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

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

oO 9) FILED

Nos, 99-1257, 99-1263, 99-1P6 R26 7000

IN THE

Supreme Court of the United States

CaroL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ef al.,

Petitioners,

Vv.

AMERICAN TRUCKING ASSOCIATION, INC., ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN RESPONSE FOR RESPONDENTS

NATIONAL STONE ASSOCIATION AND

KENNECOTT HOLDINGS CORPORATION, ET AL.

MARCELLE SHOOP Kurt E. BLASE

Associate General Counsel (Counsel of Record)

KENNECOTT MICHAEL D. WHATLEY

8315 West 3595 South KILPATRICK STOCKTON LLP

P.O. Box 6001 700 13th Street, N.W.

Magna, Utah 84044-6001 Suite 800

(801) 252-3553 Washington, D.C. 20036

(202) 508-5800

March 28, 2000

|e I Sa NSS SS OPO PS I SSS DPSS

WILSON-Epes Paintine Co., Inc. - (202) 789-0096 - WAasHINGTON, D.C. 20001

IS¢ b-

PARTIES TO THE PROCEEDINGS

This Brief is filed on behalf of Respondents National

Stone Association, Kennecott Holdings Corporation, Ken-

necott Energy and Coal Company and Kennecott Services

Company. These Respondents were Petitioners in the

consolidated cases addressed by the Petitions for a Writ of

Certiorari to which this Brief responds, American Truck-

ing Ass’ns, Inc. v. United States Environmental Protec-

tion Agency, D.C. Cir. No. 97-1440 (and consolidated

cases). A complete list of the other parties to the pro-

ceedings below is provided in the Brief in Response for

the Respondents Appalachian Power Co., et al.

(i)

RULE 29.6 DISCLOSURE STATEMENT

1. Respondent National Stone Association (NSA) is

a national trade association representing the interests and

concerns of the aggregates industry. NSA has not issued

shares or debt securities to the public. NSA includes

over 700 member companies, which account for approxi-

mately 90% of the annual U.S. production of crushed

stone and approximately 70% of U.S. sand and gravel

production.

2. Respondents Kennecott Holdings Corporation, Ken-

necott Energy and Coal Company and Kennecott Services

Company have not issued shares or debt securities to the

public.

3. Rio Tinto ple, the indirect parent of the Kennecott

companies listed above, is a company incorporated under

the laws of the United Kingdom, whose shares are pub-

licly traded in the United States in the form of American

Depository Receipts. The principal market for Rio Tinto

PLC ordinary shares is the London Stock Exchange, with

ordinary shares also listed on the Amsterdam, Brussels,

Frankfurt, Paris and Swiss Exchanges. Rio Tinto’s princi-

pal business is mining.

TABLE OF CONTENTS

eee ee |

Ste Oe ee eee eee ee

INTRODUCTION

I. THE FINE PARTICLE RECORD AMPLY

SUPPORTS THE “NONDELEGATION”

SIUTIIITTIIIIITIT ‘ivcinhnesittaninieeciebatiaieniniihaninseadasidlabetdeteteemtassiainasn

Il. THE “NONDELEGATION” HOLDING IS

SUPPORTED BY THE GOVERNING STAT-

UTE AND THE DECISIONS OF THIS

COURT

CONCLUSION

eth LLL LLL LE LEE ETT Tee)

(iii)

TABLE OF AUTHORITIES

CASES

American Petroleum Inst. v. Costle, 665 F.2d 1176

§ > sehinieeeitimaaaataaniias

American Power & Light Co. v. SEC, 329 U.S. 90

EE ee re Se

American Trucking Associations, Inc. v. EPA, 175

F.3d 1027, modified, 195 F.3d 4 (D.C. Cir.

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)..

FDA v. Brown & Williamson Tobacco Corp., 529

ee ay CD cenrininitntiieientisnteeiiniinin

Industrial Union Dept., AFL-CIO v. American

Petroleum Institute, 448 U.S. 607 (1980) ........

Kennecott Copper Corp. v. EPA, 462 F.2d 486

Lead Industries Association, Inc. v. EPA, 647

Of OQ Sf GS Oa

Mistretta v. United States, 488 U.S. 361 (1989)...

