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

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Supreme Court, U.S,

FILED

No. 99-1257 SEP 1 1 2000

Supreme Court of the Uited States —

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

BRIEF OF RESPONDENTS AMERICAN

TRUCKING ASSOCIATIONS, INC., CHAMBER OF

COMMERCE OF THE UNITED STATES, ET AL.*

ROBIN S. CONRAD

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for Respondent

Chamber of Commerce of the

United States

EDWARD W. WARREN

Counsel of Record

ROBERT R. GASAWAY

JEFFREY B. CLARK

DARYL JOSEFFER

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5000

CHARLES FRIED

1525 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-4636

Counsel for Respondents

American Trucking Associations, Inc.

and Chamber of Commerce of the

United States

*Additional Parties and Counsel Listed on Inside Cover

September 11, 2000

BEST AVAILABLE COPY

lO Sof

BETH L. LAW

ROBERT S. DIGGES

ATA LITIGATION CENTER

2200 Mill Road

Alexandna, VA 22314

Counsel for American Trucking

Associations, Inc., Burns Motor

Freight, Inc., Garner Trucking, Inc.,

and Genie Trucking Line, Inc.

GARY H. BAISE

ELIZABETH S. POLINER

BAISE, MILLER & FREER, P.C.

1020 19th Street, N.W.

Suite 400

Washington, D.C. 20036

Counsel for Equipment

Manufacturers Institute

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

Counsel for National Small

Business United, The American

Portland Cement Alliance, and The

Glouster Company, Inc.

ERIKA Z. JONES

TIMOTHY S. BISHOP

ADAM C. SLOANE

MAYER, BROWN & PLATT

1909 K Street, N.W.

Washington, D.C. 20006

Counsel for American Farm Bureau

Federation

ROBERT R. GASAWAY

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

Counsel for American Road and

Transportation Builders

Association

JAN S. AMUNDSON

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Counsel for National Association

of Manufacturers

DIMETRIA G. (JIM) DASKAL

THE DASKAL LAW GROUP

3 Church Circle

Suite 500

Annapolis, MD 21401

Counsel for National Coalition of

Petroleum Retailers

DOUGLAS I. GREENHAUS

NATIONAL AUTOMOBILE

DEALERS ASSOCIATION

8400 Westpark Drive

McLean, VA 22102

Counsel for National Automobile

Dealers Association

JEFFREY L. LEITER

CHET M. THOMPSON

COLLIER, SHANNON, RILL &

SCOTT

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

Counsel for Non-Ferrous

Founders’ Society

(i)

QUESTIONS PRESENTED

1. Whether the Court of Appeals correctly rejected the

Environmental Protection Agency’s (“EPA’s’’) standardless

interpretation of Sections 108 and 109 of the Clean Air Act

(“the Act’).

2. Whether the Court of Appeals acted within its

jurisdiction in reviewing, as a final agency action ripe for

review, EPA’s ruling that it can implement a revised National

Ambient Air Quality Standard (“NAAQS”) for ozone pursuant

to its general implementation authority under Section 172 of

the Act, notwithstanding Congress’ enactment of a specific

implementation schedule for the ozone NAAQS in Section 181

of the Act.

3. Whether the Court of Appeals correctly held that the

specific classifications and attainment dates set forth in Section

181 of the Act for the ozone NAAQS take precedence over

EPA’s general authority to devise classifications and attainment

dates for the various NAAQS pursuant to Section 172 of the

Act.

(1)

RULE 29.6 STATEMENT

The respondents joining this bnef are: American Trucking

Associations, Inc., Chamber of Commerce of the United States,

National Coalition of Petroleum Retailers, Burns Motor

Freight, Inc., Garner Trucking, Inc., Genie Trucking Line, Inc.,

National Automobile Dealers Association, National

Association of Manufacturers, National Small Business United,

The American Portland Cement Alliance, The Glouster

Company, Inc., Non-Ferrous Founders’ Society, Equipment

Manufacturers Institute, American Farm Bureau Federation,

and American Road and Transportation Builders Association.

None of these respondents has any parent corporations, and

no publicly traded company owns 10 percent or more of any of

these respondents’ stock.

(111)

TABLE OF CONTENTS

Page

aa ae re rae l

PERTINENT STATUTORY AND REGULATORY

ERE Re SUS e Srey are 2

COUNTERSTATEMENT OF THE CASE............. 3

SUMMARY OF THE ARGUMENT ................. 3

Ee ee 7

I. NONDELEGATION CONCERNS REINFORCE

THAT THE CLEAN AIR ACT REQUIRES A

COMMON SENSE BALANCING OF COMPETING

FACTORS IN SETTING NATIONAL AMBIENT

AIR QUALITY STANDARDS .................. 7

A. The Administrator, Bound by Lead Industries,

Effectively Concedes Here the Absence of the

Sort of Intelligible Principle Previously Accepted

by This Court in Ratemaking and Similar Cases

Presenting Questions of Degree .............. 1]

B. The Administrator Cannot Escape Her Concession

That There Was No Intelligible Principle Here by

Attempting to Rewrite the Record ............ 15

C. Repudiating Lead Industries and Requiring

Consideration of Competing Factors in Setting

NAAQS Will Supply the Missing Intelligible

Principle and Resolve the Nondelegation

SE noccevadeueundsue 06eeeueenesees 21

(iv)

II. THE COURT OF APPEALS’ IMPLEMENTATION

HOLDING IS CORRECT, BUT NEED NOT BE

REACHED BY THIS COURT. ................. 25

A. The Court of Appeals Correctly Held that

Subpart 2 Applies to Implementation of All

Ozone NAAQS, Including Revised Ozone

NAAQS, Thus Effectively Precluding

Implementation of the Ozone NAAQS Under

PET 60écsseenaeédeeueedessesuss +< 25

1. The Text of Subpart 2 Unambiguously

Encompasses Implementation of All Ozone

seca hevesens 6b060eeeas taeen Ty

2. The Statutory Structure and Legislative

History Confirm that Subpart 2 Governs

Implementation of All Ozone NAAQS ..... 32

3. Congress’ Carefully Crafted Statutory Regime

Does Not “Lead to Unworkable and Absurd

Dn <5 sens sew eeUhebLesaenenbens 38

B. Although the Subpart 2 Issues Are Ripe for

Review, The Court Nonetheless May Decline to

i. (oh séueueheeedsewsesnneeones 41

EY 6. 0o0 6 oecceunedsecnsecsaeseneecencs 48

(v)

TABLE OF AUTHORITIES

Page

Cases:

Amalgamated Meat Cutters & Butcher

Workmen of N. Am.,

AFL-CIO v. Connally,

337 F. Sapp. 737 (D.DC. 1971)... 2 ccc ccccces 23, 24

American Lung Ass'n v. EPA,

a as Ge DOU bcccccccsessecccese 17

American Power & Light Co. v. SEC,

i is on oo cc cece eens 10, 12

Association of Inv. Brokers v. SEC,

676 F.2d 857 (D.C. Cir. 1982) .................. 46

AT&T Co. v. FCC,

ee i pc eeckawsceeeces 44

AT&T Corp. v. Iowa Utils. Bd.,

EE a 10, 17

Boston Tow Boat Co. v. United States,

eee 47

Burlington Truck Lines, Inc. v. United States,

ee ceo ue scab aie ae 17

California v. Rooney,

I i a a a eg dle 47, 48

Chevron U.S.A. Inc. v. NRDC,

ee ee leek a oe 26, 45

Christensen v. Harris County,

RE ee a err = 22

(vi)

City of Santa Rosa v. EPA,

534 F.2d 150 (9th Cir.), vacated sub nom.

Pacific Legal Found. v. EPA,

EE ccc ncescedscasadedeas canes 36

Clinton v. City of New York,

en ccndaseebsinbecdhbebbane Os 10

Coalition for Clean Air v. Southern

Cal. Edison Co.,

See EE OED: cbcccdscvsdecesdees 37

Dole v. United Steelworkers of Am.,

bccn wad l ene davenuseene tes 32

EPA v. Brown,

ED 6 ci oss chee odeeededeses vases 36

Ethyl Corp. v. EPA,

Pe MED o6ckcocdeoseeceenvess 20

Fahey v. Mallone,

ED xsiatedcdbesitacssateeudus 10

FDA v. Brown & Williamson Tobacco Corp.,

i CD «5.66 60660660 00660000508 22

FEA v. Algonquin SNG, Inc.,

i. Css veSewsedddededehene ces 9

FPC v. Hope Natural Gas,

ee ais ceskccenbenvane 4, 13, 14, 16

Hahn v. United States,

EE Pe Per re Te 46

Hoctor v. United States Dep't of Agric.,

Se Pee SPRUE GUD ccccccccncecevcceses 13

ICC v. Goodrich Transit Co.,

i st ccsvicsupecadeneanseseve 14

Industrial Union Dep't v. American Petroleum Inst.,

ED 660 vuscveseceeenseenss 6, 9, 23

(vii)

INS v. Cardoza-Fonseca,

ee 36

International Union, United Auto., Aerospace

& Agric. Implement Workers of Am.,

UAW v. OSHA,

938 F.2d 1310(D.C. Cir. 1991) .......... 3, 6, 22, 23

J.W. Hampton & Co. v. United States,

SD <ceeusutees 600000008 10, 13, 16

Kent v. Dulles,

ED onc osekkcescedadeeeedeedss 12

Lichter v. United States,

TE oc cutccakssdeenescnsdessces 14

Loving v. United States,

a eT c6bcpecesusceuceess60606h89 8

Mahoney v. Babbitt,

Se ee ee GE CUED ceccccecsccnccoces 46

MCI v. AT&T,

++ 000066000 dueeeed eennanes 22

Mistretta v. United States,

ED bens esccscvcceveveees 8-10, 23

Montana v. Crow Tribe of Indians,

EE cc dene scbhescecbeseevessens 46

Morales v. Trans World Airlines, Inc.,

EE st bcccbenbbdssedceeeens 26, 31

Motor Vehicle Mfrs. Ass'n. v. State

Farm Mut. Auto. Ins. Co.,

i « .dadcsebeosendeedeesesnss’ 23

National Cable Television Ass'n v. United States,

nT So +cendnndeaneneenstaes 10, 23

New York Trust Co. v. Eisner,

in éeveneg 6 beeseeee-oeuesssees 38

(vill)

Pearson v. Shalala,

164 F.3d 650 (D.C. Cir. 1999) ......... ccc eeeees 17

Pennsylvania Dep't of Corrections v. Yeskey,

En os CcccudeenedeuseeeeeNuus 31

SEC v. Chenery Corp.,

ED kvckideednddabepeuseneasen 18

Seminole Tribe v. Florida,

i es eg oe weseueaus 46

Sunshine Anthracite Coal Co. v. Adkins,

ED pc bockcuduedascacedésesoee 14

Texas v. Hopwood,

ee cctcede ven snuseeweewente 47

Touby v. United States,

EE eS od cence debeuedaeuter 12

United States v. Chicago, Milwaukee,

St. Paul & Pac. R.R.,

EE oon oc bre dn dbane bane eheene 12

Webster v. Doe,

ED eee nendascantsssiwéaee estes 12

Williams Gas Processing-Gulf Coast Co. v. FERC,

, SGD Fal SEE ie GE COED cvcccccccceecoeses 47

Yakus v. United States,

4 rrr ere 8,14

Statutes:

Administrative Procedure Act,

PEED wéccub ddecasdtcdadnsenessouwn 12

Administrative Procedure Act,

Pes ED -b 6 cn 0neteddded5s5sbesdennes 12

(ix)

Clean Air Act § 107(b-d),

Se ae OES conc eeaceerneccesectnens 26

Clean Air Act § 107(d)(1)(A),

es Fe PED wovcccceesouccusuasns 28

Clean Air Act § 107(d)(1 (A)(i11),

42 U.S.C. § 7404(d)(1 (Aili) «2... eee eee. 39

Clean Air Act § 107(d)(1)(B)(i),

42 U.S.C. § 7407(d) 1K B)i) .............00000 28

Clean Air Act § 107(d)(4)(A)(i),

GEUBA. O PSP ccc cccccccccceccses 31

Clean Air Act § 109(d)(1),

ee ED bb bb ed dncdeececcdacnouse 39

Clean Air Act § 110(a)(2)(A),

42 U.S.C. § 7410(aX(2M(A) ........... ide cenwen 36

Clean Air Act § 116,

I rn rene re 40

Clean Air Act § 172(a)(1, 2),

ee CLE ccc ccdccceuusacduveseds 37

Clean Air Act § 172(a)(1)(A),

te REED os bc cdiceuveses 26, 27, 30

Clean Air Act § 172(a)(1)(C),

GRUB. © TPE cc cccccccccscscces 27, 30

Clean Air Act § 172(a)(2)(A),

se PED ccc occtdduccecuc¥s bac 27

Clean Air Act § 172(a)(2)(D),

Ce es te PEED eee caccocdceudeveeees 27

Clean Air Act § 181(a)(1),

Ge Gece OF PRE EEED 6.6.5 4c cdccwas 27, 28, 33, 37, 41

Clean Air Act § 181(a)(4, 5),

ee ETD nbn cnkcicedecusbatees 34

(x)

Clean Air Act § 181(b)(1),

ee ED i ceeded et uaa 34

Clean Air Act § 181(b)(2, 4),

tt SL coi ci ctw ce wea ee eeeeaes 34

Clean Air Act § 181(b)(4)(D),

ee PEED gwen ccvcccccecccanse 33

Clean Air Act § 181(c)(3),

ee SE ook od eee eeshuekeneens 40

Clean Air Act § 182,

EI o6 ov adcasucbusccunevestasées 34

Clean Air Act § 182(c)(5),

42 U.S.C. § 751la(c)(5) ........ eee eT -%.. 34

Clean Air Act § 182(e)(3),

42 U.S.C. § 7T51la(eX3) ...... 0. eee eee eee 34

Clean Air Act § 183(g), :

st OD oda sewnbeeecdaneenees cons 33

Clean Air Act § 185,

Es oo es ees eden keen ender 34

Clean Air Act § 186(a),

gi et ood pe teeta es 32

Clean Air Act § 186(a)(1), -

A IP rn evn 29

Clean Air Act § 188(a)(1),

bb ok ed eevee ucuuduecwen 29

Clean Air Act § 191(a)(1),

Ss ED 6 vec a ceendeetse cadena due 29

Pub. L. 95-95, 91 Stat. 691 (Aug. 7,1977) ............ 37

Pub. L. 101-549, 104 Stat. 2339,

§ 711(b) (Nov. 15, 1990) ........... 0. eee ee. 40

(xi)

Se CD Cc ccewctdvdnceancenees 7

U.S. CONSTITUTION, Art. I, § 8, cl. 17 ................. 7

Miscellaneous:

36 Fed. Reg. 8,186 (Apr. 30, 1971) .................. 36

55 Fed. Reg. 35,625 (Aug. 31, 1990). ..........00000. 31

56 Fed. Reg. 56,694 (Nov. 6, 1991).................. 31

58 Fed. Reg. 51,735 (Sept. 30, 1993) ................ 23

61 Fed. Reg. 65,716 (Dec. 13, 1996) .............. 42, 43

62 Fed. Reg. 38,421 (July 18, 1997) ................. a4

62 Fed. Reg. 38,652 (July 18, 1997) .... 4,5, 11, 17, 19, 20

62 Fed. Reg. 38,856 (July 18, 1997) ......... 4,11, 43,44

63 Fed. Reg. 31,014 (June 5, 1998) .................. 44

63 Fed. Reg. 39,432 (July 22, 1998) ................. 44

64 Fed. Reg. 30,911 (June 9, 1999) .................. 44

H.R. 3030, 101st Cong. § 104 (1989),

reprinted in Il Senate Comm. on Env. and

Public Works, 103d Cong.,

Legislative History of the Clean Air

Act Amendments of 1990 (1993) ..........+-. 32, 35

H.R. Rep. No. 101-490, pt. 1, at 145-48 (1990),

reprinted in II 1990 Legislative History ........... 33

S. 1630, 101st Cong. § 101 (1990),

reprinted in III 1990 Legislative History ....... 35, 36

S. Rep. No. 101-228, at 10-12 (1989),

reprinted in V 1990 Legislative History ........ 33, 38

7 (xil)

Lisa Schultz Bressman, Schechter Poultry at the

Millennium: A Delegation Doctrine for

the Administrative State,

re ec eeneeeees 24

David Currie, THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF GERMANY (1995) ................00- 8

THE FEDERALIST NO. 47

ri. TEED oucccconccececeeetess 8

Lon Fuller, THE MORALITY OF THE LAW

8 rn er mere errr |

National Research Council, RETHINKING THE

OZONE PROBLEM IN URBAN &

REGIONAL AIR POLLUTION (1991) ............... 37

Richard A. Posner, THE PROBLEMS OF

JURISPRUDENCE (1990) .............. 0c. cee eee 17

Kenneth F. Rothman, et a/., MODERN EPIDEMIOLOGY

IS ee re ey ee 21

Cass R. Sunstein, /s the Clean Air Act Unconstitutional ?,

98 Mich. L. Rev. 303 (1999) ................. 5,18

WORKS OF THOMAS JEFFERSON

i cicuacuuessouee ab eee 6ekebanes 8

INTRODUCTION

The constitutional scholar Thomas Reed Powell has said,

“if you can think about something that is related to something

else without thinking about the thing to which it is related, then

you have the legal mind.” Quoted in Lon Fuller, THE

MORALITY OF THE LAW 4 (rev. ed. 1964). The Administrator’s

brief is a stunning display of the legal mind. The D.C.

