Amicus Curiae Brief — Whitman v. American Trucking Assns., Inc.

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upreme Court, U.S.

IN THE MAR 2 0 2000

Supreme Court of the United States |

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CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Petitioners,

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AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Respondents.

(Case captions continued on inside cover)

ON PETITIONS FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF STATES OF NEW YORK, ET AL..,

AS AMICI CURIAE IN SUPPORT OF PETITIONS

FOR WRIT OF CERTIORARI

ELIOT SPITZER

Attorney General of

State of New York

PREETA D. BANSAL

Solicitor General

Counsel of Record

J. JARED SNYDER

Assistant Attorney General

Environmental Protection Bureau

The Capitol

Albany, New York 12224

(518) 474-8101

Attorneys for State of New York

(Counsel continued on inside cover)

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MASSACHUSETTS AND NEW JERSEY, hs

Petitioners,

— TABLE OF CONTENTS

AMERICAN TRUCKING ASSOCIATIONS, INC.., et al., Page

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AMERICAN LUNG ASSOCIATION, INTEREST OF THE AMICICURIAE ............... l

Petitioner,

—— SUMMARY OF ARGUMENT .............00000005 5

AMERICAN TRUCKING ASSOCIATIONS, INC., ot al.. ESE OE ETE 6

Respondents.

>So I. THE D.C. CIRCUIT’S DECISION ON

Of Counsel

ANDREW KETTERER

Attorney General of Maine

State House Station #6

Augusta, Maine 04333-0006

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

200 St. Paul Place

Baltimore, Maryland 21202

PHILIP MCLAUGHLIN

Attorney General of New Hampshire

33 Capitol Street

RICHARD BLUMENTHAL

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

SHELDON WHITEHOUSE

Attorney General of Rhode Island

150 South Main Street

Providence, Rhode Island

WILLIAM H. SORRELL

Attorney General of Vermont

109 State Street

Concord, New Hampshire 03301-6397 Montpelier, Vermont 05609-1001

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

16th Floor-Strawberry Square

Harrisburg, Pennsylvania 17120

IMPLEMENTATION OF THE NEW

EIGHT-HOUR OZONE STANDARDS

WILL POSTPONE THE BENEFITS

OF CLEANER AIR FOR MUCH OF

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II. THE D.C. CIRCUIT’S

NONDELEGATION HOLDING IS

CONTRARY TO THIS COURT’S

ESTABLISHED PRECEDENT AND

THROWS INTO DOUBT FEDERAL

EFFORTS TO PROTECT THE

HEALTH AND SAFETY OF ALL

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Page

Miscellaneous

Finding of Significant Contribution and Rulemaking for Certain

States in the Ozone Transport Assessment Group Region for

Purposes of Reducing Regional Transport of Ozone, 63 Fed.

Reg. 57 (Oct. 27, 1998)

L. Claudia, et al., Socioeconomic Factors and Athsma

Hospitalization Rates in New York City, 36(4) Journal of

Athsma at 344 (1999)

BRIEF OF STATES OF NEW YORK, ET AL., AS

AMICI CURIAE IN SUPPORT OF PETITIONS FOR A

WRIT OF CERTIORARI

The northeastern States of New York, Connecticut,

Maryland, Maine, New Hampshire, Pennsylvania, Rhode Island

and Vermont respectfully submit this brief as amici curiae in

support of the Petitions for a Writ of Certiorari filed in this

matter by the U.S. Environmental Protection Agency (EPA)

and Carol Browner, Administrator of EPA; by the States of

Massachusetts and New Jersey; and by the American Lung

Association (collectively, the “petitions”). The petitions seek

review of the D.C. Circuit’s decision in American Trucking

Associations, Inc. v. U.S. Environmental Protection Agency,

175 F.3d 1027 (D.C. Cir.), reh'g en banc denied, 195 F.3d 4

(D.C. Cir. 1999), to remand EPA’s revised eight-hour ozone

National Ambient Air Quality Standards for ozone and fine

particulate matter (PM, ,).

