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

—

No. 99-1257 |

| CLERK

In the Supreme Court of the United-States-- ---—~

= eee

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS

v.

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

On Writ of Certiorari to-

The United States Court of Appeals

For the District of Columbia Circuit

BRIEF OF RESPONDENTS MASSACHUSETTS AND NEW JERSEY

IN SUPPORT OF PETITIONERS

JOHN J. FARMER THOMAS F. REILLY

Attorney General Attorney General

State of New Jersey Commonwealth of Massachusetts

HOWARD L. GEDULDIG EDWARD G. BOHLEN

JOHN R. RENELLA Assistant Atty. General, Mass.

Deputy Attys. General, N.J. 200 Portland Street

Richard J. Hughes Justice Boston, MA 02114

Complex 7th Floor (617) 727-2200, ext. 3358

P.O. Box 093

Trenton, NJ 08625 LISA HEINZERLING

(609) 633-8109, 984-5612 Counsel of Record

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9115

TS

QUESTIONS PRESENTED

1. Whether Section’ 109 of the Clean Air Act, 42 US.C.

7409, as interpreted by the Environmental Protection Agency

(EPA) in setting revised National Ambient Air Quality

Standards (NAAQS) for ozone and particulate matter, effects

an unconstitutional delegation of legislative power.

2. Whether the court of appeals exceeded its jurisdiction

by reviewing, as a final agency action that is ripe for review,

EPA’s preliminary preamble statements on the scope of the

agency's authority to implement the revised “eight-hour”

ozone NAAOS.

3. Whether provisions of the Clean Air Act Amendments

of 1990 specifically aimed at achieving the long-delayed

attainment of the then-existing ozone NAAQS restrict EPA's

general authority under other provisions of the CAA to

implement a new and more protective ozone NAAQS until the

prior standard is attained.

AOL EID ORO AS

—— ie

li

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........cccccccccccccccees i

TABLE OF AUTHORITIES ...........cccccccccccscces iv

DEPOTS or cccccvcccosccvcecccesoccccocesesooces 1

A. Statutory and Regulatory Background .............. 1

1. Establishing and Revising the NAAQS ........... 2

2. Implementing the NAAQS ...........-....-2555- 5

3. History of the Clean Air Act and the NAAQS

FOE cccccccvccccccescccescccecesecceseses 7

B. Rulemakings on Particulate Matter and Ozone ...... 20

BD, FUP REN cc cccccccccccccsececcoecsess 20

BD GREED cc cccccccevccccccoccecccecscccseeceeees 21

C. The Court of Appeals’ Decision ................... 24

SUMMARY OF ARGUMENT ...............-0-+00055 26

FIGS ccccccccccccccccccccccevecccceseeceses 28

I. THE CLEAN AIR ACT DOES NOT DELEGATE

LEGISLATIVE AUTHORITY TO THE EXECUTIVE IN

VIOLATION OF THE CONSTITUTION. ........... 28

A. The Language And Purpose Of The Clean Air Act

Significantly Constrain Agency Discretion. ...... 29

ill

B. The History Of The Clean Air Act Unequivocally

Shows That Congress Has Not Forsaken Its Legislative

DEES... cc ccccccccccccccccccccccccscccess 36

C. The Context Of The Clean Air Act-The Control Of Air

Pollution In Conditions Of Uncertainty-Would Be A

Particularly Inappropriate Setting For A Reworking Of

The Nondelegation Doctrine. .......----+-++++: 38

Il. THE LOWER COURT’S DECISION CONSTRAINING

ENFORCEMENT OF THE REVISED OZONESTANDARD

IS INCONSISTENT WITH THE CLEAN AIR ACT'S

LANGUAGE AND PURPOSES, AND WITH EPA'S

REASONABLE INTERPRETATION OF THE ACT. .. 43

CONCLUSION .... 2... ee cece ccc cece e eee eeeneeeeee 50

iv

TABLE OF AUTHORITIES

Cases:

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

EE a ene eS 36, 39

American Power & Light Co. v. SEC, 329 US. 90 (1946) ......... 29, 34

Buttfield v. Stranahan, 192 US. 470 (1904) ... 2... 2. oe eee 35

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Se ED deddducddedddedesdambusneedococse 45, 50

Clinton v. City of New York, 524 US. 417 (1998) ................ 36

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

GE, Gem, GB UG, GE GTO gos ccc ccccccccccccccccess 19

Field v. Clark, 143 U.S. 649 (1892) .... 2. ccc cee 33

FPC v. Hope Natural Gas Co., 320 US. 591 (1944) ............. 29, 41

Industrial Linton Dept, AFL-CIO v. American Petroleum Inst.,

Dt? tichecdudabbbbdndedduknadeneceses 30, 31

|W. Hampton, Jr. & Co. v. United States, 276 US. 394 (1928) ...... 28

Lichter v. Linited States, 334 US. 742 (1948) ............... 35, 39, 40

Loving v. Linited States, 517 US. 748 (1996) ......... 29, 31, 36, 38, 42

Mistretta v. United States, 488 US. 361 (1989) .......... 29, 31, 35, 42

National Broad. Co. v. Linited States, 319 U.S. 190 (1943)-.......... 29

OPP Cotton Mills v. Administrator Wage & Hour Div., Dept. of

i ic ccccktedgudepecestesaceeesatas 35

Panama Refining Co. v. Ryan, 293 US. 388 (1935) ............. 36, 39

Skinner v. Mid-America Pipeline Co., 490 U.S. 212

i adddudeniubddecetabeneees cousones 29, 31, 35, 40, 41, 43

Sunshine Anthracite Coal Co. v. Adkins, 310 US. 381 (1940) ....... 40

Touby v. Linited States, S00 U.S. 160 (1991) ...... 29, 31, 35, 40, 41, 43

Train v. Natural Resources Defense Council, 421 US. 60 (1975) ...... 6

Union Bridge Co. v. Linited States, 204 U.S. 364 (1907) ............ 41

Union Electric Company v. EPA, 427 US. 246 (1976) .............. 5

United States v. Rock Royal Co-op, Inc., 307 US. 533 (1939) ........ 33

United States v. Southwestern Cable Co., 392 US. 157 (1968) ....... 29

Yakus v. United States, 321 US. 414 (1944)... .... 2.2.6.0... 29, 35

Constitution and Statutes:

v

Constitution and Statutes — Continued:

Act of June 8, 1960, Pub. L. No. 86-493, 74 Stat. 162.............. 8

Air Pollution Control Act of 1955, Pub. L. No. 84-159,

ENA ee SEARS Danial se ee ee 7.8

Air Quality Act of 1967, Pub. L. No. 90-148,

0 St EE eee 10, 11, 13, 18

Clean Air Act, 42 U.S.C. 7401

§ 107(d)(1), 42 US.C. § 7407(d)(1) ... oo eee ee ee. 5, 26, 44

§ 107(d)(1)(A)(i)-(iii), 42 U.S.C. § 7407(d)(1)(A)(i)-(ili) ...... - .. 5

§ 107(d)(4), 42 U.S.C. § 7407(d)(4) .. «2. occ eee ee 5, 49

§ 108(a)(1), 42 U.S.C. § 740B(a)(1) ... ce eee 32

§ 108(a)(1)(A)-(B), 42 U.S.C. § 7408(a)(1)(A)-(B) ............-. 3

§ 108(a)(2), 42 U.S.C. § 7408(a)(2) ..... 0. oe eee 3, 9, 30, 31

§§ 108-109, 42 U.S.C. §§ 7408-7409 2... cece eens 2

§ 10%a)(1), 42 U.S.C. § 7409%a)(1) cee ee 4, 18, 32

§ 109(b)(1), 42 U.S.C. § 740%(b)(1) ...........---- 2, 4, 30, 31, 32

§ 109(b)(2), 42 U.S.C. § 7409(b)(2) =... cee eee 2

§ 109(d)(1), 42 U.S.C. § 740%(d)(1) ... cee eee 4,33

§ 109%(d)(2)(B)-(C), 42 U.S.C. § 7409(d)(2)(B)-(C) ..........---. 3

I ee sl bieiibeiie 5,35

§ 110(a)(1), 42 US.C. § 7410(a)(1) ..... 2. cee eee ee 5

§ 172(a)(1)(A), 42 U.S.C. § 7502(a)(I)(A) ..... 2... --6--. 6, 43, 47

§ 172(a)(2)(A), 42 U.S.C. § 7502(a)(2)(A) ......-- 0. eee 6, 43

2s cease ann enbil 35

§ 181(a)(1), 42 US.C. § 7511(a)(1) .... 6, 7, 26, 44, 46, 47, 48, 49, 50

§§ 181-185B, 42 US.C. §§ 7511-7511f ..... 2... 6. eee ee. 44

§§ 181-192, 42 US.C. §§ 7511-75]4a ...... 2... eee cee eee 6

§§ 186-193, 42 US.C. §§ 7512-7515 ....... «6.6 6

REIS BODE BOE o.05000ccccccccscccecoscceseces 2

§ 307(d)(3), 42 US.C. § 7607(d)(3) .... «6... o eee eee 3, 5,34

Clean Air Act Amendments of 1977, Pub. L. No. 95-95,

(OS RGR SS SSR a oe ee 18, 19

Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392 ... 9, 10, 13, 14

Clean Air Amendments of 1970, Pub. L. No. 91-604,

BOGiee BID onc ccccccccccccscccccssccccecs 12, 13, 14, 18, 19

vi

Constitution and Statutes — Continued:

Consolidated Omnibus Budget Reconciliation Act of 1985,

Pub. L. No. 99-272, 100 Stat. 82.

dedencasacsnancdeedecesee: 40

Motor Vehicle Air Pollution Control Act of 1965, Pub. L. No

Ue irdd diccuucndscuensensdnsenccecncses 10, 13

Reorg. Plan No. 3 of 1970,5 U.S.C.A. App. (Supp. 1992) ........ 12

Transportation Equity Act for the 21st Century, Pub. L. No.

105-178, §§ 6101-04, 112 Stat. 463-65 (1998) ............... 19, 20

Federal Register and Code of Federal Regulations:

SIE nt <Kdnncdduccckbascabounkdeteckeustecs 3

NAAQS for Carbon Monoxide, 50 Fed. Reg 37,484 (1985) ........ a

NAAQS for Carbon Monoxide, 59 Fed. Reg. 38,906 (1994) ........ 4

NAAQS for Lead, 43 Fed. Reg. 46,246 (1978) ................... 4

NAAQS for Nitrogen Dioxide, 50 Fed. Reg. 25,532 (1985) ........ 4

NAAQS for Nitrogen Dioxide, 61 Fed. Reg. 52,852 (1996) ........ a

NAAQS for Ozone, 62 Fed. Reg. 38,856 (1997)........ 3, 4, 23, 24, 34

NAAQS for Particulate Matter , 52 Fed. Reg. 24,854 (1987) ...... 20

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

BED OS 0UAEes Kecbene sedesésovessdeuesecess 3, 4, 20, 21, 24

NAAQS for Photochemical Oxidants, 44 Fed. Reg. 8202

PEED GUnsnsdccncneccsuneesusonnnentsensecenecssss 4, 22, 46

NAAQS for Sulfur Oxides, 58 Fed. Reg. 21,351 (1993) ........... a

NAAQS for Sulfur Oxides, 61 Fed. Reg. 25,566 (1996) ........... aq

NAAQS, 36 Fed. Reg. 8186 (1971) ....... 2.6.0.2 eee, 20, 22, 30

Proposed NAAQS for Ozone, 61 Fed. Reg. 65,716 (1996) ........ 22

Proposed NAAQS for Particulate Matter, 61 Fed. Reg. 65,638

EE deannnueddnensddenennentensiascececessuceeuee< 20, 21

Legislative Hist

116 Cong. Rec. 32,913 (1970) (statement of Sen. Muskie)... ... . .. 16

Air Pollution Problems: Hearings Before the House Select Comm. on

Small Business, Ath Cong., 2d Sess. (1956) .... 2... 66... 6... 8

Air Pollution - 1970: Hearings Before the Subcomm. on Air and Water

- Pollution of the Senate Comm. on Public Works, Vist Cong., 2d Sess.

