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

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=—_ = ——————S—— T ——

In The

Supreme Court of the United States

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Petitioners

AMERICAN TRUCKING ASSOCIATIONS, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF OF RESPONDENT

AMERICAN LUNG ASSOCIATION

IN SUPPORT OF PETITIONER

Howarp I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for

American Lung Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

No. 99-1257 JUL 20 2000

QUESTIONS PRESENTED

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

U.S.C. § 7409, as interpreted by the Environmental Pro-

tection Agency (EPA) in setting revised National Ambient

Air Quality Standards (NAAQS) for ozone and particu-

late matter, effects an unconstitutional delegation of legis-

lative power.

2. Whether the court of appeals exceeded its juris-

diction 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 NAAQS.

3. Whether provisions of the Clean Air Act Amend-

ments 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.

RULE 29.6 DISCLOSURE,

AND LIST OF PARTIES BELOW

Respondent American Lung Association (ALA) was

an intervenor in the court of appeals. ALA has no parent

companies or nonwholly owned subsidiaries, and there is

no parent or publicly held company owning 10% or more

of ALA’s stock.

The following were parties in one or both of the two

consolidated proceedings addressed by this petition for

certiorari (American Trucking Assns. v. USEPA, D.C. Cir.

No. 97-1440 and consolidated cases; and American Truck-

ing Assns. v. USEPA, D.C. Cir. No. 97-1441 and consoli-

dated cases):

Alliance of Automobile Manufacturers (formerly

American Automobile Manufacturers Association)

American Farm Bureau Federation

American Forest & Paper Association

American Iron and Steel Institute

American Lung Association

American Petroleum Institute

American Portland Cement Alliance

American Public Power Association

American Road and Transportation Builders Association

American Trucking Associations, Inc.

Appalachian Power Company

Atlantic City Electric Company

Baltimore Gas and Electric Company

James Bassage

Burns Motor Freight, Inc.

Carolina Power & Light Company

Centerior Energy Corporation

Central and South West Services, Inc.

Central Hudson Gas & Electric Corporation

> - ~

RULE 29.6 DISCLOSURE,

AND LIST OF PARTIES BELOW - Continued

Central Illinois Light Company

Central Illinois Public Service Company

Central Power and Light Company

Chamber of Commerce of the United States

Chemical Manufacturers Association

CINergy Corporation

Citizens for Balanced Transportation

Cleveland Electric Illuminating Company

Columbus Southern Power Company

ComEd Company

Consumers Energy Company

Dayton Power & Light Company

Delmarva Power & Light Company

Detroit Edison Company

Duke Energy Company

Duquesne Light Company

Edison Electric Institute

Equipment Manufacturers Institute

FirstEnergy Corporation (A merger of Centerior Energy

Corporation and Ohio Edison Company)

Florida Power Corporation

Garner Trucking, Inc.

Genie Trucking Line, Inc.

Gloucester Company, Inc.

Michael Gregory

Idaho Mining Association

Illinois Power Company

Indiana Michigan Power Company

Indianapolis Power & Light Company

Jacksonville Electric Authority

Judy’s Bakery, Inc.

Kansas City Power & Light Company

Kennecott Energy and Coal Company

Kennecott Holdings Corporation

Kennecott Services Company

RULE 29.6 DISCLOSURE,

AND LIST OF PARTIES BELOW - Continued

Kentucky Power Company

Kentucky Utilities Company

Louisville Gas and Electric Company

Madison Gas and Electric Company

Commonwealth of Massachusetts

David Matusow

Brian McCarthy

Meridian Gold Company

State of Michigan

Midwest Ozone Group

Minnesota Power

Monongahela Power Company

Montaup Electric Company

National Association of Home Builders

National Association of Manufacturers

National Automobile Dealers Association

National Coalition of Petroleum Retailers

National Indian Business Association

National Mining Association

National Paint and Coatings Association

National Petrochemical & Refiners Association

National Rural Electric Cooperative Association

National Small Business United

National Stone Association

Nevada Mining Association

State of New Jersey

Newmont Gold Company

Niagara Mohawk Power Corporation

Non-Ferrous Founders Society

Northern Indiana Public Service Company

Oglethorpe Power Corporation

State of Ohio

Ohio Edison Company

Ohio Mining and Reclamation Association

Ohio Power Company

RULE 29.6 DISCLOSURE,

AND LIST OF PARTIES BELOW - Continued

Ohio Valley Electric Corporation

Oklahoma Gas & Electric Company

Otter Tail Power Company

PacifiCorp

Pennsylvania Power & Light Company

Phoenix Cement Company

Plains Electric Generation & Transmission Cooperative

Inc.

Potomac Edison Company, The

Potomac Electric Power Company

PP&L Resources

Public Service Company of New Mexico

Public Service Company of Oklahoma

Richard Romero

Salt River Project Agricultural Improvement and

Power District

Small Business Survival Committee

South Carolina Electric & Gas Company

Southern Company

Southwestern Electric Power Company

Tampa Electric Company

Texas Gas Transmission Corporation

Toledo Edison Company

Union Electric Company

United Mine Workers of America, AFL-CIO

United States Environmental Protection Agency

Virginia Power

West Penn Power Company

West Texas Utilities Company

West Virginia Chamber of Commerce

State of West Virginia

Western Fuels Association

Wisconsin Electric Power Company

TABLE OF CONTENTS

Page

CITATIONS TO DECISIONS ENTERED IN THE

Ce eee 1

BASIS FOR JURISDICTION .....--- +++ ++seeeeereeee 1

E D

CONST UTIONS INVOLVED IN THIS CASE...... 1

STATEMENT OF THE CASE......------+++55eee005 1

Particulate matter ........-----seee cece ee erereeee 2

OZONE. oo ccc cccccccccccccccccecescccscceesssseees 6

Proceedings Below ......-----+s+ssseerrerrrtrees 11

SUMMARY OF THE ARGUMENT ......-----++++>> 12

Nondelegation. .......--..+--sseeeeeeeerereeeeees 12

Ozone Implementation. .....-----+-++5+ssssereeee

ARGUMENT .......----cceccee ce eeeerseeeeeeeeeeee 15

‘ RETA-

I. THE CLEAN AIR ACT, AND EPA’S INTERP

TION OF THE ACT, PASS MUSTER UNDER THE -

NONDELEGATION DOCTRINE .....-----++++++>

i lligible

A. The Clean Air Act Sets Forth Intellig

Principles Sufficient to Satisfy the Non- ™

delegation Doctrine......--.--+++++++5++0+:

1) The Language of the Act, Both Alone

" and Considered in Light of the Statu-

tory Context and Legislative History,

Establishes Intelligible Principles ...... 18

SEED DD... ccccccccescececoccoscsces 18

1977 Amendments ........---+-+++++> 20

Vii

TABLE OF CONTENTS - Continued

(2) Because the Clean Air Act Provides Suf-

ficient Specificity to Permit Judicial

Review, It Necessarily Also Provides

Sufficient Intelligible Principles to Sat-

(3)

Page

isfy the Nondelegation Doctrine.......

The Clean Air Act Clearly Satisfies The

Nondelegation Approaches Espoused

by Chief Justice Rehnquist and Justice

Scalia

Chief Justice Rehnquist .............

I CN ne iia i din

B. The Nondelegation Doctrine Does Not

Require a “Determinate Criterion”

(1)

(2)

(3)

A “Determinate Criterion” Test Is

Unsupportable Given the Nondetermi-

nate Language in the Constitution Itself,

and Contravenes This Court’s Precedent

Repeatedly Upholding Nondeterminate

Statutes

A “Determinate Criterion” Test Contra-

venes Chevron and Other Precedent of

this Court Recognizing that Congress

May Legitimately Leave Policy Deci-

sions to Be Made By Agencies ........ —29

Schechter Refutes a “Determinate Crite-

gt RR A ee aS

Because Congress Prescribed Intelligible

Principles, the Nondelegation Doctrine Pro-

vides No Basis for a Narrowing Construction

of the Act

——on—- —--*

viii

TABLE OF CONTENTS - Continued

Page

(1) Requiring EPA to Narrow Its Interpreta-

tion of the Act Is Unwarranted in Light

of the Act’s Clear Constitutionality, Will

Not Serve the Purpose of the Non-

delegation Doctrine, and Conttavenes

TABLE OF CONTENTS - Continued

Page

(2) The Assertion that Areas Need Never

Attain the New NAAQS Reduces the

Statutorily Mandated Revision of

NAAQS to a Pointless Exercise, and

Contravenes the Act’s Core Public

Precedent of this Court ............... 32 Health Purpose ..... 45

(2) The Present Case Differs Fundamentally D. As Amended on Rehearing, the D.C. Cir-

from Those Where Narrowing Construc- cuit’s Decision Still Contravenes the Act... 46

tions Have Been Undertaken............ ” IN adtdcdd: shtkvcbsdbociescnsisccours 50

Il. THE D.C. CIRCUIT’S RULING CONCERNING

IMPLEMENTATION OF THE REVISED OZONE

NAAQS CONTRAVENES THE ACT............ 37

A. The Subpart 1 Classification and Attainment

Date Provisions Apply to the New Ozone

DERAEED. occccccccccvcssccccccccccscsececes 38

(1) Areas violating the new NAAQS, with

design value less than 0.121 .......... 39

(2) Areas violating the new NAAQS, with

design value 20.121...............+4.- 40

B. The Subpart 1 Control Measure Provisions

Apply to the New Ozone NAA_5......... 42

C. Industry’s and Ohio’s Interpretation of the

D.C. Circuit’s Decision Simply Compounds

the Unlawfulness of that Decision ......... 44

(1) The Assertion that Areas Need Never

Attain the New NAAQS Conflicts With

the Act, and Even With the D.C. Cir-

cuit’s Own Erroneous Interpretation of

Dt Ms cncoscedeetnssesegseensenesees 45

TABLE OF AUTHORITIES

Page

Cases

A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495

SEE o sc csncccepesucsaewatewedanéneseanieeusdoons 31

American Lung Assn. v. EPA, 134 F.3d 388 (D.C. Cir.

FIs vc cnccnscncescceccesesdscnssssccnsecenceedes 24

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

GE. GOR, TRE ccceccnccccvsconesvecsceedesaced 6, 24

American Petroleum Inst. v. USEPA, 198 F.3d 275

SE. GE SS evn cccvncarcceccseseacsenteesnqnsa 40

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

Sc os conecnncandccdevaccnsonsdecenssanagucsaes 32

American Textile Manufacturers Inst. v. Donovan, 452

te fF Reerrrorrir rte rte 25, 26, 30

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) .... 46

Chevron, U.S.A. v. Natural Resources Defense Coun-

cil, 467 U.S. 837 (1984) ......... 13, 29, 30, 31, 36, 37

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

Oo | ETOTINT Terr ori CT Terr TTT Te 12, 23

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

co eheeeeseeceedeesesseesencesnses 20, 21, 22, 23, 24, 34

General Motors Corp. v. United States, 496 U.S. 530

GPE nc ccccncseccncccncceeecanceebussesstecdudnes 15

Heckler v. Chaney, 470 U.S. 821 (1985) ............... 23

Industrial Union Dept. v. American Petroleum Inst.,

GOB UG. GBF (UGGE) on. occ cccccccccccccccccccess passim

Lead Industries Assn. v. USEPA, 647 F.2d 1130 (D.C.

GO TED sc ccccntecccccinccsncctovescssoenesnceses 24

Lichter v. United States, 334 U.S. 742 (1948).......... 28

Loving v. United States, 517 U.S. 748 (1996).......... 18

TABLE OF AUTHORITIES - Continued

Page

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

Natl. Broadcasting Co. v. United States, 319 U.S. 190

PP istiensdieshncandsdisestnadadendiaddantecse 18

Natl. Cable Television Assn. v. United States, 415 U.S.