Nebbia v. New York, 291 U.S. 502 (1934) ............

NRDC v. EPA, 902 F.2d 962 (D.C. Cir. 1990)...

STATUTES

Clean Air Act § 307(d)(9), 42 U.S.C. § 7607

ag § Ol

Pub. L. 105-178, 112 Stat. 463 (1990) 0.

FEDERAL REGISTER

62 Fed. Reg. 38,421 (July 18, 1997) .........-..

62 Fed. Reg. 38,655 (July 18, 1997) —...........-.......

62 Fed. Reg. 38,656 (July 18, 1997) —......................

62 Fed. Reg. 38,665 (July 18, 1997) —............-..

62 Fed. Reg. 38,674 (July 18, 1997) -.....................

LEGISLATIVE HISTORY

H.R. Rep. No. 95-294 (1977) .........---....-----ecceeecseee-ss

H.R. Rep. No. 95-564 (1977) ................--..-0-----c--00--0-

wo)

to * to to

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Abt Associates, “A Particulate Matter Risk Anal-

ysis for Philadelphia and Los Angeles,” pre-

pared for U.S. EPA, OAQPS, pp. 129-136 (July

3, 1996), EPA Docket No. A-95-54, R.Doc.II-

neers seteeehbditeaddiniai

Brief for Respondent United States Envi ental

Protection Agency at 75, American Trucking

Associations, Inc. v. EPA, 175 F.3d 1027 (D.C.

Cir. 1999) (No. 97-1440 and consolidated cases)

(filed August 5, 1998) 000000.

Letter from Dr. George T. Wolff, Chair, Clean Air

Scientific Advisory Committee, to Hon. Carol

M. Browner (June 13, 1996), PMJA 3167 ..........

Page

INTRODUCTION

This Brief responds to the various Petitions for a Writ

of Certiorari on portions of the Court of Appeals’ deci-

sion in American Trucking Associations, Inc. v. EPA,

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

These Respondents are interested primarily in the “non-

delegation” decision below with respect to the national

ambient air quality standards for fine particulate matter

(PM-2.5). They concur generally in the Brief filed by

Respondents Appalachian Power Co., et al., and join

those Respondents in urging the Court to deny certiorari

on the “nondelegation” issue and others presented in this

case. The purpose of this Brief is to provide the Court

with additional legal and factual support for the decision

of the Court of Appeals with respect to the fine particle

standards.!

I, THE FINE PARTICLE RECORD AMPLY SUPPORTS

THE “NONDELEGATION” HOLDING

In EPA’s Petition, the brief discussions of the basis for

the fine particle standards focus exclusively on the agency’s

decision that the prior standards did not provide adequate

protection. EPA Pet. 5, 11. Even that decision was sub-

ject to considerable scientific uncertainty, as EPA dis-

cussed in the preamble to the final rules.? Beyond that,

1In the decision on rehearing below, the Court of Appeals indi-

cated that it would defer to EPA’s response to the “nondelegation”

holding under this Court’s opinion in Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984). EPA App. 75a-7éa. Respondents

note this Court’s recent confirmation that under Chevron, the first

inquiry is whether Congress has spoken to the question at issue;

if so, the court must effect the unambiguous intent of Congress.

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. —— (2000).

As discussed below, Congress has expressed its intent unambigu-

ously in this case; EPA simply failed to follow it.

2See 62 Fed. Reg. 38,655-657 (1997). The agency’s scientific

advisers found that the relevant studies “provide ample reason to

be concerned,” but also urged that the studies “should be inter-

preted cautiously” as a result of the various uncertainties (62 Fed.

however, the effect Of the scientific uncertainties was

greatly magnified in the subsequent decision as -to the

level at which the new standards would be set. At that

point, it was simply not possible to choose the concen-

tration levels based on the science alone. Faced with

widespread scientific uncertainty, EPA not only failed to

articulate an intelligible principle to govern its decision,

but expressly rejected the principle that Congress intended

to be applied.

