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

; Supreme Court, U.S.

@ FILED

No. 99-1257 |

JUL 24 209° |

IN THE CLERK

Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Petitioners ,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Respondents.

BRIEF OF AMICI CURIAE STATES OF NEW

YORK, CALIFORNIA, CONNECTICUT, MAINE,

MARYLAND, NEW HAMPSHIRE,

PENNSYLVANIA, RHODE ISLAND AND VERMONT

IN SUPPORT OF PETITIONERS

ELIOT SPITZER

Attorney General of the

State of New York State

PREETA D. BANSAL

Solicitor General

(Counsel of record)

LISA FEINER DANIEL X. SMIRLOCK

J. JARED SNYDER Deputy Solicitor General

Assistant Attorneys General _ The Capitol

Environmental Protection Albany, NY 12224

Bureau (212) 416-8479

Attorneys for the State of

New York

(Counsel continued on inside cover)

BILL LOCKYER

Attorney General of

California

1300 I Street

Sacramento, CA 95814

RICHARD BLUMENTHAL

Attorney General of

Connecticut

55 Elm Street

Hartford, CT 06106

ANDREW KETTERER

Attorney General of Maine

6 State House Station

Augusta, ME 04333-0006

J. JOSEPH CURRAN, JR.

Attorney General of

Maryland

200 St. Paul Place

Baltimore, MD 21202

PHILIP McLAUGHLIN

Attorney General of New

Hampshire

33 Capitol Street

Concord, NH 03301-6397

D. MICHAEL FISHER

Attorney General

Commonwealth of

Pennsylvania

16th Fl. - Strawberry Square

Harrisburg, PA 17120

SHELDON WHITEHOUSE

Attorney General of Rhode

Island

State House Station #6

150 South Main Street

Providence, RI 02903

WILLIAM H. SORRELL

Attorney General of

Vermont

109 State Street

Montpelier, VT 05609-1001

TABLE OF CONTENTS

PAGE

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TABLE OF AUTHORITIES

CASES PAGE

Almendarez-Torres v. United States,

a UII idcsddicessscichichasncnsicnatnihicbiianiaama ee als 20

American Trucking Associations,

Inc. v. United States Environmental

Protection Agency, 175 F.3d 1027

(D.C. Cir.), rehearing en banc denied,

Fe ee is Gs ED ernenicrnenesseecttastininenanentininien passim

American Textile Manufacturers Institute v.

Donovan, 452 U.S. 490 (1983) .........cccccccccccccccsceceeeeeees 12, 13

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

EE 20

Federal Trade Commission v. Mandel Brothers, Inc.,

EES ESE AS a 20

Griffin v. Oceanic Contractors, Inc., 458 U.S.

TPCT iiniiusinniuhictaeonianiintmanmneiascbesteliatsgabia danas aiialiasissipieemaaai 21

Immigration & Naturalization Service v. National

Center for Immigrants’ Rights, Inc., 502 U.S.

PUTED cutrerenerdnncennstarenioctoenasicicubaaunmnaniiiiunisiariniiattii 20

PAGE

Industrial Union Department, AFL-CIO

v. American Petroleum Institute, 448 U.S.

eee POTD cesensesenesssssecsssassinnscrmmmmmenninciinntanmsenienens passim

Lead Industries Association v. United States

Environmental Protection Agency, 647 F.2d

1130 (D.C. Cir.), cert. denied, 449 U.S.

EEE TN ea eer TR eae 8-9

Mead Corp. v. Tilley, 490 U.S. 714 (1989) 00.0.0... 20

Mistretta v. United States, 488 U.S. 361 (1989) ..0.....000000... 7

Smiley v. Citibank (South Dakota), N.A., 517 U.S.

EER TEE ET Reve na 21

United States v. Marine Shale Processors,

81 F.3d 1329 (Sth Cir. 1996), cert denied, 519 U.S.

RRR REREINS es WERT AECL EIR Ns tre ee 2

United States v. Haggar Apparel Co., 526 U.S. 380

I a da aa 21

Yakus v. United States, 321 U.S. 414 (1944) 000.0... i)

BRIEF OF AMICI CURIAE STATES OF

NEW YORK, CALIFORNIA, CON-

NECTICUT, MAINE, MARYLAND, NEW

HAMPSHIRE, PENNSYLVANIA, RHODE

ISLAND, AND VERMONT IN SUPPORT

OF PETITIONERS

The States of New York, California, Connecticut,

Maine, Maryland, New Hampshire, Pennsylvania, Rhode

Island, and Vermont respectfully submit this brief as amici

curiae in support of the petitioners United States Environmental

Protection Agency (EPA) and Carol Browner, Administrator of

EPA.

