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

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|” Supreme Court, U.S.

FILED

: SEP 11 2000

— 7 +9 > 37

No. 99-1257 | Lin’.

LLL OD . -<

In The Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY,

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Petitioners,

Vv.

Respondents.

On Writ Of Certiorari To The United States Court

of Appeals For The District Of Columbia Circuit

BRIEF OF RESPONDENT STATES OF OHIO,

MICHIGAN AND WEST VIRGINIA

*Counsel of Record

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

JAMES G. TASSIE

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Fir.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

{ Additional Counsel Listed on Inside Cover}

BEST AVAILABLE COPY.

mijy kr

MARK J. RUDOLPH

Depuiy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hansfcrd Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan

i ii

RESTATEMENT OF THE QUESTIONS PRESENTED TABLE OF CONTENTS

- Whether the court of appeals correctly rejected the Page

Environmental Protection Agency’s (EPA's)

standardless interpretation of Sections 108 and 109 of

the Clean Air Act (the Act), and remanded under RESTATEMENT OF THE QUESTIONS PRESENTED....i

Chevron for EPA to fashion and apply a proper

interpretation of the Act. Ce ae Ca Ce cccensrsesscssensccrnsssnseneeemeneens vi

2. Whether the court of appeals had jurisdiction to UTI vactercnnentesesnsntennnsnsunenneranemmagnneanenasenasennnies l

review, as a final agency action ripe for review,

EPA’s promulgation of a revised National Ambient COUNTERSTATEMENT OF THE CASE..................c00000+ 2

Air Quality Standard (NAAQS) for ozone.

I. THE STATUTORY FRAMEWORK.................000005 2

3. Whether EPA had authority to promulgate and

implement a NAAQS for ozone different from the = THE OZONE RULEMAKING ..................0c000e00000. 4

ozone NAAQS and implementing requirements set by

Congress in Subpart 2 of Part D of the Act. A. The 1996 Proposal; EPA's Interim Policy...4

B. TRC 1997 Rulemaking. ...cccccrccccccccserccreccseecees 6

il, THE D.C. CIRCUIT DECISION ........ccscccscccssccssess 7

SUMMARY OF ARGUMENT................ccccssccssssesssesssceeneees 8

IOS ccnncunssnssscmansemssessnsenssenenmamanenseesneesmsennnscines 10

L. THE COURT NEED NOT ADDRESS THE

NON-DELEGATION QUESTION. ............ccccccseee 10

ll. EPA HAS NO AUTHORITY TO REVISE

THE OZONE STANDARD OR THE

IMPLEMENTING REQUIREMENTS SET

BY CONGRESS IN SUBPART 2............cccceceeeeees 10

TABLE OF CONTENTS - Continued

Page

EPA’s Revision Of The Ozone

Standard And Implementing

Requirements Conflicts With

Subpart 2 And, Therefore, Is

UIRIRIEREE, cocecescsssscsecssccsssscssssesessnesessscecessssss 13

l. EPA’s revised standard

conflicts with the one-hour

standard codified in Subpart

y Se 14

2. EPA’s revised _ standard

conflicts with the

classifications and attainment

dates set by operation of law

OF en 16

3. EPA’s revised _ standard

changes the state planning

requirements imposed by

DURES 2 cccccccssecccssevscssessssesssssesseetes 19

4. EPA’s revised _ standard

conflicts with Congress’s

overall approach to

implementing and attaining a

national ozone standard. .............++ 21

TABLE OF CONTENTS - Continued

The Act Offers EPA No Authority

To Revise The One-Hour Ozone

Standard Or To Implement A New

SUI intiisiiusininteccesgemniatiientinbiemebaintiinds

l. The Act offers EPA no

general authority to designate

ozone nonattainment areas, to

classify those areas, or to set

dates for attainment of a

2. The Act offers EPA no

general authority to revise the

EPA’S ACTION TO REVISE THE ONE-

HOUR STANDARD AND IMPLEMENT A

NEW STANDARD WAS A _ FINAL

AGENCY ACTION RIPE FOR REVIEW

The Court Need Not Address The

Questions Of Finality Or Ripeness.........

Consideration Of Traditional

Notions Of Finality And Ripeness

Leads Inevitably To The Conclusion

That EPA’s Rulemaking Was Final

Agency Action Ripe For Review............

Page

TABLE OF CONTENTS - Continued

Page

l. EPA’s rulemaking was

“agency action” within

Section 307 of the Act «0... 34

2. The entire rule constitutes

“final” agency action that is

judicially reviewable...................... 35

3. EPA’s action is ripe for review......38

See ee eh cseecesennsnesusenmenssenepeatunmnemsemmesssnmennmenainel 40

TABLE OF AUTHORITIES

CASES

Abbott Laboratories v. Gardner,

SOT Ube CSD (BFGF prcccccccscccsrcnsmssscsscessvensecees

American Trucking Associations, Inc. v. United

States Environmental Protection Agency,

175 F.3d 1027 modified, 195 F.3d 4

Bennett v. Spear,

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

Council, Inc.,

GBI UB. SEF (BFE) scocccseccsnvessscssccessccssncesscees

Chicago & Southern Air Lines, Inc. v. Waterman

S.S. Corp.,

BID Ee TED CBP GID cocessssscsccsncssccsnssnssersncesese

Davis v. Michigan Department of Treasury,

GED UB. GED (TRA cccsssvevsscscsssscsssssssesnesseecss

Dayton Board of Ed. v. Brinkman,

ETSI Pipeline Project v. Missouri,

484 U.S. 495 (19BB)............ccccssresccssrssreessees

Federal Trade Commission v. Standard Oil,

449 U.S. 232 (1980).........000escessereseserssesesensees

Food and Drug Admin. v. Brown & Williamson

Tobacco Corp.,

__ US. __, 120 S. Ct. 1291 (2000) ..........

MCI Telecommunications Corp. v. American

Telephone & Telegraph Co.,

Page

FES Ue SES (PPP CP rccccccscecsscsccssccssscaqneseseze 11, 13,31

vil

TABLE OF AUTHORITIES - Continued

Page

Pacific Gas & Electric Co. v. State Energy

Resources Conservation and

Development Commission,

re ey ee cientiteterectnsccnencnenessssnesneenineis 39

Port of Boston Marine Terminal Association v.

Rederiaktiebolaget Transatlantic,

|, ELECT 35

United States v. X-Citement Video, Inc.,

ee ee iininnteeinictensiitanscteniatitiinininniiiiiiucins 12

REGULATIONS

ees SIT iitrciiiccssteenerrmeintiinsieminensnnsieninmaninites 7, 33, 36

es TI nccerbictcensniainnisecnt, censnnieninienienmsnininpanieitiniedl 6

es NR ctiniiatiincccininiaaiatiicinsinsipesiauiniaaiasittiactaratateiiaiitiiinl 38

40 C.F.R. Part 93, Subpart Au... ce eeeceeeseeeeeeeeeeneeees 38

STATUTES

Clean Air Act;

Se ie PO OF BID. ccseccesssccrsersnessernsereseemenncenees 2

Clean Air Act §101(b);

Sy Sein. Here ereecceccncsctenieenpinsnimnitntntinestneadinnieaiies 11

Clean Air Act §107; :

ET TID seeieinriieidiprinancnneremtnnesiees 27, 28, 30, 36

Clean Air Act §107(d);

EET: ITI nninsencniccsennsentaneenssenneemninasioitetinn 37

Clean Air Act §107(d)(1);

42 U.S.C. T407(A)(1) ......cccceecsesseeeeeeeees 18, 26, 27, 37

viii

TABLE OF AUTHORITIES - Continued

Page

Clean Air Act §107(d)(4); 7

cs SHI ccrcccsencennsestecusnenenmenenmeuanel 27

Clean Air Act §108;

ae ies SHED ctcssctcnsrscscsemesmemeemmaneseomenneesie 2, 29

Clean Air Act §109;

| Ge Sete SHUI cccccnccccccncnnccccbaseneseesonseeemente 2, 11, 28

Clean Air Act §109(a);

a ise Pe ccnrsccnscccnsnsnsnssscssseensnctmsonsemesneeess 29

Clean Air Act §109(b);

EP ie TEE scxsnesnscensdenseenereumesenessnenepemesent 2,29

Clean Air Act §109(d);

a its. PH ei ncccscnsscscersnsseusrviesncessemmestenseeestenenes 2

Clean Air Act §110;

GS ice CUE cccccccnsccncnescncsesscntetsenssnsmnessneensnenqnensets 2

Clean Air Act §172;

EE Tice PENIS concsscersessesemeniennenett 27, 28, 30

Clean Air Act §172(a);

Ge ce Pe cccrcccenccscscnsssssnseenessentinretebenmnnnen 26

Clean Air Act §172(a)(1);

GB Vhs FEINLE D cooscccnccescscssssesessosscssees 27, 28, 37

Clean Air Act §172(a)(2);

gf dy oe 18, 28

Clean Air Act §172(b); .