SPEEDED. 9000006068600006660004C000600000000000% 12

Legislative History- Continued:

Air Pollution — 1970: Hearings Before the Subcomm. on Air and Water

Pollution of the Senate Comm. on Public Works, Vist Cong.,

ES SEE ERI Ne 17

Te ee ee 13

H.R. Rep. No. 95-294 (Ist Sess. 1977)... 6.6. 19

H.R. Rep. No. 101-490, at 229 (1990) ©... 6.0. 50

S. Rep. No. 91-1196 (2d Sess. 1970)... 6... cece 13, 17, 18

Secretary of Health, Education, and Welfare, Progress in the

Prevention and Control of Air Pollution, S. Doc. No. 91-64

SE EEE SS ites = Moet er eRe 11

Staff of Senate Comm. on Public Works, 88th Cong., 1st Sess.,

A Study of Pollution - Air (Comm. Print 1963) ..............+. 8

Other Sources:

Air Pollution Control Office, Environmental Protection

Agency, Pub. No. AP-84, Air Quality Criteria for

Nitrogen Oxides (1971)... . 0.0.6... occ cece e eee 14, 17, 42

Memorandum from William G. Laxton, Director, Technical

Support Division, EPA, “Ozone and Carbon Monoxide Design

Value Calculations” (June 18, 1990) <http:www.epa.gov /

airprogm/ oar/oaqps/greenbk/laxton.html>. ............-. 46

Guidelines for the Development of Air Quality Standards

and Implementation Plans (1969)... ..... 66.6 seen eee ees 16

National Air Pollution Control Administration, HEW,

Pub. No. AP-50, Air Quality Criteria for Sulfur Oxides

Re ey ee as ES hye ne 11

National Air Pollution Control Administration, HEW,

Pub. No. AP-63, Air Quality Criteria for Photochemical

Cebemte TTD nn cc ccccccccccccccvceess 12, 14, 15, 16, 17, 42

National Air Pollution Control Administration, HEW,

Pub. No. AP-64, Air Quality Criteria for Hydrocarbons

GD oc ccccccsccccccccccsscvcdcccccsscccveccesecces 12, 17

National Air Pollution Control Administration, HEW,

Pub. No. AP-49, Air Quality Criteria for Particulate

Matter (1969) 0c ccc ce cece. 11, 14, 15, 16, 17

National Air Pollution Control Administration, HEW,

Pub. No. AP-62, Air Quality Criteria for Carbon

Monoxide (1970) .... 2... 0.00.00. 12, 14, 15, 16, 17, 42

Office of Research and Development, Environmental Protection

Agency, Air Quality Criteria for Lead (1977) ............... 42

Public Health Service, HEW, Pub. No. 1619, Air Quality

Criteria for Sulfur Oxides (1967) peeeacseses 10, 11, 14, 15, 16, 42

1 William H. Rodgers, Environmental Law (2d ed. SPEED sstecses 7,10

Antonin Scalia, Responsibilities of Regulatory Agencies Under

Environmental Laws, 24 Hous. L. Rev. 97 (1987) SESS CdCCeeeee 35

H.H. Schrenk, U.S. Public Hez!th Service, Air Pollution in

IIE A ineccdcis (ualuaddbenvedeededmacaeuse 8

State Petitioners’ Appendix to Petition for

RENEE Seacdendcance* cccocctscecascseuns 24, 25, 26, 39, 45

Dr. George T. Wolff, Chair, Clean Air Scientific Advisory

Committee, Closure Letter to Hon. Carol M. Browner

(Nov. 30, 1995) <www.epa.gov/sciencel/casac02.pdf> ...... 23

<x.-~

BRIEF FOR RESPONDENTS

MASSACHUSETTS AND NEW JERSEY

IN SUPPORT OF PETITIONERS

STATEMENT

A. Statutory and Regulatory Background

The National Ambient Air Quality Standards (NAAQS)

form the centerpiece of what many consider to be this

country’s single most important environmental program.

These standards protect public health by governing the quality

of the outdoor air ‘hroughout the nation. They address the

pollutants-sulfur oxides, nitrogen oxides, lead, carbon

monoxide, ozone, and particulate matter-that are among the

best-studied, most pervasive, and most diversely harmful of

the byproducts of industrial society. A large part of the federal

regulation that takes place under the Clean Air Act, and most

of the state regulation, have as their objective the attainment

of air quality consistent with the NAAQS. This case, which

involves the NAAQS for particulate matter and ozone, places

in issue the processes for both establishing and implementing

the NAAQS.

1. Congress has devised an intricate and highly constrained

process for the establishment and revision of the NAAQS by

the Environmental Protection Agency (EPA). This process

préscribes the factors EPA is to consider in setting the NAAQS;

requires a margin of safety to address the problem of scientific

uncertainty; targets only ubiquitous, harmful air pollutants; |

mandates exhaustive scientific inquiry into the consequences

of these pollutants for human health and welfare; requires

EPA to consult with a scientific committee formed to advise

the agency on the consequences of and alternative regulatory

responses to air pollution; requires extensive opportunity for

public review and comment; and provides for judicial review.

2. The process for implementing the NAAQS is equally

elaborate. Although thestates have the primary responsibility

2

to devise and implement the programs to achieve the NAAQS,

the Clean Air Act significantly constrains the timing and

content of the process of implementation. For areas that had

not met the NAAQS that existed when the Act was amended

in 1990, the Act dictated highly specific deadlines and control

measures. Most of these deadlines have now passed.

3. In its essence, this case questions whether Congress has

forsaken its legislative duties in assigning authority to an

executive agency. In this setting, it is important to understand

Congress's working relationship with the regulatory program

under scrutiny. Today’s NAAQS program is the combined

result of numerous separate Acts of Congress passed over a

period of decades. Each time Congress has revised the

statutory provisions at issue here, it has done so in direct

response to some agency action (or inaction), sometimes

ratifying and sometimes adjusting the agency’s course. In

many instances, Congress has fine-tuned the statutory

requirements in light of the executive’s experiences in

attempting to address air pollution in the face of persistent

scientific uncertainty. Review of the historical development of

the NAAQS program thus reveals an exceedingly close and

fruitful working relationship between Congress and the

executive in shaping and refining national policy with respect

to air pollution.

1. Establishing and Revising the NAAQS

The Clean Air Act requires the Administrator of EPA to

establish and periodically revise NAAQS for a limited subset

of air pollutants. Clean Air Act (CAA) §§ 108-109, 42 U.S.C. §§

7408-7409. These standards identify the maximum permitted

level of the regulated pollutants in the outside air.’

‘Primary NAAQS protect the public health. CAA § 109(b)(1), 42 U.S.C.

§7409(b)(1). Secondary standards protect public welfare, 42 USC.

§7409(b)(2), broadly defined to include, for example, effects on soils, crops,

Sa

3

NAAQS may be set only for air pollutants that “cause or

contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare” and “the

presence of which in the ambient air results from numerous or

diverse mobile or stationary sources.” CAA § 108(a)(1)(A)-(B),

42 U.S.C. § 7408(a)(1)(A)-(B). Today, NAAQS exist for six

pollutants: particulate matter (PM), sulfur dioxide, carbon

= nitrogen dioxide, ozone, and lead. 40C.F.R. §§ 50.4

The Clean Air Act requires extensive scientific inquiry into

the nature and severity of harm caused by an air pollutant

before a NAAQS can be set. The Act requires, first, that air

quality “criteria” be developed for pollutants in the N AAQS

program. (Hence the term “criteria pollutants.”) The air

quality criteria~which are described in a “criteria document”

prepared by the agency-must reflect “the latest scientific

knowledge” indicating the “kind and extent of all identifiable

effects on public health or welfare which may be expected

from the presence of such pollutant in the ambient air, in

varying quantities.” CAA § 108(a)(2), 42 U.S.C. §7408(a)(2).

The Act requires, in addition, that a scientific advisory

committee-the Clean Air Scientific Advisory Committee

(CASAC)-review the air quality criteriaand NAAQS. CASAC

must recommend to the Administrator any new or revised

NAAQS that may be appropriate in light of the statutory

requirements and describe the areas in which “additional

knowledge” is required to evaluate any NAAQS. CAA

§109(d)(2)(B)-(C), 42 U.S.C. § 7409(d)/2)(B)-(C). In setting the

NAAQS, the Administrator may significantly depart from

CASAC’s recommendations only if she explains why she has

done so. CAA § 307(d)(3), 42 U.S.C. § 7607(d)(3).

and wildlife. CAA § 302(h), 42 U.S.C § 7602(h). The pri

| »42US.C. primary and secondary

standards at issue here are identical. See NAAQS for Particulate Matter, 62

pared Reg. 38,652, 38,653 (1997); NAAQS for Ozone, 62 Fed. Reg. 38,856

+

The NAAQS themselves must be “based on” the air quality

criteria. CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1). The NAAQS

are standards the attainment and maintenance of which,

“allowing an adequate margin of safety, are requisite to

protect the public health.” 42 U.S.C. § 7409(b)(1).

The Clean Air Act directs the Administrator to review the

NAAQS every five years. CAA § 109(d)(1), 42 USC.

§7409(d)(1). Based on this review, the Administrator may

promulgate anew NAAQS, or revise an existing one. 42 U.S.C.

§ 7409(a)(1). No new pollutant has been regulated under the

NAAQS program since 1978, when the NAAQS for lead was

issued.2 Pursuant to its obligation of periodic review,

however, EPA has undertaken multiple reviews and revisions

of the criteria and NAAQS for the six criteria pollutants.’

In setting any NAAQS, EPA must specify at least three

different regulatory parameters.‘ First, EPA must specify the

concentration level for a pollutant (e.g., X parts per million).

Second, EPA must specify an averaging time for concentrations

of the pollutant (e.g., one hour, 24 hours, one year, etc.).

Finally, the agency must specify a “form,” which is the air

quality statistic used to determine compliance with the

standard (e.g., no more than one exceedance per year). The

form of a NAAQS is at once an integral part of the standard

itself and an essential step towards enforcement.

2? NAAQS for Lead, 43 Fed. Reg. 46,246 (1978).

*See 62 Fed. Reg. 38,856 (1997) (revising ozone NAAQS); 62 Fed. Reg. 38,366

(1997) (revising particulate matter NAAQS); 61 Fed. Reg. 52,852 (1996)

(reviewing nitrogen dioxide NAAQS); 61 Fed. Reg. 25566 (1996) (reviewing

sulfur oxides NAAQS); 59 Fed. Reg. 38,906 (1994) (reviewing carbon

monoxide standard); 58 Fed. Reg. 21,351 (1993) (reviewing sulfur oxides

NAAQS); 52 Fed. Reg. 24,634 (1987) (revising PM NAAQS); 50 Fed. Reg

37,484 (1985) (reviewing carbon monoxide NAAQS); 50 Fed. Reg. 25,532

(1985) (reviewing nitrogen dioxide NAAQS); 44 Fed. Reg. 8202 (1979)

(revising photochemical oxidants NAAQS); 43 Fed. Reg. 46,246 (1978)

(promulgating new NAAQS for lead).

*See, e.g., NAAQS for PM, 62 Fed. Reg. at 38,666-68.

5

2. Implementing the NAAQS

The NAAQS themselves do not place limits on any source

of pollution. Thus, once the NAAQS are set, attention shifts to

achieving them. Although the Clean Air Act gives the states

the primary responsibility to implement the programs to

achieve the NAAQS, see CAA § 110, 42 U.S.C. § 7410, the

statute also significantly constrains the timing and content of

the process of implementation.

Designation; Attainment Status. Implementation begins with

the designation of areas according to whether their air quality

complies with the NAAQS. The three possible designations

are “attainment” (area meets the NAAQS), “nonattainment”

(area does not meet the NAAQS), or “unclassifiable” (area’s

attainment status cannot be determined based on available

information). CAA §107(d)(1)(A)(i)-(iii), 42 U.S.C.

§7407(d)(1)(A)(i)-(iii). An area may be “attainment” for some

pollutants and “nonattainment” for others.

Section 107(d) provides that areas may be or have been

designated in three different circumstances. First, areas may

be designated when a new NAAQS is established or an

existing one is revised. CAA § 107(d)(1); 42 US.C. §

7407(d)(1). Second, areas were designated following the 1990

Amendments to the Clean Air Act. CAA § 107(d)(4); 42 U.S.C.

§ 7407(d)(4). Third, areas may be “redesignated” based on

new information, CAA § 107(d)(3); 42 U.S.C. § 7407(d)(3); for

example, an attainment area may be redesignated as

nonattainment if its air quality ceases to meet the NAAQS.

State Implementation Plans. The next step is for the states to

submit state implementation plans, or “SIPs.” CAA § 110, 42

U.S.C. § 7410. These plans specify the measures states will

take to attain or maintain the NAAQS within their borders. 42

US.C. § 7410(a)(1). A state may consider cost and

technological feasibility in developing its SIP; indeed, “[s]o

long as the national standards are met, the State may select

whatever mix of control devices it desires . . .” Union Electric

6

Company v. EPA, 427 US. 246, 266 (1976); see also Train v.

Natural Resources Defense Council, 421 U.S. 60, 79 (1975).

Nonattainment. Special rules apply to nonattainment areas.

Part D of Subtitle I of the Act sets forth requirements for SIPs

in states containing nonattainment areas. CAA §§ 171-193, 42

U.S.C. §§ 7501-7515. Part D contains five subparts. Subpart 1

sets forth rules for nonattainment areas in general. CAA

§§171-179B, 42 U.S.C. §§ 7501-7509a. Subparts 2-5, added to

the Act in 1990, impose new requirements on areas that had

not attained the various NAAQS existing at that time. CAA

§ 181-192, 42 U.S.C. §§ 7511-7514a.

Subpart 1. Under Subpart 1, the Administrator may

“classify” nonattainment areas in accordance with the severity

of their air quality problems, for the purpose of setting

attainment deadlines. CAA § 172(a)(1)(A), 42 USC.

§7502(a)(1)(A). Subpart 1 requires that SIPs in nonattainment

areas achieve “reasonable further progress” toward attaining

the NAAQS. Subpart 1 also requires that primary NAAQS be

achieved “as expeditiously as practicable, but no later than 5

years from the date such area was designated nonattainment

...-” CAA § 172(a)(2)(A); 42 U.S.C. § 7502(a)(2)(A).