Be ANE URLaKRSSCREnKG deaies ke ecdndkeewts ves 33

Natural Resources Defense Council v. Administrator,

oe ree 24, 25

Natural Resources Defense Council v. USEPA, 824

Fee OP eas HU I vec cccccccchscucewacs 24, 25

Opp Cotton Mills v. Administrator, 312 U.S. 126

SE +5 0'p Wa AWANCKKOSARAK Da EeeseNEENsisietabeeueos 28

Rosado v. Wyman, 397 U.S. 397 (1970) ............... 46

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 !

4 onlecidkadlecsebiusadaiadadskaskibecuschaed« 28

Touby v. United States, 500 U.S. 160 (1991)........... 18

Train v. Natural Resources Defense Council, 421 U.S.

By Ss 600660 cdguencatunddéusdesenddsensscadeus 15

United States v. Rock Royal Co-op, 307 U.S. 533 __

SES 0% cA dewnenduls<teddainihadbadsneaacceeudas 29

United States v. Wilson, 503 U.S. 329 (1992).......... 46

Yakus v. United States, 321 U.S. 414 (1944)....19, 23, 29

CONSTITUTION AND STATUTES

United States Constitution, Article I, § 1.......... 1, 32

United States Constitution, Article III, § 2........... 35

xii

TABLE OF AUTHORITIES —- Continued

Page

United States Constitution, Amendment II........... 28

United States Constitution, Amendment IV.......... 28

United States Constitution, Amendment V........... 28

United States Constitution, Amendment VIII ........ 28

BB UGC. © UTBG... cc cccccccccccccccccccccccseccecses 1

Clean Air Act § 107, 42 U.S.C. § 7407.........0..... 41

Clean Air Act § 108, 42 U.S.C. § 7408

agesneneunendenessnicnserbaaneens L323 DB, & &

Clean Air Act § 109, 42 U.S.C. § 7409........... passim

Clean Air Act § 110, 42 U.S.C. § 7410............ 27, 44

Clean Air Act § 113, 42 U.S.C. § 7413............... 27

Clean Air Act § 126, 42 U.S.C. § 7426............... 27

Clean Air Act §§ 171-182, 42 U.S.C. §§ 7501-7514a

Lc tadvesin bakiadbusekesSdsep Veen vedsvennenstanedes 37, 48

Clean Air Act § 172, 42 U.S.C. § 7502........... passim

Clean Air Act § 179, 42 U.S.C. § 7509............ 37, 44

Clean Air Act § 181, 42 U.S.C. § 7511........... passim

Clean Air Act § 182, 42 U.S.C. § 75lla.......... 37, 43

Clean Air Act § 307, 42 U.S.C. § 7607......... 1, 11, 19

Pub. L. No. 95-95, § 401, 91 Stat. 790 (August 7,

FTP wv ccdacscccscsccseccescegsesvassseusecces 20, 22

xiii

TABLE OF AUTHORITIES - Continued

Page

Lecistative History

S. Rep. 1196, 91st Cong., 2d Sess. (1970) ............ 19

H.R. Rep. 294, 95th Cong., Ist Sess. (1977).......... 20

S. Rep. 228, 101st Cong., 1st Sess. (1989)............ 48

H.R. Rep. 490, 101st Cong., 2d Sess. (1990)....6, 42, 48

REGULATIONS

PU TTT socddbunceintknusddedeiedeksacecbeaws 49

ee adds cdcvnensadesnbaboucduduceasueens @

eR Sc icrcusiuedweaandcedaddbousedl aus 1

SP at Eb ob nnatachsidanussessenedeubetedeos 41

FEDERAL REGISTER

36 Fed. Reg. 8186 (April 30, 1971) ................... 6

44 Fed. Reg. 8202 (February 8, 1979)............... 3, 6

52 Fed. Reg. 24634 (July 1, 1987)................... 2,3

58 Fed. Reg. 13008 (March 9, 1993) .................. 6

61 Fed. Reg. 65716 (December 13, 1996).......... 10, 16

62 Fed. Reg. 38652 (July 18, 1997)............... passim

62 Fed. Reg. 38856 (July 18, 1997)............... passim

ALA

CAA

CASAC

EPA

FTCA

ug /m3

NAAQS

OSHA

PM2.5

PM10

ppm

RIA

RTC

xiv

GLOSSARY

American Lung Association

Clean Air Act

Clean Air Scientific Advisory Committee

Criteria Document

Environmental Protection Agency

Federal Trade Commission Act

micrograms per cubic meter

National Ambient Air Quality Standards

ozone

Occupational Safety and Health Act

particulate matter

particles less than or equal to 2.5 microns in

diameter

particles less than or equal to 10 microns in

diameter

parts per million

Regulatory Impact Analysis

Response to Comments

Staff Paper

CITATIONS TO DECISIONS ENTERED IN THE CASE

American Trucking Assns. v. USEPA, 175 F.3d 1027

(D.C. Cir. 1999), App. 1a,! rehearing granted in part, denied

in part, 195 F.3d 4 (D.C. Cir. 1999), App. 90a; 62 Fed. Reg.

38652 (July 18, 1997); 62 Fed. Reg. 38856 (July 18, 1997).

BASIS FOR JURISDICTION

The D.C. Circuit’s decision was entered on May 14,

1999, App. la, and rehearing was granted in part and

denied in part on October 29, 1999. App. 90a. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED IN THIS CASE

U.S. Const., Art. I, § 1; Clean Air Act §§ 108, 109, 172,

181, 307, 42 U.S.C. §§ 7408, 7409, 7502, 7511, 7607; 40

C.F.R. §§ 50.7, 50.10. (See appendix to Environmental

Protection Agency’s petition.)

STATEMENT OF THE CASE

Acting pursuant to its duty to set national ambient

air quality standards (NAAQS) that “protect the public

health” with “an adequate margin of safety,” Clean Air

Act § 109(b)(1), 42 U.S.C. § 7409(b)(1), the Environmental

Protection Agency (EPA) has promulgated revised

NAAQS for particulate matter (most importantly, for fine

particles) and ozone. 62 Fed. Reg. 38711-12 (July 18,

1997), JA(PM) 61-62; 62 Fed. Reg. 38894-95 (July 18, 1997),

' Appendix citations refer to the appendix filed by the

Environmental Protection Agency with its petition for

certiorari.

JA(O) 39-40.2 With respect to particulate matter, EPA has

estimated that 3,000-15,000 deaths, 6,000-10,000 hospital

admissions for respiratory and cardiopulmonary causes,

tens of thousands of cases of respiratory illness, and

millions of days of missed work and restricted activity

will be prevented each year just by partial attainment of

the new standards. Regulatory Impact Analysis (RIA)

12-43, JA(PM) 3486. With respect to ozone, EPA has esti-

mated that its new standards will each year prevent tens

of thousands of occurrences of health effects including

respiratory symptoms (such as pain on breathing), reduc-

tions in lung function, and asthma attacks (including

hospital admissions and emergency room visits). 62 Fed.

Reg. 38865/2-3, JA(O) 10; id. 38868/1, JA(Q) 13.

Particulate matter. Particulate matter (PM) is a ubiq-

uitous pollutant, consisting of fine particles produced

largely by combustion or other high-temperature proc-

esses, and coarse particles mostly generated from

mechanical processes through crushing and grinding.

Criteria Document (CD) 3-145, JA(PM) 548; Staff Paper

(SP) IV-3a, JA(PM) 1920. Over the years the public health

significance of smaller particles has received increasing

recognition. The original PM NAAQS promulgated in

1971 regulated particles up to 45 microns in diameter, 52

Fed. Reg. 24635/3 (July 1, 1987), JA(PM) 209, but EPA in

1987 promulgated revised NAAQS that addressed parti-

cles up to 10 microns in diameter (“PM10"). Id. 24663-64,

JA(PM) 237-38. The PM NAAQS at issue here include a

2 The particulate matter joint appendix compiled in the

court of appeals is cited as JA(PM), and the ozone joint

appendix as JA(O).

new NAAQS addressing “fine” particles, defined as those

2.5 microns in diameter or less. 40 C.FE.R. § 50.7(a)(1).

These NAAQS were promulgated following a

detailed and thorough review conducted by EPA pur-

suant to its statutory obligation to review and (as appro-

priate) revise NAAQS at no more than five-year intervals.

CAA § 109(d). As required by the Act, EPA’s review of

the PM NAAQS involved presenting a comprehensive

review and assessment of the state of the science regard-

ing particulate matter and its health and environmental

effects in a “criteria” document, which was reviewed by a

special scientific advisory committee (the Clean Air Sci-

entific Advisory Committee, or CASAC). See CAA

§§ 109(d); 108(a)(2). According to the final chapter of the

Criteria Document, described by CASAC as the “best

ever example of a true integrative summary of the state of

knowledge about the health effects of airborne PM,” Let-

ter of March 15, 1996 from George T. Wolff to Carol M.

Browner at 2, JA(PM) 3150,

the extensive PM epidemiologic database that

has evolved during the past several decades

. includes recent studies providing evidence

that serious health effects (mortality, exacerba-

tion of chronic disease, increased hospital

admissions, etc.) are associated with exposures

to ambient levels of PM found in contemporary

U.S. urban air sheds even at concentrations below

current U.S. PM standards.

CD 13-1, JA(PM) 1779 (emphasis added). In sharp con-

trast to the “small” number of studies available in the

1987 PM review, 52 Fed. Reg. 24641/1, JA(PM) 215, and to

other NAAQS reviews that have based standard-setting

on a single study, 44 Fed. Reg. 8202/3 (February 8, 1979),

JA(QO) 3480 (noting that 1971 predecessor to the ozone

standard was based on a single study), the studies relied

on in the 1997 PM review include “over 80” addressing

short-term exposus, of which “[o]ver 60 . . . have found

consistent, pos:tive, significant associations between

short-term PM levels and mortality and morbidity end-

points.” SP V-54, JA(PM) 2011. Accord, id. V-61a, JA(PM)

2026 (listing additional statistically significant studies

addressing long-term exposures). Significantly, when EPA

plotted the results of the short-term exposure studies on a

map, it concluded: “Although the highest PM-10 concen-

trations in the U.S. are in the West, most of the results in

North America are from eastern communities, at PM-10

concentrations that are generally below those permitted by

the current standards.” Id. front cover caption, JA(PM) 1900

(emphasis added).

As indicated, these PM-associated health effects

include death, largely from respiratory and cardiovascu-

lar causes. SP V-58, JA(PM) 2019. In addition, the studies

documented associations between particulate matter and

exacerbation of emphysema and chronic bronchitis

(which collectively are known as “chronic obstructive

pulmonary disease”),> as well as pneumonia and

cardiovascular disease. Id. V-20, 21 and 32, JA(PM) 1974,

1976, and 1989. These exacerbations can be serious

enough to lead the affected individuals to visit the emer-

gency room, and to lead attending physicians to order

that they be admitted to the hospital. CD 13-30, JA(PM)

1808. Persons specially at risk from these effects include

those over 65 years of age, as well as those below that age

3 COPD is “the most common pulmonary cause of death,

the fourth leading cause of death overall . . . , and a major cause

of disability.” SP V-33, JA(PM) 1990.

who have acute or chronic respiratory disease and/or

cardiovascular disease, or who are current or former

smokers. CD 13-92 to 13-94, JA(PM) 1870-72.

Having noted these effects, EPA found that fine parti-

cles - which differ in size, chemical composition and

origin from coarse particles, SP IV-4 to IV-8, JA(PM)

1921-27 - were the appropriate indicator: “the fine parti-

cle studies consistently find positive, significant associa-

tions between fine particle levels and mortality and

morbidity endpoints, with over 20 studies conducted in a

number of geographic locations throughout the world,

including the US, Canada, and Europe.” SP V-76, JA(PM)

2047. Indeed, considering a study that compared the fine

and coarse fractions, EPA found “clear evidence that fine

particles are more likely to be responsible for the

numerous observed associations between PM10 and mor-

tality.” SP V-64, JA(PM) 2031. Accord, id. V-67, JA(PM)

2037 (the 24-city study “provides clear evidence of an

effect of fine particles that is independent of coarse frac-

tion particles”).

