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

Supreme Court, U.S.

No. 99-1257 FILED

In The

Supreme Court of the |Unitét_ Skies

¢

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Petitioners,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Respondents.

°

On Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

o

BRIEF OF AMICI CURIAE

ENVIRONMENTAL DEFENSE, ET AL.

ON BEHALF OF PETITIONERS

¢

RicHarp L. Revesz

Counsel of Record

40 Washington Square South

Suite 411-D

New York, N.Y. 10012

212-998-6185

Vickie PATTON

Environmental Defense

1405 Arapahoe Avenue

Boulder, CO 80302

303-440-4901

ANN BrewsTeR WEEKS

Clean Air Task Force

77 Summer Street, 8th Floor

Boston, MA 02110

617-292-0234

Counsel for Amici Curiae Environmental Defense, et al.

July 21, 2000

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................0seeeeee. iii

INTEREST OF AMICI CURIAE...............00005. 1

SUMMARY OF ARGUMENT.................000005 1

REGIE oc ccccccesscessoveentdectcccesvccesees 3

I. THE D.C. CIRCUIT’S REMAND OF THE EPA

REGULATIONS IS BASED UPON A CONSTI-

TUTIONALLY IMPERMISSIBLE APPLICA-

TION OF THE NONDELEGATION

PEPE ccccevcnccsscwiclucdansvabseseuss 3

Il. THE D.C. CIRCUIT’S APPROACH IMPER-

MISSIBLY INTERFERES WITH THE PROPER

FUNCTIONING OF THE DEMOCRATIC

= PPPPVTTTITITIT TTT TT rr ee 7

III. SECTIONS 108 AND 109 OF THE CLEAN AIR

ACT DO NOT RUN AFOUL OF THE NON-

DELEGATION DOCTRINE .................. 9

A. The Clean Air Act gives considerable guid-

ance to EPA on how to set the NAAQS... 9

B. The D.C. Circuit’s suggestion that EPA

was free to set the NAAQS at any level

between zero and the concentration of

London’s Killer Fog stems from a misun-

derstanding of the Clean Air Act........ 14

C. The Court’s jurisprudence establishes that

the Clean Air Act does not violate the

nondelegation doctrine .................. 19

D. The D.C. Circuit’s reliance on Schechter

Poultry is misplaced...............++04+: 21

TABLE OF CONTENTS - Continued

Page

E. The D.C. Circuit also is mistaken in main-

taining that broad delegations are permis-

sible only in special circumstances....... 23

IV. THE D.C. CIRCUIT ERRED IN HOLDING

THAT EPA’S AUTHORITY TO IMPLEMENT

THE 8-HOUR OZONE STANDARD IS CON-

STRAINED BY SECTION 181 OF THE CLEAN

BR BCT ccccccccccccvccccccccccccvccccccess 23

CONCLUSION .......... cece cece cece eee eeeeeeeees 30

TABLE OF AUTHORITIES

Page

Cases:

A.L.A. Schechter Poultry Corp. v. United States, 295

es Gee GED wes cccvcccssasecssncsees 19, 21, 22, 23

Amalgamated Meat Cutters v. Connally, 337 F. Supp.

FE Gs SEWED evcdicccccccdnccdctvcsccesenansecs 5

Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87

PEE oS ccntccenececccasusceecuecenoseuseecessennss 5

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) . .8, 30

Commissioner v. Clark, 489 U.S. 726 (1989) ........... 25

Gustafson v. Alloyd Co., 513 U.S. 561 (1995).......... 29

Industrial Union Dep't, AFL-CIO v. American Petro-

leum Inst., 448 U.S. 607 (1980) .................005- 4

International Union, UAW v. OSHA, 938 F.2d 1310

Se GD GOD bev encenscccsenntesesscccancecuséas 5

].W. Hampton & Co. v. United States, 276 U.S. 394

SUPE eS 06S oc enconcsscenctuccccooncenesscesonceeess 3

Lichter v. United States, 334 U.S. 742 (1948)....... 19, 20

Loving v. United States, 517 U.S. 748 (1996)..... 3, 4, 20

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

i ae ae ei eel eee eel oe ed 3, 4, 19, 22, 23

Morales v. Trans World Airlines, Inc., 504 U.S. 374

ia tide tied ine ed etiekeenkeiedsenksanenneel 25

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.

Cs Se U, 2 OED ccucnncouscoceseees 6, 8, 9

National Broad. Co. v. United States, 319 U.S. 190

Ditch nvédcasndcdoousedheeteubeosenqunsennss 19, 20

Peed caccccevccceccccnsesccceccecscosesceesesss 6, 9

iv

TABI F OF AUTHORITIES - Continued

Page

Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935)..19, 21, 22

Touby v. United States, 500 U.S. 160 (1991) ..3, 4, 19, 20, 23

Yakus v. United States, 321 U.S. 414 (1944)....19, 20, 22

STATUTES:

Administrative Procedure Act, 5 U.S.C. § 551 et seq.

§ 4(a)-(b), 5 U.S.C. § 553(b)-(c).... 2.6 ee eee eee 22

§ 10(e), 5 U.S.C. § 706(2)(A) ...... 66. ee eee eee 5

Clean Air Act, 42 U.S.C. § 7401 et seq.