Subpart 2. Subpart 2 imposed new, more specific

requirements on areas that had not attained the ozone

standard existing in 1990, when Subpart 2 was enacted.” Like

Subpart 1, Subpart 2 establishes both what is required in these ~

nonattainment areas and when it is required. Specific

requirements and deadlines depend on anarea’s classification,

and the classification depends on the severity of an area’s air

pollution problem. The classifications prescribed by Subpart

2 are keyed to the ozone standard existing in 1990, as is the

methodology to be employed in making these classifications.

CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1). Most of the deadlines

SSubparts 3-5 imposed new requirements on areas that did not meet the

existing standards for carbon monoxide, particulate matter, nitrogen dioxide,

and/or lead. CAA §§ 186-193, 42 U.S.C. §§ 7512-7515.

LT ——_——S_ OEE Ot” neue. ome wlll

7

contained in Subpart 2 have already passed. See, e.g, CA

181(a)(1); 42 U.S.C. § 7511(a)(1) (table 1). 7 -

3. History of the Clean Air Act and the NAAQS Program

This regulatory regime did not emerge overnight. In fact,

the Clean Air Act today embodies no fewer than eleven

separate Acts of Congress, stretching back almost 50 years.’

These five decades of federal air pollution law have witnessed

an extraordinary collaboration between Congress and the

agencies that have been charged with implementing

Congress's commands. In the historical development of the

Clean Air Act, one can observe a decades-long dialogue

between Congress and the executive about the scope and

content of federal air pollution policy. This collaboration and

dialogue has led to numerous extremely precise and

significant refinements in the statutory language relating to air

quality criteria and standards, refinements that reflect the

congressional response to the executive’s experiences in

grappling with the problem of air pollution.

Congress's effort to address the problem of air pollution

began in 1955. The first federal law on air pollution

authorized the —— General to conduct studies on the

consequences prevention of air pollution and ided

funding for this research.’ Reflecting | oe aie at

the time that air pollution was a matter for states and local

governments to address, a primary purpose of the research

was to help these entities attack air pollution problems on their

own.” To this day, a primary aim of the Clean Air Act is to

promote research into the causes and c uences of air

pollution; indeed, vestiges of the 1955 statute can be found in

*See 1 William H. Rodgers, Environmental Law 124 (2d ed. 1994).

’See Air Pollution Control Act of 1955, Pub. L. 84-159, 69 Stat. 322.

*See id.

today’s Clean Air Act.’

The early federal legislation reflected the growing

awareness that air pollution posed a severe threat to the

population’s health and welfare. Severe air pollution episodes

in Donora, Pennsylvania, in 1948, in London in 1952, and in

New York City in 1953 had together caused the deaths of

thousands of people.” A study of the Donora episode

performed by the United States Public Health Service

provided the first definitive evidence of the acute health effects

of air pollution.” Studies performed in the 1950s also began to

establish a causal link between automotive exhausts and

smog.” In 1960, Congress responded to these early findings by

passing the Schenck Act, calling for further research into the

consequences for health and welfare of motor vehicle

exhaust.” Thus the early years of federal air pollution

legislation witnessed a consistent pattern: preliminary research

showed a threat from air pollution; this research was followed

by critiques and counter-research; and the eventual result was

typically research confirming the existence of a threat. This

pattern - the pattern, in fact, of scientific inquiry - is a

recurring, indeed defining, feature of air pollution control.

The 1960s witnessed the federal government's steadily

increasing involvement in addressing air pollution. In 1963,

*Compare, e.g., § 3, 69 Stat. 322, with CAA § 103(a)(3), 42 U.S.C. § 7403(a)(3)

(authorizing Surgeon General and EPA, respectively, to conduct research

and make recommendations at the request of state and local agencies).

See Staff of Senate Comm. on Public Works, 88th Cong., Ist Sess., A Study

of Pollution - Air 13 (Comm. Print 1963).

"See H.H. Schrenk, U.S. Public Health Service, Air Pollution in Donora, Pa.

(1949).

'2See Air Pollution Problems: Hearings Before the House Select Comm. on Small

Business, 84th Cong., 2d Sess. 42 (1956) (statement of Arie J. Haagen-Smit,

Cal. Inst. of Tech.).

See Act of June 8, 1960, Pub. L. No. 86-493, 74 Stat. 162 (1960).

—

9

Congress enacted the original Clean Air Act." This statute for

the first time authorized the federal government-acting

Secretary of the Department of Health, Education,

and Welfare (HEW)-to establish “criteria” for air quality. 77

Stat. 392 § 3(c)(2). The language describing the scope and

content of the original air quality criteria was strikingly similar

to the corresponding language of the Clean Air Act today."

The Clean Air Act of 1963 also directed the Secretary to

gather and publish information on air pollution control

techniques. The criteria and the information on control

techniques were to be made available to state, local, and

interstate air pollution control agencies,” and the Secretary

was directed to help these agencies develop their own

standards to control air pollution.” Somewhat ingly,

Congress used the same term, “criteria,” for both the scientific

information on the of air pollution and standards

for air quality.” But the basic goal of the standards was clear

enough and has persisted to this day: the Secretary was to

recommend to local, state, or interstate air pollution control

agencies those standards which “in [the Secretary’ s] judgment

“See Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392.

‘The statute provided:

Whenever [the Secretary] determines that there is a particular ai

pollution agent (or combination of agents), present in the air in certain

quantities, producing effects harmful to the health or welfare of persons,

) in the air in varying

§ (3)(c)(2), 77 Stat. 392; of. CAA § 108(a)(2), 42 US.C. § 7408(a)(2).

"See §§ 3(a)(1), 3(b)(8), 77 Stat. at 394-95.

"See § 3(c)(2), 77 Stat. at 395.

"*See §§ 2(a), 3(a)(2), 3(b), 77 Stat. at 393-95.

See § 3(c)(3), 77 Stat. at 395.

10

may be necessary to protect the public health and welfare.””

The Clean Air Act of 1963 thus introduced some of the

broad outlines of federal air pollution policy as it exists today.

However, the statute did not set deadlines for HEW’s

establishment of air quality criteria; it encouraged but did not

require the establishment of air quality standards by states and

local governments; and it provided new but cumbersome and

limited mechanisms for the control of interstate air pollution.”

Thus, it is not surprising that little happened under the Clean

Air Act of 1963: HEW published air quality criteria for only

one set of air pollutants, sulfur oxides,” and the enforcement

mechanisms created by the Act proved inadequate.”

In 1967, Congress acted again.* In the Air Quality Act of

1967, Congress directed the Secretary of HEW to establish air

quality criteria that were to reflect “the latest scientific

knowledge useful in indicating the kind and extent of all

identifiable effects on health and welfare which may be

expected from the presence of an air pollution agent, or

combination of agents in the ambient air, in varying

quantities.”” In developing the criteria, the Secretary was

directed to consult with “appropriate advisory committees and

§ 3(c)(3), 77 Stat. at 395.

21gg 3(c)(2)-(3), 5, 77 Stat. at 395-99.

See Public Health Service, HEW, Pub. No. 1619, Air Quality Criteria for

Sulfur Oxides (1967) [hereinafter 1967 SOx Criteria Doc.].

*See Rodgers, supra, at 130.

Congress also had, two years before, passed amendments to the Clean Air

Act which, for the first time, directed the Secretary to set emissions standards

for motor vehicles. See Motor Vehicle Air Pollution Control Act of 1965, Pub.

L. No. 89-272, § 202, 79 Stat. 992.

> Air Quality Act of 1967, Pub. L. No. 90-148, § 107(b)(2), 81 Stat. 491. The

1967 Act also continued to require the Secretary to develop and disseminate

information on control techniques. For the first time, Congress required that

this information include information on technological and economic

feasibility. See § 107(c), 81 Stat. at 491.

ae et w

11

Federal departments and agencies.”* In light of this new

requirement, the Secretary was told to reevaluate the only

criteria document he had issued so far (on sulfur oxides).”

The 1967 Act also introduced part of the language that now

governs the NAAQS themselves: the Act directed the

to issue “such criteria of air quality as in his judgment may be

requisite for the protection of the public health and welfare.””

Congress continued to rely largely on the states for the

development of air quality standards (rules governing air

quality) as opposed to criteria (the scientific documents on

which the standards were to depend). But in the 1967 Act,

Congress created an important exception to this rule: if a state

did not establish air quality standards for air pollutants for

which the Secretary had issued criteria or if a state established

standards which were not “consistent with” the Secretary's

criteria, the Secretary himself was required to promulgate air

quality standards for that state.”

Once again, however, the statute did not obligate HEW to

act by a certain date, nor did it obligate the states to act at all.

And, once again, progress under the statute was

disappointing. By late 1969, HEW had issued criteria for only

two pollutants;” fewer than half of the states had set air

quality standards for sulfur oxides;" and no state air quality

°§ 107(b)(1), 81 Stat. at 491.

” See id.

1d.

°§§ 108(c)(1-2), 81 Stat. at 492.

See 1967 SOx Criteria Doc.; National Air Pollution Control Administration

(NAPCA), HEW, Pub. No. AP-49, Air Quality Criteria for Particulate Matter

(1969) [hereinafter 1969 PM Criteria Doc.]; NAPCA, HEW, Pub. No. AP-50,

+ ae, [hereinafter 1969 SOx Criteria

*' See Secretary of Health, Education, and Welfare, Progress in the Prevention

and Control of Air Pollution, S. Doc. No. 91-64, at 16-18 (2d. Sess. 1970: «ee

12

standard had been approved by HEW.” In addition, the

enforcement mechanisms of the 1967 Act, aimed at interstate

air pollution, lay almost entirely dormant.®* By the time HEW

issued criteria for three more air pollutants in early 1970,

Congress was already at work on new legislation.

The Clean Air Amendments of 1970 reflected a fundamental

break with the past in several respects. The most obvious

change was institutional: for the first time, Congress required

the federal government to set standards for air quality even in

the absence of a finding of inadequacy with respect to any

state standards. The states retained the task of implementing

the air quality standards, but EPA-created during Congress's

deliberations on the 1970 Amendments*-was directed to set

the standards.”

Also for the first time, Congress limited the category of air

pollutants to which the air quality standards would apply.

The 1970 Amendments provided that the standards would be

set only for pollutants listed by EPA, and that EPA would list

a pollutant only if it “has an adverse effect on public health or

—

also Air Pollution - 1970: Hearings Before the Subcomm.. on Air and Water

Pollution of the Senate Comm. on Public Works, 91st Cong., 2d Sess. (March 17,

1970) (Appendix - Part 1) (hereinafter “March 17 Hearing”)

See March 17 Hearing, supra (Appendix - Part 1).

See S. Doc. No. 91-64, at 24-25; see also March 17 Hearing, supra (Appendix

- Part 1).

“See NAPCA, HEW, Pub. No. AP-62, Air Quality Criteria for Carbon

Monoxide (1970) [hereinafter 1970 CO Criteria Doc.]; NAPCA, HEW, Pub.

No. AP-63, Air Quality Criteria for Photochemical Oxidants (1970)

[hereinafter 1970 Ozone Criteria Doc.}; NAPCA, HEW, Pub. No. AP-64, Air

Quality Criteria for Hydrocarbons (1970) [hereinafter 1970 HC Criteria Doc.].

See Reorg. Plan No. 3 of 1970, 5 U.S.C.A. App. (Supp. 1992).

*See Clean Air Amendments of 1970, Pub. L. No. 91-604, sec. 109, § 4(a), 84

Stat. 1679. States are free, however, to set air quality standards that are

stricter than the federal standards. CAA § 116, 42 U.S.C. § 7416.

13

welfare” and comes from “numerous or diverse” sources.”

With respect to the air quality criteria, Congress required for

the first time that the criteria describe effects on “public health

and welfare.” Previously, it had required that criteria describe

effects on the health and welfare “of persons”™ or simply on

“health and welfare.”” Indeed, the original Senate version of

the 1970 amendments referred to the “health of persons,” but

the House version-referring to “public health or

welfare”-prevailed.” Tellingly, at the same time, Congress

endorsed the same shift in emphasis with respect to mobile

source emission standards: whereas, in 1965, Congress had

called for mobile source emissions standards whenever air

pollutants endangered the “health or welfare of any persons,”

in 1970, Congress required such standards only when

the” public health or welfare” was at risk.” By targeting public

health, Congress instructed EPA to target health effects in

populations rather than in single individuals.”

Congress also made two significant adjustments to the

substance of the air quality standards. Although Congress had

Sec. 108(a)(1)(A-B), § 4(a), 84 Stat. at 1678.

“Clean Air Act of 1963, Pub. L. No. 88-206, § 3(c)(2), 77 Stat. 392, 395.

* Air Quality Act of 1967, Pub. L. No. 90-148, sec. 107(b)(1), §2, 81 Stat.491.

“Compare H.R. 17255, 91st Cong. § 2(a) (1970) (requiring air quality

standards to be set for pollutants that “endanger or may endanger the public

health or welfare”) with H.R. 17255, 91st Cong. § 10(a)(3) (1970) (providing

that air quality standards are those the attainment and maintenance of which

are “necessary to protect the health of persons”).