Considering these factors, and the near-unanimous

recommendation of CASAC - including all four of the

committee’s epidemiologists - that a fine particle stan-

dard was warranted, Letter of June 13, 1996 from George

T. Wolff to Carol M. Browner at Table 1, JA(PM) 3165,

EPA opted to promulgate NAAQS for fine particles, mea-

sured as PM2.5. 62 Fed. Reg. 38711/3, JA(PM) 61 (setting

annual standard at 15 ug/m3, and 24-hour standard at 65

ug/m3). The levels of the final standards are well within

- indeed, “toward the middle portion of” - the range of

protectiveness recommended by the eleven CASAC pan-

elists who made recommendations as to level. Response

to Comments (RTC) 29, JA(PM) 268.

Ozone. Like particulate matter, ozone is a wide-

spread pollutant occurring in numerous regions of the

United States. The primary ingredient in what is known

as “smog,” it is formed when two precursor pollutants

(volatile organic compounds and nitrogen oxides) react to

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

1181 (D.C. Cir. 1981); H.R. Rep. 490, 101st Cong., 2d Sess.

202 (1990).

Prior to 1997, the ozone NAAQS had focused on

short-term concentrations measured over a one-hour

averaging time. 36 Fed. Reg. 8187/3 (April 30, 1971),

JA(O) 3540 (setting NAAQS at 0.08 ppm averaged over

one hour); 44 Fed. Reg. 8220/3 (February 8, 1979), JA(O)

3498 (setting NAAQS at 0.12 ppm averaged over one

hour). Subsequently, concern was raised by CASAC and

others that “even in areas which do not repeatedly exceed

the ozone standard, ozone concentrations can remain

close to 0.12 ppm for several hours per day for extended

periods of time in summer. There was concern based on

recent controlled human exposure, epidemiology and tox-

icology studies, that such prolonged exposures could

result in increased respiratory impairment.” 58 Fed. Reg.

13018/2 (March 9, 1993), JA(O) 3459.

Several years after CASAC’s observation, having

compiled a revised criteria document addressing these

and other studies, EPA noted that human experimental

data documented health effects resulting from 6- to

8-hour exposures to ozone concentrations as low as 0.08

ppm:

Based on a significant body of information

available since the last review, there is now clear

evidence from human clinical studies that O3

effects of concern are associated with the 6- to

—— A

8-hour exposures tested. . . . This includes evi-

dence of the following statistically significant

responses at 6- to 8-hour exposures to the lowest

concentration evaluated, 0.08 ppm O3, at moderate

exertion: lung function decrements, respiratory

symptoms (e.g., cough, pain on deep inspira-

tion), nonspecific bronchial responsiveness, and

biochemical indicators of pulmonary inflamma-

tion.

62 Fed. Reg. 38863-64, JA(O) 8-9 (emphasis added). See

also id. 38872/1, JA(O) 17 (“the bulk of the human health

effects evidence supporting a decision on an appropriate

O3 standard is based on controlled human exposure

studies that relate known O3 exposures directly to

responses in individuals”).

Those most at risk from these effects are people who -

are active outdoors - e.g., “active children and outdoor

workers who regularly engage in outdoor activities.” Id.

38859/3, JA(O) 4. In contrast to the studies underlying

the prior NAAQS, which measured effects based on

heavy exertion, the newer studies showed health effects

under moderate exertion - a matter of concern because

“[mJoderate exertion levels are more frequently experi-

enced by individuals than heavy exertion levels.” Id.

In addition to outdoor exertion, other factors increas-

ing risk of harm from ozone exposure include respiratory

impairments such as asthma. Id. Accord, CD 9-26, JA(O)

1767 (“The magnitude of individual changes can become

more important in persons with impaired respiratory sys-

tems (e.g., asthmatics) who already have reduced base-

line lung function.”). EPA heard vivid testimony

concerning the effects of ozone on asthmatics:

When I was four years old, I was playing out-

side on a really hot day and I started wheezing

and my lungs started tightening up. So I came in

and told my mom.

We went to the doctor the next day and the

doctor said I had asthma. The worst thing about

having an asthma attack is that it almost feels

like you are going to die because your lungs

close up and it is really hard to breathe.

The last two summers have been really bad

for me. On days when the ozone is bad, I can’t

even go outside to play.

IV-F-84a at 168-69, JA(O) 3394-95 (ten-year-old Bethany

Myles of Chicago).

When there are ozone warnings, I can’t be out of

the air-conditioning. If I do go outside, I have an

asthma attack. An asthma attack feels like I am

suffocating. No one should have to feel this way.

Id. at 39, JA(O) 3389 (ten-year-old Jeff Damitz of Chi-

cago). EPA estimated that twelve million Americans — one

in twenty - are asthmatic. SP 39, JA(O) 1849.

Non-asthmatics likewise are at risk if they happen to

be among those who are more sensitive to ozone: “[t}here

is a large range of physiological responses among

humans, with at least a 10-fold difference between the

most and least responsive individuals.” CD 9-4, JA(O)

1744. See McDonnell (1991), II-I-316, at 149, JA(O) 2775

(human clinical study at 0.08 ppm produced lung func-

tion decrements as high as 37.9%); RTC 81 { 5, JA(O) 161

(in human clinical studies at 0.08 ppm, 10% of individuals

had lung function decrement 220%). EPA heard testimony

from these sertsitive individuals as well:

We had at least 26 days this summer of

“unhealthful” ground level ozone under the ME

[Maine] standard of .08 ppm. That's a big part of

our summer, a very big part. This ground level

ozone is a real problem, a serious problem.

—_—

It’s not just a statistical problem, either, because

some standard was exceeded. I can feel it per-

sonally. I have exercised vigorously outside on

“unhealthful” days and become physically sick

- a funny nauseous feeling with a headache.

IV-F-102 at 1, JA(O) 3380 (Charles M. Sexton of South

Portland, ME).

After considering the results of the studies, and the

American Thoracic Society’s criteria for defining which

health effects should be considered adverse, EPA con-

cluded that “responses of some sensitive individuals [to

0.08 ppm] are sufficiently severe and extended in duration to

be considered adverse.” 62 Fed. Reg. 38864/1, JA(O) 9

(emphasis added).

In addition to the human experimental data, EPA also

noted that “[n]umerous epidemiological studies have

reported excess hospital admissions and emergency

department visits for respiratory causes (for asthmatic

individuals and the general population) attributed pri-

marily to ambient O3 exposures, including O3 concentra-

tions below the level of the current standard.” Id. (emphasis

added). As the Criteria Document noted, these studies

“provide strong evidence that ambient exposures to O3 can

cause significant exacerbations of pre-existing respiratory dis-

ease in the general public at concentrations below 0.12

ppm O3.” CD 7-171, JA(O) 1624 (emphasis added). EPA

determined that “increased hospital admissions and

emergency room visits . . . are clearly adverse to individ-

uals.” 62 Fed. Reg. 38864/2, JA(O) 9.

In short, the evidence before EPA showed that health

effects of concern (including adverse health effects) were

occurring at levels allowed by the previous NAAQS, and

at longer averaging times (6-8 hours, not just one hour).

CASAC concluded that a new, eight-hour NAAQS was

necessary: “It was . . . the consensus of the Panel that an

8-hour standard was more appropriate for a human

health-based standard than a 1-hour standard.” Letter of

November 30, 1995 from George T. Wolff to Carol M.

Browner at 2, JA(O) 237.

In acting on CASAC’s consensus recommendation

that an eight-hour NAAQS be set, EPA considered setting

the level of the eight-hour standard at 0.09 ppm, which is

the eight-hour level most comparable in protectiveness to

the one-hour 0.12 ppm NAAQS. 61 Fed. Reg. 65725/2,

JA(O) 51. Given the evidence documenting adverse

health effects at levels allowed by the one-hour standard,

EPA unsurprisingly rejected this option in favor of a more

protective standard.

EPA presented the results of a risk assessment, which

concluded that tens of thousands more members of the

group of greatest concern - children who are active

outdoors - would suffer respiratory impairment and

symptoms at a 0.09 ppm NAAQS than at a 0.08 ppm

NAAQS. 62 Fed. Reg. 38865/2-3, JA(O) 10 (as compared

to a 0.08 ppm NAAQS, a 0.09 ppm NAAQS would subject

70,000 more children to lung function decrements 215%,

39,000 more children to decrements 220%, and 14,000

more children to moderate or severe pain on deep inspi-

ration). These figures applied only to nine urban areas, id.

38868/1 4 2, JA(O) 13, and thus underestimate the

number of ozone-induced effects that would occur

nationwide.

The assessment also concluded that in New York City

alone, a 0.09 ppm NAAQS would result in 40 more excess

hospital admissions of asthmatics per ozone season than

a 0.08 standard. Id. 38868/1, JA(O) 13. Even for that one

city, this figure is “indicative of a pyramid of much larger

numbers of related O3-induced effects, including respira-

tory-related hospital admissions among the general pop-

ulation, emergency and outpatient department visits,

doctors visits, and asthma attacks and related increased

use of medication that are important public health con-

siderations.” Id.

EPA also considered other scientifically documented

effects of 6- to 8-hour exposure to 0.08 ppm, including

“increased nonspecific bronchial responsiveness (related,

for example, to aggravation of asthma), decreased pul-

monary defense mechanisms (suggestive of increased

susceptibility to respiratory infection), and indicators of

pulmonary inflammation (related to potential aggrava-

tion of chronic bronchitis or long-term damage to the

lungs).” Id. 38868/1-2, JA(O) 13.

After weighing the evidence, EPA opted for an eight-

hour standard at 0.08 ppm, a level consistent with the

recommendations of CASAC. Letter of November 30,

1995 from George T. Wolff to Carol M. Browner at 3,

JA(O) 238 (of ten panel members who expressed views,

three favored 0.08 ppm, one endorsed a range of 0.08-0.09

ppm, and two endorsed the range presented by EPA (i.e.,

0.07-0.09 ppm)).

Proceedings Below. In the D.C. Circuit, industry and

State petitioners challenged the new NAAQS on a

number of grounds in petitions for review under Clean

Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1). American Lung

Association, the oldest voluntary health organization in

the United States, intervened to oppose weakening of the

new NAAOS.

The D.C. Circuit did not in any way question the

validity of the science relied upon by EPA concerning

either PM or ozone, and on the contrary found that EPA’s

decision to set fine particle NAAQS “easily” satisfied the

statutory standard. App. 55a. “Given EPA's statutory

mandate to establish standards based on ‘the latest scien-

tific knowledge,’ 42 U.S.C. §§ 7408(a)(2), 7409(d), the

growing empirical evidence demonstrating a relationship

between fine particle pollution and adverse health effects

amply justifies establishment of new fine particle stan-

dards.” App. 55a-56a.

Nonetheless, the D.C. Circuit held that the Clean Air

Act, and EPA’s interpretation of it, violate the nondelega-

tion doctrine. App. 14a. The court also sharply limited

(or, according to industry respondents’ and Ohio’s inter-

pretation of the court’s decision, eliminated) EPA’s

authority to implement the new eight-hour ozone

NAAQS. App. 34a, 37a-44a, 79a-82a.

SUMMARY OF THE ARGUMENT

Nondelegation. As demonstrated by numerous pre-

cedents of this Court upholding broader statutory delega-

tions, the Clean Air Act’s mandate for NAAQS that

“protect the public health” with “an adequate margin of

safety,” § 109(b)(1), provides an ample “intelligible prin-

ciple” to satisfy the nondelegation doctrine. Moreover,

that mandate draws further meaning from the context of

the Act (specifically, the fields of medicine, epidemiology,

and other public health disciplines), from the legislative

history, and from 1977 amendments establishing a uni-

form basis for health-based standard-setting. In addition,

the D.C. Circuit itself has repeatedly conducted judicial

review of NAAQS for two decades. It is unsustainable to

contend on the one hand that the Act provides sufficient

“law to apply” to enable such review, see Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971),

«Ae Ree

and on the other that Congress has failed to supply an

intelligible principle.