§ 107(d), 42 U.S.C. § 7407(d)........... 24, 27, 28, 29

§ 107(d)(1)(A), (B), 42 U.S.C. § 7407(d)(1)(A), (B) .... 29

§ 107(d)(1)(C), 42 U.S.C. § 7407(d)(1)(C)........ 28, 29

§ 107(d)(3), 42 U.S.C. § 7407(d)(3)............----- 29

§ 107(d)(4), 42 U.S.C. § 7407(d)(4).............. 28, 29

§ 108, 42 U.S.C. § 7408........... 2, 9, 11, 12, 19, 20

§ 108(a)(1), 42 U.S.C. § 7408(a)(1) ...........---6-- 10

§ 108(a)(1)(A), 42 U.S.C. § 7408(a)(1)(A).......---- 22

§ 108(a)(2), 42 U.S.C. § 7408(a)(2) ...........--. 10, 11

B 269, 2 USL. & POBD .. cc ccccsccccccccccces passim

§ 109%(b), 42 U.S.C. § 7409%(b)............... 16, 17, 18

§ 109%(b)(1), 42 U.S.C. § 7409(b)(1).......... 11, 14, 22

§ 109(b)(2), 42 U.S.C. § 7409(b)(2)........- eee eee 11

§ 10%(d), 42 U.S.C. § 7409(d)....... 2... eee ees 15, 28

Vv

TABLE OF AUTHORITIES - Continued

Page

§ 109(d)(1), 42 U.S.C. § 7409(d)(1)................. 12

§ 109(d)(2), 42 U.S.C. § 7409(d)(2).........0....... 23

§ 109(d)(2)(A), 42 U.S.C. § 7409(d)(2)(A) .......... 12

§ 109(d)(2)(B), 42 U.S.C. § 7409(d)(2)(B) ........... 12

§ 110(a)(2)(D)(i), 42 U.S.C. § 7410(a)(2)(D)(i(]) ... . . 28

§§ 171-179B, 42 U.S.C. §§ 7501-7509a.............. 24

Brey Se ie OO Pec ccccccecccccesncectocs 25, 29

§ 172(a)(1)(A), 42 U.S.C. § 7502(a)(1)(A)........... 29

§ 172(a)(2), 42 U.S.C. § 7502(a)(2).............. 24, 25

§ 172(a)(2)(A), 42 U.S.C. § 7502(a)(2)(A)........ 24, 29

§ 172(a)(2)(B), 42 U.S.C. § 7502(a)(2)(B)............ 24

§ 172(a)(2)(C), 42 U.S.C. § 7502(a)(2)(C) ........... 24

§ 172(a)(2)(D), 42 U.S.C. § 7502(a)(2)(D)........... 25

fF Sf ee passim

§ 181(a)(1), 42 U.S.C. § 7511(a)(1)...... 25, 26, 27, 28

§§ 181-185B, 42 U.S.C. §§ 7511-7511f.............. 24

. §§ 181-192, 42 U.S.C. §§ 7511-7514a............... 24

§ 302(h), 42 U.S.C. § 7602(h)............... 11, 12, 21

5 SONG), 42 USC. § PEGA)... nc cccccccccccces 22

§ 307(d)(2), (4)(A), 4(B)(ii), (5), 42 U.S.C.

§ 7607(d)(2), (4)(A), 4(B)(ii), (5) ...........0000.. 22

§ 307(d)(2)-(7), 42 U.S.C. § 7607(d)(2)-(7) .......... 22

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vi | vii

TABLE OF AUTHORITIES - Continued TABLE OF AUTHORITIES - Continued

Page Page

§ 307(d)(3), 42 U.S.C. § 7607(d)(3)..........-+-- 12, 23 ) i, DEED ssietnenuteddecebeenddscbacdscedsacens 27

§ 307(d)(9)(A), 42 U.S.C. § 7607(d)(9)(A) .......-.-. 5 | ih SE Sade Niebbecedabncdotundesdesdddecnedsaeds 16

DP, RTO cc csvecvscdcccncccseséeccesséecesscees 17

MISCELLANEOUS: i PEEP RKbd cabdenedécedeesoncteendevedesecekeeda 17

44 Fed. Reg. (1979) eS eee 30

P- 8202 ..... 2... eee eeeeeeeeeeeseeeesnererneecenes 26 i aid dedtacdecciscopstsnediensovens 26

D. GRID... cccccccccccccccccccccccccccevececceseees 27 | Be Sh See Sy Gb cncdsdccedcckacsdenedeess 13

61 Fed. Reg. (1996) Kenneth Culp Davis, A New Approach to Delega-

edna 18 tion, 36 U. Chi. L. Rev. 713 (1969) ...............-. 6

PP. 65,641-44 . 2... e eee eens 18

D. GEOG 2... ccc ccccccccccccccccccscccceseccccess 17

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B. GATE 2c ccccccccccccccccccccccccccscccscoseses 16

BD. GB,T2D 2. cc ccccccccccccccccccccccccececccssceses 16

62 Fed. Reg. (1997) : aes

B. GRGTD .ccccccccccccccccccccocceseosevesceccees 18 :

BD. TBBIG 2... cccccccccccccccccccceseccscccesccess 18

BD. SOTO onc ccccccccccccccccsscccscscccccssecvess 15

BD. SBBED 2... nc cccccccccccccccccveccccccvevcceceees 15

BD. SBBGI 2... ccccccccccccccvcvesscssccccveveceers 16

|

1

INTEREST OF AMICI CURIAE

Amici curiae Environmental Defense (formerly Envi-

ronmental Defense Fund), Clean Air Council, East Michi-

gan Environmental Action Council, Environmental Law

and Policy Center of the Midwest, Hoosier Environmen-

tal Council, Inc., Illinois Environmental Council, The

Izaak Walton League of America, Inc., Legal Environmen-

tal Assistance Foundation, Inc., Michigan Environmental

Council, Ohio Citizen Action, The Ohio Environmental

Council, Southern Environmental Law Center, Tennessee

Environmental Council, and Valley Watch, Inc., are four-

teen not-for-profit organizations working to improve

public health and environmental quality throughout the

United States. Environmental Defense, et al. seek health-

ier air quality on behalf of their many thousands of

members who live and raise families in communities

across the country that have air pollution concentrations

in excess of the ozone and particulate matter standards

under review in this case.!

SUMMARY OF ARGUMENT

The D.C. Circuit followed a constitutionally imper-

missible path in remanding, on nondelegation grounds,

the regulations challenged in this case. Instead of deter-

mining whether the Clean Air Act provided an “intellig-

ible principle” to guide the agency’s exercise of its

discretion, the D.C. Circuit scrutinized the agency’s

explanation for how it chose to set the National Ambient

Air Quality Standards (NAAQS) for ozone and particu-

late matter. The D.C. Circuit’s approach does not promote

1 No counsel for any party authored this brief in whole or

in part, and 1:0 person or entity other than the amici and their

counsel made any monetary contribution to the preparation or

submission of this brief. This brief is being filed with the written

consent of the parties, and the corresponding documentation is

simultaneously being filed with the Court.

2

the key purpose of the nondeleg ation doctrine — that core

political decisions be made by Congress —- and improperly

constitutionalizes the requirement in the Administrative

Procedure Act (APA) that an agency adequately explain

its actions.

Moreover, the D.C. Circuit’s insistence that EPA con-

strain its discretion in a manner that is binding on future

Administrations places impermissible limits on how the

democratic process functions. Its approach threatens the

connection of administrative agencies to the political

process, which legitimates administrative action.

Because it dispensed with any analysis of the statute,

the D.C. Circuit overlooked the considerable guidance

that sections 108 and 109 of the Clean Air Act give EPA

on how to set the NAAQS. This guidance easily is more

extensive and no less determinate than the guidance at

issue in several cases in which the Court rejected non-

delegation challenges, and clearly meets the Court’s

“intelligible principle” standard.

Finally, the D.C. Circuit was mistaken in holding that

the nonattainment provisions of the Clean Air Act con-

strain EPA’s authority to implement the challenged

NAAQS for ozone. The D.C. Circuit believed that this

conclusion was necessary to accord the same meaning to

the same words used in different parts of the statute. In

fact, however, this objective can be achieved only by

concluding that the Clean Air Act does not constrain

EPA’s implementation authority. More generally, the

structure of the nonattainment provisions compels the

conclusion that EPA’s authority to implement the chal-

lenged standard is not constrained. At the very least,

EPA’s interpretation to that effect is permissible and is

not inconsistent with the clear intent of Congress.

_— A — i ee Ml

3

ARGUMENT

I. THE D.C. CIRCUIT’S REMAND OF THE EPA REG-

ULATIONS IS BASED UPON A CONSTITU-

TIONALLY IMPERMISSIBLE APPLICATION OF

THE NONDELEGATION DOCTRINE

The D.C. Circuit’s justification for remanding the

challenged NAAQS bears no resemblance to any accepted

application of the constitutional doctrine of nondelega-

tion. The Court repeatedly has held that the most impor-

tant purpose of the nondelegation doctrine is to ensure

that core political decisions are made by Congress, and

that where Congress delegates authority to an adminis-

trative agency it provides an “intelligible principle” to

guide the exercise of the agency’s discretion. See Loving v.