“Compare Motor Vehicle Air Pollution Control Act of 1965, Pub. L. No. 89-

272, sec. 202(a), §6, 79 Stat. 992, with Clean Air Act Amendments of 1970,

Pub. L. No. 91-604, sec. 202 (a)(1), §6, 84 Stat. 1690.

“The Senate Report stated that NAAQS must “ protect the health of any

group of the population,” including sensitive groups for which “ reference

should be made to a representative sample of persons comprising the

sensitive group rather than to a single person in the group.” S. Rep. No. 91-

1196, at 10 (2d Sess. 1970). ~

14

previously directed HEW to encourage states and local

governments to set uniform standards,” it had never required

uniformity. This changed in 1970: Congress required EPA’s

new air quality standards to be nationally uniform.

The 1970 Amendments also stated for the first time that the

air quality standards protecting human health-the primary

standards*-must embody “an adequate margin of safety.”“

The requirement of a margin of safety followed directly from

HEW’s experience in developing its first criteria documents.

HEW’s research regarding the first criteria pollutants had

revealed several important features (and limits) of scientific

inquiry into the effects of air pollution on human health and

welfare. First of all, HEW’s review of the scientific literature

on the criteria pollutants had revealed a diverse array of harms

which occurred at a diverse array of pollution levels.” The

effects on human health alone, HEW had discovered, varied

widely, including such disparate effects as the initiation

and/or aggravation of respiratory diseases including

bronchitis® and asthma,” impairment of the oxygen-carrying

See Clean Air Act of 1963, Pub. L. No. 88-206, § 2(a), 77 Stat. 393.

“See Clean Air Amendments of 1970, Pub. L. No. 91-604, sec. 109(a)(1), § 4(a),

84 Stat. 1679 (directing Administrator to publish “a” primary NAAQS and

“a” secondary NAAQS for each criteria pollutant).

“The creation of two categories of standards - primary and secondary - was

another innovation of the 1970 Amendments. See sec. 109, § 4(a), 84 Stat. at

1679-80.

Sec. 109(b)(1), § 4(a), 84 Stat. at 1679.

‘See 1967 SOx Criteria Doc. liii (graphic depiction of results of studies

concerning health and welfare effects sulfur oxides); 1969 PM Criteria Doc.,

supra, at 188-89 (summary of health effects at various exposure levels); 1970

CO Criteria Doc., supra, at 10-7 (table reflecting health effects at various

exposure levels); 1970 Ozone Criteria Doc., supra, at 10-9 to 10-13 (text and

table detailing health and welfare effects associated with different levels of

exposure).

“EPA, Air Quality Criteria for Nitrogen Oxides 11-8 (1971) [hereinafter 1971

a

capacity of the blood,” and premature death.”

Second, HEW’s research had revealed no bright line

pollutant level above which adverse effects on human health

and welfare were certain to occur and below which such

effects did not occur. Identifying a bright line above which

adverse effects would certainly occur proved difficult because

much of the research on air pollution studied the effects of

pollutants in combination rather than in isolation; thus, in

developing the criteria for sulfur oxides, for example, HEW

acknowledged the possibility that the health effects it found

were due to the combination of sulfur oxides and other

pollutants rather than to sulfur oxides alone.” Inconsistencies

among scientific studies,” and shortcomings in the studies’

methodologies, created further difficulties.®

At the same time, HEW had little confidence that the lowest

levels at which adverse effects had been detected in the

scientific literature were in fact the lowest levels at which such

effects occurred.* Equally important, HEW had discovered

NOx Criteria Doc.].

“See 1970 Ozone Criteria Doc., supra, at 10-7.

See 1970 CO Criteria Doc., supra, at 10-3.

*'See 1967 SOx Criteria Doc., supra, at xxix.

Id. at v-vi.

**See 1970 Ozone Criteria Doc., supra, at 10-7 to 10-8.

1969 PM Criteria Doc., supra, at 183 (failure to control for smoking habits).

ges simply in measuring exposure levels.

See, e.g., 1970 Ozone Criteria Doc., supra, at 10-1 to 10-2. uit

“In its 1969 guidelines on developing air quality criteria, HEW explained:

The exposure levels which have thus far been associated with identifiable

effects . . . are not necessarily the lowest levels of exposure that will

produce such effects. Nor are those effects necessarily the only ones

produced by such exposures. Knowledge of the synergistic effects of air

pollutants is limited. So is knowledge of possible long-term genetic

16

that part of the reason why it was difficult or impossible to

identify a single “safe” level of pollution was that different

people responded differently to air pollution. HEW’s research

had revealed that certain subpopulations-including the

elderly” and people with preexisting cardiovascular or

respiratory disease*-were most susceptible to the adverse

effects of air pollution.” In the first criteria document on

particulate matter, HEW observed that many effects on

sensitive subpopulations would not be picked up by

epidemiological research because the sample sizes were often

too small.

HEW responded to. these challenges by endorsing an

approach to standard-setting that leaned in favor of more

rather than less stringent standards. In every criteria

document published after 1967,°° HEW closed with a

effects. ... In short, air quality criteria cannot be interpreted as threshold

values; indeed, for many types of air pollutants, there may not be a

threshold of risk to health and the environment. In the evaluation of

biological effects of environmental contaminants, whether in the

community or occupational environment, accumulating evidence has

almost invariably shown that adverse effects can and do occur at

exposure levels that at one time were considered “safe.”

NAPCA, HEW, Guidelines for the Development of Air Quality Standards

and Implementation Plans 16 (1969).

*’See 1970 Ozone Criteria Doc., supra, at 10-7.

*See 1967 SOx Criteria Doc., supra, at xxviii; 1969 PM Criteria Doc., supra, at

188 (aggravation of bronchitis); 1970 Ozone Criteria Doc., supra, at 10-7

(aggravation of asthma); 1970 CO Criteria Doc., supra, at 10-4

*Congress also had reason to believe that children comprised a

subpopulation that might be especially sensitive to air pollution. In his floor

statement introducing the 1970 Amendments, Senator Muskie referred to a

study concerning the health effects of nitrogen dioxide on children. 116

Cong. Rec. 32,913 (1970).

©See 1969 PM Criteria Doc., supra, at 188.

*'The hydrocarbons criteria document did not offer this recommendation

because HEW found that hydrocarbons cause no direct health effects by

17

recommendation to the following effect:

It is reasonable and prudent to conclude that, when

promulgating ambient air quality standards, consideration

should be given to requirements for margins of safety

which take into account long-term effects on health and

materials occurring below the above levels.”

This recommendation was directed at the local, state, and

interstate agencies which were, at that time, responsible for

setting air quality standards.”

The 1970 Amendments dealt with the challenges HEW had

encountered in twy ways. First, as noted, the Amendments

required for the first time a “margin of safety” in air quality

standards, thus accepting the recommendation HEW had

made in its criteria documents.“

Second, Congress endorsed the criteria documents HEW

had so far compiled. Congress did not require HEW to

reevaluate any existing criteria, as it had done in 1967 with

themselves; they cause adverse effects only by interacting with other

pollutants to form ozone. 1970 HC Criteria Doc., supra, at 8-5.

**1969 PM Criteria Doc., supra, at 189; see also 1970 Ozone Criteria Doc., supra,

at 10-13; 1970 CO Criteria Doc., supra, at 10-6; 1971 NO Criteria Doc., supra,

at 11-12.

“Congress was well aware of HEW’s practice of recommending margins of

safety for air quality standards. In a Senate hearing during the crafting of

the 1970 amendments, the head of the HEW unit responsible for developing

air quality criteria and standards noted HEW’s practice of including a

margin of safety in its recommendations, claiming that the margin of safety

corrected for the fact that “the no-effect level always corresponds . . . to the

limitations of scientific knowledge in this area.” Air Pollution — 1970:

Hearings Before the Subcomm. on Air and Water Pollution of the Senate Comm. on

Public Works, 91st Cong., 2d Sess. (May 27, 1970) (statement of Dr. John T.

Middleton, Commissioner, National Air Pollution Control Administration,

HEW).

“The Senate report on the legislation explained that “ margins of safety are

essential to any health-related environmental standards if a reasonable

degree of protection is to be provided against hazards which research has

not yet identified.” S. Rep. No. 91-1196, at 10.

18

respect to the sulfur oxides criteria. Moreover, not only did

Congress require air quality standards to be “based on” the

criteria rather than merely “consistent with” them,” it also

required EPA to base the very first NAAQS on HEW’s existing

criteria.” These facts signal a congressional endorsement of

HEW’s basic approach in the criteria documents compiled as

of 1970-an approach which featured inquiry only into the

consequences for health and welfare of pollutants in the

ambient air; close attention to the effects of air pollution on

sensitive segments of the population;” and knowing

recognition of the difficulties of drawing a bright line between

pollution that is harmful and pollution that is not.

Congress substantially revised the Clean Air Act again in

1977, making three important adjustments to the NAAQS-

setting process. First, Congress added the requirement that

the criteria and the NAAQS be reviewed and, if appropriate,

revised, every five years.” Second, Congress required EPA to

create and toconsult with CASAC.” Finally, Congress altered

the requirements for determining which pollutants were

Compare Air Quality Act of 1967, Pub. L. No. 90-148, sec. 108(c)(1), § 2, 81

Stat. 491, with Clean Air Act Amendments of 1970, Pub. L. No. 91-604, sec.

109(b)(1), § 4(a), 84 Stat. 1680.

See CAA §109%(a)(1)(A), 42 U.S.C. §7409%(a)(1)(A) (requiring EPA

Administrator to issue, within 30 days from the enactment of the 1970

amendments, primary and secondary NAAQS “for each air pollutant for

which air quality criteria have been issued prior to such date”).

*’The 1970 Senate Report emphasized that “[c]oncern for health effects must

extend beyond “normal” segments of the population to effects on the very

young, the aged, the infirm, and other susceptible individuals.” S. Rep. No.

91-1196, at 7. More specifically, the Report stressed that NAAQS were to

protect the health of sensitive subpopulations such as bronchial asthmatics

and emphysematics. [d. at 10.

See Clean Air Act Amendments of 1977, Pub. L. 95-95, sec. 109(d)(1),

§106(a), 91 Stat. at 691.

See sec. 109(d)(2), § 106(a), 91 Stat. at 691.

19

subject to the NAAQS program: whereas in 1970 Congress had

specified that the program applied to a pollutant if it “has an

adverse effect on public health or welfare,”” in 1977 it

provided that the program applied to a pollutant if it “may

reasonably be anticipated to endanger public health or welfare.””!

This amendment followed directly from EPA’s experience in

regulating airborne lead.”

In sum, an extraordinary pattern of dialogue and

collaboration between Congress and the executive has

characterized the history of federal air pollution control. In

ways large and small, Congress has continually adjusted

EPA’s course in implementing the Clean Air Act. Congress has

even passed legislation in response to the very standards at

issue in this case.”

™Clean Air Act Amendments of 1970, Pub. L. No. 91-604, sec. 108, § 4(a), 84

Stat. 1678 (emphasis added).

"Clean Air Act Amendments of 1977, Pub. L. 95-95, sec. 108(a)(1)(A),

§401(a), 91 Stat. at 791 (emphasis added).

”The House Report accompanying the 1977 amendments explained that the

inclusion of the “may reasonably be anticipated” language was a direct

response to Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976), cert. denied, 426

U.S. 941 (1976) (upholding EPA’ regulation of lead in gasoline), and was

meant “to emphasize the preventive or precautionary nature of the act, i.e.,

to assure that regulatory action can effectively prevent harm before it

occurs” and “to reflect awareness of the uncertainties and limitations in the

data which will be available to the Administrator in the foreseeable future

to enable him to execute his duties under this act.” H.R. Rep. No. 95-294, at

43-53 (1st Sess. 1977).

See Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, §§

6101-04, 112 Stat. 463-65 (1998). This legislation adjusted the deadlines for

designating areas pursuant to the revised NAAQS, although it did not alter

the standards themselves. §§ 6102(c)(1), 6102(d), 112 Stat. at 464-65

(adjusting deadlines for designations under new PM NAAQS); § 6103 , 112

Stat. at 465 (adjusting deadlines for designations under ozone NAAQS); §

6104, 112 Stat. at 465 (stating that statute should not be construed to affect

pending litigation or to ratify revised standards).

20

B. Rulemakings on Particulate Matter and Ozone

1. Particulate Matter

Particulate matter (PM) refers to a broad class of diverse

substances that exist as discrete particles-in solid or liquid

form-over a wide range of sizes. Particles originate from a

variety of stationary and mobile sources as well as from

natural sources. They may be either emitted directly or

formed in the atmosphere through transformations of

pollutants such as sulfur oxides, nitrogen oxides, and volatile

organic compounds. The chemical and physical characteristics

of PM vary substantially with time, region, meteorology, and

source category. See NAAQS for PM, 62 Fed. Reg. at 38,652-53.

EPA first promulgated a NAAQS for PM in 1971. 36 Fed.

Reg. 8186. In July 1987, in response to a revised criteria

document, EPA changed the size of the particulates regulated

by the NAAQS to include only particulates with an

aerodynamic diameter of less than or equal to a nominal ten

microns (PM,,). 52 Fed. Reg. 24,854 (1987).

