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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 457

## Text

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,

——Y <=

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
Respondents. TABLE OF AUTHORITIES ...........-seecceeeee: ii
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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
9 Ge ere 6

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)

iV

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.

2

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.

4

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.

5

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.

9

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).

10

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.

11

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.

12

—

'

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...)

13

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.”

14

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,

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

° Two of the eleven members of the court did not participate.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A16. Public record. Not legal advice.