Fe iis Pee i ecececcscscscsnsssensmnarecessereemmeneesstionss 37

Clean Air Act §173;

GE ii TRIED encenncccscncncccnsccscecsenssusnenentensnessesnnesnes 37

Clean Air Act §173(a)(1);

GE as PILED ccccoccccccsnccesessncsesnesseensncecsemnesee 37

Clean Air Act §173(a)(2);

GB BE. FONE cnccnscccssvssessssescesesnennsenenseesetenes 37

Clean Air Act §173(a)(5);

42 U.S.C. T503(a)(S) ...ccsscerserseerserseereerserseeneeenensees 37

TABLE OF AUTHORITIES - Continued

Page

Clean Air Act §176;

Rs as SII sisotesicintissinseeneicsicnittienemnidisenbaienibindeianll 37

Clean Air Act §176(c);

SE ics THI ciciicsicctnssimsiiiasniaapeimsieniatiaiddbiatasitiabibadaiiiie 37

Clean Air Act §181;

Se is, TTT scituiesctsicecesseieciiciideticiginesiaimniiaianiiniiiipeahdl passim

Clean Air Act §181(a); :

as, TEEN UII cinhsicicichicridnpscninaiaiininaiinniddadiniiinil 8,17

Clean Air Act §181(a)(1);

ge), | 14, 16, 17, 30

Clean Air Act §181(b)(1), (2);

ge Mh 14, 16

Clean Air Act §181(b)(2);

Cn 14, 19

Clean Air Act §181(b)(4);

ge ee 19

Clean Air Act §182;

ie Fe il ninicicnininictcsinneiiisinntaheimaineiiina 3, 19, 20, 21

Clean Air Act §182(a)(1);

ins SEIT crrccinscsncrenetmunsmennniiniiel 21

Clean Air Act §182(a)(3);

a ice Fe ccccerensnennniatnnenmmeneiiitbnias 21

Clean Air Act §182(e)(3);

le 20

Clean Air Act §182(g)(1);

GB ULEA. FEO ERIE) cccccccvccesncccssssesessesevessecsennenens 20

Clean Air Act §183;

Sr tice, Tae icentachtenicsesisicheeschiatiniadandthimeiaaiitintiaaiiiidiia 4

Clean Air Act §184;

FF ib: Cie ill cntnnincndnninintsetrimentcnanianrenniinel 4

Clean Air Act §185(B);

GB UBL. TOU EE cccccovecescessssesesecnsnensscnsesonsssnsvsecescossest 4

TABLE OF AUTHORITIES - Continued

Page

Clean Air Act §307;

Ge Us FRY sprvcsensscnsccesnsenisennemenntennnemen 10, 34

Clean Air Act §307(b)(1);

EE | | en 33, 34

EE a ee TOT 34

GB UK. Fae (eee erencrenennccemessnensnepitnscnmnenemeinii 2

FEDERAL REGISTER

GR Ba, FR, Gar Oe CB crnccccccnccscscsnsccccncesesomemetescmnssinens 4

SO FG, BR, Grae CUED crnccnenecensesncsensssssestemennnsmennesesenns 4

eT 5

Gd FG, BRR, Gra CEI ereccesscsenscssssccvsscnesnsnssssenesscersnsneves 6

GE Ft, Fa Gre Ce cecernrentcceenenrinsmeraemanienl 6

Gd Fat, FRR, Ge CD cecrcccsncccsnesescecnensecerssenmnnesnnmnesient 6

ETT 6

8 a, TR, Tere CHO ccccnccenrsenneninenntattnmimemennninel 6

GB Fe, Chet, Se CS 0D cccsccrcsccsccssensnssnncsenensnnnennsnenmnsenns 6

GB FG, Bay, Se CED ccccccncssesencecmnenescccsnnsentennsesatssenened 6

GB FG, BA. Fee CIF D cccccscsscessasscsressssesrsersncnnnsennagis 7, 36

Ge FG, BRD, Fee COED ccnccesecccasecscescessssescennessessecssennsenees 6

G2 FOG, RG, SERBS (IGI7) acoccccccceccssscccsecsccsssnsesssnnsbescsounasese 7

62 Fed. Reg. 38894 (1997) ..........c.ccsccssccsssersssesesees 7, 33, 36

GS FG, Bae, Ge Ge ccscssnecenecencesscesccscccssecszsnsnenmensese 29

65 Fed. Reg. 45185 (2000) .........ceseesessesessneneneeneneneenenenes 29

TABLE OF AUTHORITIES - Continued

Page

LEGISLATIVE HISTORY

H.R. Rep. No. 101-490 (1990), reprinted II Senate

Comm. on Env. And Public Works,

103° Cong., Ist Sess., Legislative History

of the Clean Air Act Amendments of 1990,

(1993) (“1990 Legislative History”’).............. passim

H.R. Conf. Rep. No. 101-952 (1990) reprinted in

1 1990 Legislative History ............sssccccccessesseees 16, 20

Senate Debate (January 23, 1990),

reprinted in II /990 Legislative History

at 4837 (statement of Sen. Chafee)...................000 20

Senate Debate (October 27, 1990),

reprinted in I /990 Legislative History

at 948 (comments of Sen. Chafee).................cc00008 20

H.R. 2323, 101" Cong., Section 181(e) (1989),

as introduced, reprinted in II /990

Legislative History at 4060............ccccscessecccssessseee 15

S. Rep. 100-231 (1987), reprinted in V 1990

TET 25

S. Rep. 101-228 (1989) reprinted in V 1990

Legislative History at 8350..........:0cccceseeees 22, 23, 25

S. 1894, 100" Cong., Section 402 (1987),

as reported, reprinted in VI 1990

' :2iSlative History at 9390.........cccccccccsssrrceesssses 25

S.Doc. No. 248, 79" Cong., 2™ Sess. 255 (1946) ...cccses0ee. 35

MISCELLANEOUS

38 Admin. L. Rev. 363, 370 (1986) ..........c.ccccceeseeseeeeeeeeeeees 13

INTRODUCTION

This case asks a question this Court has answered

many times — whether the acts of an administrative agency go

beyond the authority granted by Congress. Although the

case arises in a scientific context and a complex regulatory

scheme, the legal principles are quite simple.

An administrative agency has only those powers

granted by Congress. An agency’s ordinary and general

powers may not override Congress’s specific instruction and

limitation with respect to a particular action or program.

And, wherever Congress has expressed its intent, an agency

may not take conflicting action.

Here, these basic rules apply to limit the power of the

United States Environmental Protection Agency (EPA). Ten

years ago, Congress spoke clearly and comprehensively to

the problem of ozone control in this country. Recognizing

the failure of the existing approach, the complexity and

uncertainty of the science, and the enormous costs associated

with compliance, Congress created a detailed program that

balances realistic expectations and requirements for

continuing progress.

But just six years later, before Congress’s plan had

reached even mid-stream, EPA began dismantling it.

Although EPA struggled, throughout its rulemaking, to

define the limits of its authority to take these actions, EPA

apparently has resolved that struggle here, now arguing that it

may change Congress’s plan at any time and in whatever

manner it chooses. As the court of appeals recognized, if

EPA had such unlimited authority, the congressional scheme

would have been stillborn had EPA taken this action

immediately after Congress acted. Congress could not have

intended such an illogical result, and, applying the most basic

of legal principles, EPA’s actions in pursuit of such an

unauthorized end must be reversed.