In April 1994, EPA announced its intention to develop

revised air quality criteria for PM. The focus of the review was

recent epidemiological evidence reporting associations

between ambient concentrations of PM and a range of serious

health effects, including effects caused by particulates far

smaller than ten microns. During the next two years, the

agency held several workshops, provided opportunities for

public comment on a draft criteria document, and sponsored

CASAC review of the document at public meetings.

On November 27, 1996, EPA announced its proposed

decision to revise the PM NAAQS. 61 Fed. Reg. 65,638. EPA

proposed adding two new PM NAAQS that addressed

particulates with an aerodynamic diameter less than or equal

to anominal 2.5 microns (PM, ;). The Administrator described

several alternatives for the level, averaging time, and form of

the revised PM standards, including possible changes in the

21

a oo N — Id. at 65,662.

y 18, , EPA announced final revisi

NAAQS. 62 Fed. Reg. 38,652. The 7 era ratray- ute

that it was appropriate to establish new annual and 24-hour

NAAQS for PM,, and to revise the current 24-hour PM

standard.” The Administrator noted that that the agency had

undertaken an especially rigorous review and reanalysis of

existing scientific data and that recent studies provided

evidence that serious health effects (mortality, exacerbation

of chronic disease, increased hospital admissions, etc.) are

associated with exposures to ambient levels of PM found in

contemporary U.S. urban airsheds even at concentrations

below current U.S. PM standard.” Id. at 38,655. The

Administrator further described the results of risk assessments

for two cities that, while accompanied by significant scientific

uncertainty, “found that the risk remaining after attaining the

current PM,, standards was on the order of handeals of

premature deaths each year, hundreds to thousands of

respiratory-related hospital admissions, and tens of thousands

~ — respiratory related symptoms in children.” Id. at

2. Ozone

Photochemical oxidants are formed as a result of chemical

reactions of volatile organic compounds, nitrogen oxides, and

oxygen in the presence of sunlight. Ozone is the

photochemical oxidant that exists in greatest volume and is

“For PM,, EPA set a annual standard of 15 microgra IC meter

(ug/m” with compliance measured based on the aieeniomnas of the

annual arithmetic mean PM,, concentrations from single or multiple

communuty-oriented monitors, and also set a 24-hour standard of 65 wg/m*

based on the three-year average of the 98th percentile of 24-hour PM

concentrations at each population-oriented monitor within an area. EPA

c

—— the form of the PM,, standard. NAAQS for PM, 62 Fed. Reg.

22

regulated as the surrogate for photochemical oxidants.” The

control of ozone depends on the control of its precursors,

volatile organic compounds and nitrogen oxides.

EPA first issued a NAAQS for photochemical oxidants in

1971. 36 Fed. Reg. 8186. The original standard specified a

maximum level of 0.08 ppm, averaged over one hour, with one

exceedance allowed per year. 36 Fed. Reg. at 8187. That

standard was revised in 1979 by increasing the allowable level

to 0.12 ppm and changing the form of the standard. 44 Fed.

Reg. 8202 (1979).

The EPA initiated a teview of the air quality criteria and

standards for ozone in August 1992. In an iterative process

involving EPA staff, CASAC, and the public, EPA developed

a criteria document and staff paper on the health and welfare

effects of ozone. The CASAC panel concluded that the one-

hour standard should be replaced with an eight-hour

standard; the level of the standard should be within the range

of 0.07 to 0.09 ppm; and the form of the standard should be

to allow two to five exceedances. Letter from George

T. Wolff, CASAC Chair, to Carol Browner, EPA Administrator,

regarding CASAC closure on EPA’s staff paper for the primary

ozone standard(Nov. 30, 1995) <www.epa.gov/sciencel /

casac02.pdf>.

On November 27, 1996, EPA proposed to revise the NAAQS

for ozone. 61 Fed. Reg. 65,716. EPA proposed to replace the

one-hour, 0.12 ppm primary standard with an eight-hour, 0.08

ppm standard, and to establish a new form for measuring

compliance with the standard. The proposal solicited

comments on alternative standards reflecting different levels,

averaging times, and forms. Id. at 65,731, 65,733.

On July 18, 1997, EPA‘announced final revisions to its ozone

NAAQS. 62 Fed. Reg. 38,856 (1997). The final rule set a level

of 0.08 ppm, with an averaging time of eight hours and a form

based on the 3-year average of the annual fourth-highest daily

7>NAAQS for Photochemical Oxidants, 44 Fed. Reg. 8202 (1979).

23

maximum 8-hour average ozone concentrations measured at

each monitor within an area. Id. at 38,873.”

In revising the ozone standard, the Administrator invoked

a large body of scientific evidence consisting of clinical,

epidemiological, and animal studies revealing the adverse

effects of ozone at levels allowed by the previous standard. 62

Fed. Reg. at 38,863-65. She cited “clear evidence from human

clinical studies” showing that the adverse effects from

exposure lle ozone include “lung function decrements,

respiratory symptoms (e.g., cough, pain on deep inspiration),

indicators of pulmonary inflammation.” Id. at 38,863. The

Administrator also relied on the numerous epidemiological

studies drawing a link between ozone exposures and excess

hospital admissions and emergency room visits. Id. at 38,864.

In setting the parameters for the revised ozone standard, the

Administrator noted that CASAC had unanimously endorsed

an eight-hour averaging period and that all CASAC members

who had expressed specific opinions on the form of the

standard had favored a concentration-based form allowing

multiple exceedances. 62 Fed. Reg. at 38,861, 38,869. As for

the level of the standard, the Administrator considered

alternatives only within the range endorsed by CASAC (0.07

to 0.09 ppm). She acknowledged that no one correct policy

response emerged from the scientific evidence. Id. at 38,863.

In choosing between levels of 0.09, 0.08, and 0.07, however, the

Administrator emphasized that no member of CASAC had

endorsed the 0.07 level and stressed that severity of effects

penny = ~rtny ey increased, at levels below 0.08

dda ; . In rejecting the 0.09 level, the

Administrator emphasized that such a autalondi result

“The original standard for ozone, set in 1971, also had a level of .08 ppm -

but this was averaged over one rather than eight hours, and fewer

exceedances were permitted on average per year, 36 Fed. Reg. at 8187, thus

apparently making today’s ozone standard more lenient than the original

standard promulgated almost 30 years ago.

24

in many more adverse health effects, particularly among

children, than would the 0.08 ppm level. Id. at 38,867-68.”

Cc. The Court of Appeals’ Decision

Numerous parties filed petitions for review of EPA's

revised standards in the D.C. Circuit. The D.C. Circuit found

that EPA’s application of the Clean Air Act in these

rulemakings effected a “delegation of legislative power” in

violation of Article I, § 1, of the Constitution. State Petitioners’

Appendix to Petition for Certiorari at 3 (State Pet. App.). The

court explained that “EPA appears to have articulated no

‘intelligible principle’ to channel its application of the[] factors

[it uses in setting NAAQS]; nor is one apparent from the

statute.” State Pet. App. 4.

The court came to this conclusion based not on a review of

the Clean Air Act itself but on a review of EPA’s 1997

rulemakings on PM and ozone. The court found the agency’s

explanations for its rules constitutionally deficient because

they did not identify a “stopping point” for regulation. State

Pet. App. 10. Although the court agreed that the factors EPA

considers in setting the NAAQS~such as the nature and

severity of health effects, the size of the affected population,

and the kind of health information available and the

uncertainties surroundiny it-were reasonable, it concluded

that these factors “do not themselves speak to the issue of

degree.” State Pet. App. 6. The court also dismissed as

irrelevant the exhaustive scientific review underlying EPA's

” In both rulemakings, EPA went to extraordinary lengths to facilitate public

participation: the agency established a toll-free telephone hotline; set up a

system enabling electronic comments via the Internet; held multiple public

14,000 phone calls and over 4,000 electronic mail messages; and held two

national! satellite telecasts to answer ions. EPA also received over

50,000 written and verbal comments. See 62 Fed. Reg. at 38,656; 62 Fed. Reg.

at 38,858.

ee PE Jey

25

standards. See State Pet. App. 8.

The court remanded the case to EPA. The court

acknowledged that allowing EPA to correct the constitutional

defect the court had discerned in the statute would not satisfy

what it called a “key function of non-delegation doctrine,”

which is to ensure that Congress, not the agency, exercises

legislative authority. State Pet. App. 12-13. Indeed, the court

conceded that, under its approach, “[t]he agency will make the

fundamental policy choices.” State Pet. App. 13.

The court hinted at the kinds of standards that might pass

constitutional muster. The court acknowledged that its first

proposal-cost-benefit analysis-was not open to EPA given the

court's precedents interpreting the Clean Air Act to forbid

EPA to consider costs in setting the NAAQS. See State Pet.

App. 13. Alternatively, the court proposed that EPA develop

a “generic unit of harm that takes into account population

affected, severity and probability.” More specifically, the court

endorsed setting environmental standards according to their

effect on “quality-adjusted life-years,” State Pet. App. 15,

although it conceded that the Department of Health and

Human Services had determined that a similar approach

utilized by Oregon in the health-care context violated the

Americans with Disabilities Act. State Pet. App. 15 n. 5.

The court also addressed claims that EPA could neither

issue nor enforce a revised ozone standard. The court found

that EPA could indeed issue a revised ozone standard, and

also designate areas as nonattainment under the revised

standard. See State Pet. App. 31-34. However, the court

concluded that EPA could not enforce a revised ozone

standard “other than in accordance with the classifications,

attainment dates, and control measures set out in Subpart 2.”

State Pet. App. 31.

The court reasoned that because section 181(a)(1) of Subpart

2 refers to nonattainment designations made under “section

7407(d),” the classifications and attainment dates specified in

Subpart 2 apply to areas designated as nonattainment under

26

any of the provisions of section 107(d). State Pet. App. 34-35.

Thus, areas designated nonattainment under section 107(d)(1),

following the revision of a NAAQS, would be governed by

Subpart 2. Having found the statute clear, the court refused to

defer to EPA’s interpretation, which would have allowed

enforcement of the revised standard outside of Subpart 2.

State Pet. App. 37-39.

The court granted partial rehearing and modified its

opinion to state that EPA could enforce the revised ozone

standard “only in conformity with Subpart 2.” State Pet. App.

75. Although he had dissented from the original panel

decision, Judge Tatel concurred in this aspect of the decision

on rehearing because he believed that the modified opinion

left open “the possibility that EPA can enforce the new ozone

NAAQS without conflicting with Subpart 2's classifications

and attainment dates.” State Pet. App. 76. He concluded that

EPA may enforce the revised ozone standard in areas that

have attained the prior, one-hour standard, but not in areas

that have not yet attained that standard. State Pet. App. 81.

SUMMARY OF ARGUMENT

1. The court of appedls erred in holding that the Clean Air

Act, and EPA’s longstanding interpretation of it, violate the

nondelegation doctrine.

a. The Clean Air Act places significant constraints on EPA’s

discretion in setting the NAAQS. The Act prescribes the

factors EPA may and may not consider in setting the NAAQS;

requires a margin of safety in the NAAQS as an antidote to

scientific uncertainty; limits the range of pollutants regulated

by the NAAQS program; limits the life span of each NAAQS;

and imposes significant procedural constraints on EPA’s

decisionmaking, including a scientific review process as

intensive as any on the statute books. In truth, the Clean Air .

Act’s manifold constraints on EPA’s discretion make the

statute look like a veritable straitjacket compared to the

Se ei

27

assignments of authority from Congress to the executive that

this Court has long upheld.

b. The history of the NAAQS program shows Congress's

deep involvement in the development of the program.

Congress has not only made all of the most basic and

important decisions that arise in setting air quality standards,

it has also done so by attending to the executive's experience

in setting such standards. Congress has responded to the

kinds of challenges that arise in setting environmental

standards in the face of persistent scientific uncertainty not by

foisting ever more responsibility onto an executive agency, but

by tackling the basic issues itself. Far from abdicating its

legislative role in this setting, Congress has embraced it.

c. The court below erred in (implicitly) fashioning a new

requirement under the nondelegation doctrine-one that

demands that guidance for administrative action come in

quantitative form. This Court’s decisions have squarely

rejected such a requirement. Moreover, air pollution control

would be an exceedingly inappropriate context in which to

create such a requirement. The air pollutants regulated by the

NAAQS program cause a diverse array of adverse effects on

human health and welfare through a wide range of causal

mechanisms. The uncertainties that surround predictions of

these effects also come in a wide variety of shapes and sizes.

Requiring a quantitative meta-standard to govern the setting

of air quality standards would effectively shut down the

federal program of air pollution control and turn the

nondelegation doctrine into an agent of regulatory paralysis.

2. Respondents Massachusetts and New Jersey anticipate

that the Solicitor General's brief for the federal government

will adequately treat the second issue on which this Court has

granted review, involving the finality and ripeness of the court

of appeals’ decision on the scope of EPA’s authority to

implement the revised ozone standard. Thus we will not

discuss this issue in our brief.

3. The court of appeals erred in finding that EPA may not

28

enforce the revised ozone standard “other than in accordance

with the classifications, attainment dates, and control

measures set out in Subpart 2.” Under the court's ruling, EPA

may find the prior one-hour ozone standard to be insufficient

to protect the public health and thus may revise that standard,

but upon revising it, it is limited to the enforcement regime set

forth in Subpart 2-which features, for example, many

deadlines that passed lang ago. Nowhere does the Clean Air

Act suggest, let alone compel, a finding that Congress

intended such an absurd result. On the contrary, careful

review of the language, history, and purpose of Subpart 2

clearly shows that it applies only to the ozone standard

existing in 1990.