The D.C. Circuit’s assertion that the nondelegation

doctrine requires a “determinate criterion” is refuted by

precedent of this Court repeatedly upholding delegations

under thoroughly nondeterminate standards, as well as

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

467 U.S. 837 (1984), and other precedent of this Court

recognizing that Congress may legitimately write ambig-

uous (i.e., nondeterminate) statutes that require agencies

to make policy choices.

Because the Clean Air Act plainly satisfies the non-

delegation doctrine, the D.C. Circuit’s constitutional

inquiry should have stopped there - there was no occa-

sion to proceed to a constitutionally based examination of

EPA’s interpretation, much less a constitutionally based

narrowing of that interpretation. This case is fundamen-

tally different from Industrial Union Dept. v. American

Petroleum Inst., 448 U.S. 607 (1980) (“Benzene”), where a

plurality undertook a narrowing interpretation of a far

broader delegation that required EPA to balance health

against other factors. Moreover, unlike in Benzene, where

evidence of harm was lacking even at pollutant levels an

order of magnitude higher than the standard set by the

agency, here EPA has set both the fine particle and ozone

NAAQS in the range in which compelling scientific evi-

dence documents adverse health effects. There was no

basis for the D.C. Circuit to offer an advisory opinion on

whether EPA could constitutionally set NAAQS at levels

lower than the ones chosen. Likewise, given that the

nondelegation argument in this case was raised only by

parties seeking less stringent NAAQS, there was no basis

for the D.C. Circuit to require that EPA mount a constitu-

tional defense of its decision not to set more stringent

NAAQS.

Ozone Implementation. The D.C. Circuit correctly

held that the 1990 Amendments do not bar EPA from

revising ozone NAAQS or issuing nonattainment desig-

nations under revised NAAQS. The court incorrectly

held, however, that Subpart 2 of the Act governs imple-

mentation of the new ozone NAAQS. It is Subpart 1 that

expressly sets forth requirements for compliance with

“any revised standard, including a revision of any standard

in effect on November 15, 1990.” § 172(a)(1)(A) (emphasis

added).

The Subpart 2 provisions relied on by the D.C. Cir-

cuit are based on the pre-existing ozone NAAQS, and

therefore do not oust the Subpart 1 provisions governing

classifications and attainment dates under the new

NAAQS. First, for the numerous areas that violate the

new NAAQS yet have a design value less than 0.121, the

Subpart 2 classification table provides no classifications

or attainment dates. Second, for areas that violate the

new NAAQS and have a design value of 0.121 or greater,

the Subpart 2 classifications and attainment dates cannot

be applied to the new NAAQS without causing absurd

results: specifically, attainment dates that predate the 1997

promulgation date of the new NAAQS.

With respect to control measures, the D.C. Circuit did

not even point to any statutory provision that allegedly

ousts the Subpart 1 requirements, and no such provision

exists. Moreover, applying the Subpart 2 control measure

provisions to the new NAAQS would produce absurd

results - specifically, pollution control plan submission

deadlines that predate the 1997 promulgation date of the

new NAAQS.

Finally, according to industry respondents and Ohio,

the D.C. Circuit went beyond simply holding that Sub-

part 2 governs the new ozone NAAQS - they read the

D.C. Circuit’s decision as precluding EPA from imple-

menting the new NAAQS at all, ever. This reading reduces

the Act to an absurdity, and ignores the Act’s core public

health purpose by allowing millions of Americans to

continue being exposed to pollution levels that cause

asthma attacks and other adverse health effects. More-

over, this reading conflicts with the D.C. Circuit’s own

interpretation of Subpart 2: it is untenable to advocate an

interpretation of the Act that presupposes the existence of

Subpart 2 classifications and attainment dates for the new

NAAQS, while simultaneously denying that Subpart 2

imposes any date for attainment of that NAAQS.

ARGUMENT

This Court has recognized that the 1970 Clean Air

Act, which enacted the § 109(b)(1) mandate to set NAAQS

that “protect the public health” with “an adequate margin

of safety,” responded to “threats to human health [that]

were regarded as urgent.” General Motors Corp. v. United

States, 496 U.S. 530, 532 (1990). See also Train v. Natural

Resources Defense Council, 421 U.S. 60, 64 (1975) (under the

pre-1970 Act, “the States generally retained wide latitude

to determine both the air quality standards which they

would meet and the period of time in which they would

do so;” the response of the States was “disappointing,”

and brought “little progress;” “Congress reacted by tak-

ing a stick to the States in the form of the Clean Air

Amendments of 1970,” which “sharply increased federal

authority and responsibility in the continuing effort to

combat air pollution.”).

Three decades after Congress took this urgent step,

the promise of clean air embodied in the 1970 legislation

remains unrealized. Persistent unhealthy levels of PM

and ozone are the most important reason for that continu-

ing failure. No other pollutant comes close to these in the

number of deaths, illnesses, and other adverse effects

caused.

For over ten years, the American Lung Association -

along with many other concerned organizations and indi-

viduals, including many scientists, physicians, and public

health professionals - has worked to combat this problem

by advocating the adoption of more protective NAAQS.

As the record of this proceeding abundantly documents,

the pre-existing NAAQS are simply not adequate to the

task of protecting public health. At pollution levels

allowed by those NAAQS, large numbers of people are

dying, being driven to the hospital, and suffering pain

and discomfort - all for the simple act of breathing the

air.

Compared with their predecessors, the fine particle

and ozone NAAQS remanded by the D.C. Circuit repre-

sent a major step forward towards control of this pollu-

tion. Currently, many millions of people are exposed to

harmful levels of PM and ozone pollution, yet live in areas

where the pre-existing NAAQS for those pollutants are

met. P. 4, supra (most studies finding adverse PM-related

health effects were from eastern U.S., where PM concentra-

tions meet the pre-existing NAAQS); 62 Fed. Reg. 38868 /2,

JA(O) 13 (“approximately 46 million more people, includ-

ing approximately 13 million more children and 3 million

more individuals with asthma, live in areas that would not

attain a 0.08 ppm standard compared to a 0.09 ppm stan-

dard”); 61 Fed. Reg. 65725/2, JA(O) 51 (0.09 ppm is

the eight-hour level most equivalent to the pre-existing

one-hour NAAQS).

| EPA’s new NAAQS will extend much-needed protec-

tion to these many people, as well as ensuring that clean-

up activities in areas currently violating the pre-existing

NAAQS will prevent more adverse health effects. The

prospect is striking: the new NAAQS are expected to

prevent thousands of deaths and hospital admissions

each year, as well as tens of thousands of cases of respira-

tory and cardiopulmonary illness and millions of days of

missed work and restricted activity. Pp. 2, 10, supra. The

D.C. Circuit’s decision will at best greatly delay and at

worst outright prevent these public health benefits from

being realized, and will condemn millions of Americans

to continued exposure to harmful air pollution associated

with premature death, hospital admissions, and other

adverse health effects.

I. THE CLEAN AIR ACT, AND EPA’S INTERPRET

, A-

TION OF THE ACT, PASS MUSTER UNDER THE

NONDELEGATION DOCTRINE.

A. The Clean Air Act Sets Forth Intelligible Princi-

ples Sufficient to Satisfy the Nondel i

meth fy ondelegation

Recognizing that “Congress simply cannot do its job

absent an ability to delegate power under broad general

directives,” this Court has held that, “[s]o long as Con-

gress ‘shall lay down by legislative act an intelligible

principle to which the person or body authorized to [exer-

cise the delegated authority] is directed to conform, such

legislative action is not a forbidden delegation of legisla-

tive power.’ ” Mistretta v. United States, 488 U.S. 361, 372

(1989) (emphasis added). After overturning two statutes

over sixty years ago, the Court has since “upheld, with-

out exception, delegations under standards phrased in

sweeping terms.” Loving v. United States, 517 U.S. 748, 771

(1996).

(1) The Language of the Act, Both Alone and

Considered in Light of the Statutory Con-

text and Legislative History, Establishes

Intelligible Principles.

1970 Act. Contrary to the D.C. Circuit’s conclusion,

App. 5a (stating that “no[ } [intelligible principle] is . . .

apparent from the statute”), the Clean Air Act sets forth

intelligible principles to guide EPA’s implementation. The

Act provides that primary NAAQS must be standards

which, “allowing an adequate margin of safety, are requi-

site to protect the public health.” § 109(b)(1). Given that

“one cannot plausibly argue” that there is a nondelega-

tion problem in a statute authorizing regulation of an

“imminent hazard to the public safety,” Touby v. United

States, 500 U.S. 160, 165 (1991), a nondelegation challenge

to § 109(b)(1) is equally implausible. Indeed, this Court

has upheld far broader standards in numerous cases,

including statutes conferring authority to fix “fair and

equitable” prices, to recover “excessive” profits, and even

to regulate broadcast licensing in the “public interest.”

App. 59a-60a (Tatel, J., dissenting) (citing cases).

Moreover, the Act’s “public health” standard takes

further meaning from its context. See Natl. Broadcasting

Co. v. United States, 319 U.S. 190, 216 (1943) (the statutory

phrase “public interest, convenience, or necessity” in the

Communications Act “is to be interpreted by its context,

by the nature of radio transmission and reception, by the

scope, character, and quality of services ... “) (citation

omitted). There can be few if any fields of human

endeavor that have a history longer than, or have arrived

at a level of sophistication comparable to, the study and

protection of human health. Thus the profession of medi-

cine, and related public health disciplines such as epi-

demiology and toxicology, furnish a detailed context for

§ 109(b)(1)’s “public health” mandate. Indeed, this con-

text is expressly linked by statute to EPA’s standard-

setting duties, through the requirements that standards

be “based on” air quality criteria that “accurately reflect

the latest scientific knowledge” concerning health effects,

§§ 108(a)(2), 109(b)(1), and that EPA convene an expert

“scientific review committee” and respond to its recom-

mendations. §§ 109(d)(2), 307(d)(3).

Further constraining the delegation is the statutory

requirement that EPA include a detailed statement of

basis and purpose in the proposed rule (including an

explanation for rejecting any recommendations of the

scientific advisory committee), and another such state-

ment in the final rule (including a response to significant

public comments and new data, and an explanation of

changes from the proposal). § 307(d)(3)-(6). See Yakus v.

United States, 321 U.S. 414, 426 (1944) (“[t}he standards

prescribed by the present Act, with the aid of the ‘statement

of the considerations’ required to be made by the Administra-

tor, are sufficiently definite and precise” to survive non-

delegation challenge) (emphasis added).

In addition, though the statutory text by itself offers

more than sufficient specificity to pass muster under this

Court’s nondelegation precedent, substantial additional

guidance is provided by the legislative history. S. Rep.

1196, 91st Cong., 2d Sess. 10 (1970) (NAAQS must protect

“particularly sensitive citizens such as bronchial asth-

matics and emphysematics who in the normal course of

daily activity are exposed to the ambient environment;”

in particular, NAAQS must ensure “an absence of adverse

effect on the health of a statistically related sample of

persons in sensitive groups;” such a sample is “the

number of persons necessary to test in order to detect a

deviation in the health of any person within such sensi-

tive group which is attributable to the condition of the

ambient air”); id. (the “margin of safety” requirement is

designed to provide “a reasonable degree of protec-

tion . . . against hazards which research has not yet

identified”).

1977 Amendments. Further congressional guidance

defining the scope of the delegation is provided by a 1977

package of amendments addressing the “Basis of Admin-

istrative Standards,” Pub. L. No. 95-95, § 401, 91 Stat.