COUNTERSTATEMENT OF THE CASE

I. THE STATUTORY FRAMEWORK

Prior to amendment in 1990, the Clean Air Act, 42°

U.S.C. 7401 et seq. (the Act, cited as CAA), applied an

identical statutory program for ozone and five other specified

pollutants, i.e., pollutants for which EPA issued criteria for

meeting air quality. Section 109 of the Act, 42 U.S.C. 7409,

required EPA to establish a national standard (a National

Ambient Air Quality Standard or NAAQS) for each of these

pollutants. The Act also required EPA to review and revise

the criteria and standards every five years and to “promulgate

such new standards as may be appropriate” in accordance

with Section 108, 42 U.S.C. 7408, which requires EPA to

establish criteria, and Section 109(b), 42 U.S.C. 7409(b),

which requires EPA to set national standards requisite to

protect the public health. CAA §109(d); 42 U.S.C. 7409(d).

Once EPA set the national standards, Section 110 of

the Act, 42 U.S.C. 7410, required each State to develop a

plan (a State Implementation Plan or SIP) to implement its

own mix of air pollution control strategies for meeting each

standard in each defined “area” of the State. Each state plan

had to provide for attainment of the national standard within

five years of the 1977 amendments to the Act, with the

possibility of a five-year extension. In this way, the Act

required that all areas of the country not meeting the primary

ozone standard, no matter how far from attainment, come

into compliance “as expeditiously as practicable but not later

than December 31, 1987.” 42 U.S.C. 7502 (1988).

By 1990, Congress recognized that its historic

approach to compliance — simply commanding that all States

meet each standard by a fixed date — had failed with regard to

ozone. Many areas had not met the ozone standard; some

were a long way from doing so. Congress responded to this

continuing ozone problem by developing a new approach and

enacting a unique program for ozone. In Subpart 2 of Part D

of the amended Act, CAA §§181-185B, 42 U.S.C. 7511-

7511f, Congress created an elaborate plan for achieving

national compliance with the ozone standard, and specified

measures that would ensure continued compliance in the

future. Integral to that program is the one-hour, 0.12 parts

per million (0.12 ppm) standard, which Congress codified in

Subpart 2.

As described more fully below, “by operation of

law,” Subpart 2 classifies areas that have not achieved the

standard (“nonattainment areas”) based upon their design

value, which is a rough measure of whether an area complies

with the one-hour, 0.12 ppm ozone standard. A table in

Subpart 2 establishes classifications ranging from Marginal

to Extreme, depending on how far an area is from meeting

the standard, and provides a specific date by which the areas

within each class must attain the standard (an “attainment

date”). CAA §181; 42 U.S.C. 7511.

Subpart 2 also specifies state plan requirements for

each class. The scheme begins with requirements applicable

to Marginal areas, and then adds increasingly more stringent

requirements for each additional classification further from

attainment. These plan requirements include mandatory

pollution control measures, annual emission reductions, and

offsets for emissions from new or modified stationary

sources. Congress anticipated that these requirements would

apply well into the future, and that they would continue to

apply, not only during the 20-year period before the final

attainment date, but until all areas of the country meet the

0.12 ppm, one-hour standard. CAA §182; 42 U.S.C. 751 la.

In addition to the designation, classification, and

planning requirements, Subpart 2 _ includes other

requirements: interstate ozone transfer control, CAA §184;

42 U.S.C. 751lc; EPA guidelines for sources of chemicals

that are precursors to the formation of ozone, CAA §183; 42

U.S.C. 7511b; and studies that EPA must conduct, the results

of which must be reported to Congress, e.g., CAA §185B; 42

U.S.C. 7511f. As the court of appeals recognized, “Subpart 2

is the Congress’s comprehensive plan for reducing ozone

levels throughout the country.” American Trucking

Associations, Inc. v. United States Environmental Protection

Agency, 175 F.3d 1027, 1046, modified, 195 F.3d 4 (D.C.

Cir. 1999); Petitioner’s Appendix (Pet. App.) at 33a.

II. THE OZONE RULEMAKING

On July 18, 1997, EPA changed Congress’s plan for

achieving a national ozone standard. On that date, EPA gave

final notice of its revision of the national standard for ozone,

changing the standard from the one-hour limit of 0.12 ppm

set by Congress, to an eight-hour limit of 0.08 ppm, and

imposing requirements different from those in Subpart 2.

Cross-Petitioners, at pages 4-11 of their brief in Case

No. 99-1426, comprehensively discuss the ozone rulemaking.

The Respondent States adopt that discussion and simply

highlight here those aspects of the rulemaking that relate

most directly to the issues of EPA’s authority under Subpart

2 and the finality and ripeness of EPA’s action.

A. The 1996 Proposal; EPA’s Interim Policy

EPA first proposed to revise the one-hour standard in

a notice of proposed rulemaking in 1996. 61 Fed. Reg.

65716 (1996). At the same time, EPA issued an “Interim

Implementation Policy on New or Revised Ozone and

Particulate Matter (PM) National Ambient Air Quality

Standards (NAAQS).” 61 Fed. Reg. 65752 (1996). While

this interim policy served only as guidance and did not bind

the States or the general public as a matter of law, EPA

issued the policy to “ensure momentum is maintained by the

States in the current program while moving toward

developing their plans for implementing” the new standards.

Id. As such, it represented EPA’s preliminary views on

implementation of a new ozone standard.

EPA’s interim policy plainly stated that, in EPA’s

view, the specific requirements of Subpart 2 do not directly

apply to implementation of a new or revised ozone standard.

It confirmed that EPA intended to revoke the one-hour

standard for an area immediately upon EPA’s approval of a

revision to the state’s plan (SIP) for achieving the new

standard in that area. 61 Fed. Reg. 65754 (1996). EPA

noted, however, that certain aspects of the 0.12 ppm, one-

hour standard would be lifted immediately, even before states

submitted plans to achieve the new standard.

First, the requirement to demonstrate attainment of

the one-hour standard by the attainment dates set forth in

Subpart 2 would no longer be necessary because those dates

“will be superseded by a new requirement to attain the new

NAAQS by new dates.” 61 Fed. Reg. 65754 (1996). This

followed from EPA’s belief that “it is appropriate for areas to

shift their efforts to develop attainment demonstrations from

the existing NAAQS to the new NAAQS.” /d.

Second, EPA, through this guidance, revoked the

provisions for reclassification of an area if it failed to meet

the one-hour standard by the applicable attainment dates in

Subpart 2. EPA stated that such areas “need not have to

comply with the additional specified control measures that

they would have been subject to had they been reclassified in

accordance with the provisions of subpart 2.” /d.

Finally, EPA discussed its intent to change and/or

revoke many of the program requirements imposed under

Subpart 2. As for attainment demonstrations for Serious,

Severe, and Extreme areas, EPA recognized that many of

these areas had been unable to complete plan requirements

within the schedules provided by Subpart 2. As such, in light

of EPA’s planned promulgation of a new standard, “EPA

believes that afier « romulgation of a new or revised ozone

NAAQS, States siivuld no longer be required to provide full

demonstration-of-attainment SIP’s for the |-hour NAAQS;

however, States are obliged to continue attainment planning

toward the new NAAQS.” 61 Fed. Reg. 65756 (1996).

Meanwhile, EPA proposed to permit States to submit urban

modeling to establish emissions reductions, “but not the

specific measures necessary to attain the |-hour NAAQS by

the attainment dates set forth in subpart 2.” /d. See also 61

Fed. Reg. 65757 (1996)(proposing to change the

requirements for Marginal and Moderate areas); 61 Fed. Reg.

65761 (1996)(proposing to change the requirements for

review of new sources of air pollution).

B. The 1997 Rulemaking

On July 18, 1997, EPA published a final rule that

issued a new eight-hour, 0.08 ppm standard, which became

effective on September 16, 1997. 40 C.F.R. 50.10(a); 62

Fed. Reg. 38857 (1997). EPA stated that it based this new

standard on a “policy” judgment that the new standard is

“sufficient{]” in light of “hazards that research has not yet

identified” and “uncertainties associated with inconclusive

scientific and technical information.” 62 Fed. Reg. 38856,

38857, 38863, 38867 (1997). EPA also asserted the right to

render a decision that follows “no generalized paradigm” that

“may not be amenable to quantification in terms of what risk

is ‘acceptable’ or any other metric,” and that is “largely

judgmental in nature.” /d. at 38883.

EPA acknowledged that at the time of its first

proposal, it had interpreted the Act in such a way that the

provisions of Subpart 2 would not apply to existing

nonattainment areas once a new standard became effective.