ARGUMENT

I. THE CLEAN AIR ACT DOES NOT DELEGATE

LEGISLATIVE AUTHORITY TO THE EXECUTIVE IN

VIOLATION OF THE CONSTITUTION.

Because it found no numerical “cut-off point” for national

air quality standards in either the Clean Air Act itself or EPA’s

interpretation of it, the court of appeals held that neither the

statute nor EPA’s interpretation provides the “intelligible

principle” that this Court has required of assignments of

authority from Congress to the executive. ].WV. Hampton, Jr. &

Co. v. United States, 276 U.S. 394, 409 (1928). In so holding, the

court revealed a deep misunderstanding of this Court's

nondelegation doctrine.

This Court has never required that congressional

assignments of authority to the executive take a particular

form, be it numerical or otherwise. Instead, this Court has long

held that “so long as Congress provides an administrative

agency with standards guiding its actions such that a court

could ‘ascertain whether the will of Congress has been

obeyed,’ no delegation of legislative authority trenching on the

29

principle of separation of powers has occurred.” Skinner v.

Mid-America Pipeline Co., 490 U.S. 212, 218 (1989) (quoting

Mistretta v. United States, 488 U.S. 361, 379 (1989), and Yakus v.

United States, 321 U.S. 414, 426 (1944)).

Applying this well-settled rule, this Court has upheld

numerous broad assignments of authority to the executive.

See, e.g., National Broad. Co. v. United States, 319 U.S. 190, 225-26

(1943) (affirming Federal Communication Commission’s

authority to regulate broadcast licensing in the “public

interest”); United States v. Southwestern Cable Co., 392 U.S. 157,

178 (1968) (upholding FCC’s authority to issue regulations “as

public convenience, interest, or necessity requires”); FPC v.

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

Federal Power Commission's authority to determine “just and

reasonable rates”). In recent years, this Court has strongly

reaffirmed Congress's authority to use broad guidelines in

assigning authority to the executive. See Skinner, 490 U.S. 212;

Touby v. United States, 500 U.S. 160 (1991); Loving v. United

States, 517 U.S. 748 (1996).

In determining whether Congress has satisfied the

requirements of the nondelegation doctrine, this Court's

unbroken practice has been to consult the challenged statute

itself-its language, purpose, history, and context. See, e.g.,

American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946).

Examination of these features of the Clean Air Act

demonstrates that the Act is constitutional.

A. The Language And Purpose Of The Clean Air Act

Significantly Constrain Agency Discretion.

In the Clean Air Act, Congress has answered all of the most

difficult and basic questions about the structure and content of

the NAAQS program. It has described in detail the

substantive requirements for these standards; limited their

jurisdictional reach; and set forth the procedures to be

followed in setting them. As explained below, at every

30

rtant decision-poi t in the process of setting air quality

onto EPA's ieection is constrainec by a choice

Congress has made. With its multiple substantive constraints

on the actions of a federal agency, its limited jurisdictional

reach, and its abundant procedural protections, the Clean Air

is clearly constitutional.

ae constraints. The Clean Air Act places numerous

substantive constraints on EPA’s decisions setting the

NAAQS. First of all, the Act constrains EPA s discretion by

excluding some factors from EPA’s consideration. In setting

the NAAQS, EPA may consider only the effects of the relevant

air pollutant on human health and welfare.” As EPA has

recognized since it issued the very first NAAQS thirty years

ago, it may not consider economic and technological ow

in setting the NAAQS.” In excluding the consideration “

costs and technology and focusing only on human health pose

welfare, Congress squarely confronted the most difficult an

most basic choice a decisionmaker faces when devising

environmental standards-whether the government should

trade off human lives and health for dollars-and firmly

answered “no.” Cf. Industrial Union Dept., AFL-CIO v.

American Petroleum Inst., 448 U.S. 607,672 (1980) (Rehnquist, J.,

an diaiall t) (“Benzene”).

amas forth the factors EPA must consider

in establishing the NAAQS. NAAOS must be “based on a

air quality criteria, CAA § 109(b)(1), 42 U.S.C. § 7409(b)( ),

which, in turn, must be based on “the latest scientific

knowledge useful in indicating the kind and extent of all

_ 1 1), 42 U.S.C. § 7409(b)(1) (NAAQS to be “based on” air

Poor mre oan § 108(a)(2), 42 U.S.C. § 7408(a)(2) (criteria to describe

scientific information on health and welfare effects of pollutants).

"See 36 Fed. Reg. 8186 (1971) (explaining that EPA did not consider

oe ~ ,

mments concerning feasibility because the Clean Air Act, as amended

Goce not permit any factors other than health to be taken into account in

setting the primary standards”).

31

identifiable effects on public health or welfare which may be

expected from the presence of such pollutant in the ambient

air....” CAA § 108(a)(2), 42 U.S.C. § 7408(a)(2). Virtually

every one of the words in the quoted passage significantly

constrains EPA’s discretion.

EPA must base the NAAQS on the latest scientific

knowledge-not on outdated information, not on nonscientific

data. EPA must be cognizant of all identifiable effects on public

health and welfare. Yet the agency must also bear in mind the

kind and extent of these effects-which is another way of saying

that EPA should distinguish among effects based on their

severity and magnitude.

In addition, the statute’s emphasis on public health directs

EPA’s attention to populations rather than individuals, thus

precluding EPA from setting a NAAQS in order to protect a

single individual from harm. In this way, the Clean Air Act is

very different from the Occupational Safety and Health Act, at

issue in Benzene. That statute aspires to achieve workplaces in

which “no employee” suffers a “ material impairment of health

or functional capacity” from toxic materials or harmful

physical agents. 448 U.S. at612 (emphasis added). A plurality

of Justices thus worried that the statute might allow the

government to require large expenditures based on “the mere

possibility that some employee somewhere in the country may

confront some risk of cancer.” Id. at 652. Sucha “possibility”

is simply not the basis for regulation under the Clean Air Act.

In so prescribing the range of findings EPA must make and

the range of factors it must consider, the Clean Air Act is a

close cousin to the statutes this Court has recently upheld

against nondelegation challenges. See Touby, 500 US. at 166-

67; Skinner, 490 U.S. at 219-20; Mistretta, 488 U.S. at 375-77.

“Indeed, in Loving v. United States, 517 U.S. 748 (1996), this Court concluded

that the federal statute giving the President authority to define the

aggravating factors that permit a court-martial to impose the death penalty

need not give any guidance to the executive in order to survive a

nondelegation challenge. See Id. at 772-73.

- 32

Clean Air Act not only tells EPA what to consider in

iD the NAAQs, it also gives the agency a great deal .

guidance as to the ultimate content of the standards. First °

all, EPA must set the primary NAAQS at a level which is

“requisite to protect the public health.” CAA § 109(b)(1) 42

US.C. § 7409(b)(1). The use of the term “requisite be

EPA’s standard-setting discretion on both the low an 2 sh

ends; it implies a degree of necessity for the standards an =

also forbids the Administrator to set standards inadequate

the public health. .

"Doan EPA must allow “an adequate margin --

safety” in setting the primary NAAQS. CAA 8 wpe

U.S.C. § 7409(b)(1). The requirement of a margin of fety

prescribes a particular approach toward scientific gourd

for EPA; where the science is uncertain, it tells EPA to ean

toward the more stringent end of the range of alternative

standards rather than toward the less stringent end. 7

Finally, the NAAQS for any given pollutant must ;

uniform throughout the country. See 42 USC. 8 se ).

The question whether to permit variations in the natio i

quality standards”-to account for differing regional or a

conditions in weather, population densities, etc.-1s a er

policy issue of the highest order. Congress squarely ~~ —

that issue and decided against nonuniform standards. se

way as well, the Clean Air Act resembles the statute up

against a nondelegation challenge in Skinner, which preclu ~-

a case-by-case determination of the governing rules and op

instead for a uniform rule. See 490 US. at 219. fou

Jurisdictional limits. The NAAQS apply to only a :

subset of air pollutants - widespread pollutants (ie., a

from “numerous and diverse sources”) that endanger pu -

health or welfare. CAA § 108(a)(1), 42 U.S.C. § een

Indeed, since 1978, as noted above, the NAAQS program has

"States are free, of course, to set stricter standards if they wish, CAA § 116,

42 U.S.C. § 7416, but the national standards must be uniform.

33

been limited to only six air pollutants, out of the many

hundreds of such pollutants that exist today.” Thus, as in

United States v. Rock Royal Co-op, Inc., 307 U.S. 533 (1939), the

territory over which the executive's discretion may range is

extremely limited. See id. at 576 (authorizing Secretary of

Agriculture to issue orders with respect to only certain kinds

of agricultural commodities).

The reach of any given NAAQS is limited as well. EPA

must review every NAAQS, and the criteria on which the

NAAQS are based, every five years. See CAA § 109(d)(1), 42

U.S.C. § 7409(d)(1). This requirement has caused EPA to

cenduct numerous reviews and revisions of the criteria and

NAAQS. See note 3, supra. Indeed, the N AAQS at issue here

grew out of EPA’s obligatory review of the criteria documents

for PM and ozone. EPA’s continuing obligation to revisit the

criteria and NAAQS means that the life span of any given

NAAQS is limited to the period in which the scientific data on

which it is based remains reliable.

In the latter respect, the Clean Air Act is more restrictive

than some congressional assignments of authority this Court

has upheld. In Field v. Clark, 143 U.S. 649 (1892), this Court

affirmed Congress's authority to assign to the President the

task of suspending free trade in certain commodities, under

certain conditions, “for such time as he shall deem just.” Id. at 680

(emphasis added). The Court concluded that the President

“had no discretion in the premises except in respect to the

duration of the suspension so ordered,” and that this

discretion “related only to the enforcement of the policy

established by Congress.” Id. at 693. In limiting the duration

of any one decision on the NAAQS, therefore, the Clean Air

Act is more restrictive than the statute upheld in Field.

Procedural requirements. The Clean Air Act also contains

“The Clean Air Act's program addressing toxic air pollutants, for example,

covers approximately 180 different pollutants. See CAA § 112(b)(1), 42

U.S.C. § 7412(b)(1).

of

numerous procedural requirements that further limit the

Administrator's actions. First of all, the Act requires EPA to

develop and rely on the criteria document. In providing that

the original NAAQS were to be based on the criteria

documents HEW had compiled as of 1970," the Act guides

EPA’s development of the criteria on which the NAAQS

depend. As discussed in our Statement, supra, at 14-17,

HEW’s criteria considered only scientific information on

pollutants’ effects on health and welfare; looked carefully at

effects on especially vulnerable subpopulations; and candidly

acknowledged the uncertainties attendant upon predicting the

adverse effects of air pollution. Congress’s endorsement of

HEW’s criteria documents thus provides substantial guidance

to EPA in its development of such documents.

Second, the Act also requires EPA to consult with CASAC

in formulating the criteria and in shaping NAAQS in light of

the criteria. The Administrator may significantly depart from

CASAC’s recommendations only if she explains why she has

done so. CAA § 307(d)(3), 42 U.S.C. § 7607(d)(3). In this case,

when CASAC was able to achieve a scientific consensus, the

Administrator’s actions hewed closely to it. In setting the

ozone standard, for example, the Administrator considered

ozone levels only within a range approved by CASAC and

declined to set the standard at the lowest end of that range in

part because no member of CASAC had endorsed such a low

standard. NAAQS for Ozone, 62 Fed. Reg. at 38,861, 38,868.

Third, the Administrator ’s actions are subject to the exacting

requirements of the Administrative Procedure Act and judicial

review for arbitrariness. This Court has suggested that

procedural requirements and the availability of judicial review

are important factors in evaluating the propriety of Congress's

assignments of authority to the executive branch. See American

Power & Light Co., 329 U.S. at 105; Touby, 500 USS. at 168-69.

Finally, the administrative official-the Administrator of the

®CAA §§ 109%a), (b), 42 U.S.C. §§ 740%a), (b).

35

EPA-to whom authority is ted is “clearly specified,”

is a politically encuahits ed of “high ance ae

authority.” Lichter v. United States, 334 U.S. 742, 787 (1948).

Containing as it does these manifold constraints on the

substance, scope, and process of the NAAQS program, the

Clean Air Act compares extremely favorably to the

assignments of authority from Congress to the executive that

this Court has upheld, many of which have left large and basic

questions for the agency to address.® In addition to the cases

already cited above, see, for example, Buttfield v. Stranahan, 192

9 i fiden tints Mills v. Administrator Wage & Hour

bs .0 , 31 .