790-91 (August 7, 1977), designed to establish “a stan-

dardized basis for future rulemaking to protect the public

health.” H.R. Rep. 294, 95th Cong., Ist Sess. 50 (1977)

(“1977 House Report”). The impetus for these amend-

ments was provided by Ethyl Corp. v. EPA, 541 F.2d 1

(D.C. Cir. 1976), where the en banc D.C. Circuit upheld

EPA regulations on leaded gasoline. Rejecting industry's

argument that EPA was required to document “proof of

actual harm” as a prerequisite to regulation, the D.C.

Circuit upheld EPA’s conclusion that the Act contem-

plates regulation where there is “a significant risk of

harm.” Id. 12-13. Noting the newness of many human

alterations of the environment, the court found:

Sometimes, of course, relatively certain

proof of danger or harm from such modifica-

tions can be readily found. But, more commonly,

“reasonable medical concerns” and theory long

precede certainty. Yet the statutes - and com-

mon sense - demand regulatory action to pre-

vent harm, even if the regulator is less than

certain that harm is otherwise inevitable.

Id. 25. Accord, id. (“ Awaiting certainty will often allow for

only reactive, not preventive, regulation.”). Recognizing

“the special judicial interest in favor of protection of the

health and welfare of people, even in areas where cer-

tainty does not exist,” id. 24, and “the established maxim

that health-related legislation is liberally construed to

achieve its purpose,” id. 31, the D.C. Circuit upheld EPA’s

precautionary approach. Specifically addressing § 109,

the court found that § 109’s margin of safety requirement

mandates that NAAQS “be preventive in nature.” Id. 15.

The drafters of the 1977 Amendments indicated their

intent to “support the views expressed” in Ethyl, and to

“apply this interpretation to all other sections of the act

relating to public health protection.” 1977 House Report

at 49 (emphasis added). Accord, id. 50 n.3 (emphasizing

intent “to require application of these factors to standard-

setting under all sections of the act”) (emphasis added).

Specifically, the drafters intended inter alia to

e “emphasize the precautionary or preventive pur-

pose of the act (and, therefore, the Administrator’s duty

to assess risks rather than wait for proof of actual harm),”

and thus “to assure that regulatory action can effectively

prevent harm before it occurs.” Id. 51, 49.

e “emphasize the predominant value of protection

of public health.” Id. 49.

e “assure that the health of susceptible individuals,

as well as healthy adults, will be encompassed in the

term ‘public health,’ regardless of the section of the act

under which the Administrator proceeds.” Id. 50.

While the 1977 Amendments, like the 1970 Amend-

ments, reaffirm the preeminent role of public health pro-

tection, the 1977 drafters also cautioned that EPA’s

standard-setting authority is “not. . . a license for ‘crystal

ball’ speculation. The Administrator’s judgment must, of

course, remain subject to restraints of reasoned decision-

making.” Id. 51. Thus, the Administrator’s power to

assess risks “ ‘does not permit him to act on hunches or

wild guesses; . . . his conclusions must be rationally

justified.’ ” Id. 45 (citation omitted). Accord, Ethyl, 541

F.2d at 28.

Congress implemented these principles by enacting

similar amendments to several provisions of the Act. Pub.

L. No. 95-95, § 401, 91 Stat. 790-91 (August 7, 1977). These

amendments are relevant to the setting of NAAQS, for —

two reasons. First, among the provisions amended was

§ 108(a)(1). Id. § 401(a). The effect of this amendment was

to require listing of pollutants that might harm human

health, even where actual proof of such harm is lacking.

Because listing under § 108 requires regulation under

§ 109, Ethyl, 541 F.2d at 15 n.23, Congress’s amendment of

§ 108 expressed its intent that NAAQS also protect

against suspected and not merely demonstrated harm.

Second, even apart from the change to § 108, the package

of amendments in § 401 of the 1977 Amendments

expressed Congress’s intent to adopt a standardized basis

for public-health-based rulemaking under the Act. See p.

21, supra (quoting 1977 House Report). Rulemaking under

§§ 109(b)(1) and (d)(1) is designed to protect the public

health, and thus is necessarily subject to this standard.

* The absence of § 109 from the sections amended is for an

obvious reason: § 109 had already been held by the D.C. Circuit

Thus, the 1977 amendments provide further intelligible

principles sufficient to defeat a nondelegation challenge.

(2) Because the Clean Air Act Provides Suffi-

cient Specificity to Permit Judicial Review,

It Necessarily Also Provides Sufficient

Intelligible Principles to Satisfy the Non-

delegation Doctrine.

This Court has held that if Congress has spoken with

sufficient clarity to enable the courts to review agency

implementing actions, then the nondelegation doctrine is

necessarily satisfied. Yakus, 321 U.S. at 426 (delegation

would be improper “[o]nly if we could say that there is

an absence of standards for the guidance of the Adminis-

trator’s action, so that it would be impossible in a proper

proceeding to ascertain whether the will of Congress has

been obeyed”) (emphasis added).

Indeed, any other conclusion would conflict with

other precedent of this Court providing that review of

agency action is unavailable only “in those rare instances

where ‘statutes are drawn in such broad terms that in a

given case there is no law to apply,’ ” Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (citation

omitted) — i.e., where “the statute is drawn so that a court

would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Heckler v.

to be precautionary, see p. 21, supra (citing Ethyl). By contrast,

§ 108 had been held to require a “firm threshold finding” of

“known adverse effects or actual harm” before a pollutant could

be listed for regulation, Ethyl, 541 F.2d at 14 & n.20, thereby

necessitating amendment in order to adopt a precautionary

approach.

Chaney, 470 U.S. 821, 830 (1985). It would be fundamen-

tally contradictory to hold that Congress has provided

sufficient “law to apply” to enable judicial review — and

then to conclude that Congress has failed to provide an

“intelligible principle” sufficient to enable such review.

The D.C. Circuit itself has reviewed EPA’s decisions

under § 109(b)(1) repeatedly, judging those decisions

against congressional intent as set forth in the Act and

legislative history. Lead Industries Assn. v. EPA, 647 F.2d

1130 (D.C. Cir. 1980); American Petroleum Inst. v. Costle,

665 F.2d 1176 (D.C. Cir. 1981); Natural Resources Defense

Council v. Administrator, 902 F.2d 962 (D.C. Cir. 1990);

American Lung Assn. v. EPA, 134 F.3d 388 (D.C. Cir. 1998).

As those opinions make clear, the D.C. Circuit was fully

able to discern intelligible congressionally established

principles sufficient to permit judicial review. See, e.g.,

ALA, 134 F.3d at 389 (“NAAQS must be set at a level at

which there is an absence of adverse effect on [ ] sensitive

individuals.”) (internal quotations omitted); Lead Indus-

tries, 647 F.2d at 1152 & 1153 (same); API, 665 F.2d at 1186

(“[iJn setting margins of safety the Administrator need

not regulate only the known dangers to health, but may

‘err’ on the side of overprotection”); NRDC, 902 F.2d at

972 (same).

Two additional, en banc D.C. Circuit decisions fur-

ther confirm this conclusion. In Ethyl, the Court found

meaning in § 109, and enunciated detailed principles on

the setting of health-based clean air standards — princi-

ples that were ratified by Congress in 1977. See pp. 20-22,

supra.

In Natural Resources Defense Council v. USEPA, 824

F.2d 1146 (D.C. Cir. 1987) (“Vinyl Chloride”), a unanimous

en banc D.C. Circuit - including both members of the

majority in the present case - construed and found mean-

ing in CAA § 112’s mandate to “provide[ ] an ample

margin of safety to protect the public health.” Expressly

relying on the legislative history of § 109 (specifically, the

1970 Senate Report language quoted supra at 19-20), the

court held that the margin of safety requirement “com-

ports with the historical use of the term in engineering as

‘a safety factor . . . meant to compensate for uncertainties

and variabilities.’ ” 824 F.2d at 1152 (citation omitted). See

also id. 1153, 1165 (further explaining the “margin of

safety” requirement by reference to - inter alia - the

“significant risk” standard adopted by the plurality in

Benzene). While the D.C. Circuit's interpretation of § 112

differs in certain respects from its interpretation of § 109,

NRDC v. Administrator, 902 F.2d at 973-74, the key point

for nondelegation purposes is that the court was able to

find meaning in a phrase (“margin of safety”) that

appears in § 109(b)(1). Accordingly, the unanimous en

banc Vinyl Chloride decision further confirms that

§ 109(b)(1) establishes intelligible principles.

(3) The Clean Air Act Clearly Satisfies The

Nondelegation Approaches Espoused by

Chief Justice Rehnquist and Justice Scalia.

Not only does the Clean Air Act easily pass muster

under the precedent of this Court - it also clearly satisfies

the approaches advocated in dissent by Chief Justice

Rehnquist and Justice Scalia. Benzene, 448 U.S. at 671

(Rehnquist, J.); American Textile Manufacturers Inst. v. Don-

ovan, 452 U.S. 490, 543 (1981) (“Cotton Dust”) (Rehnquist,

].); Mistretta, 488 U.S. at 412 (Scalia, J.).

Chief Justice Rehnquist. In Benzene and Cotton Dust,

then-Justice Rehnquist argued that the Occupational

Safety and Health Act violated the nondelegation doc-

trine, but based this conclusion on that statute’s feasibility

requirement: “the insertion into § 6(b)(5) of the words ‘to

the extent feasible’ rendered what had been a clear, if

somewhat unrealistic, statute into one so vague and pre-

catory as to be an unconstitutional delegation.” Cotton

Dust, 452 U.S. at 545. By contrast, the bill as introduced

contained no feasibility provision:

Prior to the inclusion of the “feasibility” lan-

guage, § 6(b)(5) simply required the Secretary to

“set the standard which most adequately

assures, on the basis of the best available profes-

sional evidence, that no employee will suffer

any impairment of health....” . . . Had that

statute been enacted, it would undoubtedly sup-

port the result the Court reaches in these cases,

and it would not have created an excessive delega-

tion problem. The Secretary of Labor would quite

clearly have been authorized to set exposure

standards without regard to any kind of cost-

benefit analysis.

Id. (emphasis added). As will be shown by the briefing in

No. 99-1426, the Clean Air Act - like the original OSHA

bill that never became law - requires standards to be

based on health “without regard to any kind of cost-

benefit analysis.” Accordingly, even under the strong ver-

sion of the nondelegation doctrine espoused by Chief

Justice Rehnquist, the Act clearly passes muster.

Justice Scalia. In Mistretta, Justice Scalia contended

that the Sentencing Reform Act created an unconstitu-

tional delegation. Though agreeing that the lenient “intel-

ligible principle” test was met, 488 U.S. at 415-16, Justice

Scalia contended that the Act had transgressed “the Con-

stitution’s structural restrictions that deter excessive dele-

gation.” Id. at 417 (emphasis added). Specifically, that

statute had delegated lawmaking authority to the Sen-

tencing Commission, a body that “neither exercises any

executive power on its own, nor is subject to the control

of the President who does.” Id. at 420.

Unlike the Sentencing Commission, EPA is not only

subject to the control of the President (who appoints the

Administrator), but also exercises direct executive power.

In particular, once NAAQS are established EPA approves

(or disapproves) state pollution control plans to attain the

NAAQS, promulgates federal pollution control plans to

attain the NAAQS, and enforces the plans thus approved

and promulgated. CAA §§ 110(a) & (k), 110(c)(1), 113, 42

U.S.C. §§ 7410(a) & (k), 7410(c)(1), 7413. Moreover, EPA

entertains and rules on petitions for abatement of inter-

state air pollution contributing to violations of the

NAAQS, and enforces rulings issued pursuant to such

petitions. CAA §§ 126, 113, 42 U.S.C. §§ 7426, 7413. Thus,

the Clean Air Act satisfies the structural delegation

approach espoused by Justice Scalia.

B. The Nondelegation Doctrine Does Not Require

a “Determinate Criterion.”

(1) A “Determinate Criterion” Test Is Unsup-

portable Given the Nondeterminate Lan-

guage in the Constitution Itself, and

Contravenes This Court’s Precedent

Repeatedly Upholding Nondeterminate

Statutes.