The amici States seek reversal of the decision of the

United States Court of Appeals for the District of Columbia

Circuit in American Trucking Associations, Inc. v. United States

Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir.),

rehearing en banc denied, 195 F.3d 4 (D.C. Cir. 1999), which

overturned EPA’s revised National Ambient Air Quality

Standards (NAAQS) for ozone and fine particulate matter.

These NAAQS were promulgated pursuant to section 109 of the

Clean Air Act (the Act), 42 U.S.C. § 7409, which requires that

NAAQS be set at a level “requisite to protect the public health

with an adequate margin of safety.”

INTEREST OF THE AMICI

Residents of the amici states suffer from asthma and

other respiratory illnesses aggravated by high levels of ozone

and fine particulate matter in the ambient air. EPA

promulgated the revised NAAQS for these pollutants after an

2

extensive study of the latest scientific knowledge revealed that

the existing NAAQS for ozone and particulate matter did not

sufficiently protect the public from adverse health effects and

thus did not satisfy section 109 of the Act.

The scientific record of the rulemaking at issue

establishes that the revised standards will have a profoundly

beneficial impact on public health, eliminating thousands of

premature deaths attributable to air pollution each year,

preventing tens of thousands of instances of respiratory illness

attributable to exposure to ozone and fine particulate matter,

and improving the quality of life of the children and adults who

suffer from asthma. As parens patriae, the amici States have

a paramount interest in protecting their residents from the

debilitating and potentially life-threatening effects of asthma

and other respiratory illnesses.

- The States, however, face significant obstacles in

attempting to protect their residents because air pollution is a

national problem. Even if individual States were to set their

own air quality standards, many would find their ability to meet

their own standards undermined by dirty air blowing in from

other States. Furthermore, economic pressures would prevent

many States from enacting environmental requirements

imposing significantly greater costs on their businesses than

imposed on businesses in other States. The amici States have

an interest in avoiding the “destructive race among states to

attract industry by adopting the least stringent emissions-

limits.” United States v. Marine Shale Processors, 81 F.3d

1329, 1355 (Sth Cir. 1996), cert denied, 519 U.S. 1055 (1997).

These scientific and political realities prevent most of the

ee ey ep ee ee ee ee pe

3

States from unilaterally implementing or meeting state-specific

standards; these same realities require the exercise of federal

power, such as that at issue here.

Finally, the decision below has implications for the

health and safety of the citizens of the States with respect to

matters other than air pollution. By invoking the nondelegation

doctrine to invalidate a broad congressional delegation of

authority to a federal agency, the court below cast doubt on the

validity of similar delegations in other areas. For example, the

decision raises questions about the constitutionality of federal

Statutes governing pesticide residues in foods and hazardous

waste transportation. See, e.g., 21 U.S.C. § 346a(b) (EPA may

establish a tolerance for levels of particular pesticides on food

if it determines “that there is a reasonable certainty” that no

harm will result from exposure); 42 U.S.C. § 6923(a) (requiring

EPA to promulgate such standards for the transportation of

hazardous waste “as may be necessary to protect human health

and the environment”). EPA’s discretion in adopting new or

revised NAAQS is at least as circumscribed as the authority of

the National Highway Traffic Safety Administration (NHTSA)

to promulgate motor vehicle safety standards, which is limited

only by the requirement that the standards be “practicable, meet

the need for vehicle safety, and be stated in objective terms.”

49 U.S.C. § 30111(a); see also 49 U.S.C. § 44701(d) (Federal

Aviation Authority must act “in a way that best tends to reduce

or eliminate the possibility or recurrence of accidents in air

transportation”). The amici States have a fundamental interest

in seeing that the health and safety of their residents do not

4

suffer as a result of the disruption of regulation in these other

areas, which also by their nature demand a leading federal role.

SUMMARY OF ARGUMENT

In invalidating EPA’s revised ozone and particulate

matter (PM) NAAQS, the D.C. Circuit concluded that the

constitutionality of Section 1 09's delegation of authority to EPA

depends on whether the regulated substance is a threshold or a

non-threshold pollutant and on the specific standards that EPA

selected to minimize their presence in the ambient air. There

is nothing in this Court’s jurisprudence to suggest that a

statute’s constitutionality can possibly depend on the specific

scientific categorization of the regulated object or the rules

promulgated to address it.