Circuit’s holding that the Administrator’s ozone and particulate

matter (“PM”) National Ambient Air Quality Standards

(“NAAQS”) violated the Constitution depended upon— indeed,

was inextricably bound up in—the Lead Industries doctrine

that says she may not consider costs and other non-health

factors in setting those standards. Yet, the Administrator’s

brief nowhere even mentions the relationship of that doctrine

to the nondelegation holding below. That omission is telling,

for it was only the frank irrationality of Lead Industries which

produced the constitutionally fatal indeterminancy in the

Administrator’s exercise of her authority.

The Administrator points to many aspects of the Clean Air

Act (“CAA” or “Act”)}—particularly the elaborate procedures

she must follow and the consultation she must engage in before

setting standards, and the statutory injunction that she is to set

those standards at levels “requisite to protect the public health”

with an “adequate margin of safety.” Understood in a natural

and reasonable way as explained in our brief as cross-

petitioners, this statutory text provides a level of specificity that

may be deemed constitutionally adequate under this Court’s

decisions. But the Administrator, constrained by Lead

Industries, does not (and may not) understand those terms in a

natural and reasonable way. Without the bizarre gloss of Lead

industries, those criteria would make quite enough noise to

Industries, they make as much noise as one hand clapping. The

Court of Appeals reached its conclusion only because, if the

Act is interpreted to include a prohibition on considering costs

(including costs to health), terms like “requisite to protect the

public health” and “adequate margin of safety” are not just

vaguer and less determinate than they might be—they are

demonstrably, and as a matter of logic, wholly indeterminate.

This is, therefore, a rare, perhaps unique case in the

jurisprudence of the constitutional delegation doctrine. It is

that rare case where the general terms of the delegation have

been rendered meaningless by the lower court. And it is only

because of Lead /ndustries that this is so. Because she refuses

to come to grips with that fundamental fact, the Administrator’ s

brief is quite literally beside the point.

The Administrator also complains in Part I.B of her brief

that the Court of Appeals, in remanding the case to her,

misused the nondelegation doctrine to achieve inappropriate

judicial oversight of her administrative prerogatives. On the

premise that Lead /ndustries states the definitive interpretation

of the Act, the court below was correct that the Act provides

the Administrator no coherent guidance and therefore violates

the Constitution. Perhaps the Court of Appeals might have left

it at that, but, keeping in mind the teachings of Chevron, that

court cautiously remanded to the Administrator so that she

could have a last opportunity to attempt a constitutional

interpretation. Certainly the lower court should not be faulted

for taking such a deferential stance. But if, as we request in our

brief as cross-petitioners, this Court finally dispatches the

misbegotten Lead Industries doctrine, the Administrator would

also be free to set new Ozone and PM standards, albeit free of

the entirely irrational constraints of Lead Industries. In short,

the Court of Appeals, though hobbled by Lead IJndustries,

employed an entirely conventional remedy under the

circumstances.

PERTINENT STATUTORY AND REGULATORY

PROVISIONS

The statutory and regulatory provisions that are central to

the Administrator’s NAAQS standard-setting authority are set

forth in the Appendix to our cross-petitioners brief. See Cross-

Pet. App. la-16a. The portions of the Clean Air Act central to

the Subpart 2 issues are set forth in the Appendix to this brief.

COUNTERSTATEMENT OF THE CASE

Respondents rest on the Statement provided in their brief

as cross-petitioners. See Cross-Pet. Br. 2-25. The orders and

opinions below and the bases of this Court’s jurisdiction are

found at page 2 of that brief.

SUMMARY OF THE ARGUMENT

Lead Industries spawned the nondelegation holding below.

Under the governance of Lead Industries, the Administrator

had but two options when setting the ozone and PM NAAQS:

she could adopt a “zero-risk policy” setting the “permissible

levels of both pollutants here at zero” or she could select a non-

zero standard without considering the relevant factors that

might counsel in favor of or against any particular NAAQS.

See Pet. App. 15a; Cross-Pet. Br. 29. The Court of Appeals

recognized that the nondelegation concerns presented by each

of these options would disappear if the Administrator were only

able to employ “cost-benefit analysis,” which that court had

defined in an earlier case as “only a systematic weighing of the

pros and cons.”” Cross-Pet. Br. 30 (quoting /nternational

Union, United Auto., Aerospace & Agric. Implement Workers

of Am., UAW v. OSHA, 938 F.2d 1310, 1321 (D.C. Cir. 1991)

(“Lockout/Tagout I’)). And, while remanding to the

Administrator in light of Chevron, the Court of Appeals

nonetheless expressed doubt that any constitutional

interpretation of the statute was possible under the Lead

Industries doctrine. See Pet. App. 18a.

Several of this Court’s recent decisions, though not

expressly predicated on nondelegation concerns, would appear

to rule out both available options discussed by the Court of

Appeals (a zero-risk standard or an arbitrarily-selected non-zero

standard) and thus doom Lead Industries. See Cross-Pet. Br.

25, 31-32, 47. The Act’s text, structure and purpose likewise

confirm that Lead Industries was wrongly decided. See id. at

32-43. The correctness of that conclusion is reinforced both by

the need for transparency in the agency decisionmaking

process, see id. at 43-47, and by the requirements of effective

executive, congressional and judicial oversight of the

Environmental Protection Agency’s (“EPA’s” or “the

Agency’s”’) standard-setting, see id. at 47-50.

For all of these reasons, it is simply impossible to consider

the Court of Appeals’ nondelegation holding in isolation from

Lead Industries. With that reservation stated, we nonetheless

demonstrate below that the reasoning of the Court of Appeals

both underscores the error of Lead Industries and stands as an

independent basis for reversing EPA’s ozone and PM NAAQS.

The nondelegation doctrine flourishes in the soil of

constitutional bedrock. It requires, especially in cases

involving regulations that affect the whole economy, that the

elected Congress provide an “intelligible principle” governing

the exercise of unelected agency officials’ discretion. Here,

however, the Administrator disclaimed any need to accept a

governing principle at all, saying instead that her NAAQS

decisionmaking was “largely judgmental in nature” and

reflected “no generalized paradigm,” thus conceding the

absence of the requisite intelligible principle. See 62 Fed. Reg.

38,652, 38,688 (July 18, 1997); 62 Fed. Reg. 38,856, 38,883

(July 18, 1997). Her refusal under the Lead Jndustries doctrine

to weigh competing factors also cannot be squared with this

Court’s nondelegation precedents which presuppose a

balancing of logically relevant factors in ratemaking and

similar contexts in which questions of degree must be

administratively resolved. See, e.g., PC v. Hope Natural Gas,

320 U.S. 591, 603 (1944) (“[T]he fixing of ‘just and

reasonable’ rates, involves a balancing of the investor and the

consumer interests.”). See Part I.A, infra.

The Administrator has no answer to these points other than

to say that Congress imposed multiple specific restrictions on

EPA—for instance, “a body of experts that EPA is to consult

and procedures that EPA must follow”—and that the court

below somehow demanded that “EPA demonstrate that the

numerical standard the agency selected was the sole possible

choice.” EPA Br. 25, 30. These are red herrings. The

“intelligible principle” requirement means a substantive

constraint on the agency’s exercise of discretion, not simply a.

procedure to follow, even though that constraint need not be

(and usually is not) a rule that preordains the selection of a

unique outcome. All that is required is a standard against

which the agency’s exercise of discretion can be tested—for

example, the balancing of relevant factors in Hope Natural

Gas, or the “systematic weighing” of competing considerations

(including costs) that the Act requires here. See Cross-Pet. Br.

30, 32-50. By contrast, the Administrator consistently

disclaimed “any single approach” below and argued that

everything depends “upon the particular circumstances

confronting her in a given NAAQS review.” 62 Fed. Reg. at

38,688, 38,883. But such purely ad hoc decisionmaking

provides no intelligible principle and leads inevitably, as here,

to “minimally informative generalities” that do “not explain{],

in concrete terms, why [she] chose one level of regulation

rather than another.” Cass R. Sunstein, /s the Clean Air Act

Unconstitutional?, 98 Mich. L. Rev. 303, 327, 330(1999). The

Administrator perhaps belatedly recognizes this fatal flaw, as

she hints that she wishes that it were possible to find a guiding

principle by characterizing both ozone and PM as “threshold”

pollutants. See EPA Br. 31. In fact, the record is clear that EPA

made no such findings below, see Cross-Pet. Br. 6-7 (ozone),

14-16 (PM), a point the Administrator herself repeatedly

underscored in both the rulemakings themselves and her D.C.

Circuit briefing. See, e.g., Resp. Br. in D.C. Cir. No. 97-1440,

at 34, 119 (PM standards, like ozone standards, “could not be

risk-free” and “cannot eliminate all risk to public health.”). See

Part I.B, infra.

As the D.C. Circuit recognized in Lockout/Tagout I, no

more than the “prudential algebra” of Ben Franklin—‘“a

systematic weighing” of competing considerations (including

costs)}—is required to resolve the nondelegation problems

identified below. See 938 F.2d at 1321. That outcome,

required by the Act for the reasons detailed in our brief as

cross-petitioners, would obviate any need for aggressive

judicial construction (as in /ndustrial Union Dep't v. American

Petroleum Inst., 448 U.S. 607 (1980) (“Benzene’’)), while

leaving EPA with a wide scope of discretion in setting

NAAQS. The Court of Appeals’ remand remedy, though

fashioned within the shackles of Lead Industries, appropriately

recognized that the Agency should decide in the first instance

interpretative issues not resolved by Congress. Accordingly,

once Lead Industries is reyected, many issues (apart from the

central question of whether the Act requires a balancing of

competing factors in setting NAAQS) will remain for EPA to

resolve in the next round of ozone and PM rulemakings. See

Part L.C, infra.

The Court of Appeals’ Subpart 2 implementation holding

is also correct, even though the Court may elect not to reach it.

Congress enacted the detailed Subpart 2 classifications,

attainment dates and control strategies for the ozone NAAQS

precisely in order to deprive the Administrator of the

implementation discretion her predecessors had previously

exercised (so unsatisfactorily in Congress’ view) over the

previous two decades. The plain language, structure, drafting

history and context all confirm that Subpart 2’s long-term

blueprint for bringing the Nation into ozone attainment was

meant to last—certainly it is not the “drafting error that the

EPA’s interpretation implies.” Pet. App. 39a. See Part IIA,

infra. The Subpart 2 issue was also unquestionably ripe for

decision by the Court of Appeals, since the Administrator

promulgated her final decision on Subpart 2 as a key element

of the rulemaking. See Part II.B.1, infra. Nonetheless, this

Court may properly elect not to address the Subpart 2 issue for

the quite different reason that the Administrator’s arguments go

to the rationale of the decision below—not its ultimate result.

See Part I1.B.2, infra.

ARGUMENT

The argument presented in this bref is necessarily

provisional. As detailed in our brief as cross-petitioners, Lead

Industries was wrongly decided, and the Act requires a

weighing of competing factors in setting NAAQS. That

required weighing of factors is all that is needed for those

provisions of the Act to pass constitutional muster.

Nonetheless, the arguments presented below serve to deepen

the reasons why Lead Industries is wrong and provide an

alternative basis for decision if the Court were to affirm the

Lead Industries doctrine. Part II below separately addresses the

so-called Subpart 2 implementation issue and shows why the

Court of Appeals’ resolution of that issue was both

fundarnentally mght and ripe for decision.

I. NONDELEGATION CONCERNS REINFORCE

THAT THE CLEAN AIR ACT REQUIRES A

COMMON SENSE BALANCING OF COMPETING

FACTORS IN SETTING NATIONAL AMBIENT AIR

QUALITY STANDARDS.

While the issue may become academic if this Court rejects

Lead Industries, the nondelegation doctrine is far more

substantial and nuanced than the Administrator’s brief

pretends. The Constitution provides that “/a/i/ legislative

powers herein granted shall be vested in a Congress of the

United States... .”. U.S. Const. Art. I, § 1 (emphasis added);

see also id. § 8, cl. 17 (“The Congress shall have Power To...

make all Laws which shall be necessary and proper for carrying

into Execution the foregoing Powers”). The first three Articles

thus carefully distinguish between “legislative powers,” Art. I,

§ 1, “executive power,” Art. II, § 1, and “judicial power,”

Art. III, § 1, and divide them separately among the three

branches. The resulting rule forbidding delegations of

legislative power—-the nondelegation doctrine—teflects the

“central judgment of the Framers of the Constitution that,

within our political scheme, the separation of government

powers into three coordinate Branches is essent'al to the

preservation of liberty.” Mistretta v. United States, 488 U.S.

361, 380 (1989). As Madison warned, ““*[w]Jhen the legislative

and executive powers are united in the same person or body . . .

there can be no liberty, because apprehensions may ar se lest

the same monarch or senate should enact tyrannica/ iaws to

execute them in a tyrannical manner.”” THE FEDERALIST

No. 47, at 303 (Clinton Rossiter ed., 1961) (quoting

Montesquieu; emphasis omitted). The resulting threats to

liberty are not always obvious. See, e.g., David Currie, THE

CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 125-34

(1995).

The Court has recognized nonetheless that this

nondelegation principle must be tempered where it comes into

tension with the Nation’s paramount interest in having a

government capable of meeting the needs of modern society.

As Thomas Jefferson observed, “[n]othing is so embarrassing

nor sO mischievous in a great assembly as the detail of

execution.” 5 WORKS OF THOMAS JEFFERSON 319 (P. Ford ed.

1904). Thus, “[t]o burden Congress with all federal

rulemaking would divert that branch from more pressing issues,

and defeat the Framers’ design of a workable National

Government.” Loving v. United States, 517 U.S. 748, 758

(1996) (emphasis added). Needless to say, however, this

competing principle of governmental necessity has not

eliminated the nondelegation doctrine, nor lessened the

importance of the liberty concerns underlying its constitutional

role.

The Court has often accepted broad delegations. See, e.g.,

Yakus v. United States, 321 U.S. 414, 422-23 (1944) (wartime

price controls); Loving, 517 U.S. at 772-73 (delegation to

President of authority over armed forces); Mistretta, 488 U.S.

at 379 (delegation to courts of authority over criminal

sentencing); FEA v. Algonquin SNG, Inc., 426 U.S. 548, 559-

60 (1976) (delegation to executive branch of authority to

restrict imports threatening “to impair the national security”).

But it has always done so with the caveat that laws enacted by

Congress must contain some substantive intelligible principle

constraining any exercise of agency discretion. This is the rare

case where, because of Lead /ndustries, no such constraint is

present.

Mistretta is the precedent the Administrator relies on most

forcefully and frequently. See EPA Br. 21-25. Yet, it is

strikingly inapposite. Mistretta upheld the Sentencing Reform

Act of 1984, which empowers the United States Sentencing

Commission to establish sentencing guidelines. That statute

provided, first of all, that those guidelines “must be consistent

with the pertinent provisions [of Title 18] and could not include

sentences in excess of the statutory maxima.” 488 U.S. at 375.

Within these constraints, the Act directed the Commission to

consider seven elaborate and confining criteria as a means of

first, reducing the “serious disparities in sentences” detailed in

the Senate Report, and then, formalizing the previously

unfettered discretion of trial judges under the Title 18 limits.

Id. at 365, 375. Finally, the Act supplemented these criteria

with a number of specific directives requiring, for example, “a

term of confinement at or near the statutory maximum for

certain crimes” and “a substantial term of imprisonment [for]

a third felony conviction.” Jd. at 376-77.

Broad delegations are most problematic under the Court’s

decisions where, as here, the delegatee agency issues

regulations that drastically affect the whole economy. See, e.g.,

Benzene, 448 U.S. at 645 (plurality opinion) (“it is

unreasonable to assume the Congress intended to give the

Secretary the unprecedented power over American industry that

would result from the Government’s view”); id. at 675

(Rehnquist, J., dissenting) (statute failed to satisfy

constitutional standards “[e]specially in light of the importance

of the interests a stake”’); Fahey v. Mallone, 332 U.S. 245, 250

(1947) (delegations conferring power over “unprecedented

economic problems of varied industries” must be more precise

than those regarding “a single type of enterprise”); Clinton v.

City of New York, 524 U.S. 417, 487 (1998) (Breyer, J.,

dissenting) (delegation may be less precise where it does not

concern “the entire economy”). The problematic character of

such economy-wide ¢elegations is further heightened where

courts (as in Lead /ndustries) render otherwise constitutionally

acceptable text meaningless, or where agencies seek to do

likewise under an overly expansive reading of their own

authority under this Court’s Chevron doctrine. See AT&T

Corp. v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999).

The verbal formula devised by the Court for dividing

permissible from impermissible delegations is that Congress

itself “shall lay down by legislative act an intelligible principle

to which the person or body authorized to [exercise delegated

authority] is directed to conform.” J.W. Hampton & Co. vy.