EPA’s discussion of the concentration levels for the

fine particle standards is a remarkable combination of

rejected options and conclusory explanations for the

chosen approach.* In attempting to justify the chosen

standards, EPA stated that the agency:

* sought “the requisite reduction of risk;”

* made “decisions on standard levels that would

reduce risk sufficiently to protect public health

with an adequate margin of safety;”

* adopted a “balanced view of the strengths and

uncertainties of the scientific information that re-

flects the intermediate approach;”

* “accurately reflected the bases for divergent views;”

* rejected fine particle protection equivalent to the

prior PM-10 protection;

Reg. 38,656, col. 3). Accordingly; the Administration delayed im-

plementation until after the first five-year review of the standards,

in the hope that pending research would provide some answers.

See 62 Fed. Reg. 38,421 (1997) (Presidential Memorandum). Con-

grezs ultimately ratified the President’s decision. See Pub. L. 105-

178, 112 Stat. 463 (1990), ICP App. 66a. Thus, EPA’s assertion

that the decision below “unnecessarily prolongs the exposure of

millions of Americans to unhealthy pollutant levels” seems some-

what disingenuous. EPA Pet. 11.

3 The following bullets and quotations are taken from the agen-

cy’s discussion of the concentration levels at 62 Fed. Reg. 38,674-

677 (1997).

}

* rejected “uncertain ratios” to the prior PM-10

standards;

* opted for “appropriately protective” standards;

* acknowledged great “scientific uncertainties” in

the available health studies;

considered the combined effects of the annual and

24-hour standards, the cumulative scientific un-

certainties, the levels recommended by EPA staff

and the science advisors, and public comments.

Yet nowhere, throughout this entire lengthy and complex

explanation, is there any discussion whatsoever of the

level of “risk reduction” that is “requisite,” the level of

protection that is “appropriate” or the criteria to be used

in making these decisions in the face of extremely un-

certain health studies.

There was no consensus among the agency's science

advisors on these questions, given “the many unanswered

questions and uncertainties .. .”* The scientific data gaps

also were demonstrated clearly in the agency’s unsuccess-

ful attempts to prepare a reliable quantitative risk assess-

ment for the standards. When entered into various risk

assessment models, the data available from the underlying

health studies were simply not sufficient to support a

robust and reasonably reliable estimate of the risk reduc-

tion—if any—that the new standards would provide.> As

a computer data analyst might say, “garbage in, garbage

4Letter from Dr. George T. Wolff, Chair, Clean Air Scientific

Advisory Committee, to Hon. Carol M. Browner (June 18, 1996),

PMJA 3167.

5 For a detailed discussion of the uncertainties inherent in the

risk assessment, see Abt Associates, “A Particulate Matter Risk

Analysis for Philadelphia and Los Angeles,” prepared for U.S.

EPA, OAQPS, pp. 129-136 (July 3, 1996). EPA Docket No. A-95-

64, R.Doc.II-A-11.

out.” In the final analysis, EPA did not place “great

weight” on the various risk assessments, concluding that

they “include significant uncertainty and, therefore, should

not be viewed as demonstrated health impacts.” ® Leaving

no doubt as to the minimal role of risk assessment in

EPA’s decision, EPA’s Opening Brief in the Court of

Appeals stated:

[T]he risk assessment was not a “central justifica-

tion” of the PM-2.5 levels . . . Indeed, EPA cau-

tioned against using the risk assessment in this case

as a precise measure of risk due to the limitations

and uncertainties in the current state of the evidence.

Thus, the risk assessment was not “central” to EPA’s

quantitative task of selecting the PM-2.5 levels.”

Denied the essential tool of a reliable risk assessment,

EPA simply gazed into its crystal ball and picked a num-

ber somewhere in between the various diverging views.

This is precisely the approach to ambient standards

that Congress and the courts have sought to prevent. in

amending the standard-setting provisions in the Clean Air

Act in 1977, Congress intended for EPA to assess risk,

but also cautioned:

fo]n the other hand, the committee does not intend

this language as a license for “crystal ball” specula-

tion. The Administrator’s judgment must of course,

remain subject to restraints of reasoned decision-

making.®

663 Fed. Reg. 38,665 (col. 1), 38,656 (col. 2) (1997).

7 Brief for Respondent United States Environmental Protection

Agency at 75, American Trucking Associations, Inc. v. EPA, 175

F.3d 1027 (D.C. Cir. 1999) (No. 97-1440 and consolidated cases)

(filed August 5, 1998).