The D.C. Circuit’s further insistence that the statute can

only be “saved” if EPA devises a mechanistic regulatory

principle that explains precisely why it selected one standard

rather than another has never been imposed by this Court.

Instead, this Court has recognized, in other cases addressing

non-threshold pollutants, that agencies implementing statutes

to protect public health and safety in areas of scientific

uncertainty must often make policy judgments when they select

a regulatory point and should not be constrained by a

mathematical straitjacket.

Finally, the D.C. Circuit’s determination that EPA must

enforce the revised eight-hour ozone NAAQS promulgated in

1997 in accordance with the classificationsand attainment dates

adopted by Congress in 1990 ignored the unambiguous

5

congressional intent that EPA is required to update, adopt and

enforce more stringent standards as necessary to protect public

health. The D.C. Circuit’s cramped decision will create

innumerable practical problems for those seeking to implement

the Nation’s clean air goals. Indeed, the panel’s determination

is consistent only with its staunch refusal to address the realities

of air pollution — a reality amici States confront every day.

ARGUMENT

I. THE DELEGATION OF AUTHOR-

ITY TO THE EPA IN SECTION 109

OF THE CLEAN AIR ACT IS

CONSTITUTIONAL.

The court below erred in concluding that section 109 is

an unconstitutional delegation of congressional authority to an

executive agency. In finding that section 109 does not contain

the requisite “intelligible principle” to guide EPA’s regulation

of non-threshold pollutants, the court found an apparently

constitutional difference in the type of pollutant being regulated

and the degree of scientific knowledge available. In so doing,

the D.C. Circuit departed from decades of precedent upholding

substantially broader delegations, improperly limited con-

gressional power to advance environmental health and safety,

and crippled EPA’s ability to effectuate Congress’s intent.

Despite the D.C. Circuit’s characterization of EPA’s

discretion as essentially unlimited, the Clean Air Act provides

sufficiently tight reins on EPA’s discretion to regulate air

6

pollution. EPA must set national ambient air quality standards

that in its judgment are “requisite to protect the public health”

with “an adequate margin of safety” based on criteria that

“accurately reflect the latest scientific knowledge.” Moreover, —

the standards must be based on the air quality criteria specified

in 42 U.S.C. § 7409(b)(1), which must themselves be “based

on” the latest scientific information regarding the “kind and

extent” of effects on public health and environment of the

pollutant at issue. 42 U.S.C. § 7408(a)(2). Finally, EPA’s

discretion is further limited by the requirement that the

proposed criteria and supporting documents be provided to the

Clean Air Science Advisory Committee (CASAC) for review

and that EPA justify any departure from CASAC’s

recommendations. 42 U.S.C. § 7607(d)(3).'

Congress thus recognized in the Clean Air Act that it

was ordering EPA to act on the very frontiers of scientific

knowledge. While EPA was given detailed guidance, and

"mandated to follow scientific advice, Congress recognized that,

in the end, EPA would need to make a judgment call. This

Court has noted and approved of Congress’s need to direct

agencies to operate in areas where practical limitations

overwhelm scientific certainty. As the Court said in rejecting

a recent nondelegation challenge to the authority given the

Sentencing Guidelines Commission:

' In this case, where the CASAC recommendations for the ozone

standard all fall into the range of .08 to .09 parts per million (ppm), EPA

was effectively limited to the choice of a standard within that very narrow

range. 175 F.3d at 1059.

7

applying this ‘intelligible principle’ test to

congressional delegations, our jurisprudence has

been driven by a practical understanding that in

our increasingly complex society, replete with

ever changing and more technical problems,

Congress simply cannot do its job absent an

ability to delegate power under broad general

directives.

Mistretta v. United States, 488 U.S. 361, 371 (1989).

The decision below, however, rejects the wisdom of

both Congress and this Court. It finds constitutional

significance in the current scientific categorization of a

pollutant and demands a level of scientific certainty that is

simply unavailable. Where Congress understood it was

ordering EPA to use its best judgment in light of available

knowledge, the panel below prefers to pretend that no judgment

is needed.

