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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 457

## Text

Supreme Court, U.S,
FILED

KS

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
register on constitutional ear drums. But constrained by Lead
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

2

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-

3

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

4

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

5

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.

6

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

7

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

8

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

9

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

10

(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

1]

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

12

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.

13

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

o4

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.

15

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

16

“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

17

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

18

(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.

19

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.

20

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”).

21

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

22

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. . . .

23

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

24

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

25

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

26

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.

27

§ 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:

28

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,

29

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

30

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

31

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

32

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

33

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),

34

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.

35

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 ....

36

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

37

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.

38

§ 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

—

39

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

40

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

41

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

42

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

43

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.

44

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

45

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

46

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

47

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).

48

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

la

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.

(c) Authority of Administrator to designate regions;
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

2a

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

a

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).
(C) Designations by operation of law
(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,

4a

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
Register promulgating any designation under paragraph (1) or
(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

Sa

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. |

(C) No later than 120 days after the date described in
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 m

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A22. Public record. Not legal advice.