United States, 276 U.S. 394, 409 (1928) (Taft, C. J.) (emphasis

added). The required intelligible principle may be drawn not

only from statutory text, but also from “the purpose of the Act,

its factual background, and the statutory context.” American

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

such a principle is not apparent from these sources, the Court

has not hesitated to “giv[e] narrow constructions to statutory

delegations that might otherwise be thought to be

unconstitutional.” Mistretta, 488 U.S. at 373 n.7 (citing

Benzene and National Cable Television Ass'n v. United States,

415 U.S. 336 (1974) (“NCTA’”’)).

As demonstrated below, the Administrator, bound as she

was by Lead Industries, effectively concedes that no such

intelligible principle governed her standard-setting here. All

her attempts to manufacture such a principle before this Court

are doomed by the record below and by the fact that no

constitutionally acceptable standard governing the exercise of

discretion is possible without consideration of the competing

factors barred from consideration by Lead Industries. By

contrast, the nondelegation problem that produced the decision

below is readily resolved by rejecting Lead Jndustries and

allowing the Administrator to formulate new ozone and PM

NAAQS constrained only by the requirement that she overtly

and systematically consider all logically relevant factors in

setting those standards.

A. The Administrator, Bound by Lead Industries,

Effectively Concedes Here the Absence of the Sort

of Intelligible Principle Previously Accepted by

This Court in Ratemaking and Similar Cases

Presenting Questions of Degree.

Perhaps understandably in light of Lead Industries, the

Administrator consistently has refused to give any definite

meaning to the key statutory terms, saying, for example, that

she “is not limited to any single approach to determining an

adequate margin of safety... .” 62 Fed. Reg. at 38,688,

38,883. Moreover, she admits that her decisions were “largely

judgmental in nature” and did not follow any “generalized

paradigm” such as determining “what risk is ‘acceptable””

through quantification “or any other metric.” /d. Before the

Court of Appeals, she continued to insist that “nothing in the

statute requires her to make any specific ‘findings’ or to

structure her decisionmaking in any particular way.” Resp. Br.

in D.C. Cir. No. 97-1441, at 43 (emphasis added). Put most

charitably, the Administrator did what she thought best.

But that is precisely what troubled the Court of Appeals.

See Cross-Pet. Br. 28-30. Given Lead Industries and accepting

her appraisal that it is “‘possible, but not certain’ that health

effects exist” at every level, the Administrator’s standard-

setting criteria become entirely indeterminate unless she

chooses “a standard of zero.” Pet. App. 10a-12a (quoting 62

Fed. Reg. at 38,678). To our knowledge no official (at least

none outside the foreign policy arena) has ever claimed such

regent authority. Compare Kent v. Dulles, 357 U.S. 116

(1958); Webster v. Doe, 486 U.S. 592 (1988). Nor has such an

assertion of authority ever been sustained—especially as

applied in an economy-wide regulatory context—under this

Court’s decisions which require a substantive “standard,”

United States v. Chicago, Milwaukee, St. Paul & Pac. R.R.,

282 U.S. 311, 324 (1931), or similar “constraint” on the

agency’s exercise of “discretion.” Touby v. United States, 500

U.S. 160, 165 (1991).

It is not hard to perceive in this Court’s nondelegation

decisions a distinction between dichotomous (either/or)

determinations (the sort that often result in an “order” under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 551(6)) and

those agency determinations which have general and

prospective effect (the sort that more typically produce “rules”

within the APA’s parlance, 5 U.S.C. § 551(4)). In the former

category, the Court often has not expressly discussed the

specific considerations that weigh on alternative sides of the

question of whether a license should be granted or denied, or a

specific practice permitted or forbidden. In American Power

& Light Company v. SEC, for example, the Court assumed

utility holding-company structures were permissible except in

cases where they would “unduly or unnecessarily complicate

the structure” or “inequitably or unfairly distribute voting

power among security holders.” 329 U.S. at 104. Without

expressly addressing the factors that must be balanced in

making that determination, the Court rejected a nondelegation

challenge, saying that “these standards” derive “much

meaningful content from the purpose of the Act, its factual

background and the statutory context,” and that “[f]rom these

sources,” as well as the “manifold evils revealed by the

legislative investigations,” “

a veritable code of rules reveals

itself for the Commission to follow.” Jd. at 104-05.

This Court’s nondelegation decisions, however, reflect a

greater need to weigh competing considerations when_ an

agency is making determinations of prospective effect,

especially ones involving setting numeric values, including

rates, prices or import duties. No doubt, this greater need for

consideration of competing factors derives in part from the fact

that setting numeric levels is quintessentially “legislative.” Cf.

Hoctor v. United States Dep't of Agric., 82 F.3d 165, 170-71

(7th Cir. 1996) (Posner, J.) (selection of a specific number is “a

legislative function”). But just as important, as the Court of

Appeals recognized, is the fact that the question in these cases

(including NAAQS standard-setting) is inherently “one of

degree.” Pet. App. lla. In ratemaking and similar numeric

rulemakings, agencies invariably retain flexibility in fixing the

right “stopping point” along the road but, to continue the

automotive metaphor, there must always be both a gas pedal

and brake in making that determination. See id.

This Court’s nondelegation decisions in ratemaking and

analogous numeric standard-setting contexts thus consistently

reflect this need to balance competing considerations. In FPC

v. Hope Natural Gas Company, for instance, the Court rejected

a nondelegation challenge because “the fixing of ‘just and

reasonable’ rates . . . involves a balancing of the investor and

the consumer interests.” 320 U.S. 591, 603 (1944) (emphasis

added). Consumers are thus entitled to “reasonable” rates,

while regulated entities must be permitted to recover revenue

to offset costs, including “revenue not only for operating

expenses but also for the capital costs of the business.” /d.

This same principle also holds in contexts where proxy

economic variables are used as a means of balancing the

competing interests. In J. W. Hampton, for example, the Court

sustained as “intelligible” a delegation to the President of

authority to set import duties “equal” to the difference between

domestic and foreign costs of production. 276 U.S. at 404-05.

To the same effect are this Court’s decisions rejecting

nondelegation challenges when agencies set prices by

determining the cost of production. See, e.g, Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S. 381, 397 (1940)

(upholding delegation to set coal prices yielding a “fair return”

based on measures of cost); JCC v. Goodrich Transit Co., 224

U.S. 194, 211 (1912) (upholding authority of ICC to set rates

of interstate carners based on assessment of the cost of

service). Still other cases endorse even more complex cost or

price measurements. See, e.g., Lichter v. United States, 334

U.S. 742, 793-802 (1948) (upholding delegation to recoup

excess wartime profits by reference to measurements of costs).

Even the very broad delegation in Yakus comported with this

model since the Price Administrator was required to consider

both base-period prices and (again, contrary to Lead Industries)

costs. See 321 U.S. at 421.

The principle underlying these decisions is obvious. If, by

analogy to Lead /ndustries, a lower court in Hope Natural Gas

had ruled that the Federal Power Commission (“FPC”’) were

barred from considering production costs or the interests of

suppliers in setting “just and reasonable” rates, then there

would have been no rational basis for setting those rates above

zero since consumers always benefit incrementally from lower

and lower rates. Under that hypothetical, a very different

nondelegation challenge would have been presented, but there

can be little doubt that this Court would have resolved that

challenge—not by striking down the statute—but instead by

overturning the lower court decision and interpreting the statute

to require a “balancing of the investor and consumer interests”

just as this Court actually did in Hope Natural Gas. See 320

U.S. at 603. The same reasoning applies directly in this case

and provides yet another reason for rejecting Lead Industries’

prohibition on considering competing factors in setting

NAAQS.

B. The Administrator Cannot Escape Her Concession

That There Was No Intelligible Principle Here by

.Attempting to Rewrite the Record.

The Administrator begins the critical subpart of her brief

by asserting that “Section 109 easily satisfies this Court’s

‘intelligible principle’ standard.” EPA Br. 22. That critical

subpart then continues for nearly four pages, at the end of

which the reader is just as puzzled as was the Court of Appeals

after wrestling with similar passages in briefing below: “These

sentences begged the key question about that intelligible

principle: ‘What is it?” Pet. App. 73a-74a. The fault lies, of

course, not so much with the Administrator but with Lead

Industries, a decision that logically reduces the Act’s statutory

directives to constitutionally inaudible “one-hand clapping,” by

precluding consideration of all factors “on the other hand” in

the setting of NAAQS. Under such circumstances, it is hardly

surprising that the Administrator is reduced to various

generalities like the following: “Congress has placed multiple

specific restrictions on EPA’s discretion in setting and revising

NAAQS . . . The Act prescribes the legal standard EPA is to

apply, factors that EPA is to consider, a body of experts that

EPA is to consult, and procedures that EPA must follow in

making its highly technical scientific judgments about the

health and welfare effects of particular pollutants.” EPA Br. 25

(internal quotation omitted).

What exactly does this passage mean? The reference to a

“legal standard” presumably is intended to refer to the text of

section 109, but, as noted previously, the Administrator has

refused to give any definite meaning to the statutory terms and

echoes Lead Industries which itself ignores the text and

statutory structure in favor of snippets of legislative history.

See Cross-Pet. Br. 33-42. As for the “factors that EPA is to

consider,” the Administrator must be referring to the “factors”

it cited to the Court of Appeals. See Pet. App. 5a-6a. But these

factors all point in only one direction and only restate the

“intuitive proposition that more pollution will not benefit

public health, not that keeping pollution at or below any

particular level is ‘requisite’ or not requisite to ‘protect the

public health’ with an ‘adequate margin of safety,’ the formula

set out by § 109(b).” Pet. App. 7a.

The Administrator’s intelligible principle thus reduces to

an unhelpful reliance on “experts” and “procedures.” But such

provisions, while often useful in helping to check discretion,

can serve their function only to the extent that Congress has

laid down an “intelligible principle” to which the agency “is

directed to conform.” J.W. Hampton, 276 U.S. at 409. The

very purpose of that required intelligible principle, of course,

is to provide the essential substantive touchstone for public

comments, expert advice and eventual judicial review. Indeed,

the Administrator herself concedes that point when she states

that the purpose of the nondelegation doctrine is to enable the

judiciary to “‘ascertain whether the will of Congress has been

obeyed.’” EPA Br. 22 (quoting cases).

The Administrator builds a straw man when she says that

the Court of Appeals demands, as the intelligible principle,

“that EPA demonstrate that the numerical standard the agency

selected was the sole possible choice.” EPA Br. 30. Again

referencing Lockout/Tagout I, the court below could not have

been clearer that the intelligible principle required need only be

‘a systematic weighing” of relevant considerations—a principle

entirely in keeping with the “zone of reasonableness” that

confines an agency’s exercise of discretion. See Pet. App. 14a-

15a; EPA Br. 30 (relying on FPC ratemaking cases). It is

precisely such a weighing of competing interests, for example,

that allowed the FPC to set rates based upon a “balancing of the

investor and consumer interests” under Hope Natural Gas and

the other Federal Power Commission cases cited by the

Administrator. 320 U.S. at 603. More generally, under this

Court’s decisions, an intelligible principle need not be a rule

that defines precise outcomes in all circumstances; indeed, in

most circumstances it need only be a standard against which an

agency’s exercise of discretion may be tested within the

rulemaking and on judicial review. Cf. Richard A. Posner, THE

PROBLEMS OF JURISPRUDENCE 42-61 (1990) (discussing the

rules/standards distinction in a variety of contexts).

The requirement of a substantive standard that serves as a

constraint on agency discretion is so fundamental to our

jurisprudence that the origins of this requirement are often

overlooked. See, e.g., Jowa Utils. Bd., 525 U.S. at 388. Such

a requirement is nonetheless implicit both in the Constitution

and in the Administrative Procedure Act. See e.g., American

Lung Ass'n v. EPA, 134 F.3d 388, 392-93 (D.C. Cir. 1998)

(“{T]ke Administrator may well be within her authority . . . .

But [she must] describe[{] the standard under which she has

arrived at this conclusion, supported by a ‘plausible’

explanation. . . .”) (emphasis added; brackets omitted); Pearson

v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999) (agency must

“giv[e] some definitional content” to the statutory standard

because “[t]o refuse to define the criteria it is applying is

equivalent to simply saying no without explanation’). Indeed,

without a substantive and “binding” standard to apply, as the

lower court observed, there can be no “meaningful judicial

review.” Pet. App. 14a.

Having previously conceded that her decisions were

“largely judgmental in nature” and did not follow any

“generalized paradigm,” 62 Fed. Reg. at 38,688, 38,883, the

Administrator now claims that “[iJn each case, EPA also

identified a /ower bound for consideration at the most

protective levels the scientific evidence reasonably supported.”

EPA Br. 31(emphasis in original). This claim hardly supplies

the missing intelligible principle but it bears remembering that

the Administrator may be upheld only “on the same basis

articulated in the [ruling] by the agency itself,” not on the basis

of “appellate counsel’s post hoc rationalizations.” Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69

(1962); accord SEC v. Chenery Corp., 332 U.S. 194, 196

(1947). The record below confirms that EPA here offered only

“minimally informative generalities” that do “not explain{], in

concrete terms, why [she] chose one level of regulation rather

than another.” Sunstein, 98 Mich. L. Rev. at 327, 330; see also

Pet. App. 71a-72a (referring to the same arguments made by

the Administrator here as post hoc arguments of counsel).

Beginning with ozone, the Administrator concedes the

absence of an “effects threshold” but argues that she

determined that “the lower bound—0.07 ppm—was the level

at which EPA’s exposure assessment showed that exposures of

public health concern were ‘essentially zero.’” EPA Br. 31-32.

The Administrator’s concession of a “no effects threshold” for

ozone echoes her previous statement that “it is not possible to

select a level below which absolutely no effects are likely to

occur.” 62 Fed. Reg. at 38,863; see Cross-Pet. Br. 6-7 (noting

similar statements in the EPA Staff Paper and by CASAC).

But the more important point is the one made by the Court of

Appeals—even if there were a possible threshold, that would

not avoid the “indeterminancy” of the Administrator’s

standard-setting process unless she affirmatively determined

what that threshold was and found that no health risks exist

below that level. See Pet. App. Sa-6a. Otherwise, there always

will be “‘possible, but not certain’” health effects at every level,

thereby producing the “same indeterminancy” that gave nse to

the lower court’s nondelegation holding. /d. at 10a-lla

(quoting 62 Fed. Reg. at 38,678).

The Administrator’s further claim that there are

“essentially zero” ozone “exposures of public health concern”

below 0.07 ppm is both circular and belied by the record. By

“exposures of concern” the Administrator is referring to her

own definition in the Federal Register that “exposures of

concern” mean “exposures at and above 0.08 ppm, 8-hour

average,” 62 Fed. Reg. at 38,860, thus making her statement

entirely tautological given that 0.07 ppm is less than 0.08 ppm.

Supporting her claim that 0.08 ppm has special health

significance, the Administrator now claims to have “identified

important and meaningful differences in the character of the

scientific evidence regarding risks—including the estimated

frequency and duration of adverse health effects—associated

with levels above and below 0.08 ppm.” EPA Br. 33. But

those supposed differences do not refute the presence of health

effects below the level selected by the Administrator. Nor has

the Administrator ever interpreted the statute as allowing her to

regulate only certain types of health risks and, as the court

below noted, the Administrator “never suggested that [she]

could not (or in a later rulemaking would not) base a NAAQS

upon evidence . . . that revealed adverse but transient effects.”

Pet. App. 73a.

In the case of PM, the Administrator now argues that her

newly-discovered “lower bound” consists of “the lowest level

at which long-term epidemiological data indicated there might

be an ‘effects threshold’ below which there is no risk of health

effects.” EPA Br. 31(emphasis added). As noted by the Court

of Appeals, the Administrator never made an affirmative

determination concerning whether PM was, or was not, a non-

threshold pollutant. Pet App. 6a. But that fact only confirms

the “indeterminancy” in the Administrator’s standard-setting

which (together with Lead Industries) elicited the non-

delegation holding below. See id. For unless the Adrninistrator

affirmatively determines a health effects threshold and sets the

standard with that threshold as the starting point, there always

will be “possible, but not certain’” health effects at every level.

Id. at 11a-12a (quoting 62 Fed. Reg. at 38,678). It is for this

very reason that the PM Staff Paper found that PM presents a

“continuum of exposures” such that “attempting to identify

‘[the] lowest observed effects level’ and adding margins of

safety below such levels is not an appropriate approach in this

case.” PMJA 2134-35. The Administrator accepted that EPA

Staff advice when setting the final PM standards. See 62 Fed.

Reg. at 38,673.

Significantly, the very passage from the PM Staff Report

cited by the Administrator in support her “lower bound” point,

see EPA Br. 31 (citing PMJA 2145, 2147), goes on to explain

that the level now relied upon by the Administrator as her

“lower bound” reflects “inherent limitations of the data for

discerning effects thresholds,” and it is “not likely to be risk-

free.” PMJA 2145-46, 2148. The Administrator herself

repeated this advice in the final PM rules, when she

acknowledged that her standards could not be “risk-free,” given

“the inherent uncertainties.” 62 Fed. Reg. at 38,665, 38,674.

She made the same point before the Court of Appeals, —

conceding that the PM standards, like the ozone standards,

“could not be risk-free” and “cannot eliminate all risk to public

health.” Resp. Br. in D.C. Cir. No. 97-1440, at 34, 119.

The conceded existence of PM health nsks below the

levels selected by the Administrator is entirely consistent with

the reference to the “long-term epidemiological data”

mentioned in her “lower bound” statement. See EPA Br. 31.