EPA stated in its final rulemaking, however, that it had

“reconsidered that interpretation and now believes that the

Act should be interpreted such that the provisions of subpart

2 continue to apply to [ozone] nonattainment areas for

purposes of achieving attainment of the current 1-hour

standard.” 62 Fed. Reg. 38873 (1997). Once an area attains

the one-hour standard, however, Subpart 2 would no longer

apply. /d. To codify this interpretation, EPA issued as a

final rule 40 C.F.R. 50.9(b), which states, “The 1-hour

standards set forth in this section will no longer apply to an

area once EPA determines that the area has air quality

meeting the |-hour standard.” 62 Fed. Reg. 38894 (1997).

EPA’s action thus imposed two standards for parallel

implementation: the eight-hour standard for areas that met

the one-hour standard, and the one-hour standard for areas

that did not. For the areas where the new eight-hour standard

would apply, EPA’s action imposed the implementing

requirements that apply to other pollutants and that applied to

ozone prior to 1990. 62 Fed. Reg. 38885 (1997).

Il. THE D.C. CIRCUIT DECISION

In the D.C. Circuit, the petitioning States and industry

groups (Respondents here) argued that Subpart 2 codified the

one-hour, 0.12 ppm standard and provided the exclusive

means for ozone regulation; therefore, EPA could not

promulgate a new ozone standard. No party, including EPA,

distinguished “revision of the standard” and “designation as

nonattainment” from “enforcement” or “implementation” of

that revised standard or nonattainment designation. The

court, however, did make that distinction. The court held,

first, that EPA may revise the ozone standard and, based on

that revised standard, may designate areas as nonattainment,

but, second, that EPA may not implement the revised

standard or otherwise implement the designation in a way

that conflicts with Subpart 2. See Pet. App. at la, 70a. The

court remanded, but did not vacate, the new eight-hour

standard on the basis that the standard would not “engender

costly compliance activities” in light of its decision that the

standard “cannot be enforced by virtue of” Section 181(a)

(42 U.S.C. 751 1a). 175 F.3d at 1057; Pet. App. at 57a.

In response to the D.C. Circuit’s opinion, EPA argued

for the first time in a petition for rehearing, as it argues here,

that its decision to change the ozone standard was not a final

agency action ripe for review. Instead, EPA argued, the

court’s jurisdiction ended with its review of whether the

statutory provisions at issue precluded EPA from

promulgating the revised standard. On rehearing, the court

rejected EPA’s ripeness argument and determined that EPA’s

action was final and that it was ripe for review. 195 F.3d at

10-13; Pet. App. at 77a-79a.

SUMMARY OF ARGUMENT

In 1990, Congress created a comprehensive structure

for ozone regulation — Subpart 2. That structure codifies the

national one-hour standard of 0.12 ppm, classifies areas

according to how far they are from achieving that standard,

sets specific dates by which these areas, according to their

classifications, must attain a specific ozone reduction, and

imposes planning requirements upon States to ensure

continuing progress. This comprehensive scheme and the

legislative history to its enactment show that Congress

rejected the old approach to ozone regulation — simply

commanding States to comply with a standard by a certain

date — and instead took a more realistic approach to

nationwide ozone compliance.

The EPA action at issue here dismantles that

structure. EPA’s action changes the one-hour, 0.12 ppm

standard to a more stringent eight-hour, 0.08 ppm standard,

changes the classifications and attainment dates, and changes

the state planning requirements. Even more, EPA’s action

ignores Congress’s overall approach to ozone regulation and

returns the States to the unrealistic and ineffective scheme

that Congress abandoned in 1990.

EPA has no authority to take these actions. EPA may

not exercise its authority in a way that is inconsistent with the

administrative structure that Congress enacted into law in

Subpart 2. Although courts generally defer to an agency’s

interpretation of the statute it administers, an agency must

give effect to the unambiguously expressed intent of

Congress. Here, Congress’s express intent is that Subpart 2,

including the one-hour, 0.12 ppm _ standard and the

comprehensive implementing requirements, is the exclusive

scheme for ozone regulation in this country and EPA may not

take action in conflict with it.

Nor will EPA find in the Act more general provisions

that give broader authority. The provisions upon which EPA

relies expressly exempt from its general authority the power

to designate ozone nonattainment areas or to classify and set

ozone attainment dates. In addition, EPA’s general authority

to revise standards is limited to “appropriate” changes. Since

EPA is unable to designate or classify ozone nonattainment

areas Or to set attainment dates for such areas, it was not

“appropriate” for EPA to revise the one-hour standard.

| Correctly framed, this case is not merely about

implementation of a revised standard, as EPA suggests.

Rather, it is about EPA’s authority to revise the standard in

the first instance, i.e., its power to revoke Congress’s plan for

regulation of ozone and to set into motion requirements for

state action to implement a new and different standard. As

EPA concedes, promulgation of an air standard is

undoubtedly “agency action” and subject to review under

Section 307 of the Act, 42 U.S.C. 7607. Thus, EPA’s

rulemaking leaves no doubt that the issues before this Court

are subject to judicial review.

Finally, even under traditional notions of finality and

ripeness, the serious consequences that flow immediately

from EPA’s action leave no doubt that it is sufficiently final

and ripe for review. These inevitable consequences also

demonstrate the substantial and widespread impact of EPA’s

changes. For better or worse, however, Congress has spoken

clearly and comprehensively to the control of ozone in this

country. Congress having spoken, EPA may not abrogate the

congressional plan.

ARGUMENT

I. THE COURT NEED NOT ADDRESS THE NON-

DELEGATION QUESTION.

As the Respondent States argued in a brief in support

of Cross-Petitioners in the companion case, No. 99-1426,

interpreting the Act in a way that permits consideration of

costs and other non-health factors avoids the need to reach

the constitutional, non-delegation question (Question 1).

Instead, as Cross-Petitioners and our co-Respondents assert,

the Court should vacate EPA’s particulate matter standard

and remand to the Agency for further proceedings. No

comparable remand of EPA’s ozone standard is necessary,

however, because, as argued below, EPA had no authority to

revise the one-hour ozone standard.

Il. EPA HAS NO AUTHORITY TO REVISE THE

OZONE STANDARD OR THE

IMPLEMENTING REQUIREMENTS SET BY

CONGRESS IN SUBPART 2.

The Clean Air Act places upon EPA and the States

the joint responsibility “to protect and enhance the quality of

the Nation’s air resources so as to promote the public health

and welfare and the productive capacity. of its population.”

CAA §101(b); 42 U.S.C. 7401(b). EPA must promulgate

national air standards; the States must implement them.

CAA §§109, 110; 42 U.S.C. 7409, 7410. To be sure, EPA’s

duty to promulgate standards is a responsibility of the highest

order. Regardless of how serious the problem an

administrative agency seeks to address, however, it may not

exercise its authority “in a manner that is inconsistent with

the administrative structure that Congress enacted into law.”

ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988).

Accord MCI Telecommunications Corp. v. American

Telephone & Telegraph Co., 512 U.S. 218, 229 (1994). And

even though agencies are generally entitled to deference in

the interpretation of the statutes they administer, a reviewing

“court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Chevron

U.S.A. Inc. v. Natural Resources Defense-Council, Inc., 467

U.S. 837, 842-43 (1984). See also Food and Drug Admin. v.

Brown & Williamson Tobacco Corp., __. U.S. __, 120

S.Ct. 1291, 1300 (2000).

In this case, EPA argues that it may revise and

implement an ozone standard that is different from Subpart 2

because Congress expressed no other intent. To argue this,

EPA looks first to the general provisions of the Act. The

proper beginning point for determining Congress’s intent

with respect to ozone, however, is Congress’s comprehensive

program for ozone, Subpart 2. To argue that Congress did

not express an intent to preclude EPA from revising the one-

hour standard or implementing a standard differently, EPA

must overlook the key components of Subpart 2 — the

standard, the classifications and attainment dates, and the

state planning requirements. EPA must also overlook the

overall structure that these and other provisions combine to

create and the intent that Congress expressed in Subpart 2’s

overall regulatory scheme. While EPA may choose to see

neither these key components nor the overall structure, as

described below, a clear view of Subpart 2 reveals

Congress’s comprehensive scheme for ozone regulation and

: , , . » ft

EPA may not take action in conflict wh it.