The core of the D.C. Circuit’s nondelegation ruling is

the incorrect assertion that a delegation must be limited

by a “determinate criterion for drawing lines” in order to

pass constitutional muster. App. 6a. First, the Constitu-

tion itself contains nondeterminate provisions. See, e.g.,

Am. VIII (“[e]xcessive” bail and “excessive” fines); Am. Il

(“well regulated” militia); Am. IV (“unreasonable”

searches and seizures, and warrants “particularly”

describing the place or person to be searched or seized);

Am. V (“due” process, and “just” compensation). Con-

gress cannot be held to have acted unconstitutionally

when it has spoken with the same kind of nondetermi-

nate language used in the Constitution itself. See Lichter v.

United States, 334 U.S. 742, 785-86 (1948) (citing Eighth

Amendment as grounds for rejecting a nondelegation

doctrine challenge to the phrase “excessive profits” in the

Renegotiation Act).

Second, the D.C. Circuit’s test conflicts with the pre-

cedent of this Court, which requires only an “intelligible

principle,” not a determinate criterion —- and which has

repeatedly upheld delegations under thoroughly non-

determinate standards such as “fair and equitable”

prices, “excessive” profits, and even the “public interest.”

See p. 18, supra. See also Sunshine Anthracite Coal Co. v.

Adkins, 310 U.S. 381, 399-400 (1940) (“The difficulty or

impossibility of drawing a statutory line is one of the

reasons for supplying merely a statutory guide.”)

(emphasis added); Opp Cotton Mills v. Administrator, 312

U.S. 126, 145-46 (1941) (Congress is not constitutionally

barred from “accept[ing] the administrative judgment as

to the relative weights to be given to the[ ] [statutory]

factors in each case when that judgment in other respects

is arrived at in the manner prescribed by the statute,

instead of attempting the impossible by prescribing their

relative weight in advance for all cases”); Lichter, 334 U.S.

at 785 (“It is not necessary that Congress supply adminis-

trative officials with a specific formula for their guidance

in a field where flexibility and the adaptation of the

congressional policy to infinitely variable conditions con-

stitute the essence of the program.”); Yakus, 321 U.S. at

425 (“it is irrelevant that Congress might itself have pre-

scribed the maximum prices or have provided a more

rigid standard by which they are to be fixed; for example,

that all prices should be frozen at the levels obtaining

during a certain period or on a certain date”); United

States v. Rock Royal Co-op, 307 U.S. 533, 577 (1939) (“This

price cannot be determined by mathematical formula but

the standards give ample indications of the various fac-

tors to be considered by the Secretary.”).

Moreover, the standard adopted by the plurality in

Benzene to avoid a possible nondelegation issue — “signifi-

cant risk” — is likewise nondeterminate. Benzene, 448 U.S.

at 655-56 (significant risk standard “is not a mathematical

Straitjacket,” and “cannot be based solely on a resolution

of the facts,” but “will be based largely on policy consid-

erations;” the agency “is free to use conservative assump-

tions in interpreting the data,” “risking error on the side

of overprotection rather than underprotection”).

(2) A “Determinate Criterion” Test Contra-

venes Chevron and Other Precedent of this

Court Recognizing that Congress May

Legitimately Leave Policy Decisions to Be

Made By Agencies.

Under this Court’s precedent, the nondelegation doc-

trine does not preclude Congress from writing statutes

that allow an agency “to exercise judgment on matters of

policy.” Mistretta, 488 U.S. at 378. For example, statutes

may be worded in sufficiently broad terms to allow more

than one possible interpretation, thereby allowing an

agency to exercise policy judgment to decide which inter-

pretation should be adopted. This principle is illustrated

by Cotton Dust, where concern was expressed by a dis-

senting Justice that Congress had written the Occupa-

tional Safety and Health Act so broadly as to allow three

possible interpretations concerning the role of cost-bene-

fit analysis: that Congress “required” the agency to

engage in such analysis, that it “prohibited” the agency

from doing so, or that it “permitted” the agency to do so.

452 U.S. at 545, 548 n.* (Rehnquist, J.). The majority

squarely held that such statutory flexibility would not

create a delegation problem: “Even [if] . . . there were

three possible constructions of the phrase ‘to the extent

feasible[,]’ . . . this would hardly have been grounds for

invalidating § 6(b)(5) under the delegation doctrine. After all,

this would not be the first time that more than one

interpretation of a statute had been argued.” Id. at 541

n.75 (emphasis added). The D.C. Circuit’s demand for a

“determinate criterion” squarely conflicts with Cotton

Dust’s recognition that Congress may write nondetermi-

nate statutes that are susceptible to conflicting interpreta-

tions.

The principle recognized in Cotton Dust subsequently

found expression in the seminal case of Chevron, U.S.A. v.

Natural Resources Defense Council, 467 U.S. 837 (1984).

Under Chevron Step Two, which applies where Congress

has “delegat[ed]” to an agency authority to interpret a

statute, the reviewing court must uphold the agency

interpretation if it is “reasonable.” Id. 843-44. Chevron

Step Two necessarily presupposes that Congress may

lawfully write statutes that are ambiguous and therefore

subject to differing interpretations — indeed, diametrically

opposing ones. Id. 863 (“The fact that the agency has from

time to time changed its interpretation of the term

‘source’ does not . . . lead us to conclude that no defer-

ence should be accorded the agency’s interpretation of

the statute.”). Indeed, Chevron expressly acknowledged

that it is proper for Congress to punt policy decisions to

agencies, rather than resolving them itself. Id. 865-66

(administrative agency can properly “resolv[e] the com-

peting interests which Congress itself either inadver-

tently did not resolve, or intentionally left to be resolved by

the agency charged with the administration of the stat-

ute”) (emphasis added). The D.C. Circuit’s “determinate

criterion” test would undermine Chevron by holding that

ambiguous statutes raise constitutional problems - thus

transforming routine Chevron Step Two statutory review

into constitutionally based nondelegation doctrine review.

See App. 76a.

(3) Schechter Refutes a “Determinate Crite-

rion” Test.

In an attempt to support its holding, the D.C. Circuit

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

295 U.S. 495 (1935), for the proposition that where stan-

dards affect the whole economy, Congress must craft a

“more precise” delegation. App. 12a (allegedly quoting

Schechter). This purported standard appears nowhere in

Schechter, and in any event offers no support for a “deter-

minate criterion” test. Far from demanding such a crite-

rion, Schechter took pains not to question the validity of

the Federal Trade Commission Act’s multi-industry pro-

scription of “unfair methods of competition,” even

though that standard was decidedly nondeterminate. Id.

at 532-33 (the FTCA standard “does not admit of precise

definition,” but rather its contours are “to be determined

in particular instances, upon evidence, in the light of

particular competitive conditions and of what is found to

be a specific and substantial public interest”).

C. Because Congress Prescribed Intelligible Prin-

ciples, the Nondelegation Doctrine Provides No

Basis for a Narrowing Construction of the Act.

(1) Requiring EPA to Narrow Its Interpreta-

tion of the Act Is Unwarranted in Light of

the Act’s Clear Constitutionality, Will Not

Serve the Purpose of the Nondelegation

Doctrine, and Contravenes Precedent of

this Court.

The D.C. Circuit not only held that the Act offers no

intelligible principle, but also proceeded to strike down

EPA’s interpretation of the Act on constitutional grounds.

Because the Clean Air Act offers an intelligible principle,

however, the D.C. Circuit’s constitutional inquiry should

have stopped there - there was no occasion to proceed to

a constitutionally based examination of EPA’s interpreta-

tion, much less to require a constitutionally based nar-

rowing of that interpretation. Mistretta, 488 U.S. at 373 n.7

(recent application of nondelegation doctrine has been

principally limited “to giving narrow constructions to

statutory delegations that might otherwise be thought to be

unconstitutional”) (emphasis added).

Moreover, the D.C. Circuit’s novel constitutional

requirement that a narrowing interpretation be adopted

by the implementing agency will do nothing to serve the

purpose of the nondelegation doctrine (which is designed

to preserve Congress's constitutionally conferred legisla-

tive authority, U.S. Const., Art. I, § 1), and in any event is

flatly contrary to precedent of this Court. American Power

& Light Co. v. SEC, 329 U.S. 90, 106 (1946) (nondelegation

doctrine does not require “that the legislative standards

be translated by the [agency] into formal and detailed

rules of thumb prior to their application to a particular

case. If th{e] agency wishes to proceed by the more flex-

ible case-by-case method, the Constitution offers no

obstacle.”).

(2) The Present Case Differs Fundamentally

from Those Where Narrowing Construc-

tions Have Been Undertaken.

The two decisions cited by Mistretta as having

adopted narrowing constructions (488 U.S. at 373 n.7)

both differ fundamentally from the present case. First,

Natl. Cable Television Assn. v. United States, 415 U.S. 336

(1974), involved an agency usurpation of Congress’s

power of taxation, id. at 341 (it would be “a sharp break

with our traditions to conclude that Congress had

bestowed on a federal agency the taxing power”), and a

far more sweeping statutory delegation than is at issue

here. Id. at 337 (statute required fees to be “fair and

equitable taking into consideration direct and indirect

cost to the Government, value to the recipient, public

policy or interest served, and other pertinent facts”)

(emphasis added).

Second, Benzene presented views on the nondelega-

tion doctrine that did not even reflect the position of a

majority of the Court,5 and construed a statute that

5 See Benzene, 448 U.S. at 717 n.30 (Marshall, J., joined by

three other Justices, found that the statute posed no

nondelegation problem), 664 n.1 (Powell, J., “express[ed] no

view” on the nondelegation issue).

delegated far more broadly than the Clean Air Act's

NAAQS provisions. See p. 26, supra. In addition, the

factual context of this case differs fundamentally from

that of Benzene. There, OSHA had set a benzene standard

at 1 ppm, though evidence of harm was lacking even at

levels an order of magnitude higher:

OSHA acknowledged that there was no empiri-

cal evidence to support the conclusion that there

was any risk whatsoever of deaths due to expo-

sures at 10 ppm. What OSHA relied upon was a

theory that, because leukemia deaths had

occurred at much higher exposures, some

(although fewer) were also likely to occur at

relatively low exposures. The Court of Appeals

specifically held that its conclusion that the

number was “likely” to be appreciable was

unsupported by the record.

Benzene, 448 U.S. at 652 n.60 (emphasis added). By con-

trast, EPA based the fine particle NAAQS on numerous

scientific studies, whose validity was accepted by the

D.C. Circuit, App. 55a-56a, showing a statistically signifi-

cant relationship between fine particle concentrations and

death and illness (including hospital admissions) at

PM2.5 long-term mean daily concentrations of 16 to 21

ug/m3. 62 Fed. Reg. 38676/1, JA(PM) 26; SP E-8 to E-10,

JA(PM) 2224-28. EPA set the annual standard, not orders

of magnitude below this range, but just below its lower

end: at 15 pg/m3. 62 Fed. Reg. 38676/2, JA(PM) 26.° EPA

6 Indeed, the 15 ug/m3 annual standard is well above the

lower limit of long-term mean daily concentrations (11 pg /m3)

found to be positively associated with mortality at “nearly”

statistically significant levels. 62 Fed. Reg. 38676/1, JA(PM) 26.

See Ethyl, 541 F.2d at 28 n.58 (“Agencies are not limited to

scientific fact, to 95% certainties.”).

wee we

set the 24-hour standard at 65 ~g/m3, above the 98th

percentile of 24-hour concentrations in all but one of the

studies documenting associations between PM2.5 and

mortality. Memorandum of 9/30/96 from Patricia Koman,

JA(PM) 3508. Likewise, the new ozone NAAQS is based

on scientific studies, not questioned by the D.C. Circuit,

documenting adverse health effects at the level of the

new NAAQS itself. See pp. 6-7, 9, supra.