Us elenen 2 US. 126 (1941); Yakus v. United States,

Furthermore, the Clean Air Act is a world away from the

only statute this Court has ever invalidated under the

delegation doctrine. In two cases decided in 1935, this Court

invalidated two separate provisions of the National Industrial

“Furthermore, because the Administrator is charged not only with setting

the NAAQS but also with ensuring their implementation by the states CAA

§§ 110, 179, 42 U.S.C. §§ 7410, 7509, and because the NAAQS themselves

contain elements-such as their “form” -that partake of both lawmaking and

executive functions, this case does not present a situation in which the entity

to whom authority has been assigned exercises nothing but the lawmaking

function. Cf. Mistretta, 488 U.S. at 417 (Scalia, J., dissenting).

ay ptm tape. AY wera

no means can the environmental laws be considered a

conferring the greatest amount of discretion “antieamen aen

they are probably among those conferring the least. Not only is general

policy not left to be disposed of by the agencies under the general

standards of “ public interest, convenience and necessity,” but in some

areas even cost-benefit analysis is excluded. For example, national

Poumary am ciens air quality standards are to be established not in light

what is a= reel “ Rene ooh (a formulation that would enable

eat

__ ater on the sole basis of what “requisite protect the public heath

a rey fo ae Under Environmental

— . aoe . . 97, 102 (1987) (citing CAA § 109%), 42 U.S.C.

36

Recovery Act of 1933. In A.L.A. Schechter Poultry Corp. v.

United States, 293 U.S. 495 (1935), the Court zeroed in on the

delegation of lawmaking authority to private groups in

invalidating section 3 of the statute, id. at 521-25, and in

Panama Refining Co. v. Ryan, 295 U.S. 388 (1935), the Court

fixed on the lack of any operative rule in invalidating a

criminal conviction under section 9 of the statute. Id. at 412-13.

See also Clinton v. City of New York, 524 U.S. 417, 486 (1998)

(Breyer, J., dissenting) (noting distinctive facts of both cases).

Neither of these extreme circumstances is present here.

The Clean Air Act clearly lays down the “intelligible

principle” that this Court has required of assignments of

authority from Congress to the executive. Moreover, given

that EPA has interpreted the Act in a way that heeds all of

these constraints on its own discretion, the EPA's interpretation

of the Act is likewise constitutional.

B. The History Of The Clean Air Act Unequivocally Shows

That Congress Has Not Forsaken Its Legislative Duties.

The delegation doctrine “has developed to prevent

Congress from forsaking its duties.” Loving, 517 US. at 758.

It is thus highly relevant that Congress has, from the

beginning, kept an exceedingly close eye on the development

of air quality criteria and standards and has frequently altered

statutory requirements in response to agency decisions and

experience. Far from abdicating its legislative role, Congress

has actively shaped the contours of the federal program

protecting air quality. Indeed, all of the constzaints discussed

in the preceding section were forged in Congress based on an

ongoing dialogue with the executive agency charged with

implementing the Clean Air Act.

Congress entered the field of air pollution regulation with

“The discussion that follows is more fully presented, with detailed

supporting citations, in our Statement of the Case, supra, at pp. 7-19.

37

some reluctance. It began its efforts to address the problem of

aur pollution by putting the federal government in the role of

supporting state and local governments’ own regulatory

efforts through reseatch and, eventually, through the

development of criteria documents describing the

consequences of air pollution for human health and welfare

Only after over a decade had passed in which little

had been made in controlling air pollution did Congress

require the federal government itself to regulate the quality of

the outdoor air. Thus, the question of who sets the NAAQS

was resolved, and resolved in favor of having the federal

government set them, only after considerable deliberation.

What is more, when Congress enlarged the federal role in this

way, it at the same time narrowed the class of pollutants to

which the air quality standards would apply.

The content of the standards themselves was also refined

over a period of years. When states and local governments

were expected to set air quality standards, there was no

requirement of uniformity among the standards. When

Congress gave EPA authority to set national standards

however, it made them nationally uniform. Likewise when

states and local governments were setting the standards there

was no requirement that a margin of safety be incorpora ted j

the standards. In its criteria Soocanditt, Neceesen HEW hed

discovered that the lowest pollution levels at which health

effects are detected may not be the lowest level at which such

effects occur. Thus it recommended that a margin of safety be

incorporated in state and local air quality standards, and

Congress endorsed this recommendation in the 1970

amendments to the Clean Air Act. And, last, when the

standards were set by states and local governments, they

needed only to be “consistent with” the air quality criteria

developed by HEW; when EPA was given the respunsibility

of setting the NAAQS, however, the standards were required

to be “based on” the air quality criteria. At the same time as it

more closely tied the standards to the criteria, Congress also

38

gave more guidance as to what the criteria themselves should

contain: it required that the very first NAAQS be based on the

criteria documents HEW had already compiled, documents

which highlighted sensitive subpopulations and scientific

uncertainty, two themes that continue to characterize air

pollution research and control to this day.

Finally, when Congress in 1970 greatly increased the federal

government's role in the regulation of air pollution, it also

strengthened the procedural protections attendant upon the

government's decisions. The requirement that EPA consult

with CASAC regarding the criteria and standards, the

obligation to review and, if appropriate, revise the criteria and

NAAQS at least every five years, and the opportunity for

public comment and judicial review, all emerged in tandem

with the federal government s increasing role in protecting the

quality of the air we breathe.

The current shape and content of the air quality criteria and

standards are thus the products of not just one, but many,

congressional decisions made over a period of decades. These

congressional decisions, moreover, came in response to the

executive's own experience in implementing federal air

pollution policy. The tradition of dialogue and collaboration

between Congress and the executive reflected in these decades

of congressional and executive actions shows that the purpose

of the nondelegation doctrine-to prevent Congress from

forsaking its legislative role, Loving, 517 US. at 758-is amply

satisfied by the active congressional engagement that has

given the Clean Air Act the form it has today.

C. The Context Of The Clean Air Act-The Control Of Air

Pollution In Conditions Of Uncertainty-Would Be A

Particularly Inappropriate Setting For A Reworking Of

The Nondelegation Doctrine.

As explained above, the Clean Air Act clearly satisfies this

Court’s requirements for assignments of authority from

39

Congress to the executive. The court seems

to have believed itsanuitendéeseneen

appropriate in this context. Specifically, the court ssems to

have required-from Congress or EPA, it did not care which.

at Pet. App. 12-13-numerical, or quantitative, guidance for

ei. ge new requirement is evident in the court's

_ kinds of guidance that would, in its view, be

constitutionally satisfactory: cost-benefit analysis, “generic

=~ to infinitely variable conditions constitute the essence

Lichter, 334 U.S. at 785. The Court recogni i

4U ognized that requirin

pr be be rap ether ronan me

in etme : a ,

te g trative agency in the first

[T]he effectiveness of both the islati

Bz legislative and

administrative processes would become endangered if

40

Congress were under the constitutional compulsion of

filling in the details beyond the liberal prescription here.

Then the burdens of minutiae would be apt to clog the

administration of the law and deprive the agency of that

flexibility and dispatch which are its salient virtues.

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

In recent years, this Court has had an opportunity to revisit

its precedents upholding Congress’s power to assign

responsibility to the executive under broad qualitative

guidelines. In Skinner, 490 U.S. 212, the Court faced a

challenge to the Consolidated Omnibus Budget Reconciliation

Act of 1985 (COBRA), Pub. L. 99-272, 100 Stat. 82. COBRA

directed the Secretary of Transportation to set pipeline safety

user fees that bore a “reasonable relationship” to volume-

miles, miles, or revenues. 490 US. at 219. In a unanimous

opinion, this Court said that it had “no doubt” that COBRA’s

restrictions on the Secretary's discretion satisfied the

requirements of the delegation doctrine, id. at 220, despite the

fact that COBRA, like the Clean Air Act, uses qualitative

guidelines to govern the establishment of quantitative fees.”

This Court also had an opportunity to revisit the

nondelegation doctrine in Touby, 500 U.S. 160. Petitioner

challenged Congress's assignment of authority to the Attorney

General to schedule controlled substances-and thus to

criminalize their possession and distribution-on a temporary

basis. A unanimous Court again had no trouble finding that

the Controlled Substances Act's standard of “imminent hazard

to public safety”-which required consideration of the drug’s

“history and current pattern of abuse,” the “scope, duration,

and significance of abuse,” and “what, if any, risk there is to

the public health”-was the kind of “intelligible principle”

"Indeed, the only significant issue in that case was whether assignments of

authority to the executive made pursuant to Congress's taxing power should

be scrutinized more strictly than other assignments have been; the answer

to this question was no. See 490 US. at 222-23.

41

required by its delegation decisions. Id. at 166-67. The

standard requiring an “imminent hazard to public safety”

poses challenges for the Attorney General that are strikingly

similar to those faced by EPA in setting the NAAQS. Nowhere

in Touby did this Court suggest that the Controlled Substances

Act was problematic because it did not supply quantitative

limits for the Attorney General's discretion.

The notion, embraced by the court below, that a

congressional assignment of authority, or an agency ’s exercise

of that authority, is constitutionally defective because it does

not specify precise stopping points for regulation would

require fundamental restructuring of much of modern

government. A good deal of legislation takes precisely the

same form that the court of appeals found unconstitutional: a

qualitative directive to the agency-to set utility rates that are

Just and “reasonable,”™ to set pipeline fees based on a

reasonable relationship” to revenue and other factors,” or to

regulate the height and width of bridges to prevent

navigational obstructions,” to name only a few examples-must

be translated by an agency into a numerical rule. The Court

has never invalidated this kind of legislation, and it would be

a grave error to begin to do so now.

In the context of air pollution control, as in many other

regulatory settings, requiring a quantitative meta-standard

from Congress (or from an agency) would effectively preclude

much governmental action. Given the dynamic nature of

scientific inquiry and the inultifarious issues that arise when

regulating air pollutants that have very different effects, and

mechanisms of effects, on human health and welfare, it would

be quite impossible to devise in advance a catch-all,

“Hope Natural Gas, 320 US. at 600.

Skinner, 490 US. at 219.

Union Bridge Co. v. United States, 204 U.S

.v. » . 364 (1907) (upholding against

nee challenge federal statute assigning authority to Savelioe af

ar to regulate height and width of bridges over navigable waterways).

| 42

quantitative standard to govern ail decisions setting NAAQS.

The human health effects alone of air pollution - quite apart

from the multitudinous effects on human welfare - _

widely, including such different effects as the initiation =

aggravation of respiratory diseases including bronchi tis be

asthma,” impairment of the oxygen-carrying capacity 0 ~

blood,” reduced cognitive capacity,“ and premature death.

Moreover, because air pollutants’ harmful mechanisms vary,

the technical issues that arise in identifying pollutants

ences vary as well.

"auaain A at (or, as the D.C. Circui i uit did, the agency)

to foresee and address all of the subsidiary issues that ~ in

regulating air pollutants would be to prevent Congress —

assigning authority to the executive at all in this context. Z

Court has never required such a degree of specificity om

Congress as would effectively preclude congressional ———

on a particular problem. On the contrary, this a .

recognized that “[t]o burden Congress with all er

rulemaking would divert that branch from more —_

issues, and defeat the Framers’ design of a workable Natio

Government.” Loving, 517 U.S. at 758. Indeed, it is fair to say

that “a certain degree of discretion, and thus of lawmaking,

"See 1971 NOx Criteria Doc., supra, at 11-8.

See 1970 Ozone Criteria Doc., supra, at 10-7.

*®See 1970 CO Criteria Doc., supra, at 10-3.

“See EPA, Air Quality Criteria for Lead 13-6 (1977) [hereinafter 1977 Lead

Criteria Doc.].

®See 1967 SOx Criteria Doc., supra, at xxix.

*See, ¢.g., 1977 Lead Criteria Doc., supra, at 13-1 to 13-4 (discussing

ities of isolating effects of airborne lead exposure from other lead

ae identifying relationship between exposure ne

concentrations of lead); 1970 CO Criteria Doc., supra, at “he fae

(addressing relationship between carbon monoxide exposure

resulting levels of carboxyhemoglobin in blood).

43

inheres in most executive or judicial action ....” Mistretta, 488

U.S. at 417 (Scalia, J., dissenting). This Court has always held,

therefore, that Congress may “seek{] assistance, within proper

limits, from its coordinate Branches ... . Thus, Congress does

not violate the Constitution merely because it legislates in

broad terms, leaving a certain degree of discretion to executive

or judicial actors.” Touby, 500 U.S. at 165. The court of

appeals’ reworking of the nondelegation doctrine is an

effective but misguided means of achieving deregulation

through the courts rather than Congress.

II. THE LOWER COURT’S DECISION CON STRAINING

ENFORCEMENT OF THE REVISED OZONE

STANDARD IS INCONSISTENT WITH THE CLEAN

AIR ACT’S LANGUAGE, HISTORY, AND PURPOSE,

AND WITH EPA’S REASONABLE INTERPRETATION

OF THE ACT.

Twosets of provisions govern the classifications, attainment

dates, and control measures required of areas that are in

nonattainment for ozone. The question posed here is which of

these sets of provisions governs the implementation and

enforcement of EPA’s revised ozone standard.

The first candidate is Subpart 1, CAA §§ 171-179B, 42 US.C.

§§ 7501-7509a. Subpart 1 governs nonattainment areas

generally. It allows EPA to classify nonattainment areas

according to the severity of their air pollution problem and to

fix attainment dates in accordance with EPA’s classifications.