To begin, it bears noting that the Administrator only defends

the annual PM, , NAAQS and barely even acknowledges the

existence of the 24-hour PM, , and PM,, standards. See id. at

10-11 & n.11, 31-33. With respect to the annual PM,,

NAAQS, she claims to have relied on “a scientific criterion

applicable to epidemiological studies—statistical significance

to the 95% confidence level.” /d. at 32. But the Administrator

never so limited herself below; quite the contrary, she claimed

that “(t]here is no requirement that EPA have some theoretical

ideal amount of scientific information or degree of certainty

before establishing or revising a NAAQS.” Resp. Br. in D.C.

Cir. No. 97-1440, at 49 (emphasis added). Nor did the

Administrator so limit herself in selecting the 24-hour PM, , or

other PM NAAQS, or more generally, in other Clean Air Act

rulemakings. See e.g., Ethyl Corp. v. EPA, 541 F.2d 1,28 n.58

(D.C. Cir. 1976) (en banc) (“95% certainties” have “never

characterized . . . the administrative process”).

Moreover, the Administrator’s new focus on the statistical

significance of reported studies at the 95% confidence level is,

in any event, a scientific non sequitur as it relates to the

separate scientific question of determining a threshold effects

level. Statistical significance is simply a means of testing the

null hypothesis, specifically, the likelihood that an association

between an identified level of exposure and a specified health

effect is explainable by chance. Kenneth F. Rothman, ef a/.,

MODERN EPIDEMIOLOGY 184 (1998). It says nothing about the

separate question of whether effects—even highly dangerous

effects—may occur at levels well below the levels found

Statistically significant in the study. Indeed, the Administrator

herself made essentially that point below: “{e]}ven at levels

below the hypothetical thresholds” considered in the studies,

“risk estimates indicated increased mortality and morbidity that

were significant from a public health perspective.” Resp. Br.

in D.C. Cir. No. 97-1440, at 77 (emphases added). In short, the

Administrator did not (and could not) determine a health effects

threshold on the record here—a fact which only confirms the

fatal indeterminacy in the Administrator’s decisionmaking that,

together with Lead Industries, led to the Court of Appeals’

nondelegation holding.

C. Repudiating Lead Industries and Requiring

Consideration of Competing Factors in Setting

NAAQS Will Supply the Missing Intelligible

Principle and Resolve the Nondelegation Problem.

As detailed in our brief as cross-petitioners, the Clean Air

Act, properly construed, requires that the Administrator

consider competing factors including costs (and the costs to

health) in setting NAAQS. The text, fairly and naturally

understood, compels that conclusion, see Cross-Pet. Br. 33-37,

and it is confirmed by the statutory structure and purposes, see

id. at 37-43. Moreover, any ambiguity that might, in other

circumstances, be perceived in the text disappears, given that

“Congress could not have intended to delegate” to the

Administrator “a decision of such economic and political

significance” as whether to exclude all non-health factors in

setting NAAQS. See FDA v. Brown & Williamson Tobacco

Corp., 120 S. Ct. 1291, 1315 (2000); MCI v. AT&T, 512 U.S.

218, 231 (1994); Christensen v. Harris County, 120 §S. Ct.

1655, 1664 n.1 (2000) (Scalia J., concurring); id. at 1667

(Breyer, J., dissenting). The textual imperative under these

circumstances is further reinforced both by the need for

transparency in the agency decisionmaking process, see Cross-

Pet. Br. 43-47, and by the necessities of effective executive,

congressional and judicial oversight of EPA’s NAAQS

standard-setting, see id. at 47-50.

Starting from the ostensibly different perspective of the

nondelegation doctrine, the D.C. Circuit reached an analogous

conclusion in Lockout/Tagout I. Specifically, that court

concluded that the missing “intelligible principle” in cases such

as this is a “cost-benefit analysis,” by whic’: the court meant

“only a systematic weighing” of competing considerations,

including costs. 938 F.2d at 1321. The court went on to define

that “systematic weighing” at its most basic conceptual level by

citing what “Benjamin Franklin referred to as a ‘moral or

299,

prudential algebra’”’:

When those difficult cases occur, they are difficult,

chiefly because while we have them under

consideration, all the reasons pro and ce” are not

present to the mind at the same time. . . . To get over

this, my way is to divide half a sheet of paper by a

line into two columns; writing over the one Pro, and

over the other Con.... And, though the weight of

reasons cannot be taken with the precision of

algebraic quantities, yet when each is thus considered,

separately and comparatively, and the whole lies

before me, I think I can better judge, and am less

liable to make a rash step. . . .

Id. (citation omitted). In line with this conception, our cross-

petition demonstrates that the Act requires the Administrator to

consider competing factors in NAAQS rulemakings, as is the

usual practice in proceedings setting important health and

safety standards. See, e.g., Motor Vehicle Mfrs. Ass'n. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 54 (1983) (safety

agency “correct to look at the costs as well as the benefits” of

auto safety regulations).

The Administrator nonetheless raises an alarm that such a

weighing of competing considerations would at once rob her of

all discretion in setting NAAQS and spell the death-knell of

environmental regulation under the Clean Air Act. But one

need look no further than President Clinton’s Executive Order

12,866 to see that this is not the case. See 58 Fed. Reg. 51,735

(Sept. 30, 1993). Apart from the requirement that agencies

“should assess all costs and benefits of available regulatory

alternatives,” see id. § 1(a), the Executive Order (like Ben

Franklin’s “systematic weighing of pros and cons”) would

leave the agency with considerable discretion over nearly every

aspect of NAAQS standard-setting. For example, the agency

would retain discretion within APA constraints to assess both

“the degree and nature of the risks,” to decide which costs and

benefits are capable of being quantified and which are not, and

to decide how to factor in matters such is “distributional

impacts” and “equity.” Jd. § l(a, d). Nor would such “a

systematic weighing” prevent EPA from regulating ozone, PM

or other substances under the Act (although it might call into

question regulations which, without explanation, impose costs

that exceed the benefits, see Cross-Pet. Br. 10-12, 18-19, 30,

46).

This Court has sometimes deployed the nondelegation

doctrine as a means of “giving narrow constructions to

statutory delegations that might otherwise be thought to be

unconstitutional.” Mistretta, 488 U.S. at 373 n.7 (citing

Benzene and NCTA) (emphasis added); accord Amalgamated

Meat Cutters & Butcher Workmen of N. Am., AFL-CIO v.

Connally, 337 F. Supp. 737 (D.D.C. 1971) (Leventhal J.). But

whatever the merits of aggressive judicial construction in other

cases, there is no need for such carpentry here. As our brief as

cross-petitioners demonstrates, the plain meaning of the Act,

together with a great variety of supporting

considerations—including the nondelegation doctrine as

detailed in this brief—all compel the conclusion that the

Administrator must weigh all competing public health factors,

inciuding costs (and costs to health), in setting NAAQS.

The Administrator pins much of her argument on the claim

that “the Court of Appeals improperly employed the

nondelegation doctrine to expand the scope of its review.”

EPA Br. 26-31. That claim also is misplaced. Perhaps, given

Lead Industries and the conceded “indeterminancy” of the

Administrator’s NAAQS decisionmaking, the lower court

might simply have declared section 109(b)(1) unconstitutional

under this Court’s nondelegation decisions. But the Court of

Appeals’ remand remedy was both well-grounded in circuit

precedent, see ATA Cross-Pet. for Cert. 10-12 (citing cases),

and readily defensible under Chevron IJ. See Lisa Schultz

Bressman, Schechter Poultry at the Millennium: A Delegation

Doctrine for the Administrative State, 109 Yale L.J. 1399

(2000).

In any event, the lower court can hardly be faulted for

giving the Administrator a final chance to fashion an

interpretation that might pass constitutional muster. The

Administrator certainly retains significant discretionary

authority over NAAQS standard-setting—except, of course

where her assertions of authority collide with Congress’

unambiguous intent or requirements of the nondelegation

doctrine. Under such circumstances, and given Chevron, it was

hardly error for the Court of Appeals to remand before finally

deciding whether or not the Lead Industries doctrine itself

rendered the Act unconstitutional. Indeed, if this Court

ultimately decides to repudiate Lead Industries, it should

follow the Court of Appeals’ lead and order a remand to the

agency for promulgation of new standards, albeit after vacating

both the ozone and PM standards challenged in this case.

Il. THE COURT OF APPEALS’ IMPLEMENTATION

HOLDING IS CORRECT, BUT NEED NOT BE

REACHED BY THIS COURT.

Like the issues presented in our cross-petition, and the

nondelegation issue discussed above, the Administrator’s

Subpart 2 claims may be readily resolved through proper

statutory construction. Specifically, the Court of Appeals’

holding that the Administrator may not implement a revised

ozone standard lower that the standard in effect on the date of

the 1990 Clean Air Act Amendments is compelled by the plain

language, structure and drafting history of the Act—all of

which carry out Congress’ specific intent to deprive the

Administrator of the very discretion she now seeks to recover.

See Part II.A, infra. Moreover, contrary to the Administrator’s

claim, that issue was npe for decision by the Court of Appeals.

Nonetheless, this Court may properly elect not to address

Subpart 2 for quite different reasons; namely, that the

Administrator’s Subpart 2 arguments go only to the rationale

of the decision below, not its ultimate result. See Part II.B,

infra.

A. The Court of Appeals Correctly Held that

Subpart 2 Applies to Implementation of All Ozone

NAAQS, Including Revised Ozone NAAQS, Thus

Effectively Precluding Implementation of the

Ozone NAAQS Under Review Here.

On the merits, the question presented is whether the 1990

Congress’ painstakingly crafted solution to the long-standing

ozone nonattainment problem was intended to be binding—or,

as the Administrator argues, “stillborn” from the moment of

enactment. Pet App. 42a. In particular, the Administrator

seeks repeal of the “specific[]” directives of Subpart 2 of Part

D of the Act’s Title I, so that she can pursue a different policy

under her “general authority under other provisions of the

CAA.” EPA Br. (I) (emphasis added). But that claim is

implausible on its face, for it is a “commonplace of statutory

construction” that “the specific governs the general,” not the

other way around. Morales v. Trans World Airlines, Inc., 504

U.S. 374, 384 (1992). Indeed, this canon has particular

applicability here, because Congress enacted Subpart 2

precisely in order to strip the Administrator of discretion she

previously had, and is now attempting to reassert, under the

Act’s Subpart 1. It is therefore not surprising that the

Administrator’s interpretation is precluded by plain statutory

text, see Part II.A.1, infra, as well as by the Act’s structure,

drafting history and purposes, see Part III.A.2, infra, and is by

no means required to avoid “absurd results,” see Part III.A.3,

infra.

1. The Text of Subpart 2 Unambiguously

Encompasses Implementation of All Ozone

NAAQS.

The statutory text alone is dispositive because in this

instance “Congress has spoken on the ‘precise question at

issue.””” Pet. App. 38a (quoting Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 842-43 & n.9 (1984)). Specifically, the Act

requires that the Nation be divided into air quality areas, and

that each area b.. designated “attainment,” “nonattainment” or

“unclassifiable” with respect to each NAAQS. See CAA

§ 107(b-d), 42 U.S.C. § 7407(b-d). Areas designated

“nonattainment” are then assigned “classifications” and

mandated “attainment dates” (deadlines for achieving

“attainment” status) under one of several subparts of the Act.

As the Administrator notes, Subpart | generally governs the

assignment of classifications and attainment dates “with respect

to any national ambient air quality standard,” including “any

revised standard.” CAA § 172(a)(1)(A), 42 U.S.C.

§ 7502(a)(1)A); EPA Br. 45. Under this subpart, the

Administrator assigns classifications based on discretionary

factors such as “severity of nonattainment” and “feasibility” of

“pollution control measures,” and then, based in part on these

classifications, assigns each area an attainment date. CAA

§ 172(a)(1)(A), (2A), 42 U.S.C. § 7502(a)(1 (A), (2)(A).

Of central importance here, however, Subpart | expressly

states that this discretionary regime “shall not apply with

respect to nonattainment areas for which classifications are

specifically provided under other provisions of this part.”

CAA § 172(a)(1)(C), 42 U.S.C. § 7502(a)(1)(C) (emphasis

added); see also CAA 8 _ 172(aX(2)(D), 42 U.S.C.

§ 7502(a)(2)(D) (same for attainment dates). Moreover, this

express exception squarely applies to the ozone NAAQS. That

is because Congress “specifically provide[d]” classifications

and attainment dates for implementation of the ozone standard

in the Act’s Subpart 2. See Pet. App. 43a. In particular,

Subpart 2 provides that “[e]ach area designated nonattainment

for ozone pursuant to section 7407(d) [CAA § 107(d)] 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.” CAA § 181(a)(1), 42 U.S.C.

§ 7511(a)(1) (emphasis added). Tab!e 1 then sets out

classifications and attainment dates based on a region’s design

value (a measure of its ozone level). See id. Attainment dates

vary by classification, and extend until 2010 for those areas that

have the most severe nonattainment problems. See id. Table 1

is reprinted below:

Area Design Value Primary Standard

Class Attainment Date

Marginal | 0.121 up to 0.138 | 3 years after [enactment]

Moderate | 0.138 up to 0.160 | 6 years after [enactment]

Serious 0.160 up to 0.180 | 9 years after [enactment]

Severe 0.180 up to 0.280 | 15 years after [enactment]

Extreme | 0.280 and above | 20 years after [enactment]

As noted above, section 181(a)(1), including Table 1,

applies by its terms to “[eJach area designated nonattainment

for ozone pursuant to section 7407(d) [CAA § 107(d)].” Since

section 107(d) expressly governs designations pursuant to “new

or revised standards,” the plain language of sections 172, 181,

and 107 together unambiguously provide that Table 1 governs

the assignment of classifications and attainment dates for all

ozone NAAQS, including the revised ozone NAAQS

established by the Administrator in this case. See CAA

§ 107(d)(1 (A), 42 U.S.C. § 7407(d)(1)(A) (emphasis added);

see also CAA § 107(d)(1)(B)(i), 42 U.S.C. § 7407(d)(1)(B)(i)

(“Upon promulgation or revision of a [NAAQS], the

Administrator shall promulgate the designations of all areas”’)

(emphasis added).

Table 1 conspicuously establishes classifications only for

areas with ozone levels above 0.12 parts per million

(“ppm”)—the level of the 1979 ozone NAAQS. See CAA

§ 181(a)(1), 42 U.S.C. § 7511(a)(1). It thus makes no

provision for ozone standards set below the 0.12 ppm level. By

requiring that all ozone nonattainment areas be assigned

classifications and attainment dates only pursuant to Table 1,

and then -establishing a 0.12 ppm lower-bound for the

assignment of those classifications and attainment dates,

sections 172, 181, and 107 preclude the Administrator from

making nonattainment designations or assigning classifications

or attainment deadlines for any ozone NAAQS lower than the

one established in 1979. In sum, the Act unambiguously

precludes implementation in any fashion of a more stringent

ozone NAAQS.

The Administrator has never found a valid response to this

straightforward textual analysis. In the Court of Appeals, she

initially argued that Congress erred in cross-referencing section

107(d) in its entirety, and instead must have intended to

reference only subsection 107(d)(4), which provided for initial

designations immediately after the 1990 Amendments. See Pet.

App. 42a. On rehearing, she switched to arguing in favor of a

different scrivener’s error, claiming that Congress actually

meant to cross-reference “section 107(d)(1)(C) and section

107(d)(4).” Pet. App. 79a. Now before this Court she appears

to have reverted to her original interpretation, albeit without

expressly renouncing the position she argued on rehearing.

As the Court of Appeals explained, however, there is no

basis for deeming these critical statutory provisions the

“drafting error” that the Administrator’s interpretation

“implies.” Pet. App. 39a. To the contrary, Congress chose to

reference section 107(d) as a whole, not only in Subpart 2, but

also in Subparts 3, 4, and 5 of the Act, which provide

guidelines for implementation of the other five NAAQS then

on the books (carbon monoxide, PM, sulfur oxides, nitrogen

dioxide, and lead). See CAA §§ 186(a)(1), 188(a)(1),

191(a)(1), 42 U.S.C. §§ 7512(a)(1), 7513(a)(1), 7514(a)(1).

The Court of Appeals explained that all “Subparts of the Clean

Air Act providing requirements for nonattainment areas begin

with areference to § 107(d)” in its entirety. Pet. App. 79a. The

Administrator’s “interpretation” thus implausibly posits not an

isolated scriveners’s error, but a total scrivening breakdown.

The Administrator further attempts to evade the Act by

arguing that, however clear Subpart 2 and analogous provisions

might be, Subpart 1] conflicts with itself, thus creating

ambiguity. See EPA Br. 45-46. She seeks to manufacture this

ambiguity by observing first that the classification provisions

of Subpart | state that they govern the classification of areas

pursuant to any NAAQS, including “‘any revised standard.”’”

She then notes that these same provisions state that they “shall

not apply with respect to nonattainment areas for which

classifications are specifically provided under other provisions

of this part’’—namely, areas for which classifications are

“specifically provide[d]” under Subparts 2, 3, and 4. Finally,

the Administrator deems these statements “seemingly

competing references” and proceeds to read Subpart 2 out of

the Act. See id. (quoting CAA § 172(a)(1)(A, C), 42 U.S.C.

§ 7502(a)(1)(A, C)).