United States, 517 U.S. 748, 771 (1996); Touby v. United

States, 500 U.S. 160, 165 (1991); Mistretta v. United States,

488 U.S. 361, 372 (1989); ].W. Hampton & Co. v. United

States, 276 U.S. 394, 409 (1928).

Despite the Court's clear articulation of these central

concerns of the nondelegation doctrine, the D.C. Circuit

did not even attempt to analyze the nature of the con-

straints Congress placed on the agency’s exercise of dis-

cretion. Instead, it delved immediately into the agency’s

explanations for the choice it made pursuant to that dis-

cretion. The opinion states explicitly: “We begin with the

criteria EPA has announced for assessing health effects in

setting the NAAQS for non-threshold pollutants.” Pet.

App. 6a. The D.C. Circuit’s holding similarly focused on

EPA’s exercise of its discretion: “We find that the con-

struction of the Clean Air Act on which EPA relied in

promulgating the NAAQS at issue here «<tects an uncon-

stitutional delegation of legislative power.” Pei. App. 4a

(emphasis added).

4

The D.C. Circuit’s preoccupation with the agency

rather than Congress - the institution that is the focus of

the nondelegation doctrine’s concern - is particularly

problematic given the circuit’s own admission that the

approach it took does not serve “the third key function of

non-delegation doctrine [sic]”, which is to ensure ” ‘that

important choices of social policy are made by Congress.’ ”

Pet. App. 14a. (quoting Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst., 448 U.S. 607, 685 (1980) (Benzene)

(Rehnquist, J., concurring)). This “third” function, which

the D.C. Circuit chose to leave unfulfilled, is the only

rationale for the nondelegation doctrine on which the

Court has consistently relied. See, e.g., Loving, 517 U.S. at

771-72; Touby, 500 U.S. at 164-66; Mistretta, 488 U.S. at

371-73; see also Pet. App. 95a n.2 (“It is . . . only this so-

called ‘third’ purpose . . . that has any connection to the

doctrine’s constitutional source.”) (Silberman, J., dissent-

ing from the denial of rehearing en banc).

In explaining why it was choosing a remedy that did

not serve the key function of the nondelegation doctrine,

the panel noted, citing Mistretta: “[W]e do not read cur-

rent Supreme Court cases as applying the strong form of

the nondelegation doctrine voiced in Justice Rehnquist's

concurrence [in the Benzene case].” Pet. App. 14a. But the

nondelegation doctrine simply does not have a “weak”

version that is served by setting aside regulations as well

as a “strong” version that compels declaring statutes

unconstitutional. There is only one nondelegation doc-

trine, and its focus is on the actions of Congress.

The D.C. Circuit advanced two rationales for order-

ing the agency to constrain its discretion: to discourage

the agency from “exercis[ing] the delegated authority

arbitrarily” and to promote “meaningful judicial review.”

5

Pet. App. 14a. But both these goals are served by “arbi-

trary and capricious” review under the APA. See 5 U.S.C.

§ 706(2)(A); Baltimore Gas & Elec. Co. v. NRDC, 462 U.S.

87, 97-98 (1983).2 Given the broad oversight exercised by

the courts pursuant to this APA provision, a further con-

stitutionally based requirement designed to serve essen-

tially the same purposes is wholly unnecessary.

Not only is the D.C. Circuit’s approach to the non-

delegation doctrine analytically unsound, but it is vir-

tually unsupported by precedent. The D.C. Circuit

repeatedly cited a prior decision, International Union,

UAW v. OSHA, 938 F.2d 1310, 1316-18 (D.C. Cir. 1991)

(Lockout-Tagout I), in which it similarly misapplied the

nondelegation doctrine to invalidate a regulation. See Pet.

App. 1la-15a.

The only other case on which the D.C. Circuit relied,

Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737

(D.D.C. 1971) (Leventhal, J., for a three-judge court), is

inapposite. See Pet. App. 14a. Unlike the opinion below,

Judge Leventhal’s analysis began, as is appropriate under

the nondelegation doctrine, with an exhaustive analysis

of the legislative materials. See Amalgamated Meat Cutters,

337 F. Supp. at 747-58. Following this review, Judge

Leventhal stated that administrative discretion also is

confined by “the requirement that any action taken by the

Executive under the law . . . must be in accordance with

further standards as developed by the Executive.” Id. at

758. Judge Leventhal viewed this requirement as one of

“intelligible administrative policy that is corollary to and

implementing of the legislature’s ultimate standard and

objective.” Id. at 759. Nowhere does the opinion state that

2 The Clean Air Act’s judicial review provisions call for

“arbitrary and capricious” review. See 42 U.S.C. § 7607(d)(9)(A).

6

the requirement of administrative explanation derives

from the Constitution’s nondelegation doctrine.

In fact, subsequent cases make clear that the require-

ment that agencies provide detailed explanations for their

regulations is an integral part of “arbitrary and capri-

cious” review under the APA, and, in particular, of the

“hard look” doctrine. See Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-43 (1983);

National Lime Ass'n v. EPA, 627 F.2d 416, 451 & n.126 (D.C.

Cir. 1980).

The intellectual foundation for the D.C. Circuit's

approach appears to come from Kenneth Culp Davis, A

New Approach to Delegation, 36 U. Chi. L. Rev. 713 (1969).%

Davis urged courts to “acknowledge that the nondelega-

tion doctrine is unsatisfactory and to invent better ways

to protect against arbitrary administrative power.” Id. at

713 (emphasis added). Davis added that the purpose of

the nondelegation doctrine “should no longer be either to

prevent delegations of legislative power or to require

meaningful statutory standards.” Id.; see also id. at 725.

Instead, he proposed shifting “[t]he focus of judicial

inquiries . . . from statutory standards to administrative

safeguards and administrative standards.” Id. Like Davis,

the D.C. Circuit freely acknowledged that under its

approach, “[t]he agency will make the fundamental pol-

icy choices.” Pet. App. 14a.

Davis’ position had no doctrinal grounding at the

time that it was made; his use of the term “invent” is

revealing on this score. Moreover, the Court has never

3 Although the only time that the D.C. Circuit cited the

Davis article it gave it a “but see” signal, Pet. App. 76a, the

approach of the court below bears a strong resemblance to

Davis’.

7

accepted his invitation to reconceptualize the nondelega-

tion doctrine, and has continued to view this doctrine as

a constraint on congressional - not administrative -

action.

In summary, as Judge Silberman stated, the D.C.

Circuit’s approach is “fundamentally unsound.” Pet.

App. 92a (Silberman, J., dissenting from the denial of

rehearing en banc). The nondelegation doctrine cannot

“be employed to force an agency to narrow a broad

legislative delegation from Congress.” Id.

II. THE D.C. CIRCUIT’S APPROACH IMPERMISSI-

BLY INTERFERES WITH THE PROPER FUNC-

TIONING OF THE DEMOCRATIC PROCESS

The D.C. Circuit’s approach also places impermissi-

ble constraints on the democratic process. In its opinion

on the petitions for rehearing, the panel majority made

clear that no administrative explanation - no matter how

well-reasoned or detailed - would satisfy its approach to

the nondelegation doctrine unless it contained an express

constraint on the agency’s future discretion. For example,

EPA had explained in the regulatory materials that it had

set the annual standard for particulate matter on the basis

of evidence of adverse health effects that was statistically

significant at the 95th confidence level, and that it had set

the ozone standards to protect against adverse health

effects that were not transient. Pet. App. 73a & nn. 1-2;

see infra Part III.B. The D.C. Circuit reacted to this argu-

ment as follows:

To be sure, in the rulemakings that set the

NAAQS, the EPA mentioned the corollary prop-

Ositions its counsel now claim served as intellig-

ible limiting principles, but the agency did not

identify either as a limit upon its discretion; the

EPA never suggested that it could not (or in a

8

later rulemaking would not) base a NAAQS

upon evidence that did not meet the 95 percent

confidence level or that revealed adverse but

transient effects.

