

does not allow the agency complete and unreviewable

discretion in its interpretation of acts of Congress.

The dilemma produced by Lead Industries and EPA’s

standardless assertion of authority is what led the D.C,

Circuit to invoke the nondelegation doctrine. As the ATA

conditional cross-petitioners pointed out, the D.C. Circuit

was bound by the Lead Industries precedent to preclude

EPA’s consideration of cost under Section 109, and the only

alternative is permitting EPA a boundless (and therefore

unconstitutional) discretion. This Court is not bound by

Lead Industries, and can resolve the case without reaching

the nondelegation doctrine, by construing Section 109 to

permit consideration of other factors.

B. This Court Should Resolve The Impasse Created

For EPA And The States By The District of

Columbia Circuit’s Holding That EPA Cannot

Consider Costs When Setting A NAAQS.

The lower court’s decision also places the States in a

potentially impossible position. Under the Act, after EPA

sets a standard for a particular pollutant, each State is

required to develop a state implementation plan (“SIP”) for

that pollutant. CAA §110; 42 U.S.C. 7410. Indeed, the State

is primarily responsible for enforcing a standard. CAA §107;

42 U.S.C. 7407. EPA is required to gather and issue to the

States:

information on air pollution control techniques,

which information shall include data relating to

the cost of installation and operation, energy

requirements, emission reduction benefits, and

environmental impact of the emission control

technology.

CAA §108(b); 42 U.S.C. 7408(b). In other words, EPA is to

gather and provide data to the States on the economic and

technological costs of implementing the standard. The lower

court has held that this provision of Section 108 does not

require or allow EPA to consider costs and benefits in setting

a standard. 175 F.3d at 1041; EPA App. 20a.

If this interpretation is correct, then EPA is free to set

the standard for a particular pollutant without considering its

cost and EPA could set a standard. that in practical terms, is

impossible to implement because of its costs. The States

would be left “holding the bag”: required to attain the

standard by a specific deadline through their implementation

plans, while considering costs of implementation, but faced

with an arbitrarily-set and non-cost-effective standard.

This Court's review is necessary to alleviate the

potential for the States to be placed in an untenable position

under this regime--a regime that forces States to impose

controls to abate theoretical health risks without promoting

the “public health” of its population.

C. This Court Should Reconcile The Conflicting

Holdings By The District Of Columbia Circuit

garding An Administrative Agency’s Authority

Yo Consider Factors Not Mentioned Explicitly In

The Enabling Legislation.

Under Section 109(b) of the Act, the EPA is to set air

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). Once a

standard is set, the EPA must review it periodically, and

revise it as appropriate under Sections 108 and 109(b).

10

The D.C. Circuit first considered the scope of EPA’s

authority with regard to the language of Section 109(b) in

Lead Industries. In Lead Industries, the court reviewed the

contention by petitioners in that case that the EPA was

required by the language of the statute to consider economic

and technological feasibility in setting air quality standards

for lead. 647 F.2d 1148. However, the court went beyond

what was necessary to decide that issue, and held that not

only was EPA not required to consider economic and

technological factors, but that it was precluded from doing

so. 647 F.2d 1148.

The erroneous dictum has been cited on several

occasions since Lead Industries, and indeed expanded since

Lead Industries, to preclude EPA from using a number of

factors in determining a standard. For instance, the D.C.

Circuit held that in setting the standard for particulate matter,

the EPA was precluded from considering the health

consequences of unemployment. National Resources Defense

Council v. U.S. EPA, 902 F.2d 962, 972-73 (D.C. Cir. 1990).

In addition, the D.C. Circuit held that EPA could not

consider attainability and cost justifications for ozone

standards. American Petroleum Inst. v. Costle, 665 F.2d

1176, 1184-85 (D.C. Cir. 1981). And in dicta, the D.C.

Circuit stated that §109 does “not allow consideration of

technological or economic feasibility.” Vinyl Chloride, 824

F.2d at 1158-59.

The Lead Industries rationale was that where

Congress did not expressly and specifically provide for

consideration of cost or other factors, an agency was

forbidden from considering it. 647 F.2d at 1148. To be sure,

the courts have correctly held that where statutory language

articulates the factors relevant to an agency's decision, the

agency may not base its decision on other, irrelevant factors.

For example, in Union Electric Co. v. U.S. EPA, 427 U.S.

246 (1976), the Court found that a provision enumerating

eight criteria for consideration did not authorize

consideration of other criteria. /d. at 257. Similarly, in

American Petroleum Institute v. U.S. EPA, 52 F.3d 1113,

1119 (D.C. Cir. 1995), the lower court struck down EPA’s

decision to include the goal of ethanol market protection in

its promulgation of regulations under Section 211 of the

Clean Air Act, 42 U.S.C. 7545, a goal that could “possibly

make air quality worse.” According to the court, considering

this goal as the basis for the regulation did not square with

the statutory mandate to adopt performance standards that

reduce pollution. And in Ethyl Corp. v. U.S. EPA, 51 F.3d

1053 (D.C. Cir. 1995), the D.C. Circuit held that EPA’s

decision to deny a waiver based on health considerations

(rather than the statutorily-required criterion of whether an

additive caused or contributed to the failure of an emission

control device) was impermissible. See also NOx SIP call,

2000 U.S. App. LEXIS 3209, *93 (Sentelle, J., dissenting).

In contrast, broad statutory language directing EPA

to adopt rules that protect the “public health” with an

“adequate margin of safety,” and directing EPA to revise

standards as may be “appropriate,” does not preclude

consideration of any factor. Thus, another line of D.C.