But, there is nothing at all unusual about this statutory

structure—provisions that first speak in broad terms and then

carve out exceptions. In this case, Subpart 1’s default

classification provisions continue to govern any revised sulfur

oxide, nitrogen dioxide, or lead NAAQS (covered in

Subpart 5), plus any new NAAQS for other substances, because

Congress has not “specifically provide[d]” classifications for

these NAAQS elsewhere in part D. CAA § 172(a)(1)(C),

42 U.S.C. § 7502(a)(1)(C). In contrast, however, Congress did

“specifically provide” classifications for ozone, as well as for

PM and carbon monoxide. Subpart 1 thus fully accords with

both itself and with Subparts 2, 3, and 4 (governing ozone,

carbon monoxide, and PM, respectively) by stating in section

172(a)(1)(C) that it “‘shall not apply with respect to” these

three types of “nonattainment areas,” for which Congress has

elsewhere “specifically provided” classifications. /d.

Lacking arguments based on statutory text, the

Administrator is left to rely only on the title of a single

subsection (subsection 181(a)), which she says “clarifies that

Section’s reach and resolves any confusion.” EPA Br. 46. But

this Court has held that a title “is of use only when it sheds

light on some ambiguous word or phrase,” Pennsylvania Dep't

of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (brackets

omitted); it “cannot be allowed to create an ambiguity in the

first place.” Pet. App. 43a (citations and quotations omitted).

As demonstrated above, there is no textual confusion in this

case; hence no occasion for “clarification.” Moreover, even if

there were ambiguity, it would be resolved first and foremost,

not by resort to titles, but by application of the “commonplace

of sta.utory construction” that “the specific,” highly detailed

provisions of Subpart 2 should “govern” the much more

“general” provisions of Subpart 1. Morales, 504 U.S. at 384.

In fact, however, subsection 181(a)’s title not only is

irrelevant, it also does not support the Administrator. ‘That title

reads, “Classification and attainment dates for 1989

nonattainment areas.” According to the Administrator, these

“1989 nonattainment areas are, of course, the areas that were

subject to the one-hour ozone standard then in force.” EPA Br.

46. But that interpretation cannot be correct. Initial

designations and classifications under the 1990 Amendments

were to occur, not in 1989, but in late 1990 or 1991. See CAA

§ 107(d)4(A,i), 42 U.S.C. § 7407(d) 4A). The

Administrator never explains why Congress would have

consciousiy decided not to apply its elaborate Subpart 2

implementation regime to nonattainment areas that had lapsed

into nonattainment in 1990, or, conversely, why it would apply

its scheme to areas that had achieved attainment after 1989 but

before enactment of the Amendments. See, e.g., 55 Fed. Reg.

35,625 (Aug. 31, 1990). In fact, EPA’s actual initial

designations under the 1990 Amendments occurred in 1991 and

were based on areas’ attainment status as of the date of

enactment of the Act, November 15, 1990-—these designations

had nothing to do with areas’ 1989 status. See 56 Fed. Reg.

56,694 (Nov. 6, 1991). In addition, the Administrator also fails

to explain her logical leap from a reference to 1989 areas to her

conclusion that Subpart 2 governs implementation of the 1989

standards. And finally, she simply overlooks the absence of an

analogous date in the title of section 186(a), which provides

classifications, attainment dates, and control methods for the

carbon monoxide NAAQS. See CAA § 186(a), 42 U.S.C.

§ 7512(a) (entitled “( tessification by operation of law and

attainment dates for novattainment areas’’).

Any possible confusion created by the subsection 181(a)

title is easily resolved by the 1990 drafting history.

Specifically, the title to subsection 186(a) which governs

carbon monoxide was changed in the drafting process from an

earlier version that was precisely parallel to the enacted version

of the subsection 181(a) title. See H.R. 3030, 101st Cong.

§ 104 (1989), reprinted in Il Senate Comm. on Env. and Public

Works, 103d Cong., Legislative History of the Clean Air Act

Amendments of 1990, at 3832 (1993) (“1990 Legislative

History’). Subsection 181(a)’s title apparently should have

simultaneously received conforming changes, but, for whatever

reason, those changes were never made. This minor oversight

is of much less importance, however, than the fact that the

Administrator is compelled to rest her entire “textual”

case—not on the statutory text itself—but instead on a loosely

drafted, easily explained, subsection tit/e that is not properly

part of the statute.

2. The Statutory Structure and Legislative History

Confirm that Subpart 2 Governs

Implementation of All Ozone NAAQS.

The structure, drafting history and statutory evolution of

Subpart 2 confirm that its provisions mean what they say and

were affirmatively intended to withdraw the very

implementation authority the Administrator now seeks to

recover. Cf. Dole v. United Steelworkers of Am., 494 U.S. 26,

35, 42-43 (1990) (no deference due when in light of “the

provisions of the whole law, and . . . its object and policy,” the

statute “clearly expresses Congress’ intention”) (internal

quotation omitted). As explained below, Congress enacted

Subpart 2 to “strip[] the EPA of discretion” because the Agency

had failed to bring the Nation into compliance with the ozone

NAAQS, and in particular, had permitted States to miss

deadlines, had extended those deadlines, and then had watched

the States miss them again. See Pet. App. 39a-40a; H.R. Rep.

No. 101-490, pt. 1, at 145-48 (1990), reprinted in II 1990

Legislative History, at 3169-72; S. Rep. No. 101-228, at 10-12

(1989), reprinted in V 1990 Legislative History, at 8350-52

(“1989 Senate Report”).

With Subpart 2, Congress sought to remedy these

problems with EPA’s implementation discretion by setting

what it viewed as “realistic,” long-term schedules and controls

that take effect “by operation of law” and replace the former,

much more discretionary implementation regime. See CAA

§ 181(a)(1), 42 U.S.C. § 7511(a)(1); 1989 Senate Report at 12,

reprinted in V 1990 Legislative History, at 8352. Congress’

cure for the pre-1990 Act’s perceived flaw— its failure to

furnish sufficiently concrete guidance for selecting and

enforcing ozone control measures—1is therefore evident not just

in sections 107, 172, and 181(a), but throughout the structure,

drafting history and statutory evolution of Subpart 2.

For instance, carefully crafted Subpart 2 provisions

reinforce the statutory lower-bound on ozone NAAQS

implementation by withdrawing the Administrator’s discretion

to adjust the ozone NAAQS compliance calculation. The

Administrator is thus directed to calculate design values for

classification purposes “according to the interpretation

methodology issued by the Administrator most recently before

November 15, 1990,” and to “submit[] to Congress”— but not

herself to act upon—a report considering whether this frozen

methodology is reasonable. See CAA §§ 181(a)(1), 183(g),

42 U.S.C. § 7511(a)(1), 751 1b(g) (emphasis added). Tellingly,

in the one instance in which Congress did permit changes to

this methodology, Congress also provided specific safeguards

to ensure that the Administrator would not thereby effect a

substantive change in the standard. See CAA § 181(b)(4)(D),

42 U.S.C. § 7511(b)(4)(D) (addressing certain severe areas).

And similarly, while Subpart 2 does provide certain exceptions

to the Table 1 compliance schedule, it frames those exceptions

in objectively determinate terms and conspicuously fails to

create such an exception for ozone NAAQS revisions. See

CAA §§ 181(a)(4,5), (b)(1), 42 U.S.C. §§ 7511(a)(4,5), (b)(1).

Viewed in broader terms, it is even more evident that

Subpart 2 cannot be subject to repeal at the Administrator’s

whim or command. Subpart 2 sets out page upon page of

detailed provisions requiring ozone nonattainment areas to

adopt specific control programs. See, e.g, CAA § 182,

42 U.S.C. § 75lla. These controls are integrally related to

section 181(a)’s Table 1 and the remainder of the Subpart 2

scheme, as they vary in stringency according to an area’s

nonattainment classification under that pivotal table. SeeCAA

§ 182(a-e), 42 U.S.C. § 751 la(a-e). Subpart 2 thus specifies

detailed sanctions against States that fail to comply with

Table 1’s deadlines. See CAA § 185, 42 U.S.C. § 7511d. And

many Subpart 2 controls provide expressly that they are to be

phased in over a period of many years, underscoring that

Congress intended Subpart 2 to last. See, eg., CAA

§ 182(c)(5), 42 U.S.C. § 751 1a(c)(5) (mandating transportation

assessments beginning in 1996 “and each third year thereafter”

for serious, severe, and extreme areas); CAA § 182(e)(3),

42 U.S.C. § 751 1a(e)(3) (imposing clean fuels and advanced

technology requirements for severe areas beginning in 1998).

Moreover, Subpart 2 makes automatic provision for additional

control measures in areas that miss attainment dates. These

provisions, also integrally related to the Table | classifications,

require even greater emissions reductions indefinitely into the

future, even after initial attainment deadlines have been missed.

See CAA § 181(b)(2, 4), 42 US.C. § 7511(b),(2, 4).

Accordingly, Subpart 2 can only be seen for what it is—the

carefully drawn and lasting blueprint for revoking the

Administrator’s discretionary implementation authority.

Given the importance of these restrictions on the

Administrator’s authority, it is not surprising that the 1990

Congress considered—and rejected—several proposals that

would have granted her additional authority of the sort she now

seeks. For instance, Congress rejected bills that would have

limited Subpart 2 to the 1979 ozone NAAQS then in force.

The bill passed by the Senate but later modified in conference,

as well as a bill introduced but rejected by the House, would

have applied Subpart 2 solely to designations made pursuant to

what later became section 107(d)(4)—the one-time provision

governing designation immediately after the 1990

Amendments. See S. 1630, 101st Cong. §§ 101, 107 (1990)

(“1990 Senate Bill”), reprinted in III 1990 Legislative History,

at 4124-25, 4195; H.R. 3030, 101st Cong. §§ 101(a), 103

(1989), reprinted in II 1990 Legislative History, 3748-49,

3795-96. Similarly, Congress also considered and rejected a

classification plan that would have accommodated a revised

and tightened ozone standard. The Senate bill thus included a

table, reprinted below, which would have set classifications and

attainment dates based on the percentage by which an area

exceeded such a flexible NAAQS:

Area Classification Amount by which standard

exceeded

Moderate ozone Not greater than 20 per centum

nonattainment area ....

Serious ozone More than 20 per centum but

nonattainment area .... | less than 50 per centum

Severe ozone Equal to or greater than 50 per

nonattainment area .... | centum but not more than 120

per centum

Extreme ozone More than 120 per centum

nonattainment area ....

S. 1630, 101st Cong. § 107 (1990), reprinted in III 1990

Legislative History, at 4195. Because “[fjew principles of

statutory construction are more compelling than the proposition

that Congress does not intend sub silentio to enact statutory

language that it has earlier discarded in favor of other

language,” JNS v. Cardoza-Fonseca, 480 U.S. 421, 442-43

(1987) (internal quotation omitted), Congress’ rejection of

these legislative alternatives underscores that Subpart 2 means

exactly what it says.

Finally, this definitive evidence from text, structure and

drafting history is further confirmed by the context within

which Congress enacted the 1990 Amendments. The fatal

flaws that emerged from both the 1970 and 1977 Amendments

to the Act were their failure to set out specific controls and

realistic attainment deadlines for ozone. EPA promulgated its

first ozone NAAQS in early 1971, together with other NAAQS

for particulate matter, sulfur dioxide, nitrous oxides, carbon

monoxide and hydrocarbons. See 36 Fed. Reg. 8,186 (Apr. 30,

1971). The Act at that time contemplated enforcement of all of

these standards through one-size-fits-all implementation that

essentially called for attainment of all primary NAAQS, by all

areas of the Nation, by 1975. See CAA § 110(a)(2)(A),

42 U.S.C. § 7410(aX(2)(A) (1976). This statutory structure

broke down, however, when large areas of the Nation simply

failed to comply—especially with the 1971 ozone

NAAQS—by that date. Widespread nonattainment led,

unsurprisingly, to litigation designed to enforce the Act’s literal

requirements. These cases included a ruling that the Clean Air

Act required massive social and economic dislocation in

California in order to achieve ozone compliance, see City of

Santa Rosa v. EPA, 534 F.2d 150, 153 (9th Cir.), vacated sub

nom. Pacific Legal Found. v. EPA, 429 U.S. 990 (1976), plus

other cases posing the question whether the Act had delegated

EPA authority to force States to implement EPA-mandated

controls to address ozone nonattainment, see EPA v. Brown,

431 U.S. 99, 100-02 (1977) (discussing cases). This first Clean

Air Act crisis passed only when the Solicitor General declined

to defend EPA’s interpretation of the Act, see id. at 103-04, and

Congress enacted 1977 Amendments which extended the

compliance deadlines for ozone and other pollutants, see Pub.

L. 95-95, 91 Stat. 691 (Aug. 7, 1977).

The 1977 -.mendments ultimately failed, however, for the

same reasons that the 1970 Amendments failed. To be sure,

they introduced a limited degree of differentiation into the

schedules for complying with NAAQS. For ozone and carbon

monoxide, the pollutants that had largely prompted the

Amendments, this regime established a presumptive five-year

deadline, with liberal opportumities for further five-year

extensions in areas- with the most severe nonattainment

problems. See CAA § 172(a)(1, 2), 42 U.S.C. § 7502(a)(1, 2)

(1982). But Congress still did not extensively dictate controls

that States (or, failing that, EPA) would have to implement to

achieve attainment. Accordingly, notwithstanding the time

extensions (and promulgation of a less-stringent ozone NAAQS

in 1979), the 1987 ozone attainment deadlines came and went,

just as the 1975 deadlines had, with large areas of the Nation

remaining in nonattainment. See National Research Council,

RETHINKING THE OZONE PROBLEM IN URBAN & REGIONAL AIR

POLLUTION 4 (1991). High stakes litigation once again ensued.

See, e.g., Coalition for Clean Air v. Southern Cal. Edison Co.,

971 F.2d 219, 221-23 (9th Cir. 1992) (describing the history of

litigation in California).

After false starts in the 1987, 1988 and 1989 legislative

sessions, Congress again passed comprehensive Clean Air Act

Amendments in November 1990 addressing, yet again, the

recurring Ozone nonattainment problem. This time, Congress

consciously departed froin the one-size-fits-all strategy that

twice before had failed. Congress instead set what it viewed as

“realistic,” long-term schedules and controls that take effect

“by operation of law,” rather than pursuant to the

Administrator’s discretion. See CAA § 181(a)(1), 42 U.S.C.

§ 7511(a)(1); 1989 Senate Report at 12, reprinted in V 1990

Legislative History, at 8352. Although Congress did nominally

retain the 1977 regime of a five-year/ten-year attainment

schedule with largely discretionary controls, it gheito.zed those

provisions, now denominated as Subpart 1, by severely

restricting their scope of application. See pp. 26-27, 30, supra.

At the same time, Congress also enacted detailed compliance

plans targeted at specific pollutants (above all, ozone) as the

centerpiece of the 1990 Amendments. These plans are codified

in Part D’s Subparts 2, 3, 4 and 5. CAA §§ 181-185B,

42 U.S.C. §§ 7511-7511F.

If ever “a page of history” could answer “a volume of

logic,” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)

(Holmes, J.), then surely this history fully answers the

Administrator’s ever-changing rationalizations for why she

should be given back her revoked ozone implementation

authority. The Administrator’s Subpart | -based interpretation

is nothing less than a bid to turn back the clock and resume

implementation of the ozone NAAQS as before 1990, amid the

uncertainty, unrealistic deadlines and endless litigation that

Congress thought it had eliminated. Read carefully in light of

its evolution, it is plain that the Act simply does not permit the

Administrator to use Subpart | as a sword for bringing about

the demise of Subpart 2.

3. Congress’ Carefully Crafted Statutory Regime

Does Not “Lead to Unworkable and Absurd

Results.”

Instead of admitting that her interpretation is contrary to

the mass of evidence cited above, the Administrator claims that

this obvious interpretation would “lead to unworkable and

absurd results.” EPA Br. 47. In particular, she notes that it

“would be impossible” to “classify areas and set their

attainment dates for the revised NAAQS’s eight-hour standard”

under Subpart 2 since Table | uses “an air quality measurement

based upon one-hour averaging.” Jd. She also states, in this

—

same vein, that because Table | “calculates attainment dates for

areas based upon a fixed number of years from 1990,” it

“makes no sense in calculating attainment dates for a revised

NAAQS” promulgated at a later date. Jd. But these arguments

all beg the question, for they depend upon the implicit and

unsupportable premise that, notwithstanding its plain text,

structure, drafting purposes and evolution, Subpart 2

nonetheless permits EPA to implement its revised ozone

NAAQS. For all of the reasons set forth above, that premise is

false.

Although some parties have suggested that this

interpretation conflicts with the Court of Appeals’ holding that

the Administrator may revise the ozone NAAQS, see, e.g.,

Mass. Br. 45-46, there is no conflict. Rather, the Administrator

remains free to promulgate a lower (or higher) revised ozone

NAAQS pursuant to her general revision authority under

section 109. See Pet. App. 24a-36a. What she cannot do is

designate areas as being in nonattainment with a lower revised

NAAQS, since areas with ozone levels of 0.12 ppm or below

could not be assigned classifications under Table 1. Instead,

she must either designate such areas “unclassifiable,” see CAA

§ 107(d)(1)(A)iii), 42 U.S.C. § 7404(d)(1 (A)(iii), or (if she

chooses) refrain from making a downward revision on the

ground that such revision is not “appropriate” under these

circumstances. See CAA § 109(d)(1), 42 U.S.C. § 7409(d)(1).

If these options were not available, however, Subpart 2 would

preclude the Administrator from promulgating a lower revised

ozone NAAQS, as explained in the brief filed today by Ohio,

Michigan, and West Virginia.