In invalidating EPA’s revised ozone and PM,,

NAAQS, the D.C. Circuit seized on the fact that ozone and

PM, are characterized as “non-threshold pollutants,” which

must be treated as if exposure might cause some adverse health

effects in some people at any point along a continuum

beginning at just above zero. According to the D.C. Circuit,

section 109 of the Clean Air Act unconstitutionally delegates

legislative power to EPA if the agency selects a point along a

continuum of risk at which to set a national standard for non-

threshold pollutants without being able to precisely explain why

that point is “requisite to protect the public health” whereas a

point slightly more or less stringent is not. If, however, EPA

8

had decided that zero was the only appropriate standard for

non-threshold pollutants such as ozone and PM, ,, or if it had

instead determined that ozone and PM,, are threshold

pollutants, its application of section 109 would, by the D.C.

Circuit’s own account, have survived nondelegationattack. See

175 F.3d at 1038.’ This rationale makes no constitutional

sense. A statute’s constitutionality cannot possibly depend on

the specific standards selected to implement it. Nor can the

distinction between threshold and non-threshold pollutants

possibly determine the constitutionality of Congress's

delegation of authority to regulate them.

Premising Congress’s regulatory authority on that

distinction also makes no scientific sense. The D.C. Circuit’s

insistence that EPA identify precisely how tall is “too tall”

according to an imaginary yardstick of health effects demands

a level of scientific certainty that is simply not available in the

existing clinical and epidemiological evidence. As the court

below has recognized in other cases, at the “frontiers of

scientific knowledge,” where the available information “may be

insufficient to permit fully informed factual determinations,”

the EPA Administrator’sdecisions must rest “largely on policy

judgments where no factual certainties exist.” Lead Industries

Association v. United States Environmental Protection Agency,

647 F.2d 1130, 1147 (D.C. Cir.), cert. denied, 449 U.S. 1042

? Although a zero standard would have avoided the D.C.Circuit’s

perceived nondelegation problem, the absurdity of a zero standard was

recognized by the court when it stated that particulate matter would remain

in the atmosphere even if the country entirely deindustrialized. See 175

F.3d at 1038 n. 4.

=

9

(1980). In such a situation, the court added, the Administrator

should acknowledge the absence of scientific certainty and “go

on to identify the considerations he found persuasive.” Jd. at

1147. Otherwise, EPA will be unable effectively to protect the

public from these ubiquitous pollutants simply because the

existing scientific evidence supports a narrow range of

possibilities within which EPA selected a standard rather than

a precise point along the continuum of risk.

The approach taken by the court below is not supported

by any of this Court’s nondelegation precedents, which have

sustained administrative selection of standards along a

continuum of possibilities without requiring Congress to

provide a rigidly determinate principle to explain the precise

point selected. See, e.g., Yakus v. United States, 321 U.S. 414

(1944) (upholding congressional delegation to agency to fix

prices of commodities at a level that “will be generally fair and

equitable” in order to prevent “abnormal” price increases,

“abnormal” market conditions and inflationary reductions in the

standards of living of people on fixed incomes).

This Court has upheld broad delegations made

necessary not only by the exigencies of war, but also by the

exigencies of our limited scientific knowledge. In /ndustrial

Union Department, AFL-CIO vy. American Petroleum Institute,

448 U.S. 607 (1980) (the “Benzene” case), this Court implicitly

rejected the D.C. Circuit’s view that EPA must justify its

selection of a health standard along a spectrum of increasing

harm with a precision that is unattainable on the basis of

existing scientific evidence. Eight members of the Benzene

10

Court sustained section 3(8) of the Occupational Safety and

Health Act of 1970, authorizing the Occupational Safety and

Health Administration(OSHA) to regulate workplace processes

or pollutants if “reasonably necessary and appropriate to

provide safe or healthful employment or places of

employment.” 29 U.S.C. § 652. Four of those eight Justices

construed the standard as first requiring the agency to find a

“significant risk of harm” before regulations could be

promulgated as “reasonably necessary and appropriate.” 448

U.S. at 642-43 (Stevens, J., announcing judgment of the

Court)? Four others saw no need to engage in this very modest

judicial narrowing of the standard. See 448 U.S. at 708-11

(Marshall, J., dissenting). But all eight Justices agreed that

Congress could delegate authority to OSHA to select a

regulatory point under either the statute’s broad standard or one

very slightly narrowed by judicial construction. Even though

benzene is a non-threshold pollutant, like ozone and particulate

matter, this Court saw no constitutional problem with

3 Three members suggested that this narrowing interpretation

averted nondelegation problems that might otherwise have arisen, see 448

U.S. at 646; another Justice expressed “no view” on whether a “different

interpretation of the statute would violate the nondelegation doctrine,” see

448 U.S. at 664, n.1 (Powell, J., concurring); and four Justices perceived no

nondelegation problem with the statute as written, see 448 U.S. at 723-24.