Nor may EPA look beyond Subpart 2 to find more—

general provisions that appear to give EPA contrary

authority, as the Act offers none. Even beyond Subpart 2,

Congress consistently expressed the intent that Subpart 2 was

the sole mechanism for ozone regulation and that EPA has no

authority to ignore or dismantle it.

If any doubt remains, this Court’s inquiry into

whether Congress has directly spoken to the precise question

at issue is shaped, as it was in Brown & Williamson, “at least

in some measure, by the nature of the question presented.”

Id., 120 S.Ct. at 1314. A court premises deference to an

agency's construction of a statute that it administers on the

theory that a statute’s ambiguity constitutes an implicit

directive from Congress to the agency to fill in the statutory

gaps. See Chevron, 467 U.S. at 844. This Court has

recognized, however, that in some cases “there may be

reason to hesitate before concluding that Congress has

intended such an implicit delegation.” Brown & Williamson,

120 S.Ct. at 1314, citing Breyer, Judicial Review of

' Although EPA understandably does not challenge the D.C. Circuit's

finding that EPA has the authority to revise the ozone standard,

Respondents are not precluded from arguing that that decision is

incorrect. “A prevailing party, without cross-petitioning is ‘entitled under

[this Court’s| precedents to urge any grounds which would lend support

to the judgment below.’” United States v. X-Citement Video, Inc., 513

U.S. 64, 78 (1994), quoting Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406,

419 (1977). As we argue here, if EPA cannot revise the standard, this

Court must affirm the lower court judgment because there would be no

standard for EPA to implement.

Questions of Law and Policy, 38 Admin. L. Rev. 363, 370

(1986)(“A court may also ask whether the legal question is

an important one. Congress is more likely to have focused

upon, and answered, major questions, while leaving

interstitial matters to answer themselves in the course of the

statute’s daily administration”). Accord MCI v. AT&T, 512

U.S. at 231. As the court of appeals recognized, this is just

such a case. As the express language of the Act, the

legislative history, and the overall statutory scheme show,

Congress left no gap for EPA to fill. Instead, Congress

expressed its intent that Subpart 2 be the exclusive scheme

for ozone regulation. EPA may not change Congress’s plan.

A. EPA’s Revision Of The Ozone Standard

And Implementing Requirements Conflicts

With Subpart 2 And, Therefore, Is

Unlawful.

From 1977 until 1990, the Clean Air Act sought to

control ozone, as it did the other specified pollutants, by

simply commanding all areas of the country to achieve a set

standard by a specific deadline. By 1990, however, it was

clear that this “one size fits all” approach was not working

for ozone. Many areas had still not achieved the standard;

some were a long way from doing so. With knowledge of

this failure, instead of simply waving its “magic wand” again

and commanding States to comply by a certain arbitrary date,

H.R. Rep. No. 101-490 (1990), reprinted in II Senate Comm.

on Env. and Public Works, 103° Cong., 1“ Sess., Legislative

History of the Clean Air Act Amendments of 1990, at 3170-71

(1993) (“/990 Legislative History”), Congress crafted a

unique and more realistic approach to ozone compliance —

Subpart 2.

As described below, EPA’s ozone rm!emaking

changes Congress’s approach for areas that have met the one-

hour standard, and EPA argues before this Court that it has

the authority to go even further, to change this approach for

all areas throughout the country. EPA Brief at 20. As the

court of appeals recognized, if EPA had such unlimited

authority, Congress’s “scheme would have been stillborn had

the EPA revised the ozone NAAQS immediately after the

Congress enacted the 1990 amendments.”~ 175 F.3d at 1050;

Pet. App. at 42a. Congress could not have intended such an

illogical result, and EPA’s actions in pursuit of such an end

must be reversed.

1. EPA’s revised standard conflicts

with the one-hour standard codified

in Subpart 2.

When Congress amended the Act in 1990, it codified

the one-hour, 0.12 ppm ozone standard existing at the time.

Congress did so in Section 181, which classifies areas

according to their “design value,” which is a measure of

whether an area complies with the 0.12 ppm, one-hour

standard. CAA §181(a)(1); 42 U.S.C. 7511(a)(1).” Section

181, indeed all of Subpart 2, begins from this fundamental

point and implements this specific one-hour, 0.12 ppm

standard. Table | classifies areas based on the 0.12 ppm

measurement and the extent to which the area is measured to

be 0.121 ppm or above. CAA §181(a)(1), Table 1; 42 U.S.C.

7511(a)(1), Table 1. All designations are measured from this

standard, as are redesignations and reclassifications if an area

falls out of attainment or misses an attainment deadline.

CAA §181(b)(1), (2); 42 U.S.C. 7511(b)(1), (2).

The “design value is the fourth-highest daily maximum ozone

concentration in an area over three consecutive years for which there are

sufficient data. If that value is less than or equal to 0.12 ppm, then an

area will have only three expected values above that level and it will be in

attainment with the ozone NAAQS.” 175 F.3d at 1046 n. 6; Pet. App. at

32a n.6.

Any reading of Section 181 that removes the

references to the one-hour, 0.12 ppm standard would result in

completely nullifying that section — a result surely not

intended by Congress. It provides, in clear and simple terms,

that areas are classified, designated, and reclassified

according to this one-hour, 0.12 ppm standard. Any other

reading simply revokes Table | in its entirety.

In fact, the legislative history suggests that Congress

considered whether EPA should have the authority to revise

the one-hour standard and rejected that approach. The

version of Section 181 introduced in H.R. 2323 specifically

provided for revised ozone standards:

If the Administrator revises the national

primary ambient air quality standard for ozone

after the enactment of this subpart, the

Administrator shall, within 6 months after the

revision, promulgate requirements applicable

to all areas which have not attained that

standard as of the date of such revision and

shall require revisions in the applicable

implementation plans for such areas within 18

months after such revision.

H.R. 2323, 101“ Cong., Section 181(e) (1989), as introduced,

reprinted in II 1990 Legislative History at 4060. Although

portions of H.R. 2323 would ultimately find their way into

the final bill, the House Health and Environment

Subcommittee rejected this provision in favor of H.R. 3030.°

* The final version of the Clean Air Act Amendments of 1990, as reported

in H.R. Conf. Rep. No. 101-952 (1990), reprinted in I /990 Legislative

History at 1451, was an amalgamation of a Senate bill (S. 1630) and two

House bills (H.R. 3030 and 2323). The version of S. 1630 that Congress

ultimately enacted was virtually identical to H.R. 3030 as passed by the

House. See House Debate (May 23, 1990), reprinted in II /990

Legislative History at 3019.

See House Debate (May 21, 1990), reprinted in II /990

Legislative History at 2533. Congress’s rejection of this

provision supports the conclusion that Congress intended to

codify the 0.12 ppm ozone standard as the final bill did not

refer to the Administrator’s authority to revise the ozone

standard established in Subpart 2.

In short, the fundamental building block of Section

181 and, therefore, Subpart 2, is Congress’s codification of

the one-hour, 0.12 ppm ozone standard. EPA’s attempt to

change that standard necessarily changes the congressional

scheme and, therefore, goes beyond EPA’s authority under

the Act.

2. EPA’s revised standard conflicts

with the — classifications and

attainment dates set by operation of

law in Subpart 2.

Congress’s sensible response to the failure of the old

approach to controlling ozone was to codify the existing

standard, classify areas according to how far they were from

achieving that standard, and then set specific dates by which

these areas, according to their classification, must attain a

specific ozone reduction. This cascading approach to ozone

attainment not only allowed areas furthest from attainment of

the 0.12 ppm standard the most time to achieve the one-hour

standard, but it also imposed upon those areas the most

stringent requirements to assist getting there. Congress

presented the initial framework for this approach in Section

181 of the Act.

Section 181 provides classifications and attainment

dates for each area designated nonattainment for ozone, as

these designations existed at the time of enactment and as

they may be revised in the future. CAA §181(a), (b); 42

U.S.C. 7511(a), (b). Section 181 designates these areas “by

operation of law” as Marginal, Moderate, Serious, Severe or

Extreme, according to how far they are from meeting the

0.12 ppm standard. /d.

Section 181(a)* also includes Table 1, which sets out,

for each classification (Marginal through Extreme), a date by

which to attain a standard of 0.12 ppm. CAA §181(a); 42

U.S.C. 7511(a). For each of these areas, “the primary

standard attainment date for ozone shall be as expeditiously

as practicable but not later than the date provided in table 1.”