Although the statute precludes enforcement of an ozone

NAAQS lower than the ozone NAAQS that was the subject of

the 1990 Amendments, downward revisions nonetheless might

be meaningful in at least three respects. First, and most

obviously, Congress could authorize the enforcement of a

revised ozone NAAQS if it believed that the Administrator had

shown that the need for implementation outweighed the need

for the long-term approach of Subpart 2. Given its experience

with EPA’s implementation efforts under prior versions of

Subpart 1, Congress presumably would accompany any such

authorization with a new round of detailed Subpart 2-style

implementation instructions. Second, even in the absence of

congressional action, States could voluntarily comply with the

new standard. See CAA § 116, 42 U.S.C. § 7416; cf CAA

§ 181(c)(3), 42 U.S.C. § 7511(c)(3) (authorizing States to bind

themselves voluntarily to higher classifications than required

by Table 1). Such State action would be especially enabled by

designation of local air-quality control regions as

“unclassifiable,” because then States (and their citizens) would

know precisely which local areas did not comply with the

stricter standard. Third, at the same time that it enacted

Subpart 2, Congress also strengthened the Administrator’s

emergency powers to be used in the event that action were ever

truly needed to prevent “an imminent and substantial

endangerment to public health” (a stringent standard that is

certainly not met on the record here, see Cross-Pet. Br. 6-7).

See Pub. L. 101-549, 104 Stat. 2339, § 711(b) (Nov. 15, 1990)

(amending CAA § 303, 42 U.S.C. § 7603). Congress has thus

promoted attainment of the existing standard through a

balanced approach that leaves some play in the statutory joints.

Given the Court of Appeals’ plain-language holdings that

the Administrator may promulgate lower revised ozone

NAAQS, on the one hand, and must assign classifications and

attainment dates only pursuant to Subpart 2, on the other, the

only necessary qualification to the opinion below involves the

Administrator’s authority to give nonattainment designations

to areas based on ozone NAAQS revisions that lead to a lower

(more stringent) standard. Although the Court of Appeals

concluded in a paragraph that she may do so, see Pet. App. 36a-

37a, its cursory discussion of this intermediate issue was

necessarily handicapped by briefing that was essentially

nonexistent, due to the Administrator’s insistence on reading

Subpart 2 out of the statute entirely. As noted above, the Act

unambiguously states that “[e]lach area designated

nonattainment for ozone pursuant to section 7407(d) [CAA

§ 107(d)] shall be classified at the time of such designation,

under table 1,” which provides classifications only for areas

with design values above 0.12 ppm. See CAA § 181(a)(1),

42 U.S.C. § 7511(a)(1) (emphasis added). Because section

181(a)(1) thereby precludes EPA from designating as

nonattainment an area with a design value at or below 0.12

ppm, the Agency cannot designate areas nonattainment with its

revised NAAQS.

In opining to the contrary, the Court of Appeals apparently

overlooked this point, as well as the possibility that areas could

be designated unclassifiable. See Pet. App. 36a-37a. The

lower court also appears to have read the qualifier

“appropriate” out of section 109(b) by requiring the

Administrator to revise the NAAQS whenever the health

evidence warrants a revision, irrespective of whether the

revised standard could be implemented. See id. Finally, the

Court of Appeals may not have appreciated the automatic

consequences that application of a “nonattainment” label

triggers—consequences inconsistent with Congress’ intention

that ozone implementation against the States be conducted only

under the Subpart 2 implementation regime. See, e.g., CAA

§§ 172(c), 173, 42 U.S.C. §§ 7502(c), 7503. Nonetheless, by

far the most important point is that the Court of Appeals’

interpretation, like ours but unlike the Administrator’s, has the

essential merit of recognizing Congress’ basic intention that

Subpart 2 not be declared stillborn.

B. Although the Subpart 2 Issues Are Ripe for Review,

_The Court Nonetheless May Decline to Decide

Them.

The Court of Appeals correctly held that Subpart 2 revokes

the Administrator’s authority to implement lower revised ozone

NAAQS, but this Court may nonetheless elect not to reach and

affirm that ruling. Specifically, because the Court has long

insisted that it sits to review judgments, not statements in

opinions, it may well decline to reach the Subpart 2 issues on

grounds that they are not properly presented as this case is

presently postured.

Ironically, the Administrator herself argues that this Court

should not reach the Subpart 2 issue—albeit on the theory that

those issues were not properly before the Court of Appeals.

The Administrator contends, above all, that the Subpart 2 issues

are not reviewable because she rendered a reviewable decision

only on her authority to promulgate a revised ozone NAAQS,

not on her authority to implement such a NAAQS. That

argument is factually wrong—the Administrator did, quite

consciously, render a reviewable decision on implementation

issues. But even if she had not, the Administrator would still

be wrong on the law. Specifically, although review of

implementation issues in their own night was possible and

appropriate, the Court of Appeals’ Subpart 2 reasoning was

also part of its explanation for its promulgation-authority

decision in favor of the Administrator. The Administrator is

hardly in a position to complain now that this favorable result

was reached for the wrong reasons.

The Administrator’s reviewability arguments are really just

attempts to evade the precedential effects of a favorable

decision. Indeed, the Administrator never argued that her

decision was not final until after the Court of Appeals had

issued its opinion containing the implementation statements

that the Administrator now hopes to erase. See Pet. App. 77a.

Until that time, the Administrator had argued repeatedly that

the interplay between Subparts 1 and 2 should be resolved as

soon as possible because “adoption of new NAAQS .. . could

have profound implications for existing State implementation

programs.” 61 Fed. Reg. 65,716, 65,745 (Dec. 13, 1996). The

Administrator therefore issued, together with her proposals for

revising the ozone NAAQS, an Interim Implementation Policy

that concluded that “[{t]he detailed provisions of subpart[] 2...

would not apply directly to the implementation of a new ozone

NAAQS ....” 61 Fed. Reg. 65,752, 65,753 (Dec. 13, 1996).

She also issued a separate advanced notice of proposed

rulemaking on the implementation issues because “waiting

until possible standard revisions are actually promulgated

would, in the Agency’s judgment, cause inevitable delays and

disruptions in national, State and local efforts to achieve clean,

healthy air, especially those related to attainment of the

NAAQS for ozone.” 61 Fed. Reg. 65,764 (Dec. 13, 1996).

After receiving comments, she rendered her “[f]inal decision”

on these issues together with her revised NAAQS. 62 Fed.

Reg. at 38,873.

Not surprisingly, the Administrator’s post-decision efforts

to disown this openly-acknowledged “[f]inal decision,” id., rest

on an attempted recasting of the record. For the most part, the

Administrator claims that her final decision is not truly final

because “[t]he sole purpose of [her] discussion [of Subpart 2]

was to respond fully to the comments arguing that the 1990

Amendments curtailed EPA’s authority to revise the ozone

standard.” EPA Br. 15; see also id. at 19, 34-35. She even

goes so far as to emphasize this point by “reproducing the

preamble discussion” in the Appendix to her brief. /d. at 15.

What she fails to mention (at least not until a footnote much

later on) is that she also addressed implementation issues in a

separate portion of her rule “[iJn light of comments received

regarding the interpretation proposed in the IJnterim

Implementation Policy.” 62 Fed. Reg. at 38,873 (emphasis

added); see EPA Br. 39 n.26. It was there that she issued her

“{flinal decision” by explaining that she had “reconsidered

[her] interpretation and now believes that . . . the provisions of

Subpart 2 continue to apply to O; nonattainment areas for

purposes of achieving attainment of the current 1-hour

standard,” but that only “the provisions of Subpart 1,” not

Subpart 2, “would apply to the implementation of the new

8-hour O, standards.” 62 Fed. Reg. at 38,873.

Although the Administrator now pretends that this

“preamble discussion” was idle musing, see, e.g., EPA Br. 15,

she codified her Subpart 2 ruling in 40 C.F.R. § 50.9(b), see

62 Fed. Reg. at 38,894. Moreover, this ruling formed the

explicit basis for the “Implementation Plan for Revised Air

Quality Standards” issued together with the revised NAAQS.

See 62 Fed. Reg. 38,421, 38,423, 38,424-27 (July 18, 1997).

Indeed, the plan produced by this purportedly idle musing

formed the foundation for three different final rules revoking

the prior ozone NAAQS in three different sets of areas. See 64

Fed. Reg. 30,911 (June 9, 1999); 63 Fed. Reg. 39,432 (July 22,

1998); 63 Fed. Reg. 31,014 (June 5, 1998).

The Administrator’s other footnote contention is that the

implementation aspects of her final rule were not challenged

before the D.C. Circuit. See EPA Br. 39 n.26. In fact,

however, numerous parties challenged the entire rule, and the

Administrator herself acknowledged the implementation plan’s

importance by briefing section 50.9(b) and the preamble

implementation statements before the Court of Appeals. See

Resp. Br. in D.C. Cir. No. 97-1441, at 72. Moreover, at the

very same time that she sought rehearing below by arguing that

implementation issues should not have been decided in this

case, the Administrator was arguing before a different D.C.

Circuit panel that a separate petition for review challenging her

actual implementation of the revised NAAQS was barred

precisely because her Subpart 2 interpretation had been

properly challenged in this case. See Resp. Br. in D.C. Cir.

No. 98-1363 (filed June 21, 1999), at 27-28, 29-30.

In sum, the Administrator’s finality and ripeness

arguments amount to an “administrative law shell game,”

AT&T Co. v. FCC, 978 F.2d 727, 732 (D.C. Cir. 1992), that is

being played, not with considered characterizations of actual

administrative actions, but with moving targets repositioned

from day to day with an eye to expanding or contracting the

preclusive scope of the decision below as necessary for the

needs of the moment. The Administrator’s “[f]inal decision”

is indeed final agency action ripe for review, as further

explained in the brief filed today by Ohio, Michigan, and West

Virginia.

But even if the Administrator were correct that

promulgation was the only reviewable issue before the Court of

Appeals, the propriety of that court’s engaging in its Subpart 2

discussion would still be beyond dispute. There is no question

that, despite the finality and ripeness of the Administrator's

implementation decisions, the true focus of the implementation

debate in the Court of Appeals was squarely on the argument

by parties to the ozone rulemaking that Subpart 2 precludes any

revision of the ozone NAAQS because, as a matter of law,

revisions that may not be implemented are not “appropriate”

for promulgation. See EPA Br. 34 (agreeing that the

promulgation issue was properly before the D.C. Circuit).

Confronted with this promulgation argument resting on an

implementation premise, the Court of Appeals both (1) brought

to bear the “traditional tools of statutory construction,”

Chevron, 467 U.S. at 843 n.9, including an analysis of the

statute as a whole, and (2) used as a starting point the

Administrator’s own principal defense—specifically, the

extreme claim that Subpart 2 places no limits whatever on

implementation of a revised ozone NAAQS.

When the Court of Appeals’ decision was handed down,

however, the Administrator suddenly announced her

disagreement, not with that Court’s favorable (for her)

resolution of the promulgation issue, but rather with statements

in its ensuing discussion. She now seeks review of those

statements—statements made over the course of a statutory

analysis concededly within the Court of Appeals’ jurisdiction.

Seen in this light, it is evident that the Administrator's

Subpart 2 claims, at bottom, seek only to lessen the stare

decisis effects of the reasoning the lower court used on its way

to a result favorable to the Administrator. This easily explains

her attenuated charges of lack of finality and ripeness, which,

if accepted, would provide the basis for seeking to deprive the

Subpart 2 decision below of precedential effect, on the grounds

that the Subpart 2 issues were not justiciable when decided.

Compare, e.g., Mahoney v. Babbitt, 113 F.3d 219, 222 (D.C.

Cir. 1997) (“[T]here is no particular reason to assume that a

decision, later mooted, is any less valid as precedent than any

other opinion of a court.”).

None of this is to say that the Subpart 2 statutory issues are

not important; they are. The D.C. Circuit’s holdings regarding

implementation of revised ozone NAAQS addressed matters

squarely presented by the parties and necessarily decided by the

court (in contrast, for example, to the question regarding

designations as “nonattainment”). The Court of Appeals’

implementation discussion (unlike its designations discussion)

is therefore not obiter dictum, but an important part of the

rationale for its decision respecting the Administrator’s

promulgation authority. As such, the implementation

discussion (though not its designation discussion) is now

entitled to full stare decisis or law-of-the-case effect in future

proceedings. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44,

67 (1996) (stare decisis applies to the result and “those portions

of the opinion necessary to th{e] result;” other portions of

opinion are dictum), compare, e.g., Montana v. Crow Tribe of

Indians, 523 U.S. 696 n.11 (1998) (law-of-the-case doctrine

does not apply to dictum); Hahn v. United States, 524 U.S. 236,

251 (1998) (stare decisis principles relaxed where issue not

fully briefed); Association of Inv. Brokers v. SEC, 676 F.2d

857, 863 (D.C. Cir. 1982) (same re law-of-the-case doctrine).

But even conceding its importance for future litigation, the

irregularity of Subpart 2’s procedural posture is undeniable.

That irregularity is underscored once one appreciates the extent

to which the Administrator's arguments for why these

Subpart 2 issues are not final or ripe depend upon the order in

which the D.C. Circuit’s opinion treats various issues. In

particular, if the D.C. Circuit had instead framed its opinion to

reflect the context in which Subpart 2 issues actually arose, it

would have noted first that industry and States had raised

claims that Subpart 2 (together with related provisions)

precludes promulgation of revised standards. It would have

then discussed its reasons for rejecting EPA’s primary defense

to that claim (the argument that Subpart 1, not Subpart 2,

governs revised NAAQS). And finally, it would have

concluded with its reasons for nonetheless rejecting the

promulgation claim on alternative grounds. Had the court

below issued that opinion— instead of one helpfully and quite

innocently reordering the issues into a more comprehensible

framework—there could be no claim that the D.C. Circuit

reached out to decide anything. There also could be only the

most attenuated claims that the Subpart 2 issues are of the sort

typically deemed worthy of this Court’s attention.

Indeed, merely to state this procedural posture is to call

into question the necessity for the Court to address Subpart 2.

The Administrator’s attempt to induce the Court to erase the

precedential effect of the D.C. Circuit’s Subpart 2 discussion

certainly may cross the “long line of decisions rejecting claims

of standing based merely on supposed adverse precedential

effect.” Williams Gas Processing-Gulf Coast Co. v. FERC,

145 F.3d 377 (D.C. Cir. 1998); see also, e.g., Boston Tow Boat

Co. v. United States, 321 U.S. 632, 632-34 (1944). Moreover,

this quarrel over precedent also implicates the rule that the

Court does not sit to judge the reasoning, as opposed to results,

of lower court decisions. Typically, a lower court’s “use of

analysis that may have been adverse” to a government agency's

“long-term interests” does not permit the agency “to claim

status as a losing party for purposes of this Court’s review.”

California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam).

It thus has been stressed repeatedly that the Court reviews

“judgments, not statements in opinions.” See, e.g., Texas v.

Hopwood, 518 U.S. 1033 (1996) (Ginsburg, J., respecting

denial of certiorari).

Because the Administrator is concerned with the reasoning

and not the result of the Subpart 2 holding below, a concluding

word respecting the technical disposition of this case is in

order. Ordinarily, when the Court inadvertently grants

certiorari on issues that go only to the rationale of the lower

court decision, the proper course is to dismiss certiorari “as

improvidently granted.” That is what occurred in Rooney even

after full “briefing and oral argument.” Rooney, 483 U.S. at

311. But here, unlike in Rooney, these cases will not go away,

given the petition and cross-petition on undoubtedly live issues

that are addressed in Part I of this brief. Accordingly, there is

no need or occasion here to dismiss questions 2 and 3 of the

Administrator’s petition. Rather, the Court may elect to issue

binding rulings on only the issues detailed in the cross-petition

and Part I of this brief, followed by its usual practice of

remanding with instructions for further lower court action in

light of its decision.

CONCLUSION

For the foregoing reasons, the nondelegation holding

should be affirmed, but need not be reached if this Court

reverses on the grounds set forth in our brief as cross-

petitioners. The challenged Subpart 2 implementation holding

is also correct, but this Court need not reach that issue, since

the Administrator is seeking review of the rationale used to

reach a result in her favor. Accordingly, the Court should

consider this case together with the cross-petition, vacate the

ozone and particulate matter NAAQS for the reasons spelled

out in our brief as cross-petitioners and elaborated on in Part I

of this brief, and remand to the D.C. Circuit for further

proceedings consistent with its opinion.

ROBIN S. CONRAD

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for Chamber of

Commerce of the

United States

BETH L. LAW

ROBERT S. DIGGES

ATA LITIGATION CENTER

2200 Mill Road

Alexandria, VA 22314

Counsel for American

Trucking Associations, Inc.,

Burns Motor Freight, Inc.,

Garner Trucking, Inc.

JAN S. AMUNDSON

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20036

Counsel for National

of Manufacturers

DIMETRIA G. (JIM) DASKAL

THE DASKAL LAW GROUP

3 Church Circle

Suite 500

Annapolis, MD 21401

Counsel for National

Coalition of Petroleum Retailers

Respectfully submitted,

EDWARD W. WARREN

Counsel of Record

ROBERT R. GASAWAY

JEFFREY B. CLARK

DARYL JOSEFFER

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5000

CHARLES FRIED

1525 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-4636

Counsel for American

Trucking Associations, Inc.

and Chamber of Commerce

of the United States

GARY H. BAISE

ELIZABETH S. POLINER

BAISE, MILLER & FREER, P.C.