8 H.R. Rep. No. 294, 95th Cong., Ist Sess. 51 (1977) (hereinafter

“1977 Houe Rept.”). The approach adopted by the House Com-

As a check on EPA’s authority to adopt standards in the

face of scientific uncertainty, Congress required the

agency to demonstrate that standards are necessary to

protect against significant public health risks. The House

Committee expressly endorsed the opinion in Ethyl Corp.

v. EPA, 541 F.2d 1, 13 (D.C. Cir. 1976), which holds

that EPA may set standards only when necessary to pre-

vent “a significant risk of harm.”*® In several places,

the House Report makes it clear that standards are to

address only “significant risk,” not any risk.'®

Further, this Court has indicated that the inability to

justify public health regulation through scientifically sound

quantitative risk assessment poses serious constitutional

problems. In /ndustrial Union Dept., AFL-CIO v. Ameri-

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

zene”), the Court rejected an OSHA attempt to establish

a health standard for benzene without demonstrating that

mittee eventually was accepted in conference and written into the

Act. See H.R. Rep. 564, 95th Cong., Ist Sess. 184 (1977) (Con-

ference Report); see also Kennecott Copper Corp. v. EPA, 462

F.2d 846, 850 (D.C. Cir. 1972) (remanding sulfur oxides second-

ary standard “for the Administrator to . . . enlighten the court as

to the basis on which he reached the . . . standard from the material

in the Criteria”); accord, NRDC v. EPA, 902 F.2d 962, 968, 971

(D.C. Cir. 1990) (court obligated to “carefully review the record

to ascertain that the agency has made a reasoned decision based on

reasonable extrapolations from some reliable evidence”); Lead In-

dustries Association v. EPA, 647 F.2d 1130, 1146-47 (D.C. Cir.

1980) (factual conclusions capable of being drawn from the evi-

dence in the record must be supported by “substantial evidence in

the record considered as a whole”; where scientific knowledge in-

sufficient to permit fully informed factual determinations, court

“will indeed scrutinize such judgments carefully” and EPA must

provide a reasoned explanation “calculated to negate the dangers

of arbitrariness and irrationality”); American Petroleum Inst. v.

Costle, 665 F.2d 1176, 1187 (D.C. Cir. 1981) (same).

9 See 1977 House Rept. at 43.

10 See, e.g., 1977 House Rept. at 43, 45, 46, 47, 48.

the standard was necessary to protect against “a signifi-

cant risk of harm” (448 U.S at 645). The Court noted

that in the absence of a clear statutory mandate, it is

unreasonable to assume that Congress intended to grant

OSHA the “unprecedented power over American indus-

try” conferred by regulation in the absence of a require-

ment to demonstrate significant risk (id.) The court also

explained that “the Government’s theory would give

OSHA power to impose enormous costs that might pro-

duce little, if any, discernible benefit” (448 U.S. at 645).

The Court then stated:

[i]f the Government was correct in arguing that

neither [applicable statute] requires that the risk

from a toxic substance be quantified sufficiently to

enable the Secretary to characterize it as significant

in an understandable way, the statute would make

such a “sweeping delegation of legislative power”

that it might be unconstitutional under the Court's

reasoning in A.L.A. Schecter Poultry Corp. v. United

States, 295 U.S. 495, and Panama Refining Co. v.

Ryan, 293 U.S. 388. A construction of the statute

that avoids this kind of open-ended grant should

certainly be avoided (448 U.S. at 646).

This case presents precisely the same scenario. Key

scientific uncertainties made it impossible to quantify

potential risk sufficiently to characterize it as significant

for purposes of choosing the fine particle concentration

limits. As a result, EPA was forced to abandon the

“intelligible principle” of regulation based on significant

risk, resorting to an arbitrary selection of standards from

among widely divergent scientific views. No criteria for

choosing a standard in the face of this scientific uncer-

tainty were articulated, nor was any other rational basis

provided for the numbers that EPA picked. In a reaction

similar to this Court’s decision in Benzene, the Court of

Appeals found EPA’s approach so arbitrary as to render

the underlying delegation of legislative authority uncon-

Stitutional. The court’s holding is amply supported by

the fine particle record. It is also fully consistent with the

governing statute and the relevant decisions of this Court,

for reasons to which we now turn.