INTEREST OF THE AMICI CURIAE

The northeastern amici States share an interest in

obtaining review of the decision below in order to ensure the

adequate protection of their residents’ health and their

environment. Residents of these States suffer from asthma and

other respiratory illnesses aggravated by high levels of ozone

and PM,, in the ambient air. Recent studies document an

alarming increase in the asthma hospitalization rate in the

northeastern United States including, in particular, the lower

income neighborhoods of color in the Bronx and Upper

Manhattan, inhabitants of which suffer from rates of asthma

that are at least double the national average.' As parens

patriae, New York and the other amici States have a paramount

interest in protecting their residents from the debilitating and

potentially life threatening effects of asthma and other

respiratory illnesses.

The record of the rulemakings at issue in this matter

establishes that the revised standards will have a profound

impact on public health, eliminating thousands of premature

deaths attributable to air pollution each year and preventing tens

of thousands of respiratory illnesses attributable to exposure to

ozone and fine particulate matter.’ Specifically,

implementation of the revised standards will greatly improve

the quality of life of the children and other persons who suffer

from asthma, a disease aggravated by exposure to ozone and

PM,,. The court below did not question the scientific basis for

EPA’s determination that the revised standards are needed to

protect public health.

The Clean Air Act (the “Act”) places primary

responsibility for achieving clean air upon the states. To date,

the efforts of many eastern states to obtain clean air that meets

the old ozone standard have been hampered by the large

amounts of ozone and its precursor, nitrogen oxides, that blow

into the region from relatively uncontrolled power plants and

’ See L. Claudia, et al., Socioeconomic Factors and Asthma

irra York City, 36(4) Journal of Asthma at 344

( ).

* The health benefits of the required standards are described in

more detail in the American Lung Association’s petition for certiorari.

other large industrial sources, many of which are located in

areas classified as attainment with the old standard. See

Finding of Significant Contribution and Rulemaking for Certain

States in the Ozone Transport Assessment Group Region for

Purposes of Reducing Regional Transport of Ozone, 63 Fed.

Reg. 57,356 (Oct. 27, 1998). Some states, like New York and

Connecticut, are endeavoring to meet their obligation to comply

with the old one-hour EPA standard for ozone by the 2007

attainment date, while others, like Vermont and New

Hampshire, find that transported pollution complicates their

efforts to remain in compliance with the old standard.

Implementation of the EPA’s revised eight-hour ozone

standards nationwide will greatly facilitate the northeastern

states’ ability to clean their own air because of the emission

reductions that will be required throughout much of the eastern

portion of the country, including states to the south and west of

the amici States.

The interest of the amici States in obtaining review of

the D.C. Circuit’s decision extends beyond the implementation

of the specific standards at issue. As recognized by Judge

Tatel’s dissent to the denial of the rehearing petition, joined by

Chief Judge Edwards and Judge Garland, the D.C. Circuit’s

holding threatens to paralyze further EPA efforts to improve air

quality, at the expense of the health of residents of the amici

States and other states:

Not only did the panel depart from a half

century of Supreme Court separation of powers

jurisprudence, but in doing so, it stripped the

Environmental Protection Agency of much of

its ability to implement the Clean Air Act, this

nation’s primary means of protecting the safety

of the air breathed by millions of people. App.

91.

Residents of the amici States benefit from a number of EPA

programs directed at improving air quality, including EPA’s

efforts to control interstate transport of ozone and its precursors,

and its imposition of more stringent emission control

requirements for motor vehicles. Because the poor air quality

in the Northeast is attributable in large part to air pollution

transported from other states or to motor vehicle emissions that

states are barred from regulating, pursuant to section 209(a) of

the Act, 42 U.S.C. § 7543(a), the amici States find it extremely

difficult to achieve any significant improvement in the quality

of their air without EPA’s exercise of its authority in other areas

to reduce motor vehicle emissions and interstate pollution.

Finally, the ramifications of the nondelegation holding

transcend EPA’s efforts to obtain clean air for all Americans.