1020 19th Street, N.W.

Washington, D.C. 20036

Counsel for Equipment

Manufacturers Institute

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

Counsel for National Small

Business United, The

American Portland Cement

Alliance, and The Glouster

Company, Inc.

DOUGLAS I. GREENHAUS

NATIONAL AUTOMOBILE

DEALERS ASSOCIATION

8400 Westpark Drive

McLean, VA 22102

Counsel for National

Automobile Dealers

Association

JEFFREY L. LEITER

CHET M. THOMPSON

COLLIER, SHANNON, RILL &

SCOTT

3050 K Street, N.W.

Suite 400

Washington, D.C. 20007

Counsel for Non-Ferrous

Founders’ Society

ERIKA Z. JONES

TIMOTHY S. BISHOP

ADAM C. SLOANE

MAYER, BROWN & PLATT

1909 K Street, N.W.

Washington, D.C. 20006

Counsel for American Farm

Bureau Federation

ROBERT R. GASAWAY

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

Counsel for American Road

and Transportation Builders

Association

APPENDIX

CAA § 107, 42 U.S.C. § 7407. Air quality control regions

(a) Responsibility of each State for air quality; submission

of implementation plan

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an implementation plan

for such State which will specify the manner in which national

primary and secondary ambient air quality standards will be

achieved and maintained within each air quality control region

in such State.

(b) Designated regions

For purposes of developing and carrying out

implementation plans under section 7410 of this tithe—

(1) an air quality control region designated under this

section before December 31, 1970, or a region designated after

such date under subsection (c) of this section, shall be an air

quality control region; and

(2) the portion of such State which is not part of any such

designated region shall be an air quality control region, but

such portion may be subdivided by the State into two or more

air quality control regions with the approval of the

Administrator.

notification of Governors of affected States

The Administrator shall, within 90 days after December

31, 1970, after consultation with appropriate State and local

authorities, designate as an air quality control region any

interstate area or major intrastate area which he deems

necessary or appropriate for the attainment and maintenance of

ambient air quality standards. The Administrator shall

immediately notify the Governors of the affected States of any

designation made under this subsection.

(d) Designations

(1) Designations generally

(A) Submission by Governors of initial designations

following promulgation of new or revised standards

By such date as the Administrator may reasonably require,

but not later than | year after promulgation of a new or revised

national ambient air quality standard for any pollutant under

section 7409 of this title, the Governor of each State shall (and

at any other time the Governor of a State deems appropriate the

Governor may) submit to the Administrator a list of all areas

(cr portions thereof) in the State, designating as—

(i) nonattainment, any area that does not meet (or that

contributes to ambient air quality in a nearby area that does not

meet) the national primary or secondary ambient air quality

standard for the pollutant,

(ii) attainment, any area (other than an area identified in

clause (1)) that meets the national primary or secondary ambient

air quality standard for the pollutant, or

(iii) unclassifiable, any area that cannot be classified on the

basis of available information as meeting or not meeting the

national primary or secondary ambient air quality standard for

the pollutant.

The Administrator may not require the Governor to submit

the required list sooner than 120 days after promulgating a new

or revised national ambient air quality standard.

(B) Promulgation by EPA of designations

(i) Upon promulgation or revision of a national ambient air

quality standard, the Administrator shall promulgate the

designations of all areas (or portions thereof) submitted under

subparagraph (A) as expeditiously as practicable, but in no case

later than 2 years from the date of promulgation of the new or

revised national ambient air quality standard. Such period may

be extended for up to one year in the event the Administrator

has insufficient information to promulgate the designations.

(ii) In making the promulgations required under clause (1),

the Administrator may make such modifications as the

Administrator deems necessary to the designations of the areas

(or portions thereof) submitted under subparagraph (A)

(including to the boundaries of such areas or portions thereof).

Whenever the Administrator intends to make a modification,

the Administrator shall notify the State and provide such State

with an opportunity to demonstrate why any proposed

modification is inappropriate. The Administrator shall give

such notification no later than 120 days before the date the

Administrator promulgates the designation, including any

modification thereto. If the Governor fails to submit the list in

whole or in part, as required under subparagraph (A), the

Administrator shall promulgate the designation that the

Administrator deems appropriate for any area (or portion

thereof) not designated by the State.

(iii) If the Governor of any State, on the Governor's own

motion, under subparagraph (A), submits a list of areas (or

portions thereof) in the State designated as nonattainment,

attainment, or unclassifiable, the Administrator shall act on

such designations in accordance with the procedures under

paragraph (3) (relating to redesignation).

(iv) A designation for an area (or portion thereof) made

pursuant to this subsection shall remain in effect until the area

(or portion thereof) is redesignated pursuant to paragraph (3) or

(4).

(i) Any area designated with respect to any air pollutant

under the provisions of paragraph (1)(A), (B), or (C) of this

subsection (as in effect immediately before November 15,

1990) is designated, by operation of law, as a nonattainment

area for such pollutant within the meaning of subparagraph

(A)(i).

(ii) Any area designated with respect to any air pollutant

under the provisions of paragraph (1)(E) (as in effect

immediately before November 15, 1990) is designated by

operation of law, as an attainment area for such pollutant within

the meaning of subparagraph (A)(i1).

(iii) Any area designated with respect to any air pollutant

under the provisions of paragraph (1)(D) (as in effect

immediately before November 15, 1990) is designated, by

operation of law, as an unclassifiable area for such pollutant

within the meaning of subparagraph (A)(iii).

(2) Publication of designations and redesignations

(A) The Administrator shall publish a notice in the Federal

(5), or announcing any designation under paragraph (4), or

promulgating any redesignation under paragraph (3).

(B) Promulgation or announcement of a designation under

paragraph (1), (4) or (5) shall not be subject to the provisions of

sections 553 through 557 of Title 5 (relating to notice and

comment), except nothing herein shall be construed as

precluding such public notice and comment whenever possible.

(3) Redesignation

(A) Subject to the requirements of subparagraph (E), and

on the basis of air quality data, planning and control

considerations, or any other air quality- related considerations

the Administrator deems appropriate, the Administrator may at

any time notify the Governor of any State that available

information indicates that the designation of any area or portion

of an area within the State or interstate area should be revised.

In issuing such notification, which shall be public, to the

Governor, the Administrator shall provide such information as

the Administrator may have available explaining the basis for

the notice.

(B) No later than 120 days after receiving a notification

under subparagraph (A), the Governor shall submit to the

Administrator such redesignation, if any, of the appropriate area

(or areas) or portion thereof within the State or interstate area,

as the Governor considers appropriate. |

subparagraph (B) (or paragraph (1)(B)(ii1)), the Administrator

shall promulgate the redesignation, if any, of the area or portion

thereof, submitted by the Governor in accordance with

subparagraph (B), making such modifications as_ the

Administrator may deem necessary, in the same manner and

under the same procedure as is applicable under clause (ii) of

paragraph (1)(B), except that the phrase "60 days” shall be

substituted for the phrase "120 days” in that clause. If the

Governor does not submit, in accordance with subparagraph

(B), a redesignation for an area (or portion thereof) identified

by the Administrator under subparagraph (A), the

Administrator shall promulgate such redesignation, if any, that

the Administrator deems appropriate.

(D) The Governor of any State may, on the Governor's own

motion, submit to the Administrator a revised designation of

-any area or portion thereof within the State. Within 18 months

of receipt of a complete State redesignation submittal, the

Administrator shall approve or deny such redesignation. The

submission of a redesignation by a Governor shall not affect the

effectiveness or enforceability of the applicable implementation

plan for the State.

(E) The Administrator may not promulgate a redesignation

of a nonattainment area (or portion thereof) to attainment

unless—

(i) the Administrator determines that the area has attained

the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable

implementation plan for the area under section 7410(k) of this

title;

(iii) the Administrator determines that the improvement in

air quality is due to permanent and enforceable reductions in

emissions resulting from implementation of the applicable

implementation plan and applicable Federal air pollutant

control regulations and other permanent and enforceable

reductions;

(iv) the Administrator has fully approved a maintenance

plan for the area as meeting the requirements of section 7505a

of this title; and

(v) the State containing such area has met all requirements

applicable to the area under section 7410 of this title and part

D of this subchapter.

(F) The Administrator shall not promulgate any

redesignation of any area (or portion thereof) from

nonattainment to unclassifiable.

(4) Nonattainment designations for ozone, carbon

monoxide and particulate matter (PM-10)

(A) Ozone and carbon monoxide

(i) Within 120 days after November 15, 1990, each

Governor of each State shall submit to the Administrator a list

that designates, affirms or reaffirms the designation of, or

redesignates (as the case may be), all areas (or portions thereof)

of the Governor's State as attainment, nonattainment, or

unclassifiable with respect to the national ambient air quality

standards for ozone and carbon monoxide.

(ii) No later than 120 days after the date the Governor is

required to submit the list of areas (or portions thereof) required

under clause (i) of this subparagraph, the Administrator shall

promulgate such designations, making such modifications as

the Administrator may deem necessary, in the same manner,

and under the same procedure, as is applicable under clause (11)

of paragraph (1)(B), except that the phrase "60 days” shall be

substituted for the phrase "120 days" in that clause. If the

Governor does not submit, in accordance with clause (1) of this

subparagraph, a designation for an area (or portion thereof), the

Administrator shall promulgate the designation that the

Administrator deems appropriate.

(iii) No nonattainment area may be redesignated as an

attainment area under this subparagraph.

(iv) Notwithstanding paragraph (1)(C)(ii) of this

subsection, if an ozone or carbon monoxide nonattainment area

located within a metropolitan statistical area or consolidated

metropolitan statistical area (as established by the Bureau of the

Census) is classified under part D of this subchapter as a

Serious, Severe, or Extreme Area, the boundaries of such area

are hereby revised (on the date 45 days after such classification)

by operation of law to include the entire metropolitan statistical

area or consolidated metropolitan statistical area, as the case

may be, unless within such 45-day period the Governor (in

consultation with State and local air pollution control agencies)

notifies the Administrator that additional time is necessary to

evaluate the application of clause (v). Whenever 1 Governor

has submitted such a notice to the Administrator, such

boundary revision shall occur on the later of the date 8 months

after such classification or 14 months after November 15, 1990,

unless the Governor makes the finding referred to in clause (v),

and the Administrator concurs in such finding, within such

period. Except as otherwise provided in this paragraph, a

boundary revision under this clause or clause (v) shall apply for

purposes of any State implementation plan revision required to

be submitted after November 15, 1990.

(v) Whenever the Governor of a State has submitted a

notice under clause (iv), the Governor, in consultation with

State and local air pollution control agencies, shall undertake a

study to evaluate whether the entire metropolitan statistical area

or consolidated metropolitan statistical area should be included

within the nonattainment area. Whenever a Governor finds and

demonstrates to the satisfaction of the Administrator, and the

Administrator concurs in such finding, that with respect to a

portion of a metropolitan statistical area or consolidated

metropolitan statistical area, sources in the portion do not

contribute significantly to violation of the national ambient air

quality standard, the Administrator shall approve the

Governor's request to exclude such portion from the

nonattainment area. In making such finding, the Governor and

the Administrator shall consider factors such as population

density, traffic congestion, commercial development, industrial

development, meteorological conditions, and pollution

transport.

(B) PM-10 designations

By operation of law, until redesignation by the Administrator

pursuant to paragraph (3)—

(i) each area identified in 52 Federal Register 29383 (Aug.

7, 1987) as a Group I area (except to the extent that such

identification was modified by the Administrator before

November 15, 1990) is designated nonattainment for PM-10;

(ii) any area containing a site for which air quality

monitoring data show a violation of the national ambient air

quality standard for PM-10 before January 1, 1989 (as

determined under part 50, appendix K of title 40 of the Code of

Federal Regulations) is hereby designated nonattainment for

PM- 10; and

(iii) each area not described in clause (i) or (ii) is hereby

designated unclassifiable for PM-10. Any designation for

particulate matter (measured in terms of total suspended

particulates) that the Administrator promulgated pursuant to

this subsection (as in effect immediately before November 15,

1990) shall remain in effect for purposes of implementing the

maximum allowable increases in concentrations of particulate

matter (measured in terms of total suspended particulates)

pursuant to section 7473(b) of this title, until the Administrator

determines that such designation is no longer necessary for that

purpose.

(5) Designations for lead

The Administrator may, in the Administrator's discretion

at any time the Administrator deems appropriate, require a State

to designate areas (or portions thereof) with respect to the

national ambient air quality standard for lead in effect as of

November 15, 1990, in accordance with the procedures under

subparagraphs (A) and (B) of paragraph (1), except that in

applying subparagraph (B)(i) of paragraph (1) the phrase "2

years from the date of promulgation of the new or revised

national ambient air quality standard” shall be replaced by the

phrase "1 year from the date the Administrator notifies the State

of the requirement to designate areas with respect to the

standard for lead”.

(e) Redesignation of air quality control regions

(1) Except as otherwise provided in paragraph (2), the

Governor of each State is authorized, with the approval of the

Administrator, to redesignate from time to time the air quality

control regions within such State for purposes of efficient and

effective air quality management. Upon such redesignation, the

list under subsection (d) of this section shall be modified

accordingly.

(2) In the case of an air quality control region in a State, or

part of such region, which the Administrator finds may

significantly affect air pollution concentrations in another State,

the Governor of the State in which such region, or part of a

region, is located may redesignate from time to time the

boundaries of so much of such air quality control region as is

located within such State only with the approval of the

Administrator and with the consent of all Governors of all

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States which the Administrator determines may be significantly

affected.

(3) No compliance date extension granted under section

7413(d)(5) of this title (relating to coal conversion) shall cease

to be effective by reason of the regional limitation provided in

section 7413(d)(5) of this title if the violation of such limitation

is due solely to a redesignation of a region under this

subsection.

CAA § 172, 42 U.S.C. § 7502. Nonattainment plan

provisions in general

(a) Classifications and attainment dates

(1) Classifications

(A) On or after the date the Administrator promulgates the

designation of an area as a nonattainment area pursuant to

section 7407(d) of this title with respect to any national ambient

air quality standard (or any revised standard, including a

revision of any standard in effect on November 15, 1990), the

Administrator may classify the area for the purpose of applying

an attainment date pursuant to paragraph (2), and for other

purposes. In determining the appropriate classification, if any,

for a nonattainment area, the Administrator may consider such

factors as the severity of nonattainment in such area and the

availability and feasibility of the pollution control measures

that the Administrator believes may be necessary to provide for

attainment of such standard in such area.

(B) The Administrator shall publish a notice in the Federal

(A), except the Administrator shall provide an opportunity for

at least 30 days for written comment. Such classification shall

not be subject to the provisions of sections 553 through 557 of

Title 5 (concerning notice and comment) and shall not be

subject to judicial review until the Administrator takes final

lla

action under subsection (k) or (1) of section 7410 of this title

(concerning action on plan submissions) or section 7509 of this

title (concerning sanctions) with respect to any plan

submissions required by virtue of such classification.

nonattainment areas for which classifications are specifically

provided under other provisions of this part.

(2) Attainment dates for nonattainment areas

(A) The attainment date for an area designated

nonattainment with respect to a national primary ambient air

quality standard shall be the date by which attainment can be

achieved 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 Administrator

determines appropriate, for a period no greater than 10 years

from the date of designation as nonattainment, considering the

severity of nonattainment and the availability and feasibility of

pollution control measures.

(B) The attainment date for an area designated

nonattainment with respect to a secondary national ambient air

quality standard shall be the date by which attainment can be

achieved as expeditiously as practicable after the date such area

was designated nonattainment under section 7407(d) of this

title.

extend for 1 additional year (hereinafter referred to as the

"Extension Year") the attainment date determined by the

Administrator under subparagraph (A) or (B) if—

(i) the State has complied with all requirements and

commitments pertaining to the area in the applicable

implementation plan, and

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(ii) in accordance with guidance published by the

Administrator, no more than a minimal number of exceedances

of the relevant national ambient air quality standard has

occurred in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this

subparagraph for a single nonattainment area.

(D) This paragraph shall not apply with respect to

nonattainment areas for which attainment dates are specifically

provided under other provisions of this part.

(b) Schedule for plan submissions

At the time the Administrator promulgates the designation

of an area as nonattainment with respect to a national ambient

air quality standard under section 7407(d) of this title, the

Administrator shall establish a schedule according to which the

State containing such area shall submit a plan or plan revision

(including the plan items) meeting the applicable requirements

of subsection (c) of this section and section 7410(a)(2) of this

title. Such schedule shall at a minimum, include a date or dates,

extending no later than 3 years from the date of the

nonattainment designation, for the submission of a plan or plan

revision (including the plan items) meeting the applicable

requirements of subsection (c) of this section and section

7410(a)(2) of this title.

The plan provisions (including plan items) required to be

submitted under this part shall comply with each of the

following:

(1) In general

Such plan provisions shall provide for the implementation

of all reasonably available control measures as expeditiously as

practicable (including such reductions in emissions from

existing sources in the area as may be obtained through the

adoption, at a minimum, of reasonably available control

l3a

technology) and shall provide for attainment of the national

primary ambient air quality standards.

(2) RFP

Such plan provisions shall require reasonable further

progress.

(3) Inventory

Such plan provisions shall include a comprehensive,

accurate, current inventory of actual emissions from all sources

of the relevant pollutant or pollutants in such area, including

such periodic revisions as the Administrator may determine

necessary to assure that the requirements of this part are met.