Il. THE “NONDELEGATION” HOLDING IS SUP-

PORTED BY THE GOVERNING STATUTE AND

THE DECISIONS OF THIS COURT

EPA argues that the decision of the Court of Appeals

“would unjustifiably expand the role of the courts in

reviewing agency action,” and “would effectively supplant

the concept that courts review agency determinations

based on an arbitrary and capricious standard.” EPA

Pet. 9, 17. But these arguments focus on only one part

of the applicable standard of review. Clean Air Act

Section 307(d)(9) (42 U.S.C. § 7607(d)(9)), which

governs judicial review in this case, provides:

In the case of review of any action of the Admin-

istrator to which this subsection applies, the court

may reverse any such action found to be:

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege or immunity:

ity, or limitations, or short of statutory right; or

‘(D) without observance of procedure required

by law . . . (emphasis added).

Far from assuming an unjustifiably expanded role, the

court was fulfilling exactly the role that Congress in-

tended." In the view of these Respondents, the rule-

11In adopting the 1977 standard-setting amendments, Con-

gress was careful “to provide for adequate judicia! review of the

reasonableness of the Administrator’s judgment in assessing risks,”

making record would have supported a remand of the

fine particle standards under any of at least the first

three provisions of this standard. The fact that the court

chose to base its holding on constitutional grounds simply

underscores the extremely arbitrary nature of EPA’s

decision.

Nor is there any basis for EPA’s assertions that the

court’s ruling conflicts with this Court’s nondelegation

decisions. As discussed above, the court’s ruling is fully

consistent with this Court’s decision in Benzene. Further,

EPA’s argument that the starting point for a nondelega-

tion analysis should be the statutory language, purpose and

history is precisely the point. EPA Pet. 12. As this Court

has noted, agencies are to “derive meaningful content”

from these factors, which provide “a veritable code of

rules . . . for the [agency] to follow in giving effect to [the

statute]. American Power & Light Co. v. SEC, 329 U.S.

90, 104-05 (1946). Judicial review “safeguards against

statutory or constitutional excesses,” and “all that can be

required is that the [agency’s] actions conform to the

statutory language and policy” (329 U.S. at 106). But

where—as here—the agency expressly rejects the “in-

telligible nrinciple” provided by Congress to govern its

decision, and fails to provide a reasonable explanation of

how it applied the statute and the underlying policy to

derive the standards it chose, the effect is to create an

in the form of the judicial review provision in Section 307(d).

1977 House Rept. at 50. The same statutory language appears in

the judicial review provision of the Administrative Procedure Act.

See 5 U.S.C. § 706(2) (1999). Indeed, the “arbitrary and capri-

cious” standard itself finds its roots in the Due Process Clause.

See, e.g., Nebbia v. New York, 291 U.S. 502, 525 (1934).

12 See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989)

(citing Benzene) (cases since the Depression confined to “giving

narrow interpretations to statutory delegations that might other-

wise be thought to be unconstitutional”).

unconstitutional delegation. That is all the Court of

Appeals held in this case, and its holding is amply justi-

fied by the fine particle record and the applicable legal

principles expressed by this Court.

CONCLUSION

Congress directed EPA to base ambient air quality

standards on significant public health risks. This Court

has held that in such cases, the inability to quantify

potential risk sufficiently to characterize it as significant

raises serious constitutional concerns under the “nondele-

gation” doctrine. Unable to quantify potential risk owing

to severe scientific deficiencies, EPA chose to reject these

principles and establish fine particle standards without

articulating any other governing criterion. The Court of

Appeals found EPA’s approach so arbitrary as to effect

an unconstitutional delegation of legislative authority.

The court’s decision is entirely consistent with the record

in decisions of this Court. The Petitions for a Writ of

Certiorari should be denied.

Respectfully submitted,