Id. In the case of Severe and Extreme areas, these attainment

dates have not yet occurred. See Table | (for Severe areas,

the date is 2005; for Extreme areas, it is 2010).

Congress enacted Subpart 2 precisely because the

controls of Subpart | had failed to bring areas into attainment

with the 0.12 ppm standard. See H.R. Rep. No. 101-490

(1990), reprinted in Il 1990 Legislative History at 3169-74.

Rather than treating all areas alike, as EPA now proposes,

Congress gave areas, depending on their classification,

between three and 20 years to attain the one-hour, 0.12 ppm

standard. Since Subpart 2 extended the time for

nonattainment areas to comply with the one-hour standard,

Subpart 2 necessarily precludes EPA from requiring areas to

comply either more quickly or with a more stringent ozone

standard.

* In Part ILA. of their brief, Respondents American Trucking

Associations, et al. (ATA) respond to EPA’s argument that the title of

Section 181(a) limits the application of Table 1’s classifications and dates

to those designations based on the one-hour standard and, by a great leap

of logic, allows EPA to apply different classifications and attainment

dates to designations based on a revised standard. As ATA explains, the

reference to “1989 nonattainment areas” is the result of an easily

explained oversight and, in any event, does not affect Section 181’s

interpretation.

Section 172 (in Subpart | of the Act) generally

requires areas to comply with a primary standard “as

expeditiously as practicable, but not later than 5 years from

the date such area was designated nonattainment.” CAA

§172(a)(2)(A); 42 U.S.C. 7502(a)(2)(A). If EPA and the

States were to take the full time authorized in Subpart | for

making attainment designations and EPA were to approve

every possible extension for each area, all nonattainment

areas would have until 2012 to comply with the new eight-

hour, 0.08 ppm standard. CAA §107(d)(1)(A)-(B); 42

U.S.C. 7407(d)(1)(A)-(B); CAA §172(aX(2,(A), (C);

7502(a)(2)(A), (C). “Such wide discretion is inconsistent,

however, with Subpart 2, in which Congress stripped EPA of

discretion to decide which ozone nonattainment areas should

receive more time to reach attainment.” 175 F.3d at 1049;

Pet. App. at 40a.

Moreover, Section 181 gives Los Angeles, the

nation’s only Extreme Area, until 2010 to attain the one-

hour, 0.12 ppm ozone standard, and the possibility of

extending that deadline to 2012. EPA’s response to the

concern that Los Angeles would be required to attain the

revised standard in accordance with Subpart | “no later than

the same year that marks the outer time limit for attaining

Subpart 2’s one-hour ozone standard” is no response at all.

EPA Brief at 49. As the court of appeals found, “[t}hat Los

Angeles should also have to attain a more stringent ozone

standard by that same year, if not earlier, clearly runs counter

to the comprehensive enforcement scheme enacted in

Subpart 2.” 175 F.3d at 1049; Pet. App. at 41a.

In short, Congress has spoken directly to the issue

whether EPA may impose classifications and attainment

dates different from those provided in Subpart 2. EPA's

attempt to implement a revised standard and, necessarily, to

change the classifications and attainment dates found in

Subpart 2 is, therefore, unlawful.

3. EPA’s revised standard changes the

state planning requirements

imposed by Subpart 2.

Congress recognized that attainment was going to be

extremely difficult, if not impossible, to achieve in some

areas. Accordingly, Congress imposed comprehensive

planning requirements upon the States to assure strong

incentives and continuing progress, but no absolute deadline

for final compliance.

First, Section 181 provides classifications and

attainment dates for areas that bump up to a higher

classification or change from attainment to nonattainment.

CAA §181(b)(2), (4); 42 U.S.C. 7511(b)(2), (4). For

example, if a Severe area fails to meet the standard by the

attainment date, it will become subject to specified sanctions,

including a requirement that the -State demonstrate

percentage reductions “in each 3-year interval after such

failure until the standard is attained.” CAA §181(b)(4)(A);

42 U.S.C. 7511(b)(4)(A). And, anticipating the possibility

that EPA may modify the method of determining compliance

with the national standard before Severe areas come into

attainment, Section 181 provides that a design value or other

indicator comparable to 0.14 “shall be used” to determine

applicable sanctions. CAA §181(b)(4)(D); 42 U.S.C.

7511(b)(4)(D).”

Section 182 provides for state implementation plan

(SIP) revisions and sets out plan requirements for each

classification (Marginal through Extreme). CAA §182; 42

U.S.C. 75lla. The scheme begins with requirements for

> This use of 0.14 ppm as a measurement for determining whether

sanctions would apply is yet another indication that Congress intended

for the standard to remain at 0.12 ppm.

Marginal areas, and then adds increasingly more stringent

requirements for each additional classification. These plan

requirements are comprehensive and create several

mechanisms by which Subpart 2 will control ozone

attainment for the entire 20-year period. They include

mandatory control measures, annual rate of progress

requirements for emission reductions, and offset ratios for the

emissions from new or modified stationary sources. ° Id.

Section 182 anticipates that these requirements will

apply well into the future, with no end date in sight. Some

of the measures applicable to Severe and Extreme areas did

not take effect for years after 1990 and are triggered at

various intervals thereafter. See, e.g.. CAA §182(e)(3); 42

U.S.C. 75lla(e3) (making clean fuels requirements

applicable in 1998); CAA §182(g)(1); 42 U.S.C. 751 la(g)(1)

(requiring EPA to determine nitrogen oxide reductions in

1996 and at three-year intervals thereafter).

Indeed, Section 182 obviously anticipates that these

requirements will continue to apply, not only during the 20-

year period before the final attainment date, but until all areas

of the country meet the 0.12 ppm standard. For example,

Congress established “reasonable further progress”

requirements to ensure that States are, in fact, moving

towards their goal. CAA §182; 42 U.S.C. 751 la. See Senate

Debate (January 23, 1990), reprinted in I] /990 Legislative

History at 4837 (statement of Sen. Chafee)(“The milestone

provisions of the bill are designed to avoid a repeat of the

situation that occurred when we passed the 1977

amendments,” which allowed States to go for years without

° “Nonattainment areas must reduce pollutants by specified percentage

increments from the present until the health standard is achieved. This

new requirement will ensure early ozone reductions and, for the first

time, steady progress toward meeting the standard.” Senate Debate

(October 27, 1990), reprinted in I /990 Legislative History at 948

(comments of Sen. Chafee).

having to demonstrate progress). In addition, by 1992, States

were to have submitted an inventory of actual emissions from

all sources. CAA §182(a)(1); 42 U.S.C. 751 la(a)(1).

Thereafter, “[nJo later than the end of each 3-year period

after submission of the inventory . . . until the area is

redesignated to attainment,” States must submit revised

inventories. CAA §182(a)(3)(A); 42 U.S.C. 751 la(ay(3)(A).

These planning requirements implement Congress's

intent to ensure continuous state progress toward meeting a

specific standard. In contrast, EPA’s rulemaking would

return the States to the failed compliance scheme that

Congress abandoned in 1990, and it would resurrect the

historic dilemma the States had in creating a plan to comply

with an unachievable standard by a fixed time. Such a

scheme not only conflicts with an important part of

Congress’s overall scheme, but is destined to be unsuccessful

once again.

4. EPA’s revised standard conflicts

with Congress’s overall approach to

implementating and meeting a

national ozone standard.

As described above, EPA’s action conflicts in specific

ways with key components of Subpart 2: the standard; the

classifications and attainment dates; and the state planning

requirements. Viewing Subpart 2 in its entirety, moreover,

reveals that EPA’s action also conflicts with the overall

structure that Congress built — its realistic approach to

implementing and meeting a national ozone standard.

This Court instructs that “a reviewing court should

not confine itself to examining a particular statutory

provision in isolation.” Brown & Williamson, 120 S.Ct. at

1300. Indeed, it is a “fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803,

809 (1989). In addition, a court “must be guided to a degree

by common sense as to the manner in which Congress is

likely to delegate a policy decision of such economic and

political magnitude to an administrative agency.” Brown &

Williamson, 120 S.Ct. at 1301.