Pet. App. 73a. Thus, the D.C. Circuit insisted that EPA’s

approach to these matters be frozen not only with respect

to future NAAQS for ozone and particulate matter — the

contaminants at issue in this case — but also for NAAQS

for all other contaminants.

The D.C. Circuit’s approach threatens an important

source of the legitimacy of agency action: the connection

of administrative agencies to the political process. As the

Court has observed:

While agencies are not directly accountable to

the people, the Chief Executive is, and it is

entirely appropriate for this political branch of

Government to make such policy choices -

resolving the competing interests which Con-

gress itself either inadvertently did not resolve,

or intentionally left to be resolved by the agency

charged with the administration of the statute in

light of everyday realities.

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 865-66 (1984).

It is inconsistent with long-established norms con-

cerning the role of administrative agencies to hold, as the

D.C. Circuit did, that where Congress vests regulatory

discretion in an agency, the first Administration that exer-

cises this discretion is required to bind all future Adminis-

trations. Instead, if a statute does not prescribe a

particular outcome, different Administrations should be

able to exercise congressionally delegated discretion in

different ways. See Chevron, 467 U.S. at 863-64 (“An initial

agency interpretation is not instantly carved in stone. On

the contrary, the agency . . . must consider . . . the wisdom

of its policy on a continuing basis.”); State Farm, 463 U.S.

-_ - “~o os

9

at 42 (“[RJegulatory agencies do not establish rules of

conduct to last forever and . . . must be given ample

latitude to adapt their rules and policies to the demands

of changing circumstances.”) (citations omitted).

The Court has held that the APA requires an agency

that changes a prior policy to explain the reasons for this

change. See State Farm, 463 U.S. at 41-42. It has never

held, however, that the Constitution prevents an agency

from changing its policy altogether. Given the nature of

the policy dispute in this case, such a position would be

particularly destructive of the connection between agency

action and political legitimacy. Should a future Adminis-

tration that favors more stringent environmental regula-

tion be precluded from regulating on the basis of a lower

confidence level —- say 90% instead of 95%? Cf. National

Lime, 627 F.2d at 454 n.139 (“Agencies are not limited to

scientific fact, to 95% certainties.”). Or should such an

Administration be barred from concluding that transient

effects can be adverse? The D.C. Circuit’s approach

would compel affirmative answers to both these ques-

tions, contrary to the key reason why our constitutional

scheme has periodic presidential elections: so that the

voters can put in place Administrations that are respon-

sive to their views.

Ill. SECTIONS 108 AND 109 OF THE CLEAN AIR

ACT DO NOT RUN AFOUL OF THE NON-

DELEGATION DOCTRINE

A. The Clean Air Act gives considerable guidance

to EPA on how to set the NAAQS

The congressional delegation relevant to this case is

primarily contained in sections 108 and 109 of the Clean

Air Act. 42 U.S.C. §§ 7408, 7409. Section 108 — which the

D.C. Circuit’s panel majority overlooked altogether -

10

requires EPA to establish air quality criteria that will

serve as the basis for the agency to then set the NAAQS

under section 109.

Section 108(a)(1) requires the EPA Administrator to

list the pollutants for which NAAQS will eventually be

set. The Administrator must place on this list each air

pollutant that meets two principal requirements:

(A) [the] emissions of [the pollutant], in

his judgment, cause or contribute to air pollu-

tion which may reasonably be anticipated to

endanger public health or welfare; [and]

(B) the presence of [the pollutant] in the

ambient air results from numerous or diverse

mobile or stationary sources.

42 U.S.C. § 7408(a)(1). Thus, only pollutants “which may

reasonably be anticipated to endanger public health or

welfare” can be regulated. Moreover, such pollutants can

be regulated only if they have an effect on the “ambient

air” — as opposed to, for example, on indoor air. Even

pollutants that do have an effect on ambient air can be

regulated only if they are produced by “numerous or

diverse mobile or stationary sources.” (emphasis added).

Following the listing of a pollutant, the Administra-

tor must prepare air quality criteria. 42 U.S.C.

§ 7408(a)(2). The statute provides:

Air quality criteria for an air pollutant shall

accurately reflect the latest scientific knowledge

useful in indicating the kind and extent of all

identifiable effects on public health or welfare

which may be expected from the presence of

such pollutant in the ambient air, in varying

quantities. The criteria for an air pollutant, to

the extent practicable, shall include information

on -

(A) those variable factors (including atmo-

spheric conditions) which of themselves or in

11

combination with other factors may alter the

effects on public health or welfare of such air

pollutant; |

(B) the types of air pollutants which, when

present in the atmosphere, may interact with

such pollutant to produce an adverse effect on

public health or welfare; and

(C) any known or anticipated adverse

effects on welfare.

42 U.S.C. § 7408(a)(2). Thus, such criteria must be based

on “the latest scientific knowledge,” and must indicate

“all identifiable effects on public health and welfare.” The

statute also requires the consideration of interactions

among pollutants.

Section 109(b)(1) prescribes the level at which pri-

mary NAAQS must be set:

National primary ambient air quality stan-

dards . . . shall be ambient air quality standards

the attainment and maintenance of which in the

judgment of the Administrator, based on such

criteria and allowing an adequate margin of

safety, are requisite to protect the public health.

42 U.S.C. § 7409(b)(1). The statute therefore provides that

the primary NAAQS must meet three requirements: they

must be “based on” the air quality criteria developed

under section 108, they must be “requisite to protect the

public health,” and they must provide “an adequate mar-

gin of safety.”

In turn, section 109(b)(2) prescribes that the second-

ary standards must also be “based on” the air quality

criteria and must be “requisite to protect the public wel-

fare.” Id. § 7409(b)(2). For the latter inquiry, both “known

or anticipated” adverse effects must be taken into

account. Section 302(h), moreover, contains a statutory

definition of the term “public welfare,” which requires

12

EPA to take account of an extensive set of factors in

fashioning the secondary standards. See 42 U.S.C.

§ 7602(h).

Section 109 further requires the Administrator to

review, at least at five-year intervals, the air quality crite-

ria as well as both the health-based primary standards

and the welfare-based secondary standards. In undertak-

ing this review, the Administrator must “make such revi-

sions in such criteria and standards and promulgate such

new standards as may be appropriate in accordance with

section 7408 . . . and subsection (b) of . . . section [7409]”.

Id. § 7409(d)(1). Thus, the statutory requirements that

govern the initial promulgation of the standards apply

also to their revision.

The statute also prescribes an institutional structure

to aid the Administrator in revising the criteria and stan-

dards. For this purpose, the Administrator must “appoint

an independent scientific review committee composed of

seven members including at least one member of the

National Academy of Sciences, one physician, and one

person representing State air pollution control agencies.”