(4) Identification and quantification

Such plan provisions shall expressly identify and quantify

the emissions, if any, of any such pollutant or pollutants which

will be allowed, in accordance with section 7503(a)(1)(B) of

this title, from the construction and operation of major new or

modified stationary sources in each such area. The plan shall

demonstrate to the satisfaction of the Administrator that the

emissions quantified for this purpose will be consistent with the

achievement of reasonable further progress and will not

interfere with attainment of the applicable national ambient air

quality standard by the applicable attainment date.

(5) Permits for new and modified major stationary sources

Such plan provisions shall require permits for the

construction and operation of new or modified major stationary

sources anywhere in the nonattainment area, in accordance with

section 7503 of this title.

(6) Other measures

Such plan provisions shall include enforceable emission

limitations, and such other control measures, means or

techniques (including economic incentives such as fees,

marketable permits, and auctions of emission rights), as well as

l4a

schedules and timetables for compliance, as may be necessary

or appropriate to provide for attainment of such standard in

such area by the applicable attainment date specified in this

part.

(7) Compliance with section 7410(a)(2)

Such plan provisions shall also meet the applicable

provisions of section 7410(a)(2) of this title.

(8) Equivalent techniques

Upon application by any State, the Administrator may

allow the use of equivalent modeling, emission inventory, and

planning procedures, unless the Administrator determines that

the proposed techniques are, in the aggregate, less effective

than the methods specified by the Administrator.

(9) Contingency measures

Such plan shall provide for the implementation of specific

measures to be undertaken if the area fails to make reasonable

further progress, or to attain the national primary ambient air

quality standard by the attainment date applicable under this

part. Such measures shall be included in the plan revision as

contingency measures to take effect in any such case without

further action by the State or the Administrator.

(e) Future modification of standard

If the Administrator relaxes a national primary ambient air

quality standard after November 15, 1990, the Administrator

shall, within 12 months after the relaxation, promulgate

requirements applicable to all areas which have not attained

that standard as of the date of such relaxation. Such

requirements shall provide for controls which are not less

stringent than the controls applicable to areas designated

nonattainment before such relaxation.

lSa

CAA § 181, 42 U.S.C. § 7511. Classifications and

attainment dates

(a) Classification and attainment dates for 1989

nonattainment areas

(1) Each area designated nonattainment 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, 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.

TABLE 1

Areaclass Design value Primary standard

attainment date

Marginal ...... 0.121 up to 0.138 .......... 3 years after November 15, 1990

Moderate ...... 0.138 up to 0.160 .......... 6 years after November 15, 1990

Serious ......... 0.160 up to 0.180 .......... 9 years after November 15, 1990

Severe ......... 0.180 up to 0.280 .......... 15 years after November 15, 1990

Extreme ...... 0.280 and above ............ 20 years after November 15, 1990

(2) Notwithstanding table 1, in the case of a severe area

with a 1988 ozone design value between 0.190 and 0.280 ppm,

the attainment date shall be 17 years (in lieu of 15 years) after

November 15, 1990.

(3) At the time of publication of the notice under section

7407(d)(4) of this title (relating to area designations) for each

l6a

ozone nonattainment area, the Administrator shall publish a

notice announcing the classification of such ozone

nonattainment area. The provisions of section 7502(a)(1)(B) of

this title (relating to lack of notice and comment and judicial

review) shall apply to such classification.

(4) If an area classified under paragraph (1) (Table 1)

would have been classified in another category if the design

value in the area were 5 percent greater or 5 percent less than

the level on which such classification was based, the

Administrator may, in the Administrator's discretion, within 90

days after the initial classification, by the procedure required

under paragraph (3), adjust the classification to place the area

in such other category. In making such adjustment, the

Administrator may consider the number of exceedances of the

national primary ambient air quality standard for ozone in the

area, the level of pollution transport between the area and other

affected areas, including both intrastate and interstate transport,

and the mix of sources and air pollutants in the area.

(5) Upon application by any State, the Administrator may

extend for | additional year (hereinafter referred to as the

"Extension Year") the date specified in table 1 of paragraph (1)

of this subsection if—

(A) the State has complied with all requirements and

commitments pertaining to the area in the applicable

implementation plan, and

(B) no more than | exceedance of the national ambient air

quality standard level for ozone has occurred in the area in the

year preceding the Extension Year. No more than 2 one-year

extensions may be issued under this paragraph for a single

nonattainment area.

17a

(b) New designations and reclassifications

(1) New designations to nonattainment

Any area that is designated attainment or unclassifiable for

ozone under section 7407(d)(4) of this title, and that is

subsequently redesignated to nonattainment for ozone under

section 7407(d)(3) of this title, shall, at the time of the

redesignation, be classified by operation of law in accordance

with table 1 under subsection (a) of this section. Upon its

classification, the area shall be subject to the same requirements

under section 7410 of this title, subpart 1 of this part, and this

subpart that would have applied had the area been so classified

at the time of the notice under subsection (a)(3) of this section,

except that any absolute, fixed date applicable in connection

with any such requirement is extended by operation of law by

a period equal to the length of time between November 15,

1990, and the date the area is classified under this paragraph.

(2) Reclassification upon failure to attain

(A) Within 6 months following the applicable attainment

date (including any extension thereof) for an ozone

nonattainment area, the Administrator shall determine, based on

the area's design value (as of the attainment date), whether the

area attained the standard by that date. Except for any Severe or

Extreme area, any area that the Administrator finds has not

attained the standard by that date shall be reclassified by

operation of law in accordance with table 1 of subsection (a) of

this section to the higher of—

(i) the next higher classification for the area, or

(ii) the classification applicable to the area's design value

as determined at the time of the notice required under

subparagraph (B). No area shall be reclassified as Extreme

under clause (ii).

(B) The Administrator shall publish a notice in the Federal

18a

identifying each area that the Administrator has determined

under subparagraph (A) as having failed to attain and

identifying the reclassification, if any, described under

subparagraph (A).

(3) Voluntary reclassification

The Administrator shall grant the request of any State to

reclassify a nonattainment area in that State in accordance with

table 1 of subsection (a) of this section to a higher

classification. The Administrator shall publish a notice in the

Federal Register of any such request and of action by the

Administrator granting the request.

(4) Failure of Severe Areas to attain standard

(A) Ifany Severe Area fails to achieve the national primary

ambient air quality standard for ozone by the applicable

attainment date (including any extension thereof), the fee

provisions under section 7511d of this title shall apply within

the area, the percent reduction requirements of section

751 1a(c\(2)(B) and (C) of this title (relating to reasonable

further progress demonstration and NO subx control) shall

continue to apply to the area, and the State shall demonstrate

that such percent reduction has been achieved in each 3-year

interval after such failure until the standard is attained. Any

failure to make such a demonstration shall be subject to the

sanctions provided under this part.

(B) In addition to the requirements of subparagraph (A), if

the ozone design value for a Severe Area referred to in

subparagraph (A) is above 0.140 ppm for the year of the

applicable attainment date, or if the area has failed to achieve

its most recent milestone under section 751 1a(g) of this title,

the new source review requirements applicable under this

subpart in Extreme Areas shall apply in the area and the term[s]

"major source” and "major stationary source” shall have the

same meaning as in Extreme Areas.

19a

those areas referred to in subparagraph (A) and not covered by

subparagraph (B), the provisions referred to in subparagraph

(B) shall apply after 3 years from the applicable attainment date

unless the area has attained the standard by the end of such

3-year period.

(D) If, after November 15, 1990, the Administrator

modifies the method of determining compliance with the

national primary ambient air quality standard, a design value or

other indicator comparable to 0.140 in terms of its relationship

to the standard shall be used in lieu of 0.140 for purposes of

applying the provisions of subparagraphs (B) and (C).

(1) Any reference in this subpart to a "Marginal Area", a

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

"Extreme Area" shall be considered a reference to a Marginal

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

Extreme Area as respectively classified under this section.

(2) Any reference in this subpart to "next higher

classification" or comparable terms shall be considered a

reference to the classification related to the next higher set of

design values in table 1.

CAA § 182, 42 U.S.C. § 751la. Plan submissions and

requirements

keEKK

(d) Severe Areas

Each State in which all or part of a Severe Area is located

shall, with respect to the Severe Area, make the submissions

described under subsection (c) of this section (relating to

Serious Areas), and shall also submit the revisions to the

applicable implementation plan (including the plan items)

described under this subsection. For any Severe Area, the terms

20a

"major source" and "major stationary source” include (in

addition to the sources described in section 7602 of this title)

any stationary source or group of sources located within a

contiguous area and under common control that emits, or has

the potential to emit, at least 25 tons per year of volatile organic

compounds.

(1) Vehicle miles traveled

(A) Within 2 years after November 15, 1990, the State

shall submit a revision that identifies and adopts specific

enforceable transportation control strategies and transportation

control measures to offset any growth in emissions from growth

in vehicle miles traveled or numbers of vehicle trips in such

area and to attain reduction in motor vehicle emissions as

necessary, in combination with other emission reduction

requirements of this subpart, to comply with the requirements

of subsection (b)(2)(B) and (c)(2)(B) of this section (pertaining

to periodic emissions reduction requirements). The State shall

consider measures specified in section 7408(f) of this title, and

choose from among and implement such measures as necessary

to demonstrate attainment with the national ambient air quality

standards; in considering such measures, the State should

ensure adequate access to downtown, other commercial, and

residential areas and should avoid measures that increase or

relocate emissions and congestion rather than reduce them.

(B) The State may also, in its discretion, submit a revision

at any time requiring employers in such area to implement

programs to reduce work-related vehicle tnps and miles

travelled by employees. Such revision shall be developed in

accordance with guidance issued by the Administrator pursuant

to section 7408(f) of this title and may require that employers

in such area increase average passenger occupancy per vehicle

in commuting trips between home and the workplace during

peak travel periods. The guidance of the Administrator may

specify average vehicle occupancy rates which vary for

locations within a nonattainment area (suburban, center city,

2la

business district) or among nonattainment areas reflecting

existing occupancy rates and the availability of high occupancy

modes. Any State required to submit a revision under this

subparagraph (as in effect before December 23, 1995)

containing provisions requiring employers to reduce

work-related vehicle trips and miles travelled by employees

may, in accordance with State law, remove such provisions

from the implementation plan, or withdraw its submission, if

the State notifies the Administrator, in writing, that the State

has undertaken, or will undertake, one or more alternative

methods that will achieve emission reductions equivalent to

those to be achieved by the removed or withdrawn provisions.

(2) Offset requirement

For purposes of satisfying the offset requirements pursuant

to this part, the ratio of total emission reductions of VOCs to

total increased emissions of such air pollutant shall be at least

1.3 to 1, except that if the State plan requires all existing major

sources in the nonattainment area to use best available control

technology (as defined in section 7479(3) of this title) for the

control of volatile organic compounds, the ratio shall be at least

1.2 to 1.

(3) Enforcement under section 751 1d

By December 31, 2000, the State shall submit a plan

revision which includes the provisions required under section

7511d of this title. Any reference to the term "attainment date”

in subsection (b) or (c) of this section, which is incorporated by

reference into this subsection (d), shall refer to the attainment

date for Severe Areas.

(e) Extreme Areas

Each State in which all or part of an Extreme Area is

located shall, with respect to the Extreme Area, make the

submissions described under subsection (d) of this section

(relating to Severe Areas), and shall also submit the revisions

to the applicable implementation plan (including the plan

22a

items) described under this subsection. The provisions of clause

(11) of subsection (c)(2)(B) of this section (relating to reductions

of less than 3 percent), the provisions of parag[r]aphs (6), (7)

and (8) of subsection (c) of this section (relating to de

minim{i]s rule and modification of sources), and the provisions

of clause (ii) of subsection (b)(1)(A) of this section (relating to

reductions of less than 15 percent) shall not apply in the case of

an Extreme Area. For any Extreme Area, the terms "major

source” and "major stationary source" includes (in addition to

the sources described in section 7602 of this title) any

Stationary source or group of sources located within a

contiguous area and under common control that emits, or has

the potential to emit, at least 10 tons per year of volatile organic

compounds.

(1) Offset requirement

For purposes of satisfying the offset requirements pursuant

to this part, the ratio of total emission reductions of VOCs to

total increased emissions of such air pollutant shall be at least

1.5 to 1, except that if the State plan requires all existing major

sources in the nonattainment area to use best available control

technology (as defined in section 7479(3) of this title) for the

control of volatile organic compounds, the ratio shall be at least

1.2 to 1.

(2) Modifications

Any change (as described in section 741 1(a)(4) of this title)

at a major stationary source which results in any increase in

emissions from any discrete operation, unit, or other pollutant

emitting activity at the source shall be considered a

modification for purposes of section 7502(c)(5) of this title and

section 7503(a) of this title, except that for purposes of

complying with the offset requirement pursuant to section

7503(a)(1) of this title, any such increase shall not be

considered a modification if the owner or operator of the source

elects to offset the increase by a greater reduction in emissions

23a

of the air pollutant concerned from other discrete operations,

units, or activities within the source at an internal offset ratio of

at least 1.3 to 1. The offset requirements of this part shall not be

applicable in Extreme Areas to a modification of an existing

source if such modification consists of installation of

equipment required to comply with the applicable

implementation plan, permit, or this chapter.

(3) Use of clean fuels or advanced control technology

For Extreme Areas, a plan revision shall be submitted

within 3 years after November 15, 1990, to require, effective 8

years after November 15, 1990, that each new, modified, and

existing electric utility and industrial and commercial boiler

which emits more than 25 tons per year of oxides of nitrogen—

(A) burn as its primary fuel natural gas, methanol, or

ethanol (or a comparably low polluting fuel), or

(B) use advanced control technology (such as catalytic

control technology or other comparably effective control

methods) for reduction of emissions of oxides of nitrogen. For

purposes of this subsection, the term "primary fuel" means the

fuel which is used 90 percent or more of the operating time.

This paragraph shall not apply during any natural gas supply

emergency (as defined in title III of the Natural Gas Policy Act

of 1978 [15 U.S.C.A. § 3361 et seq.}).

(4) Traffic control measures during heavy traffic hours

For Extreme Areas, each implementation plan revision

under this subsection may contain provisions establishing

traffic control measures applicable during heavy traffic hours

to reduce the use of high polluting vehicles or heavy-duty

vehicles, notwithstanding any other provision of law.

(5) New technologies

The Administrator may, in accordance with section 7410

of this title, approve provisions of an implementation plan for

an Extreme Area which anticipate development of new control

24a

techniques or improvement of existing control technologies,

and an attainment demonstration based on such provisions, if

the State demonstrates to the satisfaction of the Administrator

that—

(A) such provisions are not necessary to achieve the

incremental emission reductions required during the first 10

years after November 15, 1990; and

(B) the State has submitted enforceable commitments to

develop and adopt contingency measures to be implemented as

set forth herein if the anticipated technologies do not achieve

planned reductions. Such contingency measures shall be

submitted to the Administrator no later than 3 years before

proposed implementation of the plan provisions and approved

or disapproved by the Administrator in accordance with section

7410 of this title. The contingency measures shall be adequate

to produce emission reductions sufficient, in conjunction with

other approved plan provisions, to achieve the periodic

emission reductions required by subsection (b)(1) or (c)(2) of

this section and attainment by the applicable dates. If the

Administrator determines that an Extreme Area has failed to

achieve an emission reduction requirement set forth in

subsection (b)( 1) or (c)(2) of this section, and that such failure

is due in whole or part to an inability to fully implement

provisions approved pursuant to this subsection, the

Administrator shall require the State to implement the

contingency measures to the extent necessary to assure

compliance with subsections (b)(1) and (c)(2) of this section.

Any reference to the term "attainment date” in subsection

(b), (c), or (d) of this section which is incorporated by reference

into this subsection, shall refer to the attainment date for

Extreme Areas.

25a

CAA § 183, 42 U.S.C. § 7511b. Federal ozone measures

(g) Ozone design value study

The Administrator shall conduct a study of whether the

methodology in use by the Environmental Protection Agency

as of November 15, 1990, for establishing a design value for

ozone provides a reasonable indicator of the ozone air quality

of ozone nonattainment areas. The Administrator shall obtain

input from States, local subdivisions thereof, and others. The

study shall be completed and a report submitted to Congress

not later than 3 years after November 15, 1990. The results of

the study shall be subject to peer and public review before

submitting it to Congress.

eee

CAA § 185, 42 U.S.C. § 7511d. Enforcement for Severe and

Extreme ozone nonattainment areas for failure to attain

(a) General rule

Each implementation plan revision required under section

751 1a(d) and (e) of this title (relating to the attainment plan for

Severe and Extreme ozone nonattainment areas) shall provide

that, if the area to which such plan revision applies has failed to

attain the national primary ambient air quality standard for

ozone by the applicable attainment date, each major stationary

source of VOCs located in the area shall, except as otherwise

provided under subsection (c) of this section, pay a fee to the

State as a penalty for such failure, computed in accordance with

subsection (b) of this section, for each calendar year beginning

after the attainment date, until the area is redesignated as an

attainment area for ozone. Each such plan revision should

include procedures for assessment and collection of such fees.

26a

(b) Computation of fee

(1) Fee amount

The fee shall equal $5,000, adjusted in accordance with

paragraph (3), per ton of VOC emitted by the source during the

calendar year in excess of 80 percent of the baseline amount,

computed under paragraph (2).

(2) Baseline amount

For purposes of this section, the baseline amount sh

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