(Marshall, J., dissenting). Justice Rehnquist would have held that the

nondelegation doctrine was violated by the congressional grant of broad

authority to OSHA on grounds unrelated to this case (Rehnquist, J,,

concurring in judgment). See n.10 at page 15, infra. Although Benzene is

not a constitutional holding, the nondelegation issue permeated the decision

and its various opinions are relevant to the constitutional issue presented

here.

1]

Congress’s delegation to OSHA of the authority to select the

point on benzene’s continuum of risk that should be

characterized as “significant.”

Indeed, as Justice Burger noted in concurrence, there is

an implicit “policy judgment” in setting standards where there

is no absolute scientific guidance. Moreover, he noted, it is

acceptable for Congress to authorize the Secretary of Labor to

make such policy judgments in determining whether a “risk of

health impairments is significant in terms of the policy

objectives of the statute.” 448 U.S. at 663 (Burger, C.J.,

concurring). :

Likewise, section 109 of the Clean Air Act

acknowledges that the Administrator must make a policy

determination, and explicitly authorizes her to do so, based on

air quality criteria that reflect the latest scientific knowledge, as

to whether existing or new standards are “requisite to protect

the public health” with “an adequate margin of safety.” Only

by somehow conjuring up levels of scientific knowledge that

are currently beyond our grasp, could Congress provide more

detailed guidance to EPA or avoid having EPA exercise some

policy judgment.

Nor has this Court ever held that a mechanistic

regulatory principle, such as cost-benefit analysis, is required

in areas of scientific uncertainty in order to save an otherwise

constitutional delegation to an administrative agency.‘ To the

* The D.C. Circuit below suggested that cost-benefit analysis could

accomplish precise line-drawing, but held that that approach was not

available to cure section 109's supposed constitutional infirmity because

(continued...)

12

contrary, this Court has clearly sustained Congress's delegation

of authority to OSHA to regulate workplace hazards and

pollutants under a broad standard of preventing “significant

risk” while refusing to require cost-benefit or similar formulaic

analyses to limit the agency’s discretion in selecting which

exposure level along a spectrum of increasing harm creates a

risk that is “significant.” Indeed, as the Benzene plurality

noted, “the requirement that a ‘significant’ risk be identified is

not a mathematical straitjacket” and imposes no regulatory duty

to “calculate the exact probability of harm.” Benzene, 448 U.S.

at 655.

Similarly, in American Textile Manufacturers Institute

v. Donovan, 452 U.S. 490 (1983) (the Cotton Dust case) this

Court specifically rejected the argument that sections 3(8) and

6(b)(5) of the Occupational Safety and Health Act require

OSHA to determine, before setting the level for a harmful

physical agent “which most adequately assures, to the extent

feasible . . . that no employee will suffer material impairment

4(..continued)

Congress had prohibited EPA from considering costs under Section 109.

175 F.3d at 1038. However, quantifying the benefits of a lower death rate

in the monetary terms necessary to compare those benefits with the costs of

obtaining them is not the precise exercise apparently desired by the D.C.

Circuit. In fact, cost-benefit analysis can be used by an agency to mask its

policy judgments in the supposedly neutral balancing of costs and benefits.

For example, the very program cited approvingly by the panel below --

Oregon's allocation of medical treatment to the poor by dividing cost by

“quality adjusted life years” -- was initially disapproved by the United States

Department of Health and Human Services because it undervalued the

quality of life of the disabled in violation of the Americans with Disabilities

Act. 175 F.3d at 1039, n.4.

13

of health,” 29 U.S.C. § 655(b)(5), that the health benefits to

textile workers of its cotton dust standard outweigh the

standard’s costs.* The Court concluded that “Congress did not

contemplate any further balancing by the agency for toxic

material and harmful physical agents and we should ‘not impute

to Congress a purpose to paralyze with one hand what it sought

to promote with the other.”” Jd. at 513 (citation omitted).°

As this Court in Cotton Dust also made clear, “*[t}he

judicial function does not extend to substantive revision of

regulatory policy. That function lies elsewhere - in Con-

gressional and Executive oversight or amendatory legislation.””

452 U.S. at 540 (quoting Benzene, 448 U.S. at 663 (Burger,

* Section 6(b\(5) of OSHA differs from section 109 of the Clean

Air Act because the OSHA Administrator, unlike the EPA Administrator,

can broadly consider costs in determining whether its standard is “feasible.”