Id. § 7409(d)(2)(A). This committee “shall recommend to

the Administrator any new national ambient air quality

standards and revisions of existing criteria and standards

as may be appropriate.” Id. § 7409(d)(2)(B). If the regula-

tions establishing the NAAQS depart in any important

respect from the recommendations of this group, EPA

must explain the reasons for such a departure. Id.

§ 7607(d)(3).

The Clean Air Act's legislative history provides fur-

ther guidance on the level at which the NAAQS should

be set. The report of the Senate Committee on Public

Works stresses that concern with health effects must

extend to particularly sensitive populations: “[I]ncluded

—— ee

13

among those persons whose health should be protected

by the ambient standard are particularly sensitive citizens

such as bronchial asthmatics and emphysematics who in

the normal course of daily activity are exposed to the

ambient environment.” S. Rep. No. 91-1196, at 10 (1970).

The report states, however, that the NAAQS “will not

necessarily provide for the quality of air required to

protect those individuals who are otherwise dependent

on a controlled internal environment.” Id.

The report makes clear that the purpose of the

NAAQS is to protect particularly sensitive populations,

not particularly sensitive individuals. Under this

approach, ambient air quality sufficiently protects sensi-

tive populations if there is an “absence of adverse effect

on the health of a statistically related sample of persons

in sensitive groups.” Id. The report further specifies that

“a statistically related sample is the number of persons

necessary to test in order to detect a deviation in the

health of any person within such sensitive group which is

attributable to the condition of the ambient air.” Id.

Thus, the legislative history explains that the deter-

mination of adverse health effects must be made with

respect to certain groups in the general population. It also

explains what counts as a group for this purpose.

In summary, Congress gave considerable guidance to

EPA on how to set the NAAQS. In failing to examine the

nature of the legislative direction, the D.C. Circuit missed

the central point of the nondelegation doctrine.

14

B. The D.C. Circuit’s suggestion that EPA was free

to set the NAAQS at any level between zero

and the concentration of London’s Killer Fog

stems from a misunderstanding of the Clean

Air Act

The preceding analysis of the legislative guidance

shows that the D.C. Circuit was simply mistaken when it

stated, with rhetorical flourish, that EPA is “free to pick

any point between zero and a hair below the concentra-

tions yielding London’s Killer Fog.” Pet. App. 13a. The

D.C. Circuit’s characterization stems from an erroneous

understanding of the statutory scheme, and in particular,

of the trigger for revisions of the NAAQS, the manner in

which adverse effects on public health are determined,

and the types of sensitive populations that the standards

are designed to protect.

The D.C. Circuit recognized that the London Killer

Fog “led to 4,000 excess deaths in a week.” Pet. App. 11a.

It is difficult to imagine any plausible interpretation of

the statutory command that would allow such a calamity.

See 42 U.S.C. § 7409(b)(1) (NAAQS must be set at levels

that “allowing an adequate margin of safety, are requisite

to protect the public health”).

Similarly, the Administrator would be able to set a

standard of zero only if such a standard is “requisite to

protect the public health,” “allowing an adequate margin

of safety.” Id. The Clean Air Act's legislative history,

discussed in Part III.A, supra, makes clear that even if

some individual's health would be promoted by a stan-

dard of zero, the Administrator is precluded from pro-

mulgating such a standard if at this level there is no

statistically significant evidence of an adverse health

effect in a population.

ci ee eee

15

An examination of the administrative record illus-

trates the nature of these constraints on EPA’s discretion.

In the case of ozone, EPA began, consistent with the

legislative command, by defining the sensitive popula-

tions - the populations that experience adverse health

effects at the lowest concentrations. EPA determined that

three populations were particularly sensitive: active chil-

dren, outdoor workers, and individuals with preexisting

respiratory disease (for example, asthma or chronic

obstructive lung disease). 61 Fed. Reg. 65,716, 65,721-22

(1996).

The agency then considered what should count as an

“adverse health effect” for these sensitive populations. To

make this determinatior, EPA looked to guidelines pub-

_lished by the American Thoracic Society, which used the

following definition:

[M]edically significant physiologic or pathologic

changes generally evidenced by one or more of

the following: (1) Interference with the normal

activity of the affected person or persons, (2)

episodic respiratory illness, (3) incapacitating

illness, (4) permanent respiratory injury, and/or

(S) progressive respiratory dysfunction.

Id. at 65,722; see 62 Fed. Reg. 38,856, 38,860 (1997).

In justifying a need for a revision of the existing

standard pursuant to section 109(d), see Part III.A, supra,

EPA noted that “a significant body of information” that

became available after the promulgation of the ozone

NAAQS then in effect provided “clear evidence from

human clinical studies” of adverse health effects at con-

centrations permitted by the then-existing standard. 61

Fed. Reg. at 65,727; see 62 Fed. Reg. at 38,859.

One of the ways in which EPA revised the NAAQS

for ozone was to extend the averaging period from 1 hour

to 8 hours on the ground that “[t]he 8-hour averaging

16

time is more directly associated with health effects of

concern at lower [ozone] concentrations than is the

1-hour averaging time.” 61 Fed. Reg. at 65,727; 62 Fed.

Reg. at 38,861. This change reflects the conclusion that a

high concentration during one hour might not cause

adverse health effects if it is followed by sufficiently

lower concentrations in subsequent hours.

Because under an 8-hour averaging period a high

concentration during one hour can be offset by a suffi-

ciently lower concentration in other portions of the

8-hour period, EPA determined that the 1-hour 0.12 parts

per million (ppm) standard then in effect was essentially

equivalent to a 0.09 ppm standard with an 8-hour averag-

ing period. See 61 Fed. Reg. at 65,729; see also id. at

65,725, 65,728; 62 Fed. Reg. at 38,864.

EPA then determined that a standard of 0.08 ppm

was preferable to one of 0.09 ppm in light of the statutory

mandate of section 109(b). First, children active outdoors

would experience significantly higher decreases in lung

function and pain on deep inspiration under a standard

of 0.09 ppm as compared to a standard of 0.08 ppm.

Under a standard of 0.09 ppm between 40 and 65 percent

more children would experience such effects, and there

would be 120 percent more yearly occurrences of such

effects. These percentages would translate into tens oj

thousands of more affected children and hundreds of

thousands more yearly occurrences. Second, a risk assess-

ment revealed that a 0.09 ppm standard would result in

40 more yearly hospital admissions for respiratory causes

of asthmatics in New York City alone (a 40 percent

increase). Third, a standard of 0.09 ppm would allow

more than three times as many children to experience

exposures of concern. Fourth, EPA determined that these

17

examples were indicators of public health impacts in the

broader population. See 62 Fed. Reg. at 38,867-68.

Moreover, as Judge Tatel discussed at length in his

dissent, EPA determined that setting the standard at a

more stringent level — 0.07 ppm - was unwarranted under

section 109(b). Pet. App. 64a (Tatel, J., dissenting). He

observed that no single member of EPA’s scientific review

committee had recommended setting the standard below

0.08 ppm. Id. He also pointed to EPA’s explanation that

the adverse health effects below 0.08 ppm were quali-

tatively different. Id.; see 62 Fed. Reg. at 38,868 (at a level

of 0.07 ppm, the most serious adverse health effects of

ozone “are less certain, both as to percentage of individ-

uals exposed to various concentrations who are likely to

experience such effects and as to the long-term medical

significance of these effects”); see also Pet. App. 64a-65a

(Tatel, J., dissenting) (referring to EPA’s additional techni-

cal explanation for its decision).