The court’s nondelegation holding threatens federal efforts to

protect the health and safety of Americans under many diverse

federal programs. Although the full ramifications of the

decision are yet to be determined, it throws into question

federal efforts to protect public health and safety in many areas

such as automobile safety and airline safety, in addition to

* Citations are to the Appendix filed in support of the

Massachusetts and New Jersey petition.

environmental protection. The amici States have a fundamental

interest in seeing that the health and safety of their residents do

not suffer as a consequence of the D.C. Circuit’s decision.’

SUMMARY OF ARGUMENT

The D.C. Circuit’s decision will prevent or, at a

minimum, postpone access to cleaner air for all Americans.

The D.C. Circuit recognized the overwhelming body of

scientific evidence that supported EPA’s determination that the

current .120 ppm one-hour ozone standard is inadequately

protective of public health. Nevertheless, as a result of the D.C.

Circuit’s holding, the inadequate one-hour standard will be the

only protection Americans will have against the health dangers

of ozone pollution for many years to come. Even if EPA is able

to formulate an “intelligible principle” to govern its setting of

revised standards, the Court’s holding that new ozone revised

standards may only be implemented in accordance with the

facially inapplicable subpart 2 classifications and compliance

deadlines means that any protection Americans can expect from

revised ozone standards will not be realized or, at best, will be

postponed even further.

More generally, the D.C. Circuit’s decision effectuates

a fundamental alteration of the balance of power among the

three branches of government in the area of environmental

regulation. In the name of adherence to the principle that the

democratically-elected Congress should make the fundamental

* Connecticut, New Hampshire, New York and Vermont

participated in the D.C. Circuit proceedings as amici, submitting joint briefs

with Massachusetts and New Jersey, which intervened in the cases.

policy determinations, the D.C. Circuit found inadequate the

delimiting principles promulgated by Congress in section 109

of the Act, 42 U.S.C. § 7409, and remanded to EPA to come up

with its own “intelligible principle” to govern its

decisionmaking processes, which will then be reviewed by the

D.C. Circuit. In the second portion of its holding, the D.C.

Circuit rejected the agency’s practical interpretation of the Act,

in favor of the court’s own technically intricate, but ultimately

unsound reading of the relevant provisions. Both aspects of the

D.C. Circuit’s opinion have the effect of placing policymaking

authority in the hands of the judicial branch, rather than the

legislative and executive branches of government that are

elected by the populace, and throw into doubt other federal

etforts to protect the health and safety of Americans.

ARGUMENT

I. THE D.C. CIRCUIT’S DECISION ON

IMPLEMENTATION OF THE NEW EIGHT-

HOUR OZONE STANDARDS WILL

POSTPONE THE BENEFITS OF CLEANER

AIR FOR MUCH OF THE NATION

The D.C. Circuit’s holding that any revised eight-hour

ozone National Ambient Air Quality Standard (“NAAQS”)

may only be implemented in accordance with a statutory

schedule and classification scheme intended to address the old

ozone NAAQS will have significant ramifications for the amici

States’ efforts to obtain cleaner air. Regardless of whether

EPA, on remand, is able to repromulgate the ozone NAAQS in

accordance with the Court’s nondelegation holding, the

obstacles erected by the court to implementation of the revised

standards may prevent the States from implementing those

standards.

The D.C. Circuit’s determination that EPA must enforce

the revised eight-hour NAAQS in accordance with the

classifications and attainment dates adopted by Congress in

1990 is premised on a faulty interpretation of the Act’s

provisions governing implementation of the ozone NAAQS. At

the core of the D.C. Circuit’s holding is section 181(a)(1) of the

Act, 42 U.S.C. § 7511(a)(1), entitled “Classification and

attainment dates for 1989 nonattainment areas,” which contains

as its centerpiece a table that lists classifications and attainment

deadlines for meeting the one-hour .120 ppm standard existing

at the time of the 1990 amendments.* In reaching its holding

that this table governs the classifications and attainment dates

for areas found to be in noncompliance with the new eight-hour

-080 ppm standards promulgated in 1997 (App. 75), the D.C.