29 U.S.C. §655(b)\(5). However, the OSHA Administrator must first

determine the existence of a “significant risk” at a point along a spectrum

of risk. Thus, OSHA and EPA must operate in the same areas of scientific

uncertainty in determining the “significance” of a risk or what is “requisite

to protect the public health” and must make judgments that cannot be

supported with the degree of scientific certainty required by the D.C.

Circuit.

° In Cotton Dust and Benzene, then-Justice Rehnquist found a

nondelegation problem with section 3(8) of OSHA because Congress did

not decide whether cost-benefit analysis was authorized but instead left that

decision to the agency. See 452 U.S. at 547. He added, however, that no

nondelegation issue would have arisen if Congress had clearly authorized

the Secretary of Labor to set exposure standards without “any kind of cost-

benefit analysis.” Cotton Dust, 452 U.S. at 545. Here, Congress, and not

EPA, made the decision that EPA cannot consider costs in promulgating

NAAQS for criteria air pollutants and therefore satisfied Justice Rehnquist's

concer.

14

C.J., concurring)). In invalidating EPA’s revised ozone and PM

NAAQS, the D.C. Circuit has overridden this basic principle

and improperly forced its view of sound environmental policy

upon EPA and the democratically elected Congress.

The Clean Air Act effects a constitutional delegation of

authority to EPA. Although the D.C. Circuit would have

preferred EPA to rely on a mechanistic regulatory principle in

setting the revised ozone and PM NAAQS, Congress’s mandate

that the agency exercise its judgment in areas of scientific

uncertainty to protect the public health was fully constitutional.

Il. THE D.C. CIRCUIT ERRED IN

FINDING THAT THE NEW EIGHT-

HOUR OZONE STANDARD MUST

BE IMPLEMENTED IN

ACCORDANCE WITH’ THE

PROVISIONS APPLICABLE TO —

IMPLEMENTATION OF THE OLD

ONE-HOUR STANDARD.

The D.C. Circuit erred in holding that the provisions of

subchapter I, part D, subpart 2 of the Act, intended to govern

implementation of the old one-hour ozone standard, 42 U.S.C.

§§ 7511(a)-(f), also govern implementation of the revised

eight-hour ozone standard. The D.C. Circuit's conclusory

finding that section 181 — a section within subpart 2 — is

applicable simply because it “clearly encompasses non-

attainment designations” made under a new or revised ozone

NAAQS, 175 F.3d at 1050, is inconsistent with the text of

15

section 181 and ignores practical realities. The classification

scheme set forth in section 181 is incomprehensible when

applied to the revised standard and its deadlines for compliance

that passed in the 1990s are nonsensical when applied to a

revised standard that would not be implemented until after

2000.

At the core of the D.C. Circuit’s holding is its view of

section 181(a)(1) of the Act, which is entitled “Classification

and attainment dates for 1989 nonattainment areas.” 42 U.S.C.

§ 7511(a)(1). This section has as its centerpiece a table that

lists the air quality classifications and attainment deadlines for

meeting the .12 ppm standard in effect at the time of the 1990

Amendments to the Act: .

(a) Classification and attainment dates for 1989

nopattainment areas

(1) Each area designated nonattainment for ozone

pursuant to section 7407(d) [i.e. § 107(d)] of this title

shall be classified at the time of such designation, under

table 1, by operation of law, as a Marginal Area, a

Moderate Area, a Serious Area, a Severe Area, or an

Extreme Area based on the design value for the area.

The design value shall be calculated according to the

interpretation methodology issued by the Administrator

most recently before November 15, 1990. For each area

classified under this subsection, the primary standard

attainment date for ozone shall be as expeditiously as

practicable but not later than the date provided in table

1. [emphasis supplied].

16

TABLE |

AreaClass Design Value[ppm] Primary Standard

Attainment Date

Marginal 0.121 upto 0.138 3 years after No

vember 15, 1990

Moderate 0.138 upto 0.160 6 years after No-

vember 15, 1990

Serious 0.160 up to 0.180 9 years after No-

vember 15, 1990

Severe 0.180 up to 0.280 15 years after No-

vember 15, 1990

Extreme 0.280 and above 20 years after No-

vember 15, 1990

The crux of the D.C. Circuit’s error lies in its

unwarranted view of the cross-reference to § 107(d) [42

U.S.C.§ 7407(d)] in the first sentence of § 181(a)(1). Section

107(d)(4) provides for designations under specified standards,

including the old one-hour ozone standard. See 42 U.S.C. §

7407(d)(4). Section 107(d)(1) provides for designations under

a new or revised NAAQS. See 42 U.S.C.§ 7407(d)(1). Relying

solely on the fact that the cross-reference is to section 107(d),

rather than to section 107(d)(4) specifically, the court below

concluded that section 181(a)(1) unambiguously encompasses

implementation of the revised .08 ppm standard. See 175 F.3d

at 1048-50. Finding no ambiguity, the court below then shoved

17

a round peg in a square hole, insisting on its reading despite its

clearly unworkable results.