EPA followed a comparable approach in revising the

NAAQS for particulate matter (PM). It defined five cate-

gories of sensitive populations: (1) individuals with respi-

ratory and cardiovascular disease, who are at greater risk

of premature mortality and hospitalization; (2) individ-

uals with infectious respiratory disease, who are at

greater risk of premature mortality and morbidity; (3)

elderly individuals, who are at greater risk of premature

mortality and hospitalization for cardiopulmonary

causes; (4) children, who are at greater risk of increased

respiratory symptoms and decreased lung function; and

(5) asthmatic children and adults, who are at risk of more

serious symptoms. See 61 Fed. Reg. 65,638, 65,644 (1996).

18

EPA justified the need for revising the NAAQS for

particulate matter as follows:

[S]ince the last review of the PM criteria and

standards, the most significant new evidence on

the health effects of PM is the greatly expanded

body of community epidemiological studies.

The Criteria Document stated that these recent

studies provide “evidence that serious health

effects (mortality, exacerbation of chronic dis-

ease, increased hospital admissions, etc.) are

associated with exposures to ambient levels of

PM found in contemporary U.S. urban airsheds

even at concentrations below current U.S. PM

standards.”

61 Fed. Reg. at 65,641; see 62 Fed. Reg. 38,652, 38,655

(1997).

EPA paid considerable attention to how the standard

should be derived from the epidemiological studies. The

Administrator based the annual standard on the level at

which the concentration of particulate matter was linked

to statistically significant increases, at a 95% confidence

level, see Part II, supra, in the risk of adverse health

effects across a number of study locations. See 62 Fed.

Reg. at 38,676; 61 Fed. Reg. at 65,641-44.

In summary, EPA’s discretion was constrained by the

legislative direction of the Clean Air Act. The agency

followed the congressional direction in finding a need for

revising the existing standards and for determining that

more stringent standards were necessary to fulfill the

statutory mandate in section 109(b). EPA was also con-

strained by the legislative command to protect popula-

tions rather than individuals. The preceding analysis thus

clearly establishes that the D.C. Circuit erred in suggest-

ing that the Clean Air Act permits EPA to set the NAAQS

—

19

at any level between a concentration of zero and the

concentration present during the London Killer Fog.

C. The Court’s jurisprudence establishes that the

Clean Air Act does not violate the nondelega-

tion doctrine

In the over 200 years of its history, the Court has

struck down a statute on nondelegation grounds in only

two cases. See Mistretta, 488 U.S. at 373. These cases,

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) and

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

(1935), were both decided in 1935 and both involved

challenges to the National Industrial Recovery Act

(NIRA) - one of the economic recovery statutes of the

New Deal. Both are inapposite for reasons discussed in

Part III.D, infra.

Since 1935 the Court has validated broad delegations

in a variety of areas. See, e.g., Lichter v. United States, 334

U.S. 742, 746, 785-86 (1948) (recovery of “excessive

profits” under the Renegotiation Act); Yakus v. United

States, 321 U.S. 414, 420, 426-27 (1944) (establishment of

“fair and equitable prices” under the Emergency Price

Control Act); National Broad. Co. v. United States, 319 U.S.

190, 215, 225-26 (1943) (regulation pursuant to a “public

interest, convenience, or necessity” standard under the

Communications Act). In each of those cases, Congress

provided guidance that was less extensive and no more

determinate than that provided by sections 108 and 109 of

the Clean Air Act, as described in Part III.A, supra.

In one of the more recent nondelegation cases, Touby

v. United States, 500 U.S. at 160, the Court unanimously

upheld a delegation that employed guidance similar to

that at issue here. Touby involved a delegation to the

Attorney General under the Controlled Substances Act to

20

establish categories or “schedules” of controlled sub-

stances that are to be regulated by the Act. The statute

authorized the Attorney General to schedule a substance

through an expedited procedure when doing so is “neces-

sary to avoid an imminent hazard to the public safety.”

Touby, 500 U.S. at 163 (quoting section 201(h) of the Act).

Citing Lichter, Yakus, and National Broadcasting, the

Court stated that in light of its nondelegation precedents

“one cannot plausibly argue that [the] ‘imminent hazard to

the public safety’ standard is not an intelligible principle.”

Id. at 165. By comparison, the terms “endanger public

health or welfare” in section 108 of the Clean Air Act, and

“requisite to protect the public health” and “requisite to

protect the public welfare” in section 109 are no broader

than the “imminent hazard to the public safety” standard

upheld in Touby. Moreover, the other forms of congres-

sional guidance contained in the Clean Air Act and dis-

cussed in Part III.A, supra, were absent in Touby.

Furthermore, the Court held that the delegation at

stake in Touby “passes muster even if greater congres-

sional specificity is required in the criminal context.” Id.

at 166. In contrast, under sections 108 and 109 of the

Clean Air Act, which do not give rise to risks to individ-

ual liberty, such heightened congressional guidance is not

required.

Only four years ago, in Loving v. United States, 517

U.S. 748 (1996), the Court unanimously reemphasized the

breadth of permissible delegations: “Though in 1935 we

struck down two delegations for lack of an intelligible

principle, we have since upheld, without exception, dele-

gations under standards phrased in sweeping terms.” Id.

at 771.

The Clean Air Act’s guidance — the constraints on the

reach of agency authority in section 108, the statutory

21

standards in section 109, the required consultation with

expert scientists, the definition of public welfare in sec-

tion 302(h), and the legislative history’s determination of

what groups should be protected by the NAAQS - is

considerable. Certainly, the grant of legislative authority

in the Clean Air Act provides no warrant for departing

from more than half a century of consistent practice

upholding congressional delegations.

D. The D.C. Circuit’s reliance on Schechter Poultry

is misplaced

The panel majority’s arguments casting doubt on the

constitutionality of the congressional delegation rely pri-

marily on Schechter Poultry. See Pet. App. 12a. None of

these arguments, however, has any merit.

The D.C. Circuit stated that “[t]he standards in ques-

tion affect the whole economy, requiring a ‘more precise’

delegation than would otherwise be the case.” Pet. App.

12a. Like almost all regulations, the NAAQS “affect the

whole economy” in the sense that they affect the price of

certain goods, which in an interrelated economy, may

affect the prices of other goods and services. But the

NAAQS regulate only the concentration of air pollution,

and as discussed in Part III.A, supra, apply only to a

subset of air pollutants, only to pollutants in ambient air,

and only to pollutants emitted by certain types of

sources. That is a far cry from the all-encompassing,

multifaceted delegation of the NIRA, which gave the

President the authority to establish “codes of fair compe-

tition” governing a broad set of issues, including wages

and hours as well as marketing and competitive practices

for a broad set of industries. See Schechter Poultry, 295

U.S. at 521-24; Panama Refining, 293 U.S. at 405-10.

22

Furthermore, the delegation under the Clean Air Act

does not exhibit the features that were problematic in

Schechter Poultry. First, there is no delegation to private

individuals. See Mistretta, 488 U.S. at 373 n.7; Yakus, 321

U.S. at 424; Schechter Poultry, 295 U.S. at 537.