In short, EPA’s fine particle and ozone NAAQS are

based not on theories or extrapolation, but on evidence of

death and illness in the range in which those standards

were set. Thus, this case does not present a situation

where EPA has attempted to set NAAQS at zero, App. 13a

(speculating that EPA’s interpretation might allow the

agency to set NAAQS at zero), or (as in Benzene) substan-

tially below the level where adverse health effects are

documented. The D.C. Circuit had no basis to offer an

advisory opinion on the constitutionality of such hypo-

thetical NAAQS. U.S. Const., Art. IIL, § 2 (judicial power

applies to “[c]ases” and “[c]ontroversies”). Likewise, the

D.C. Circuit had no basis for requiring EPA to mount a

constitutional defense of its decision “not to set a stan-

dard at a lower level” than the levels chosen. App. 10a

(emphasis added). The nondelegation argument in this

case was raised only by parties seeking less stringent

NAAQS.

Here, the D.C. Circuit did not even claim that EPA

had set the NAAQS below the levels at which the scien-

tific evidence documented adverse health effects. Instead

of focusing on what EPA did, the court speculated on

what the agency’s statutory interpretation would

allegedly allow the agency to do in some future proceed-

ing: “EPA’s formulation of its policy judgment leaves it

free to pick any point between zero and a hair below the

concentrations yielding London’s Killer Fog.” App. 13a.

But EPA asserted no such broad discretion, and even if it

had, that assertion would raise, not a constitutional issue,

but a statutory one - i.e., whether the agency’s interpreta-

tion passes muster under Chevron as a valid interpretation

of the Act. In light of the Act’s express public health

mandate, and Congress’s intent to prevent adverse effects

on sensitive individuals, see pp. 18-22, supra, there is no

colorable argument that the Act would allow concentra-

tions remotely approaching London’s Killer Fog - or even

at the level of the prior, demonstrably inadequate

NAAQS. Moreover, under the Act EPA would not be free

to set NAAQS at zero based on “hunches or wild

guesses,” but only if such a level could be “rationally

justified.” See p. 22, supra. Such a fact pattern is not

presented in this case, and in any event the D.C. Circuit

erred in suggesting that it would present a nondelegation

problem. Benzene, 448 U.S. at 677 (Rehnquist, J., dissent-

ing) (the original OSHA bill - which in then-Justice Rehn-

quist’s view posed no nondelegation problem - “would

have required the Secretary, in regulating toxic sub-

' stances, to set the permissible level of exposure at a safe

level or, if no safe level was known, at zero”) (emphasis

added). See also App. 93a (Silberman, J., dissenting) (the

nondelegation doctrine addresses “the scope of the

[agency’s] discretion,” not “the regulatory consequences

of [the agency’s] interpretation of the statute”).

Il. THE D.C. CIRCUIT’S RULING CONCERNING

IMPLEMENTATION OF THE REVISED OZONE

NAAQS CONTRAVENES THE ACT.

Once NAAQS are set, the Act requires that areas

where air quality violates the NAAQS be designated as

nonattainment areas, and that specified steps be taken to

bring those areas into attainment. The Act prescribes

generic provisions concerning nonattainment areas in

Subpart 1 of Part D (§§ 171-179B, 42 U.S.C. §§ 7501-

7509a), supplemented by pollutant-specific provisions in

Subparts 2-5 (§§ 181-192, 42 U.S.C. §§ 7511-7514a). The

ozone-specific program in Subpart 2 (§§ 181-185B, 42

U.S.C. §§ 7511-7511f) is based on the pre-existing ozone

NAAQS (which was set at 0.12 parts per million, aver-

aged over one hour), App. 32a, while Subpart 1 applies

generically to any NAAQS (including any revised

NAAQS). 172(a)(1)(A).

In a ruling on which no one has sought certiorari, the

D.C. Circuit correctly held that the ozone-specific pro-

gram in Subpart 2 does not preclude EPA either from

promulgating a revised ozone NAAQS, or from issuing

nonattainment area designations under that NAAQS.

App. 34a-37a. The court incorrectly held, however, that

“EPA is precluded from enforcing a revised primary

ozone NAAQS other than in accordance with the classi-

fications, attainment dates, and control measures set out

in Subpart 2.” App. 34a. Because this reading contravenes

the plain meaning of the Act and produces absurd results,

application of Subpart 1 to nonattainment areas under the

new ozone NAAQS should have been upheld under Chev-

ron Step One, or at a very minimum, as a reasonable

interpretation under Chevron Step Two.

Moreover, as interpreted by industry respondents

and Ohio, the D.C. Circuit’s ruling does not simply

require EPA to implement the new standard through a

different statutory tool (Subpart 2 instead of Subpart 1).

Rather, industry respondents and Ohio read the D.C.

Circuit’s decision as precluding EPA from implementing

the new standard at all, ever. Appalachian Power Rsp. to

Cert. Petitions at 28 (“the 1990 Amendments to the Act

‘must preclude the EPA from requiring areas to com-

ply . . . with a more stringent ozone NAAQS’) (emphasis

added by Appalachian Power) (quoting App. 40a).

Accord, id. 9, Ohio Rsp. at 2. This reading contravenes the

Act, reduces the statutorily mandated NAAQS review

process to a pointless exercise, and leaves large numbers

of Americans to continue suffering asthma attacks and

other adverse health effects that would be prevented by

the new NAAQS.

A. The Subpart 1 Classification and Attainment

Date Provisions Apply to the New Ozone

NAAQS.

The D.C. Circuit’s holding that the classifications and

attainment dates of Subpart 2 apply to the new eight-

hour NAAQS contravenes the plain language of the Act.

By their express terms, the classification provisions of

Subpart 1 apply to “any revised standard, including a

revision of any standard in effect on November 15, 1990,”

§ 172(a)(1)(A) (emphasis added), and the attainment date

provisions track that applicability. Id. (providing that

classification under § 172(a)(1) is inter alia “for the pur-

pose of applying an attainment date pursuant to para-

graph (2)” —- i.e., pursuant to § 172(a)(2)). The D.C.

Circuit’s attempts to avoid this conclusion will not with-

stand scrutiny.

The D.C. Circuit asserted that the Subpart 1 classi-

fication and attainment date provisions are ousted by

§§ 172(a)(1)(C) and (a)(2)(D), which provide that the

§ 172(a) classifications and attainment dates do not apply

to nonattainment areas for which classifications and

attainment dates “are specifically provided under other

provisions of this part.” The D.C. Circuit found that these

ouster provisions apply to the new eight-hour NAAQS,

basing this finding on the court’s assertion that

§ 181(a)(1) provides classifications and attainment dates

for all ozone nonattainment areas. App. 37a-38a. This

conclusion flies in the face of the plain language of the

Act, with respect both to areas with a design value less

than 0.121 and areas with a design value of 0.121 or

greater.

1. Areas violating the new NAAQS, with design

value less than 0.121. For areas with a design value less

than 0.121, § 181(a)(1) specifies no classifications or

attainment dates. Specifically, the table set forth in

§ 181(a)(1) provides classifications and attainment dates

only for areas with a design value 20.121 - a level

roughly approximating the level of the pre-existing one-

hour NAAQS. App. 32a-33a. Thus, § 181(a)(1) offers no

classifications or attainment dates for the numerous areas

where air quality meets the pre-existing one-hour

NAAQS, yet violates the new eight-hour NAAQS. As

Judge Tatel observed, “it is . . . difficult to see how

Subpart 2 can ‘specifically provide[ ]’ attainment dates

for areas that are designated nonattainment under the

new standard but are not covered by Table 1.” App. 84a.

Indeed, a recent D.C. Circuit decision holds that

§ 181(a)(1) does not set forth classifications or attainment

dates even for all nonattainment areas under the pre-

existing one-hour standard. American Petroleum Inst. v.

USEPA, 198 F.3d 275, 278-80 (D.C. Cir. 2000) (holding that

“sub-marginal” areas — i.e., areas that are in nonattain-

ment of the one-hour standard but have a design value

<0.121 - are not covered by Table 1 of § 181(a)(1); Table 1

and nonattainment status “overlap but are distinct”). The

API decision confirms an observation made by the D.C.

Circuit here. App. 36a (“not all areas designated nonat-

tainment for ozone will have design values of 0.121 ppm

or higher”). These statements undermine the D.C. Cir-

cuit’s assertion that “Subpart 2 specifically provides clas-

sifications and dates for all areas designated

nonattainment under any ozone NAAQS.” App. 38a

(emphasis added).

2. Areas violating the new NAAQS, with design

value 20.121. For areas with a design value greater than

or equal to 0.121, § 181(a)(1) provides classifications and

attainment dates — but only for the pre-existing one-hour

NAAQS, not for the new eight-hour NAAQS. Applying

the § 181(a)(1) classifications and attainment dates to the

new eight-hour NAAQS would produce absurd results -

specifically, many areas would be assigned attainment

dates that predate the July 1997 promulgation of the new

NAAQS. For example, areas classified as marginal under

the new NAAQS would be required to attain by Novem-

ber 15, 1993, and areas classified as moderate would be

required to attain by November 15, 1996. 181(a)(1) (table

1). Thus, though the D.C. Circuit expressed concern about

the attainment dates associated with EPA’s interpretation,

App. 40a-41a (expressing concern that under EPA’s inter-

pretation, some areas might have to attain the new eight-

hour NAAQS before expiration of the Subpart 2 deadlines

for attaining the pre-existing one-hour NAAQS), it is the

D.C. Circuit's own interpretation that produces anomalous

attainment dates. Stated simply, an interpretation result-

ing in attainment deadlines that predate the very exis-

tence of the corresponding NAAQS cannot possibly be a

valid reading of the Act. Tellingly, the D.C. Circuit never

confronted, much less offered a response to, this absurd

implication of its holding.”

7 The Act does provide a mechanism for extending

attainment deadlines in the event that areas are newly

designated to nonattainment for ozone after enactment of the

1990 Amendments, § 181(b)(1), but that provision is

inapplicable to designations under the new ozone standard:

§ 181(b)(1) applies only to areas designated nonattainment

“under section 7407(d)(3).” (Emphasis added.) As the D.C.

Circuit recognized, however, nonattainment area designations

under the new ozone NAAQS will be made pursuant to

§ 107(d)(1), 42 U.S.C. § 7407(d)(1). App. 36a. Thus, the anomaly

caused by the D.C. Circuit’s reading remains.

Moreover, § 181(b)(1) applies only to areas that had been

“designated attainment or unclassifiable” during the round of

designations (made pursuant to § 107(d)(4)) that followed

shortly after enactment of the 1990 amendments. App. 42a.

Thus, even apart from the insurmountable problem noted in the

previous paragraph, the extension authority of § 181(b)(1)

would not apply to the numerous areas that were designated

nonattainment in the post-1990 § 107(d)(4) designations -

among which are numerous metropolitan areas, including

virtually the entire eastern seaboard from Northern Virginia

through Connecticut, as well as Chicago, Houston, and Los

Angeles, among others. 40 C.F.R. §§ 81.300 et seq.

B. The Subpart 1 Control Measure Provisions

Apply to the New Ozone NAAQS.

The D.C. Circuit likewise erred by ruling (App. 34a)

that the new eight-hour NAAQS must be implemented

only in accordance with the “control measures” of Sub-

part 2. Indeed, the court did not even point to a statutory

provision that allegedly ousted the Subpart 1 provisions

concerning control measures.

No such provision exists. Section 172(b) requires

states to submit, no later than “3 years from the date of

the nonattainment designation,” pollution control plans

implementing new NAAQS - and § 172(b) contains no

ouster provision comparable to § 172(a)(1)(C) or (a)(2)(D).

Nor is such an ouster provision contained in § 172(c),

which sets forth nine specific requirements that a control

plan must meet - including the requirement that the plan

“provide for attainment of the national primary ambient

air quality standards.” § 172(c)(1). See also H.R. Rep. 490,

101st Cong., 2d Sess. 223 (1990) (“1990 House Report”)

(§ 172(c) “establishes requirements for all nonattainment

area plans, including those for ozone . . . nonattainment

areas”) (emphasis added).