First, under the panel’s reading, the deadiines simply

make no sense. Section 181(a)(1) contains, on its face.

classifications and deadlines that are pegged to the one-hour .12

ppm standard existing at the time of the 1990 Amendments,

rather than to the lower .08 standard.’ Attempting to apply

these classifications and deadlines to the .08 standard has

absurd consequences. For example, under the D.C. Circuit's

holding, areas with ozone levels in the range of .120-.138 and

-138-.160 were required to comply with the new eight-hour

standard in 1993 and 1996, respectively, even though that

standard was not promulgated until 1997. On the other hand,

because the section 181(a)(1) compliance schedule is geared

towards compliance with the .12 one- hour standard, it contains

no deadlines for areas with design values between .08 (the level

of the new standard) and .12. This means that areas in

compliance with the old standard but out of compliance with

the revised standard need never comply with the revised

standard because they are subject to no deadlines under section

181(a)(1) for compliance with that standard. Requiring areas

with design levels in excess of .12 to meet the new standard

immediately (because the deadlines have already passed) while

holding less polluted (but still noncompliant) areas to no

compliance deadline at all is, at best, bizarre. It is also contrary

to the intent of the section 181(a)(1) deadlines to provide more

” Even the D.C. Circuit recognized that the “design value” set forth

in table | “is a rough measure of whether an area complies with the 0.12

ppm, |-hour primary ozone standard.” 175 F. 3d at 1046.

18

polluted areas with more, not less, time to come into

compliance.

Second, the panel’s reading results in methodological

incoherence. Section 181(a)(1) provides that pollution levels

that form the basis for the classifications (the “design value’)

should be calculated in accordance with the “interpretation

methodology issued by the Administrator most recently before

November 15, 1990.” Under the D.C. Circuit's interpretation,

EPA would be bound by potentially obsolete pre-1990

methodologies in calculating the design values applicable under

revised standards promulgated years later. Similarly, the panel’s

insistence that section 181 applies to the new standards leaves

the process for reclassification, from attainment to

nonattainment, unworkable.*

Finally, the panel decision leaves the States and EPA in

an enforcement quandary: what exactly can they do when?’

® Under section 181(b\1), areas that are reclassified to

nonattainment with the old one-hour .12 standard are subject to the

classification dates of section 181(a)(1), but with an extension equal to the

time between enactment of the 1990 Amendments and reclassification as

nonattainment. Thus, if an area is redesignated from attainment to marginal

nonattainment with the one-hour standard in 2000 (10 years after the 1990

Amendments), it will have until 2003 (ten years after the original 1993

attainment deadline for marginal nonattainment areas) to comply with the

standard. However, section 181(b)(1) specifies that this provision applies

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

under section 107(d)(3), not to areas redesignated as nonattainment with a

new or revised ozone standard under section 107(d)(1). How to handle

classification of nonattainment with the new standard is left unclear.

* The panel and Judge Tatel were unable to agree on a way to

(continued...)

19

The panel below could not agree on what EPA was left room to

do; certainly almost any action will lead, at the least, to

litigation and delay.

If the impracticalities of the result were not enough to

show the error of the panel’s decision, a broader look at the

context of the provision makes the error plain. Section 181(a)

is entitled “Classification and attainment dates for /989

nonattainment areas.” (emphasis added)."°

%(...continued)

conform the provisions of subpart | with the classifications and deadlines

found in section 181. On rehearing, Judge Tatel concurred in the panel’s

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

enforce the new ozone NAAQS without conflicting with subpart 2's

classifications and attainment dates.” 195 F. 3d at 11. However, Judge

Tatel’s belief that “nothing precludes the enforcement of the new standard

under subpart |,” 195 F. 3d at 13, appears to conflict directly with the

panel's holding that it is section 181 of “[sJubpart 2, not subpart 1, [that]

provides the classifications and attainment dates for any areas designated

nonattainment under a revised ozone NAAQS.” 175 F. 3d at 1050 (emphasis

supplied). Furthermore, Judge Tatel’s interpretation that implementation of

the revised standard under subpart | can begin in the vast majority of the

nation that has attained the old standard is also inconsistent with the panel's

determination, on rehearing, not to vacate the new standard pending remand

“because the parties have not shown that the standard is likely to engender

costly compliance activities in light of our determination that it can be

enforced only in conformity with subpart 2.” 195 F. 3d at 10.