CAA § 172(a)(1)(A), 42 U.S.C. §7502(a)(1)(A). If, for example,

an area has a particularly severe nonattainment problem, it

may be given a different classification and later attainment

date than an area with a less severe problem. In all events,

however, nonattainment areas must achieve the NAAQS no

later than five years after their designation as nonattainment

areas. CAA § 172(a)(2)(A); 42 U.S.C. § 7502(a)(2)(A). Subpart

1 also allows EPA to require specific reductions in emissions

44

for the purpose of meeting the NAAQS on schedule. CAA §§

172(c)(2), 171(1), 42 U.S.C. §§ 7502(c)(2), 7501(1) (requiring

“reasonable further progress” as defined by EPA).

The second candidate is Subpart 2, CAA §§ 181-185B, 42

US.C. §§ 7511-7511f. In contrast to Subpart 1, Subpart 2 sets

forth explicit, rigid classifications and attainment dates for

areas in nonattainment for ozone. The classifications, ranging

from “moderate” to “extreme,” are based on ozone

concentrations (“design values”) ranging from 0.121 to 0.280

parts per million (“ppm”). CAA §181(a)(1), ‘42 USC. §

7511(a)(1). The “design values” used to classify areas are

based on the statistical form of the ozone standard existing in

1990. Id. Most of the explicit attainment dates established in

were in the 1990s. Id. .

"Teotees raised here is whether EPA’s implemen tation and

enforcement of the revised ozone standard-which specifies a

different level and form from the level and form referenced in

Subpart 2, and which, if it is to be implemented and enforced

at all, must obviously be implemented and enforced after the

1990s-must conform to the classifications, attainment dates,

and control measures specified in Subpart 2. :

The court of appeals answered yes to this question. Because

section 181(a)(1) of Subpart 2 refers to ee

designations made under “ section 7407(d), the court reason -

the classifications and attainment dates specified in ret

apply to areas designated as nonattainment under any

subsections of section 107(d)-including subsection 107( )( )

under which designations are made following the revision ©

a NAAQS. State Pet. App. 34-35. Thus, classifications,

deadlines and requirements for areas designated as

nonattainment pursuant to the revised ozone NAAQS are, on

the court’s view, governed by Subpart 2. rete

The proper interpretation of the court's ruling is in some

doubt even after the court's attempts at clarification 4

rehearing. Industry petitioners argued below that ore

added in the 1990 amendments to the Act, “preclude[s] the

45

EPA from requiring areas to comply either more quickly or

with a more stringent ozone NAAQS,” and the court

apparently agreed with this argument. State Pet. App. 37.”

This would preclude any implementation or enforcement of

the revised ozone standard beyond what was already required

pursuant to the one-hour standard existing in 1990 (which

would be tantamount to saying that the revised standard can

be set but cannot be enforced). A second possible

interpretation of the court's interpretation was offered by

Judge Tatel: he concurred in the court's opinion. on rehearing

because he thought it left open the possibility that the revised

ozone standard can at least be enforced in areas that have

achieved the one-hour standard. State Pet. App. 81.

Under either interpretation of the court's ruling, the ruling

is erroneous in light of the language, history, and purpose of

the relevant provisions of the Clean Air Act. Subpart 2 clearly

applies only to the ozone standard existing in 1990, when

Subpart 2 was enacted. Where Congress has, as it has done

here, answered the “precise question at issue,” the Court must

abide by Congress’s answer. Chevron U.S.A. Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 842-43 (1984). Even

were the provisions less clear than we believe them to be,

however, this Court should reach the same result by deferring

to EPA’s reasonable interpretation of the statute. Id.

Section 181(a) of Subpart 2 provides, as its title says,

“classifications and attainment dates for 1989 nonattainment

areas.” CAA § 181(a), 42 U.S.C. § 7511(a). Three out of the five

attainment dates specified in section 181(a)(1) of Subpart 2

have already passed. See 42 U.S.C. § 7511(a)(1), table 1 (three

of the attainment dates are 1993, 1996, and 1999).

Areas “designated nonattainment for ozone pursuant to

”This interpretation is apparently embraced by respondents/cross-

petitioners Appalachian Power Co., et al. See Brief in Response [to the

Petitions for Certiorari] for the Respondents Appalachian Power Co. in No.

99-1257, et al. at 9, 28.

46

section 7407(d)” are to be “classified at the time of such

designation, under table 1, by operation of law... .” 42 U.S.C.

§ 7511(a)(1). The classifications in table 1 range from

“marginal” to “extreme.” 42 USC. § 7911(a)(1). These

classifications are tied to the area’s “design value, which is

measured in parts per million (“ppm”) of ozone in the ambient

air. 42 U.S.C. §7511(a)(1) (table 1, n. *). The design values in

table 1 of section 181(a)(1) range from 0.121 to 0.280 and above.

See 42 U.S.C. § 7511(a)(1).

Section 181(a)(1) requires that the design value that

determines classification under this section be “calculated

acccording to the interpretation methodology issued by the

Administrator most recently before November 15, 1990.” 42

U.S.C. § 7511(a)(1). The relevant interpretation methodology

stated that design value was to be calculated based on the

fourth highest daily maximum value during a three-year

period.* EPA focused on this particular value because, at that

time, the form of the ozone standard required that the average

number of exceedances over a three-year period not be greater

than one.” Thus the highest three daily values in a three-year

period were used to determine the compliance status for an

area, and the fourth highest value was used to determine its

ign value.

“ language of Subpart 2 clearly shows that this set of

provisions was meant to apply only to the one-hour ozone

standard, existing in 1990. First, the title of section 181(a),

which sets forth the classifications and attainment dates, is

“{c]lassifications and attainment dates for 1989 nonattainment

areas.” CAA § 181(a), 42 U.S.C. § 7511(a) (emphasis added).

Second, the lowest design value reflected in section 181-0.121

*See Memorandum from William G. Laxton, Director, Technical Support

Division, U.S. EPA, “Ozone and Carbon Monoxide Design Value

Calculations” (June 18, 1990) <http:www.epa.gov/airprogm/oar/oaqps/

greenbk/laxton.html>.

*See NAAQS for Photochemical Oxidants, 44 Fed. Reg. at 8218.

47

ppm-is keyed to the level of the one-hour standard (0.12 ppm),

and hence does not capture the lower values that will be

associated with the revised ozone standard which sets a

maximum level of .08 ppm. Third, the interpretation

methodology that the statute requires to be used in calculating

an area's design value mandates use of the statistical form of

the prior one-hour ozone standard. Finally; the deadlines set

forth in Table 1 of section 181 (a)(1) are mostly in the past and,

likewise, the deadline clocks for the implementation of the

specific control measures required by Subpart 2 begin to run

from 1990. See generally CAA § 182, 42 US.C. § 7511a.

The language of Subpart 1 is equally supportive. Section

172 provides that the Administrator may Classify, and set an

attainment date for, an area designated as nonattainment

“pursuant to section 7407(d) of this title with respect to any

national ambient air quality standard (or any revised standard,

including a revision of any standard in effect on November 15,

1990)... “ CAA § 172(a)(1)(A), 42 US.C. § 7502(a)(1)(A)

(emphasis added). Clearly, Congress believed that there

would be classifications and attainment dates set under section

172(a)(1)(A) for areas designated as nonattainment under a

standard revised after November 15, 1990. Yet if the court of

appeals is correct, the category Congress sought to create

would be a null set: each of the sets of provisions governing

areas in nonattainment for NAAQS existing in 1990 (Subparts

2-5) contains the same reference to “section 107(d)” that the

court believed made Subpart 1 inapplicable to the revised

ozone standard. Thus, under the court of appeals’ reasoning,

no revised standard would be governed by Subpart 1,

rendering section 172(a)(1)(A) a nullity.

All of this language from Subparts 1 and 2 points to only

one conclusion: Subpart 2 simply does not apply to the revised

ozone standard. This conclusion is bolstered by considering

the absurd consequences that would flow from a contrary

ruling.

First, it is not even possible to classify areas under section

48

181(a)(1) pursuant to the revised ozone standard, given the

constraints of that section. Section 181(a)(1) requires that an

area’s design value-which determines the area’s classification,

which in turn determines its attainment date-be calculated

according to the interpretation methodology in efect before

November 15, 1990. CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1).

That methodology required use of the statistical form of the

ozone standard existing in 1990, not the revised standard.

Thus no calculation of a design value under section 181(a)(1)

can use the form of the revised standard. Because the form of

the ozone standard is a crucial part of the standard itself, this

means that design values using the revised ozone standard

simply cannot be calculated within the constraints of section

181(a)(1).

That is bizarre enough. Coupling this result with another

aspect of the court of appeals’ ruling only deepens the

awkwardness. Under the court’s decision, EPA was

permitted, indeed required, to review and, if appropriate,

revise the former ozone standard. EPA was also required to

designate areas as attainment or nonattainment pursuant to its

revised standard. Because section 181(a)(1) provides that

classification must occur “at the time of . . . designation,” 42

U.S.C. § 7511(a)(1), EPA will also be required to classify the

areas that it has designated as nonattainment under the

revised standard. But because, as just discussed, it is

impossible, within the constraints of section 181(a)(1), to set

design values and classifications according to the revised

ozone standard, EPA will be forced to set such design values

and classifications according to the one-hour standard existing

in 1990. Thus, in classifying areas t to its obligations

under section 181(a)(1), EPA will be forced to do so based on

the very ozone standard it has rejected as inadequate to protect

public health. The court of appeals’ interpretation of section

181(a)(1) thus requires EPA to spend scarce regulatory

resources on a pointless exercise yielding no legally relevant

data.

49

The court of appeals’ decision leads to obviously wrong

results in another way as well. Because most of the deadlines

set by Subpart 2 have passed, enforcement of the revised ozone

standard either will require a new set of deadlines or will

follow from a finding that some areas are already out of

compliance with the revised standard, and have been so for years.

Under the first scenario, the new deadlines cannot come from

Subpart 2 because most of thz deadlines set in Subpart 2 have

already passed. EPA needs the authority to develop a new set

of deadlines for meeting requirements under the revised ozone

standard, and that kind of authority comes from Subpart 1, not

Subpart 2. Under the second scenario, in which the attainment

dates of Subpart 2 would control, some areas would be out of

compliance with the revised standards as soon as they were

designated nonattainment-raising at least the potential that

sanctions would be imposed for having missed a deadline that

passed before the relevant rule was developed. Both scenarios

show the unworkable nature of the court of appeals’ decision.

The reference to “section 107(d)” in section 181(a)(1), on

which the court of appeals so heavily relied, does not support

a different conclusion. The court found that Congress's failure

to refer specifically to section 107(d)(4) (rather than to section

107(d) as a whole) meant that EPA could not enforce the

revised ozone standard except in conformity with Subpart 2.

In so holding, the court of appeals ignored all of the other

language in Subpart 2, which supports the opposite

conclusion. The consistent exclusive focus of Subpart 2 is the

ozone NAAQS existing at the time Congress added Subpart 2

in 1990. Certainly, section 181(a)(1)’s reference to designations

made under “section 107(d)” is not incompatible with a

finding that the designations central to Subpart 2 are those

designations made immediately following the amendments of

1990-designations made pursuant to section 107(d)(4).

While it is true that the Senate version of the 1990 bill

amending the Clean Air Act contained a reference to the

equivalent of section 107(d)(4), and the House version

50

contained a reference to section 107(d), and the House's

version became law, nothing follows from this. Not only, as

noted above, does all of the other language of Subpart 2 show

that it applies only to the ozone standard existing in 1990, but

nothing in the history of this section suggests that Congress -

with the omission of a single number “(4)” from a vast bill -

intended effectively to preclude EPA from implementing a

described the provision that became section 181(a) as follows:

“Designated ozone nonattainment areas are classified by

operation of law as marginal, moderate, serious, severe, or

extreme areas based on the design values for the area under the

existing ozone NAAQS.” This explanation of the House's

version of the bill confirms the conclusion that Subpart 2

applies only to the “existing ozone NAAQS” -that is, the ozone

NAAQS that existed in 1990, when the Amendments were

passed, rather than to any revised ozone standard.

At the very least, the cascade of language in Subpart 2

indicating that Subpart 2 applies only to the prior one-hour

ozone standard, combined with the absence of the single

number (4) in section 181(a)(1), creates an ambiguity that EPA

is entitled to resolve as long as it does so reasonably. See

Chevron, 467 US. at 866. As set forth above, EPA's

interpretation of Subpart 2 to apply only to the ozone standard

existing in 1990 creates a sensible regulatory regime in which

EPA’s obligation to revise the NAAQS, and to designate areas

.according to their attainment status under the revised

NAAQS, is not rendered empty by a senseless limit on EPA's

authority to implement and enforce the revised standard.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be reversed.

4 -R. Rep. No. 101-490, at 229 (1990) (emphasis added).

Respectfully submitted.

JOHN J. FARMER

Attorney General

State of New Jersey

HOWARD L. GEDULDIG

JOHN R. RENELLA

Deputy Attys. General, NJ.

Richard J. Hughes Justice

Complex 7th Floor

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

THOMAS F. REILLY

Attorney General

Commonwealth of Massachusetts

EDWARD G. BOHLEN

Assistant Atty. General, Mass.

200 Portland Street

Boston, MA 02114

(617) 727-2200, ext. 3358

LISA HEINZERLING

Counsel of Record

Special Asst.Atty. General, Mass.

Special Counsel, New Jersey

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9115