Circuit paid no heed to the fact that the classification scheme is

* Table 1 of the statutory provision reads as follows:

Area Class Design Value [ppm] Primary Standard Attainment Date

Marginal | 0.121 upto0.138 | 3 years after November 15, 1990

Moderate | 0.138 up to 0.160 | 6 years after November 15, 1990

Serious 0.160 up to 0.180 | 9 years after November 15, 1990

Severe 0.180 up to 0.280 | 15 years after November 15, 1990

Extreme 0.280 and above | 20 years after November 15, 1990

nonsensical when applied to a .080 ppm standard, rather than a

.120 ppm standard, and it failed to explain how a statutory

provision with attainment deadlines in the 1990s could possibly

govern a revised standard that would not be implemented until

after 2000.° In the name of allegiance to the statutory text, the

D.C. Circuit also disregarded the clear statement in the title of

section 181(a)(1) that it only governs “classification and

attainment dates for 1989 attainment areas” on the grounds that

“a title cannot be allowed to create an ambiguity in the first

place.” App. 39.

In opposing the granting of certiorari on this issue,

industry respondents contend that it is the type of routine

statutory interpretation question that is normally not reviewed

by the Court. However, the D.C. Circuit’s holding, if allowed

to stand, throws into doubt the D.C. Circuit’s continued

adherence to Chevron deference. Chevron U.S.A. Inc. v.

* Other references in section 181(a) provide further evidence that

its provisions are intended to apply only to areas designated as

nonattainment with the standard existing at the time of the 1990

amendments. For example, section 181(a)(1) provides that the design value

that forms the basis for the classifications should be calculated in

accordance with the “interpretation methodology issued by the

Administrator most recently before November 15, 1990.” Furthermore,

section 181(a)(3) provides that the classifications should be made at the time

of the designation of an area as nonattainment with the 1990 ozone standard

under section 107(d\4), 42 U.S.C. § 7407(d)(4); there is no procedure for

classification under a new or revised standard. Finally, reclassification to

nonattainment with the old one-hour .120 standard of areas initially

designated as attainment in 1990 is governed by section 181(b)(1), which

applies only to areas redesignated as nonattainment with the old one-hour

standard under section 107(d)(3), mot to areas redesignated as

nonattainment with a new or revised ozone standard under section

107(d)(1).

NRDC, 467 U.S. 837 (1984). Instead of deferring to an agency

interpretation of section 181(a) of the Act that is consistent with

the substance and title of the provision,’ the D.C. Circuit

substituted its own reading of the statute for the reading

adopted by EPA. At best, the cross-reference in section

181(a)(1) to section 107(d) rather than just 107(d)(4), which

provides the entire shaky foundation for the D.C. Circuit’s

interpretation, creates an ambiguity in the statute, requiring that

deference be given to EPA’s reasonable interpretation.* The

ambiguity of the Act’s provisions regarding implementation of

revised standards is also reflected by the inability of the panel

” Under similar circumstances, this Court has found that the title of

a statute provides valuable evidence of Congressional intent in enacting a

statute. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998);

Immigration & Naturalization Service v. National Center for Immigrants’

Rights, Inc., 502 U.S. 183, 189 (1991); Mead Corp. v. Tilley, 490 U.S. 714,

723 (1989); Federal Trade Commission v. Mandel Brothers, Inc., 359 U.S.

385, 388-89 (1959).

* In his opinion concurring in part and dissenting in part, Judge

Tatel recognized that it is not the title of section 181(a)(1) that creates the

ambiguity but that “the ambiguity in this statute . . . appears in the text of

Subpart 2 itself.” App. at 77. He explained:

“As the agency argues, it is thus difficult to see how Subpart 2 can

‘specifically provide[]’ attainment dates for areas that are

designated nonattainment under the new standard but are not

covered by table 1... This gap in Table 1 makes it at least

ambiguous whether Subpart 2 ‘specifically provide(s]’

classifications and attainment dates for a// areas exceeding the

revised 0.08 ppm ozone NAAQS.” Jd.