'° In Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co.,

331 U.S. 519, 528-29 (1947), the Court held that the title of a section, which

was “but a short-hand reference to the general subject matter involved,”

would not “take the place of the detailed provisions of the text.” In the

instant case, by contrast, it is the title that clearly and precisely limits the

reach of a provision whose language is ambiguous.

20

This Court has found, under similar circumstances, that

the title of a statute provides valuable evidence of congressional

intent in enacting an otherwise ambiguous statute. In

Immigration & Naturalization Service v. National Center for

Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991), the Court

interpreted a regulation that, on its face, prohibited any

employment of deportable aliens. However, in light of the

provision’s title, “Condition against unauthorized

employment,” the Court held that the regulation prohibited not

any employment of deportable aliens, but only unauthorized

employment of such aliens. See also Almendarez-Torres v.

United States, 523 U.S. 224, 234 (1998) (considering the title

of a section, and its legislative history, in construing a statute);

Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (holding that

possible ambiguity of statute is resolved by the title of

subsection at issue); Federal Trade Commission v. Mandel

Brothers, Inc., 359 U.S. 385, 388-89 (1959) (the Title of an Act

is “a useful aid in resolving an ambiguity”).

Finally, the D.C. Circuit’s decision is inconsistent with

this Court’s holding in Chevron U.S.A. Inc. v. Natural

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

must defer to an agency’s reasonable interpretation of

ambiguous provisions in statutes they are charged with

administering. Instead of deferring to an agency interpretation

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

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

form over substance, substituting its own highly technical

reading of the statute for the practical reading adopted by EPA.

The cross-referencein section 181(a)(1)to section 107(d) rather

21

than just 107(d)(4), which provides the entire shaky foundation

for the D.C. Circuit’s interpretation, creates at most an

ambiguity in the statute, requiring that deference be given to

EPA's reasonable interpretation. See Smiley v. Citibank (South

Dakota), N.A., 517 U.S. 735, 739 (1996) (noting that “it would

be difficult” to find a statute unambiguous in light of two

dissents and a conflicting opinion of another court). Under

these circumstances, the D.C. Circuit should have deferred to

EPA’s reasonable interpretation of the provisions at issue — an

interpretation that effectuates the general statutory scheme,

makes sense of the specific statutory provisions, and is

consistent with the title of section 181(a)(1). See United States

v. Haggar Apparel Co., 526 U.S. 380, 392 (1999)

(reemphasizing the need to give deference to an agency

interpretation that is “reasonable in light of the legislature’s

revealed design’) (citation omitted).

The D.C. Circuit’s interpretation of section 181 is

unworkable and irrational, and has no basis in proper statutory

construction. See Griffin v. Oceanic Contractors, Inc., 458

U.S. 564, 575 (1982) (“interpretations of a statute which

produce absurd results are to be avoided if alternative

interpretations consistent with the legislative purpose are

available”). The D.C. Circuit should instead have deferred to

EPA’s reasonable interpretation of the Act.

22 23

CONCLUSION BILL LOCKYER PHILIP McLAUGHLIN

Attorney General of Attorney General of New

The decision of the Court below should be reversed. California Hampshire

Respectfully submitted, RICHARD BLUMENTHAL _ D. MICHAEL FISHER

Attorney General of Attorney General of

ELIOT SPITZER Connecticut Pennsylvania

Attorney General of the

State of New York ANDREW KETTERER SHELDON WHITEHOUSE

Attorney General of Maine Attorney General of Rhode

PREETA D. BANSAL , Island

Solicitor General J. JOSEPH CURRAN, JR.

(Counsel of record) Attorney General of WILLIAM H. SORRELL

DANIEL X. SMIRLOCK Maryland Attorney General of

Deputy Solicitor General Vermont

LISA FEINER

J. JARED SNYDER Of Counsel

Assistant Attorneys General

Environmental Protection

Bureau

The Capitol

Albany, NY 12224

(212) 416-8479

Attorneys for the State of

New York