Second, the D.C. Circuit itself acknowledged that

EPA’s interpretation of the terms “endanger public

health” in section 108(a)(1)(A) and “requisite to protect

the public health” in section 109(b)(1) is informed by the

meaning these terms have in the medical community. See

Pet. App. 15a-16a. In contrast, in Schechter Poultry, the

concept of “fair competition” had no meaning that could

be ascertained from external sources. See Schechter Poul-

try, 295 U.S. at 531-33.

A third problem with the NIRA was the absence of

administrative procedures, which made it difficult for the

courts to assess how the President had carried out his

delegated discretion. See Schechter Poultry, 295 U.S. at

533-34; Panama Refining, 293 U.S. at 431-32. The Clean Air

Act, in contrast, contains extensive procedural protec-

tions. Section 307(d) requires the Administrator to follow

notice-and-comment rulemaking procedures that are

more extensive than those prescribed in the APA. Com-

pare 42 U.S.C. § 7607(d)(2)-(7) with 5 U.S.C. § 553(b)-(c).

For example, section 307(d) requires EPA to establish a

“rulemaking docket” open to the public; to place in this

docket communications with the Office of Management

and Budget pursuant to any interagency review process;

and to provide interested persons with an opportunity

for “oral presentation of data, views, or arguments.” 42

U.S.C. § 7607(d)(2), (4)(A), 4(B)(ii), (5). Moreover, as dis-

cussed in Part III.A, supra, the Administrator must

appoint an independent scientific committee to review

and recommend revisions to the criteria documents and

"ee? ear wee

ee ie

23

the NAAQS, and must explain her reasons for departing

from the committee’s recommendations. See 42 U.S.C.

§§ 7409(d)(2), 7607(d)(3).

In summary, the Clean Air Act does not present any

of the problems that led the Court to declare unconstitu-

tional the delegation at issue in Schechter Poultry.

E. The D.C. Circuit also is mistaken in maintain-

ing that broad delegations are permissible only

in special circumstances

The D.C. Circuit also suggested that this case is

unlike ones in which broad delegations were upheld

because it does not involve ” ‘special theories’ justifying

vague delegations such as the war powers of the Presi-

dent or the sovereign attributes of the delegatee.” Pet.

App. 12a. But, as discussed in Part III.C, supra, in recent

years, the Court has upheld broad delegations in cases

that do not implicate such “special theories.” See, ¢.g.,

Touby, 500 U.S. at 165-67 (delegation to the Attorney

General to designate controlled substances); Mistretta, 488

U.S. at 371-79 (delegation to the U.S. Sentencing Commis-

sion to promulgate sentencing guidelines).

IV. THE D.C. CIRCUIT ERRED IN HOLDING THAT

EPA’S AUTHORITY TO IMPLEMENT THE

8-HOUR OZONE STANDARD IS CONSTRAINED

BY SECTION 181 OF THE CLEAN AIR ACT

A brief review of the structure of the nonattainment

provisions of the Clean Air Act reveals why the D.C.

Circuit was mistaken in holding that section 181 con-

strains EPA’s authority to implement the 8-hour ozone

24

standard of 0.08 ppm promulgated in 1997.4 The Clean

Air Act’s nonattainment provisions govern the regulation

of areas that do not meet the NAAQS. Subpart 1, entitled

“Nonattainment Provisions in General,” applies to all of

the pollutants for which EPA has promulgated NAAQS.

See 42 U.S.C. §§ 7501-7509a. Subparts 2 through 5 deal

with additional pollutant-specific provisions. See id.

§§ 7511-7514a. In particular, Subpart 2, entitled “Addi-

tional Provisions for Ozone Nonattainment Areas,”

applies to ozone. See id. §§ 7511-7511f.

Both the general provisions of Subpart 1 and the

specific provisions of Subpart 2 prescribe dates by which

the NAAQS must be attained. In Subpart 1, section

172(a)(2) provides, in language added by the 1990 amend-

ments, that primary standards must be met

as expeditiously as practicable, but no later than

5 years from the date such area was designated

nonattainment under section 7407(d) of this

title, except that the Administrator may extend

the attainment date to the extent the Adminis-

trator determines appropriate, for a period no

greater than 10 years from the date of designa-

tion of nonattainment .. .

Id. § 7502(a)(2)(A). (Two additional one-year extensions

are also possible. Id. § 7502(a)(2)(C).) Section 172(a)(2)

also requires that secondary standards be met “as expe-

ditiously as practicable” but imposes no outside limit on

that time. Id. § 7502(a)(2)(B).

4 This brief focuses on the merits rather than the

justiciability of the implementation issues. Amicus

Environmental Defense has argued before the lower courts that

EPA did not resolve important implementation issues in the

NAAQS rulemaking with finality. See Environmental Defense

Fund v. Browner, No. 98-1363 (D.C. Cir.); Idaho Clean Air Force v.

EPA, Nos. 99-70289 & 99-70576 (9th Cir.).

25

In addition, section 172(a)(2) defines when the attain-

ment dates in Subpart 1 are inapplicable: “This paragraph

shall not apply with respect to nonattainment areas for

which attainment dates are specifically provided under

other provisions of this part.” Id. § 7502(a)(2)(D)

(emphasis added). As exceptions to the general rule of

section 172, provisions containing such attainment dates

must be construed narrowly. See Commissioner v. Clark,

489 U.S. 726, 739 (1989).5

Section 181 in Subpart 2, which was also added by

the 1990 amendments, contains such “specifically pro-

vided” attainment dates: “[T]he primary standard attain-

ment date for ozone shall be as expeditiously as

practicable but not later than the date provided in table

1.” Id. § 7511(a)(1). The outside time limits for attainment

contained in table 1 range from 3 years after November

15, 1990, in the case of areas in which the level of nonat-

tainment is “marginal” to 20 years after November 15,

1990, in the case of areas in which the level of nonattain-

ment is “extreme.” Id.

Section 181(a)(1), however, provides only “the pri-

mary standard attainment date.” 42 U.S.C. § 7£11(a)(1)

(emphasis added). Because attainment dates for the sec-

ondary standards are not “specifically provided” in sec-

tion 181 or elsewhere in Subpart 2, the attainment of such

standards is governed by the general provisions of sec-

tion 172(a)(2) in Subpart 1. Thus, nothing in section 181

can constrain EPA’s authority to require attainment of the

secondary standards “as expeditiously as practicable.” In

5 Thus, this is not a situation in which the statute contains a

general provision and a specific provision but does not specify

how they interrelate. The canon that “the specific governs the

general” is therefore inapplicable. See Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 384 (1992).

26

granting in part the petition for rehearing, the D.C. Cir-

cuit recognized as much, retracting an inconsistent con-

clusion in the original panel opinion: “Therefore, we

conclude that Subpart 2 erects no bar to the EPA’s requir-

ing compliance with a revised secondary ozone NAAQS

‘as expeditiously as practicable.’ ” Pet. App. 80a-81a.

Moreover, the attainment dates in section 181 apply

to only one primary standard for ozone: the 1-hour pri-

mary standard of 0.12 ppm, which was the only ozone

NAAQS in effect in 1990 at the time section 181 was

added to the Clean Air Act. See 44 Fed. Reg. 8202 (1979)

(codified at 40 C.F.R. § 50.9(a)). Indeed, the outside time

limits for attainment contained in table 1 classify nonat-

tainment areas by reference to the amount by which their

ambient air quality levels - referred to as “design

value[s]” in the statute - exceed the 0.12 ppm standard.