Circuit cases holds that an agency can consider costs if not

expressly precluded from doing so by statutory language.

For instance, in Vinyl Chloride, 824 F.2d at 1155, 1163, the

D.C. Circuit held that Section 112, 42 U.S.C. 7412, which

requires EPA to set an air quality standard for hazardous

pollutants with an “ample margin of safety” to protect the

public health, did not preclude a consideration of costs.

And in George E. Warren Corp. v. U.S. EPA, 159 F.3d 616,

622-23 (D.C. Cir. 1998), the D.C. Circuit allowed EPA to

consider the effects of a proposed rule on the price and

supply of gasoline because there was nothing in the text or

structure of the statute to preclude it. In Grand Canyon Air

Tour Coalition v. FAA, 154 F.3d 455, 475 (D.C. Cir. 1998),

the FAA was permitted to consider costs in its plan for

12

“substantial restoration of the natural quiet,” even though

costs were not mentioned in the statute. And in National

Resources Defense Council v. U.S. EPA, 937 F.2d 641, 645

(D.C. Cir. 1991), the D.C. Circuit allowed EPA to use a

cost-benefit analysis in determining whether fugitive dust

from coal mines should count in identifying “major”

contributors to “significant deterioration” under Sections

160 et seq. despite the lack of statutory language

mentioning costs. As the D.C. Circuit observed only this

month in NOx SIP call, 2000 U.S. App. LEXIS 3209 at

*36-40, “[t}hese cases are unexceptional in their general

view that preclusion of cost consideration requires a rather

express congressional direction.’ ?

Therefore, in contradiction to the rationale in the

Lead Industries \ine of cases, the rationale in Vinyl Chloride

and similar cases is that where Congress does not enact

statutory language that precludes it, and where Congress in

fact enacts statutory language (¢.¢.. “ample margin of

safety”) that opens the door to cost considerations, an

administrative agency can consider cost. And where an

agency is confronted with cost arguments, and it has

discretion to consider them, it cannot lawfully ignore them.

Indeed, there is no principled reason why Section 109(b)

cannot be analyzed under Vinyl Chloride and similar cases,

rather than under the erroneous Lead Industries test. Several

of the cited cases involve similar statutory structures: “a

mandate directed to some environmental benefit,” “phrased

in general quantitative terms,” “and containing] not a word

alluding to non-health trade-offs.” Section 109 fits

comfortably into this structure. The language at issue in

Section 109 is as follows:

* Respondent States were among those who challenged EPA’s NOx SIP

call rule by asserting, among other claims, that costs were inappropriately

considered in the determination of significant contribution.

13

National primary ambient air quality standards, —

prescribed under subsection (a) of this section

shall be ambient 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 (emphasis added); EPA App. I Ila. The

examples of mandates “phrased in general quantitative

terms” given by the court in NOx SIP call include “ample

margin of safety,” “substantial restoration” and “major.”

The mandate in Section 109%(b), “an adequate margin of

safety,” is virtually identical to “ample margin of safety”

cited by the D.C. Circuit in NOx SIP call and analyzed by

that court in Vinyl Chloride. Like Vinyl Chloride and similar

cases, Section 109(b) itself does not, on its face, preclude

consideration of factors other than health. Therefore, under

the rationale of Vinyl Chloride and similar cases, Section

109%(b) allows EPA to consider cost in setting a standard,

because Congress has not expressly forbidden it, while under

the rationale of Lead Industries and progeny, Section 109(b)

precludes EPA from considering cost in setting a standard

because Congress does not expressly allow it.”

Lead Industries simply cannot be reconciled with the

Vinyl Chloride line of cases regarding the authority of an

administrative agency to consider a factor not expressly

mentioned in the statutory language. Given the D.C.

Circuit's reluctance to overturn Lead Industries, or otherwise

reconcile its own jurisprudence, and the potential for

avoiding the nondelegation issue, this conflict should be

resoived by this Court.

14 15

MARK J. RUDOLPH

Deputy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

CONCLUSION

For the foregoing reasons, the Court should grant the

Conditional Cross-Petitions if it grants certiorari on any form

of the first question presented in EPA’s petition.

*Counsel of Record

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

1356 Hansford Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

ELISE W. PORTER d THOMAS CASEY

FRANK J. REED, JR. : Solicitor General

Assistant Attorneys General ALAN F. HOFFMAN

PAMELA J. STEVENSON

Office of the Attorney General

30 East Broad Street, 17th Fir.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

| Additional Counsel Listed on Next Page]

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540 :

Counsel for Respondent State of Michigan