As explained by Judge Tatel, it is for EPA, not the D.C. Circuit, to

interpret an ambiguous statute, an interpretation that the D.C. Circuit is

bound by Chevron to follow if reasonable. App. at 81.

and Judge Tatel to agree on a way to conform the provisions of

subpart 1 and subpart 2.° However, rather than ensuring that

the policy decisions are made by Congress and implemented by

executive agencies, the D.C. Circuit’s refusal to accord

deference to EPA’s reading of the statute effectuates a judicial

usurpation of policymaking authority. To the extent that the

D.C. Circuit’s approach in this case signals a weakening of the

principle of Chevron deference, federal agencies will find it

increasingly difficult to fulfill their obligation to serve the

public.

Furthermore, implementation of the revised standards

will be hindered by the many uncertainties inherent in the

court’s treatment of the implementation issues. For example,

does the panel’s opinion allow the implementation of the

revised ozone standards under subpart | in the large portions of

the nation that do not fall into one of the subpart 2

classifications (Le. areas that do not meet the revised eight-hour

standard of .080 but do meet the old one-hour standard of

.120)? If Judge Tatel is correct that subpart 1 provides the

deadlines for areas that meet the old standard, does that mean

* On rehearing, Judge Tatel concurred in the panel’s decision, as

modified, because it “leaves open the possibility that EPA can enforce the

new ozone NAAQS without conflicting with subpart 2's classifications and

attainment dates.” (App. 76). Judge Tatel stated that, in his view, “[s}ubpart

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.” (App. 81).

However, Judge Tatel’s belief that “nothing precludes the enforcement of

the new standard under subpart 1” (App. 81) appears to conflict directly

with the panel’s holding that “(s)ubpart 2, not subpart 1, provides the

classifications and attainment dates for any areas designated nonattainment

under a revised ozone NAAQS.” (App. at 39-40) (emphasis supplied).

that EPA must provide those areas with at least five years after

they meet the old standard for compliance with the new

standard? The apparent disagreement between Judge Tatel and

Judges Ginsburg and Williams regarding the meaning of the

D.C. Circuit’s decision highlights the difficult task facing EPA

and the states in conforming their conduct to the decision,

making it likely that their attempts to implement the revised

primary ozone NAAQS will be tied up in litigation regarding

the meaning of the D.C. Circuit’s decision for years to come."°

II. THE D.C. CIRCUIT’S NONDELEGATION

HOLDING IS CONTRARY TO THIS

COURT’S ESTABLISHED PRECEDENT

AND THROWS INTO DOUBT FEDERAL

EFFORTS TO PROTECT THE HEALTH AND

SAFETY OF ALL AMERICANS

In its initial opinion, and in the opinion denying

rehearing, the D.C. Circuit resuscitated the. nondelegation

doctrine, holding that, in the absence of a narrowing agency

interpretation, section 109 of the Act effectuates an

'° In its petition, EPA argues persuasively that the D.C. Circuit

erred by reaching out to address the propriety of EPA’s plan for

implementation of the revised ozone NAAQS, an issue that was not ripe for

consideration and not squarely before the court. The apparent failure of

Judge Tatel and the panel to agree on the meaning of the D.C. Circuit’s

holding is directly attributable to the court’s error in reviewing non-final

agency action, rather than waiting for the agency to take concrete steps to

implement the revised NAAQS. In the absence of review by this Court,

public health and the environment will be threatened by the delays in

implementation of the revised standard that will result from the inevitable

litigation over the meaning of the D.C. Circuit’s decision.

unconstitutionally broad delegation to EPA. Despite the efforts

of industry respondents to recast the decision as a rather

mundane and uncontroversial question of administrative law,''

the court’s holding clearly and necessarily includes a

determination that the text of section 109 does not contain the

“intelligible principle” found by the court to be required by the

Constitution to confine administrative decisionmaking. Thus,

the D.C. Circuit remanded the case to EPA to articulate another

intelligible principle -- other than the principle actually found

in the statute -- to govern its decisionmaking.

The doctrinal foundations of this determination are

puzzling: having found the criteria articulated by Congress to

be constitutionally inadequate, the D.C. Circuit is now inviting

EPA to conjure up alternative principles to guide its own

exercise of discretion. As explained by Judge Silberman’s

dissent from the denial of rehearing, this determination turns

the nondelegation doctrine on its head, divorcing it from the

underlying principle that it is the democratically-elected

Congress, rather than appointed administrative agency officials,

that should make the fundamental policy determinations. See

App. 86-88.