Moreover, the D.C. Circuit’s interpretation concern-

ing control measures leads to absurd results that simply

compound the unworkability of the court’s interpretation

concerning classifications and attainment dates. Not only

would the D.C. Circuit’s ruling result in areas being

required to attain the new NAAQS before that NAAQS

was even promulgated, it would result in pollution con-

trol plan submission deadlines falling due before that

promulgation date as well.

Under the D.C. Circuit’s interpretation concerning

classifications and attainment dates, areas with a design

— ee

value 20.121 would be classified as Marginal, Moderate,

Serious, Severe or Extreme pursuant to § 181(a)(1) Table

1, and would be assigned attainment dates from the table.

Under the D.C. Circuit’s interpretation concerning con-

trol measures, areas would then be subject to the Subpart

2 control measure requirements corresponding to their

classification.

In particular, under the D.C. Circuit’s reading all

areas designated Moderate, Serious, Severe or Extreme

must submit control plans “[b]y no later than 3 years after

November 15, 1990” that “provide for such specific annual

reductions in emissions of volatile organic compounds

and oxides of nitrogen as necessary to attain the national

primary ambient air quality standard for ozone by the attain-

ment date applicable under this chapter.” § 182(b)(1)(A)(i), 42

U.S.C. § 7511a(b)(1)(A)(i) (emphasis added).® Likewise,

“[w]ithin 4 years after November 15, 1990,” all areas desig-

nated Serious, Severe or Extreme must submit “[a] dem-

onstration that the plan, as revised, will provide for

attainment of the ozone national ambient air quality standard

by the applicable attainment date.” § 182(c)(2)(A) (emphasis

added).° In short, the D.C. Circuit’s interpretation will

result in pollution control plans implementing the new

NAAQS being deemed to have been due before the

NAAQS was even promulgated.!°

8 This requirement, applicable on its face to Moderate

areas, is also extended to Serious, Severe and Extreme areas by

§ 182(c), (d) and (e).

% This requirement, applicable on its face to Serious areas,

is also extended to Severe and Extreme areas by § 182(d) and (e).

10 The Act does provide a mechanism for extending control

plan submission deadlines in the event that areas are newly

designated to nonattainment for ozone after enactment of the

Thus, as soon as areas are designated nonattainment

under the new NAAQS, they will be many years out of

compliance with the Subpart 2 control plan submission

deadlines — and will by virtue of that noncompliance face

loss of highway funds, stricter requirements for siting of

new industry, and imposition of a federal pollution con-

trol plan, unless their noncompliance is corrected within

eighteen months to two years after EPA makes a finding

of delinquency. §§ 179, 110(c)(1), 42 U.S.C. §§ 7509,

7410(c)(1). This absurd reading cannot possibly be a valid

interpretation of the Act.

C. Industry’s and Ohio’s Interpretation of the D.C.

Circuit’s Decision Simply Compounds the

Unlawfulness of that Decision.

Industry respondents and Ohio read the D.C. Cir-

cuit’s decision as precluding EPA from requiring compli-

ance with the new ozone NAAQS at all, ever. See p. 38,

supra. That drastic reading conflicts with the Act -

indeed, with the D.C. Circuit's own interpretation of the

Act - and produces results that are absurd and in conflict

with the Act’s core public health purpose.

1990 Amendments, § 181(b)(1), but for reasons stated supra at 41

n.7, that provision is inapplicable to designations under the new

ozone standard.

(1) The Assertion that Areas Need Never

Attain the New NAAQS Conflicts With the

Act, and Even With the D.C. Circuit’s Own

Erroneous Interpretation of the Act.

Industry and Ohio cannot have it both ways: they

cannot advocate an interpretation of the Act that presup-

poses the existence of Subpart 2 classifications and attain-

ment dates for the new NAAQS, while simultaneously

denying that Subpart 2 imposes any date for attainment

of that NAAQS.

Stated simply, either Subpart 2 imposes classifica-

tions and attainment dates under the new NAAQS, or it

does not. If Subpart 2 imposes such classifications and

dates, those classifications and dates can only be the ones

in § 181(a)(1) Table 1 — and those Table 1 attainment dates

include dates that predate promulgation of the 1997

NAAQS. See p. 40, supra.

If on the other hand Subpart 2 imposes no classifica-

tions and attainment dates for the new NAAQS, then the

ouster provisions of § 172(a)(1)(C) and (a)(2)(D) do not

apply, and there is no bar to EPA applying the Subpart 1

classification and attainment date provisions - and of

course, the Subpart 1 control measure provisions, which

have no ouster clause in any event.

(2) The Assertion that Areas Need Never

Attain the New NAAQS Reduces the Stat-

utorily Mandated Revision of NAAQS to a

Pointless Exercise, and Contravenes the

Act’s Core Public Health Purpose.

The assertion that areas need never comply with the

new NAAQS reduces the Act to an absurdity. The D.C.

Circuit correctly concluded that the 1990 Amendments

left unchanged EPA’s statutory obligation to revise

NAAQS as appropriate and make nonattainment designa-

tions pursuant to revised NAAQS. App. 34a-37a. To then

conclude that revised NAAQS cannot be implemented

would render the statutory revision and nonattainment

designation process futile. Rosado v. Wyman, 397 U.S. 397,

415 (1970) (where statute required reappraisal of a prior

program, Court rejected an interpretation that “would

render the . . . reappraisal a futile, hollow, and, indeed, a

deceptive gesture”); United States v. Wilson, 503 U.S. 329,

334 (1992) (“absurd results are to be avoided”); American

Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“avoid

unreasonable results whenever possible”).

Moreover, the assertion that the new NAAQS need

never be attained is fundamentally at odds with the spe-

cial - and central - role of the public-health-based

NAAQS process in the Clean Air Act. See pp. 18-22, supra.

Here EPA has concluded that, even at ozone concentra-

tions meeting the previous NAAQS, extensive adverse

health effects are occurring - including hospitalization

for respiratory ailments, reductions in lung function, and

respiratory symptoms. Pp. 6-9, supra. To rule unenforce-

able a standard designed to protect against those effects

is to abandon the affected individuals to their fate. It

would be difficult to envision a result more diametrically

opposed to the core intent of the Act.

D. As Amended on Rehearing, the D.C. Circuit's

Decision Still Contravenes the Act.

Based on changes made by the D.C. Circuit on

rehearing, App. 80a-81a, Judge Tatel concluded that the

revised opinion “leaves open the possibility that the new

ozone standard can be implemented in areas that have

attained the old standard.” App. 89a (emphasis added).

This limitation on implementation of the new standard

contravenes the Act.

The approach proposed by Judge Tatel does correctly

recognize that Subpart 2 provides no classifications or

attainment dates for areas that violate the new NAAQS,

yet have a design value less than 0.121. App. 84a-85a.

Absent classifications and attainment dates under Sub-

part 2, “nothing precludes enforcement of the new stan-

dard under Subpart 1.” App. 88a.

However, Judge Tatel’s proposed approach would

leave undisturbed the D.C. Circuit’s incorrect ruling that

Subpart 2 does set forth classifications and attainment

dates under the new NAAQS for areas with a design

value of 0.121 or higher. Judge Tatel asserted — as did the

original panel opinion - that this ruling implements Con-

gress’s alleged intent to “extend[ ] the time for nonattain-

ment areas to comply with the 0.12 ppm ozone NAAQS.”

App. 83a (quoting panel). This argument is meritless.

First, far from allowing longer attainment deadlines

for areas with a design value of 0.121 or higher, applica-

tion of Subpart 2 to the new NAAQS would have exactly

the opposite effect: it would for many areas produce

attainment dates that predate promulgation of that

NAAQS. See p. 40, supra. That absurd interpretation can-

not be a valid reading of the Act.

Second, the D.C. Circuit fundamentally mischarac-

terized the program enacted in 1990. That program did

not grant polluted areas an entitlement to any specific

amount of time to attain even the one-hour NAAQS

(much less the eight-hour NAAQS). Rather, with respect

to the one-hour NAAQS, Congress expressly required

attainment “as expeditiously as practicable but not later

than the [applicable attainment] date.” § 181(a)(1)

(emphasis added). Accord, 1990 House Report at 229 (Sub-

part 2 attainment dates “are outside limits intended to

provide a reasonable target for a large class of nonattain-

ment areas. In the case of each individual nonattainment

area, the bill continues the responsibility to attain as

expeditiously as practicable. The objective is to achieve the

standard as early as possible with effective and enforceable

measures and without gaming by the States, industry,

and others.”) (emphasis added); S. Rep. 228, 101st Cone.

Ist Sess. 37 (1989) (the § 181 attainment dates are “final

deadlines;” “The generic requirement in section 172(a) for

attainment as expeditiously as practicable, of course, applies

to attainment of the ozone standard. For example, if a

severe area can attain the standard in less than fifteen

years, it must do so.”) (emphasis added).

| At the same time when it wrote the Subpart 2 provi-

sions requiring attainment of the existing ozone standard

as expeditiously as practicable, Congress carefully crafted

a Subpart 1 program designed inter alia to attain “any

revised standard, including a revision of any standard in

effect on November 15, 1990.” § 172(a)(1)(A) (emphasis

added). This extensively revised Subpart 1 program

includes provisions for classifications, attainment dates

(conditioned by an obligation to attain “as expeditiously

as practicable,” 172(a)(2)(A)), and other detailed require-

ments. §§ 171-179B. Because the 1990 Amendments exten-

sively rewrote Subpart 1, the D.C. Circuit was simply

mistaken in asserting that the 1990 Amendments carried

forward the pre-existing Subpart 1 provisions unchanged.

See App. 32a (asserting erroneously that Congress simply

“redesignat[ed] the original [pre-1990-Amendment nonat-

tainment] provisions as Subpart 1”). Far from being some

pre-existing relic that Congress intended to shunt aside,

Subpart 1 reflects the carefully considered contemporane-

ous intent of the same Congress that enacted Subpart 2.

That Congress’s express intent (embodied in § 172(a)(1)(A))

to apply Subpart 1 to revised NAAQS must be respected.

Thus, for areas that are in violation of both the old

and new standards, the Act requires that they proceed

simultaneously towards compliance with Subpart 2 (with

respect to the old standard) and Subpart 1 (with respect

to the new standard). There is nothing unusual in requir-

ing areas to move simultaneously towards achievement

of more than one NAAQS: as demonstrated by existing

NAAQS for pollutants other than ozone, a single pollu-

tant can be subject to more than one primary NAAQS. 40

C.ER. Part 50. Such simultaneous implementation is not

only required by the express terms of Subparts 1 and 2,

but also avoids the multi-year delays in achievement of

clean air that would be produced by Judge Tatel’s

sequential approach. Millions of Americans living in

areas that are violating both the old and new standards

have been waiting for decades to breathe air that protects

their health. As the record in EPA’s ozone rulemaking

abundantly demonstrates, attainment of the old standard

will still leave them suffering numerous ozone-induced

health impairments. For the sake of their health, it is

important that planning to attain the new, more protec-

tive ozone standard start now, and not be held in abey-

ance until years in the future, when the old standard has

been attained.

Finally, a third reason why Judge Tatel’s approach is

unlawful is that (at least with respect to azeas with a

design value of 0.121 or higher) it does nothing to remedy

the D.C. Circuit’s erroneous ruling concerning control

measures. See pp. 42-44, supra. That ruling (App. 34a) was

not amended on rehearing.

CONCLUSION

For the foregoing reasons, the Court should hold that

the Clean Air Act provisions governing NAAQS, and

EPA’s interpretation of those provisions, do not represent

an unconstitutional delegation, and should further hold

that the Subpart 1 classifications, attainment dates, and

control measures apply to all nonattainment areas under

the 1997 ozone NAAQS. (ALA takes no position concern-

ing EPA’s Question #2.)

DATED: July 19, 2000.

Respectfully submitted,

Howarp I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of record for American Lung

Association

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.