Considered as a whole, Subpart 2 _ represents

Congress’s answer to a policy question of economic and

political importance. It is a balance among the competing

needs that blended to form a coherent strategy. And it is a

comprehensive response to a complex problem. It is not an

open-ended invitation for EPA to reconsider and dismantle

Congress's approach whenever and however EPA wishes.

The legislative history of the 1990 amendments

supports the conclusion that Congress sought a reasonable,

realistic approach for reaching countrywide attainment with

the 0.12 ppm standard in light of the fact that past efforts had

failed. In 1970, Congress set 1975 as the deadline for

meeting the ozone standard. Two years after that deadline,

78 areas were still violating the ozone standard then in place

(a one-hour, 0.08 ppm standard). S. Rep. 101-228 (1989),

reprinted in V 1990 Legislative History at 8350. Congress

extended the deadline by five years, to 1982. Then, in 1982,

areas that had still not met the standard were able to get an

extension to 1987. /d. Yet, even by 1989, many areas had

still not met the 1977 standard. /d. at 8351.

Faced with this history of missed deadlines and

freely-given extensions, Congress was plainly frustrated by

the “widespread failure to meet the ambient standards” that it

blamed both upon “States ... and EPA.” Jd. Moreover, it

recognized that leaving implementation methods to EPA

discretion simply had not worked. “Predicting future air

quality based on assumed control programs is a complicated

undertaking that is susceptible to ‘paper’ demonstrations of

attainment that bear little relation to the likelihood of actual

attainment.” /d. As a result, Congress decided to establish

both a realistic standard, the one-hour, 0.12 ppm standard,

and the means by which to attain that standard.

The new approach was evident as soon as S. 1630

appeared in the Senate: “The nonattainment provisions of

the bill are based on more than 17 years of experience in

trying to attain healthy air in all areas of the nation. The

deadlines in the bill for attainment are realistic, with the

ozone deadlines being the longest in recognition of the

complexity of the ozone pollution problem. The emphasis in

the bill, however, is not on the deadlines but on what happens

in the period before the deadlines. The concept of reasonable

further progress . . . is amplified by requiring specific

incremental progress over defined periods for each of the

pollutants addressed: ozone, carbon monoxide, and

particulate matter (PM-10).” /d. at 8352 (emphasis

supplied).

Despite Congress's approach, EPA argues that it may,

at any time and based on its own policy judgments, impose a

new ozone standard, new classifications, and a new

attainment date. EPA Brief at 44. EPA’s 1997 rulemaking

applied the new standard only to areas that had already

attained the one-hour standard (a power Judge Tatel, in his

dissenting opinion on rehearing, agreed that EPA had).

However, EPA now argues before this Court that it has the

power to change the standard for any area, including those

that have not yet attained the standard pursuant to Subpart 2,

and at any time.

EPA’s 1997 rulemaking will create three categories

of areas: (1) those areas that are in compliance with both the

one-hour and the eight-hour standard; (2) those areas that

were in compliance with the one-hour standard, but are not in

compliance with the new, eight-hour standard; and (3) those

areas that are not in compliance with either the one-hour

standard or the eight-hour standard. As to all of these areas,

no matter where their compliance efforts stand to date, EPA’s

action conflicts with the overall approach of Subpart 2, /.e.,

implementation of a scheme with strong incentives to

comply, sanctions for failure to comply, and steady

progression to final attainment.

The D.C. Circuit's solution (that EPA may revise the

standard and designate areas based on that standard, but may

not classify areas or set dates different from those in Subpart

2) does not resolve this conflict and creates even more

confusion for the States by allowing two different standards

to apply in parallel. In fact, the D.C. Circuit’s solution

ignores altogether the immediate burdens and significant

consequences that follow from revision of a standard, and

particularly those that follow a nonattainment designation.’

For Congress’s scheme to have meaning, it must preclude

even revision of the ozone standard.

Nonetheless, EPA argues, at pages 49-50 of its brief,

that “there is no reason to believe that Congress intended to

preclude” EPA from enforcing the one-hour ozone standard

and a revised ozone standard at the same time. To the

contrary, Congress considered, and rejected, this very

approach before enacting the 1990 amendments. The

proposed Clean Air Standards Attainment Act of 1987

included a new provision, Section 109(f), which would have

authorized the Administrator to “promulgate a_ national

” The consequences that flow from EPA's revision of the standard,

particularly those that follow a nonattainment designation, are discussed

below, at pages 37-38. See also Part I1.C. of Respondent ATA’s Brief

(presenting an alternative argument that even if EPA may revise the one-

hour standard, EPA may not designate areas as nonattainment based on a

revised standard).

primary ambient air quality standard for ozone

concentrations averaged over a period not less than six hours

or more than twelve hours in length{.]” S. 1894, 100" Cong.,

Section 402 (1987), as reported, reprinted in VI /990

Legislative History at 9390.

The new six- to twelve-hour ozone standard was to be

considered as “a second primary ozone standard .. . in

addition to the current one-hour standard. ...” S. Rep. 100-

231 (1987), reprinted in VI /990 Legislative History at 9611.

Senator Simpson pointed out the illogical nature of such an

approach:

Even a casual observer would conclude that

an area that cannot meet the current ozone

standard is not going to meet a new “more

protective” ozone standard. ... Yet, under

this bill an area which is in the ten-year or

fifteen-year ozone nonattainment category

would have to commit to all the burdensome

and onerous provisions of Title I in order to

avoid immediate sanctions only to discover

three years later that it must meet a new

standard. .. .

Id. at 9780-81 (additional views of Sen. Simpson). The

Senate Environment and Public Works Committee reported

S. 1894 in November, 1987. However, the Senate did not act

on it. See S. Rep. 101-228 (1989), reprinted in V /990

Legislative History at 8344. Moreover, none of the bills

introduced in the 101“ Congress that led to the 1990

amendments contained such a provision. This is because the

101" Congress took a new, more realistic approach, that is,

meeting the then-existing standard as mandated by Subpart 2.

In short, EPA’s action to revise the one-hour ozone

standard and to implement the eight-hour standard conflicts

with Congress’s comprehensive scheme for ozone regulation,

both in its component parts and as reflected in the overall

structure. EPA’s action, therefore, is unlawful.

B. The Act Offers EPA No Authority To

Revise The One-Hour Ozone Standard Or

To Implement A New Standard.

Despite these direct conflicts with Subpart 2, EPA

argues that it has independent authority under the Clean Air

Act to revise the one-hour standard and to implement

corresponding planning and operational requirements. No

such “general” authority overrides the specific requirements

and limitations found in Subpart 2, and EPA’s arguments to

the contrary should be rejected.

1. The Act offers EPA no general

authority to designate ozone

nonattainment areas, to classify

those areas, or to set dates for

attainment of a _ revised ozone

standard.

EPA argues that, when enacting Subpart 2 to

implement only the existing one-hour ozone standard,

Congress left in place Subpart | to govern designations and

classifications for ozone nonattainment areas and to set new

attainment dates, all based on a revised standard. EPA Brief

at 45. Specifically, EPA argues that Section 172(a), 42

U.S.C. 7502(a), which generally governs the selection of

classifications and attainment dates, gives it authority to

classify areas and to set attainment dates based on a revised

ozone standard.

Before reaching Section 172, we begin with Section

107, which provides the general requirements for area

designations. CAA §107(d)(1); 42 U.S.C. 7407(d)(1).

Responsibility for initial designations, following — the

promulgation of a new or revised national standard, lies with

the States. Section 107 requires each Governor to submit to

EPA a list of all areas within the State, designating each area

as: nonattainment, if the area does not meet the standard or

contributes to nonattainment in another area; attainment, if

the area meets the standard; or unclassifiable, if the area

cannot be classified based on available information. CAA

§107(d)(1)(A); 42 U.S.C. 7407(d)(1)(A). Once the States

submit their lists of designations, EPA must then promulgate

the designations within 120 days. CAA §107(d)(1)(B); 42

U.S.C. 7407(d)(1)(B).

Section 107(d)(4), however, sets out specific

requirements for nonattainment designations for ozone. 42

U.S.C. 7407(d)(4). That section requires each Governor,

within 120 days after November 15, 1990, to submit a list

that designates areas as attainment, nonattainment, or

unclassifiable with respect to the national ozone standard.