The D.C. Circuit’s holding threatens to alter profoundly

the nation’s health and regulatory framework. In finding that

section 109 does not contain the required “intelligible

principle,” the court departed from decades of precedent

'' See, e.g., Brief in Response for the Respondents Appalachian

Power Co., et al., at 13; Brief in Response for Respondents American

Trucking Associations, Inc., et al., at 11-14.

—

upholding even broader delegations.'? As explained by Judge

Tatel in dissent, joined by Chief Judge Edwards and Judge

Garland, “the Clean Air Act’s requirement that EPA set air

quality standards ‘requisite to protect 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.” App. 90. See also

EPA Pet. at 11-19.

The delegation at issue is also narrower than many

delegations of regulatory authority found in other statutes

intended to protect public health and safety. For example, the

federal statutes governing pesticide residues in foods and

hazardous waste transportation contain delegations for adoption

of regulatory standards that are more open-ended than EPA’s

authority to promulgate NAAQS... See 21 U.S.C. § 346a

(pesticide residues in food);'’ 42 U.S.C. § 6923(a) (hazardous

waste transportation).'* EPA’s discretion in adopting new or

"? See, e.g., Mistretta v. United States, 488 U.S. 361, 373 (1989);

National Broadcasting Co. v. United States, 319 U.S. 190, 225-226 (1943),

United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968); FPA v.

Hope Natural Gas Co., 320 U.S. 591, 600 (1944); Touby v. United States,

500 U.S. 160 (1991).

"> Under section 408(b) of the Federal Food, Drug and Cosmetic

Act, 21 U.S.C. § 346a(b), EPA may establish a tolerance for levels of

particular pesticides on food if EPA determines “that there is a reasonable

certainty” that no harm will result from exposure.

'* Section 3003 of the Solid Waste Disposal Act, 42 U.S.C. §

6923(a), requires EPA to promulgate standards for the transportation of

hazardous waste “as may be necessary to protect human health and the

(continued...)

revised NAAQS is also more circumscribed than the authority

of the National Highway Traffic Safety Administration

(NHTSA) to promulgate motor vehicle safety standards, which

is limited only by the requirement that the standards be

“practicable, meet the need for vehicle safety, and be stated in

objective terms.” 49 U.S.C. § 30111(a). NHTSA’s obligation

to “consider relevant available motor vehicle safety

information” (id. at § 30111(b)(1)) is less restrictive than the

requirement that the NAAQS be “based on” on air quality

criteria (42 U.S.C. § 7409(b)(11); and its duty to “consult” with

other agencies (id. at § 30111(b)(1)) is more open-ended than

EPA’s obligation to consider, and explain any departure from,

the CASAC recommendations. 42 U.S.C. § 7607(d)(3). Rules

relating to airline safety are also promulgated under an equally

broad delegation.’

Thus, unless the D.C. Circuit’s ruling is reversed by this

Court, it may lead to the undoing of federal regulations

regarding such important matters as airline safety and

automobile safety, in addition to environmental protection. A

'S The Federal Aviation Administration (FAA) promulgates

standards governing airline safety under 49 U.S.C. § 44701. Pursuant to

section 44701(c), FAA is required to carry out this responsibility “in a way

that best tends to reduce or eliminate the possibility or recurrence of

accidents in air transportation.” In doing so, the FAA is required to

“consider . . . the duty of an air carrier to provide the highest possible degree

of safety in the public interest; and . . . differences between air

transportation and other air commerce.” This standard is similar to EPA’s

obligation to enact standards “requisite to protect public health” with an

“adequate margin of safety.”

decision joined by only four of the eleven members of the D.C.

Circuit should not be allowed to effect such a profound

alteration of this nation’s health and safety regulatory

framework without review by this Court.'®

CONCLUSION

For the reasons set forth above and in the petitions, the

Court should grant certiorari in these cases.

Dated: March 28, 2000

Respectfully submitted,