See 42 U.S.C. § 7511(a)(1). So, for example, if EPA were to

revise the 1-hour standard to 0.10 ppm, the outside time

limits for areas with design values between 0.10 ppm and

0.12 ppm simply could not be determined on the basis of

table 1, since the table does not provide such time limits -

“specifically” or otherwise — for areas with concentration

below 0.12 ppm.

Even with respect to areas with design values higher

than 0.12 ppm, the congressional balancing between envi-

ronmental protection and economic growth reflected in

the outside time limits for attainment in table 1 would no

longer be applicable. This balancing was performed for a

standard of 0.12 ppm and would not necessarily be the

same if subsequent information, giving rise to the pro-

mulgation of the more stringent standard of 0.10 ppm,

revealed that the environmental problem was more

serious than was known at the time of the adoption of the

0.12 ppm standard.

27

There is another reason why the scheme in section

181 cannot apply to the standard under review. The 0.12

ppm standard in effect at the time of the 1990 amend-

ments used a 1-hour averaging period. 44 Fed. Reg. at

8218. (For this reason, it is referred to as the 1-hour

standard.) In contrast, the NAAQS under review uses an

8-hour averaging period. 62 Fed. Reg. at 38,861-63. The

ambient air quality levels computed under these different

averaging periods are not directly comparable.

As indicated in Part III.B, supra, if two ambient stan-

dards prescribe the same maximum permissible concen-

tration but have different averaging periods, the stai.dard

with the longer averaging period is the less stringent one.

Lower concentrations during part of the longer period

can offset higher concentrations during another part of

that period in a way that would not be possible if the

averaging period were shorter. If after section 181 was

enacted, EPA had retained the 0.12 ppm level but

extended the averaging period to 8 hours, there is no

reason to believe that Congress would have wanted to

apply the outside time limits set forth in section 181 to

these less stringent standards. It might, for example, have

believed that the less stringent standards should be

attained in shorter time periods.

The D.C. Circuit’s principal argument in support of

its conclusion that section 181 in Subpart 2 constrains

EPA’s authority to implement the 8-hour standard of 0.08

ppm is wholly without merit. According to the D.C.

Circuit, great weight must be placed on the fact that

section 181(a)(i) in Subpart 2 makes a reference to section

107(d), 42 U.S.C. § 7407(d): “Each area designated nonat-

tainment for ozone pursuant to section 7407(d) of this

title shall be classified at the time of such designation,

under table 1, by operation of law, . . . based on the

28

design value for the area.” 42 U.S.C. § 7511(a)(1); see Pet.

App. 37a-43a, 79a-80a. The D.C. Circuit reasoned that if

section 181 was intended to apply only to the NAAQS for

ozone in effect at the time of the 1990 amendments, the

reference in section 181 would have been, instead, to

section 107(d)(1)(C) and (d)(4). See Pet. App. 38a-42a,

79a-80a. Both section 107(d)(1)(C) and (d)(4) deal with the

designation of nonattainment areas immediately follow-

ing the 1990 amendments: section 107(d)(1)(C) applies

generally whereas section 107(d)(4) specifically covers

ozone. See 42 U.S.C. § 7407(d)(1)(C), (d)(4).

The argument conerning the reference to section

107(d) is far from convincing because it would strain

neither logic nor the English language to read the refer-

ence to section 107(d) as applying only to the portions of

section 107(d) that are relevant to the setting of the attain-

ment dates under section 181. For example, it would not

be unnatural to say that section 110 of the Clean Air Act

constrains interstate pollution that contributes to the non-

attainment of the NAAQS when in fact this requirement

is to be found in section 110(a)(2)(D)(i)(1). See 42 U.S.C.

§ 7410(a)(2)(D)(i)(I).

Moreover, as the preceding discussion shows, the

application of section 181 to ozone NAAQS other than the

1-hour 0.12 ppm standard in effect at the time of the 1990

amendments would give rise to a number of illogical

results. The reference to section 107(d) cannot trump the

analysis showing why section 181(a)(1) does not “speci-

fically provide[]” attainment dates for other ozone

NAAQS, particularly since there is a plausible interpreta-

tion of this reference that avoids such illogical results.

Neither should this reference be read to stand in the way

of EPA’s authority to implement standards that it revises,

pursuant to congressional direction, under section 109(d).

29

Finally, a more searching statutory inquiry wholly

disposes of the D.C. Circuit’s core argument. Section 172,

like section 181, refers to the “designation of an area as a

nonattainment area pursuant to section 7407(d).” 42

U.S.C. § 7502(a)(1)(A); see id. § 7502(a)(2)(A). But, the

references to section 107(d) designations in section 172

cannot possibly refer to section 107(d)(1)(C) and (d)(4),

which apply to the designations for the 1-hour ozone

standard in effect at the time of the 1990 amendments.

Unquestionably, the classifications and corresponding

attainment dates for the pre-existing 1-hour 0.12 ppm

ozone NAAQS are “specifically provided” for these areas

in section 181 of Subpart 2.

Therefore, the reference to section 107(d) contained

in section 172 cannot refer to all of section 107(d). Instead,

it must refer only to those portions of section 107(d) that

are relevant to the establishment of attainment dates

under section 172: section 107(d)(1)(A), (B) and (d)(3). See

42 U.S.C. § 7407(d)(1)(A), (B), (d)(3). It follows that the

reference to section 107(d) contained in section 181

should be interpreted, in the same way, to mean only the

portions of section 107(d) - namely, subsections (d)(1)(C)

and (d)(4) — that are relevant to the establishment of

attainment dates under section 181.

The D.C. Circuit correctly invoked the standard

canon of statutory construction that ” ‘identical words

used in different parts of the same act are intended to

have the same meaning.’ ” Pet. App. 80a (citing Gustafson

v. Alloyd Co., 513 U.S. 561, 570 (1995)). But the D.C.

Circuit erred in applying the canon: the only way that the

references to section 107(d) in section 172 and 181 can be

given the same meaning is by interpreting these refer-

ences to apply only to the portions of section 107(d) that

30

are relevant for the establishment of the attainment dates

under the respective provisions.

In summary, an understanding of the structure of the

nonattainment provisions of the Clean Air Act compels

the conclusion that section 181 does not constrain EPA’s

authority to implement the 8-hour standard of 0.08 ppm

promulgated in 1997. At the very least, it follows that

EPA’s interpretation to that effect is permissible and not

inconsistent with the clear intent of Congress. See 62 Fed.

Reg. at 38,884-85. Thus, Chevron, 467 U.S. at 842-43,

requires courts to accord deference to this interpretation.

CONCLUSION

For the foregoing reasons the judgment of the D.C.

Circuit should be reversed. The promulgation of the

NAAQS for ozone and particulate matter did not give

rise to any nondelegation problems and nothing in sec-

tion 181 constrains EPA’s authority to implement the

ozone standard.

Respectfully submitted.

RicHarpD L. Revesz

Counsel of Record

Vickie PATTON

ANN BrewsTER WEEKS

Counsel for Amici Curiae

Environmental Defense, et al.

July 21, 2000