CAA §107(d)(4)(A)(i); 42 U.S.C. 7407(d)(4)(A)(). Once

the Governor submits the list, EPA must promulgate such

designations within 120 days. CAA §107(d)(4)(A)(ii); 42

U.S.C. 7407(d)(4)(A)(ii). The section also imposes more

stringent requirements for ozone nonattainment areas within

consolidated metropolitan statistical areas, changing the

boundaries of the nonattainment area to include the entire

consolidated metro area. CAA §107(d)(4)(A)(iv); 42 U.S.C.

7407(d)(4)(A)iv).

Section 172 picks up where Section 107 leaves off.

Section 172(a)(1) provides that, on or after the date EPA

promulgates the nonattainment designations pursuant to

Section 107(d), EPA “may classify the area for the purpose

of applying an attainment date pursuant to paragraph (2), and

for other purposes.” CAA §172(a)(1)(A); 42 U.S.C.

7502(a)(1)(A). Section 172(a)(1)(C) specifically provides,

however, that “[t]his paragraph shall not apply with respect

to nonattainment areas for which classifica iors are

specifically provided under other provisions of this part [Part

D}.” CAA §172(a)(1)(C); 42 U.S.C. 7502(a)(1)(C).

As noted, Section 172(a)(1) provides that EPA may

classify an area for the purpose of applying an attainment

date under paragraph 2. Paragraph 2, which provides

generally for implementation of an attainment date for other

pollutants, also states, however, that “[t}his paragraph shall

not apply with respect to nonattainment areas for which

attainment dates are specifically provided under other

provisions of this part [Part D].”. CAA §172(a)(2)(D); 42

U.S.C. 7502(a)(2)(D).

In combination, Section 107 and Section 172

expressly exempt from EPA’s general authority the power to

designate ozone nonattainment areas (under Section 107) or

to classify and set ozone attainment dates (under Section

172). Indeed, Section 107 provides specific instruction to

EPA for designation of areas for attainment of ozone and

Section 172 provides (in two different paragraphs) an express

exception for areas for which nonattainment designations are

specifically provided under other provisions of Part D.

Subpart 2 of Part D, of course, specifically provides

nonattainment designations (for areas not meeting the one-

hour, 0.121 ppm standard), classifications (Marginal through

Extreme), and attainment dates (1993-2010) for ozone.

EPA’s attempt to ignore these express limitations and to

usurp power not granted to it is unlawful.

2. The Act offers EPA no general

authority to revise the one-hour

ozone standard.

Section 109 of the Act authorizes EPA, within 30

days after December 31, 1970, to promulgate national

primary and secondary ambient air quality standards for the

pollutants for which EPA issued criteria, and simultaneously

with any future criteria thereafter. CAA §109(a); 42 U.S.C.

7409%a). Not later than December 31, 1980, and at five-year

intervals thereafter, EPA is to “complete a thorough review”

of the criteria issued under Section 108, 42 U.S.C. 7408, and

the national standards “promulgated under this section” and

to “make such revisions in such criteria and standards and

promulgate such new standards as may be appropriate in

accordance with [Section 108] and [Section 109(b)].” /d.

(emphasis supplied).

Here, in light of EPA’s inability to designate ozone

nonattainment areas, classify ozone nonattainment areas, or

set attainment dates for such areas, it was not “appropriate”

for EPA to revise the one-hour ozone standard. In fact, a

recent EPA action admits as much. In July of this year, EPA

issued a final rule that rescinded the eight-hour standard until

it becomes fully enforceable and is no longer subject to legal

challenge. 65 Fed. Reg. 45182 (2000). EPA stated that

because the D.C. Circuit’s decision “raised doubts about the

enforceability of the 8-hour standard and EPA’s ability to

implement the standard fully at this time, the basis for the

regulation revoking the applicability of the |-hour standard in

certain areas no longer exists.” 65 Fed. Reg. 45185 (2000).

The Respondent States agree that if EPA cannot fully

enforce the eight-hour standard, it should not be effective.

Even more, if EPA cannot enforce a revised ozone standard,

it was not “appropriate” for EPA to even revise the one-hour

standard. Instead, EPA should have reviewed the one-hour

standard and reported to Congress the need to revise it or

change the classifications and attainment dates in Subpart 2.

In its brief, EPA argues that the D.C. Circuit’s

conclusion that EPA may revise the one-hour standard, but

must implement it according to Subpart 2 “would lead to

unworkable and absurd results.” EPA Brief at 47. Other

briefs in support of EPA’s position similarly assert that

implementation of a revised standard according to Subpart 2

would work “incomprehensible,” “nonsensical,” and

“bizarre” results. Brief of Amici Curiae States at 15; Brief of

Respondents Massachusetts and New Jersey at 47-48.

The Respondent States agree. Congress simply did

not intend for EPA to implement any ozone standard other

than the one-hour, 0.12 ppm standard set by Subpart 2, and

any implementation of a different standard is unworkable.

As EPA points out, Section 181(a)(1), 42 U.S.C.

7511(a)(1), sets attainment dates and classifications based on

an area’s “design value,” which is an air quality measure that

specifically applies to the one-hour standard that was in

existence in 1990. EPA Brief at 47. Again, as EPA points

out, it makes no sense “and, indeed, would be impossible” to

classify areas and to set their attainment dates for the eight-

hour standard using an air quality measurement based on the

one-hour standard.

In addition, Section 181 sets attainment dates for

areas based on a fixed number of years from 1990. As EPA

states, “[t}hat timetable makes no sense in calculating

attainment dates” for the eight-hour standard. EPA Brief at

47; Brief of Amici Curiae States at 15.

EPA’s solution to these awkward and unworkable

consequences is to ignore altogether Congress’s one-hour

standard and corresponding planning and _ operational

requirements. Without a revised standard, Congress’s

instruction in regard to ozone attainment is not unclear,

however; nor is it unworkable. In Section 181, Congress

codified the one-hour standard; in Section 107, Congress

exempted ozone nonattainment designations from EPA’s

general authority to designate; and in Section 172, Congress

exempted ozone nonattainment classifications and attainment

dates from EPA’s general authority to classify areas and to

set attainment dates. In the place of EPA’s general authority,

Congress enacted Subpart 2, a comprehensive and sensible

approach to ozone regulation.

These provisions leave no doubt that Congress has

affirmatively acted to address ozone regulation. Just as

Congress acted to address the issue of tobacco and health

(see FDA v. Brown & Williamson) and to address the issue of

long distance telephone services (see MCI v. AT&T), it has

created a distinct scheme for implementing a specific ozone

standard, to the exclusion of EPA. As a result, just as

Congress’s action precluded the FDA’s regulation of tobacco

and the FCC’s regulation of long distance carriers, so too

does Subpart 2 preclude EPA from revising the one-hour

standard or implementing a different standard.

In the final analysis, just as in those prior cases, there

is no doubt that the problem EPA seeks to address (the

regulation of air quality) is significant. “Nonetheless, no

matter how ‘important, conspicuous, and controversial’ the

issue, and regardless of how likely the public is to hold the

Executive Branch politically accountable . . . an

administrative agency’s power to regulate in the public

interest must always be grounded in a valid grant of authority

from Congress.” Brown & Williamson, 120 S.Ct. at 1315

(citations omitted). In order to “effectuate the congressional

purpose of protecting the public,” EPA “must take care not to

extend the scope of the statute beyond the point where

Congress indicated it would stop.” /d. (citations omitted).

In Subpart 2, Congress indicated clearly where

congressional purpose would stop — at implementation of the

one-hour, 0.12 ppm ozone standard in accordance with

Congress’s plan. EPA may not, therefore, go further, and its

attempt to do so is not “appropriate.”

Il. EPA’S ACTION TO REVISE THE ONE-HOUR

STANDARD AND IMPLEMENT A NEW

STANDARD WAS A FINAL AGENCY ACTION

RIPE FOR REVIEW.

A. The Court Need Not Address The

Questions Of Finality Or Ripeness.

In the court of appeals, the petitioning States and

industry groups argued that Subpart 2 codified the one-hour,

0.12 ppm standard and provided the exclusive means for

ozone regulation; therefore, EPA could not promulgate a new

ozone standard. No party, not even EPA, distinguished

“revision of the standard” and “designation” from

“enforcement” or “implementation” of that revised standard

or nonattainment designation. The court, however, did make

that distinction. The court held, first, that EPA may revise the

ozone standard and, based on that revised standard, may

designate areas as nonattainment, but, second, that EPA may

not implement the revised standard or otherwise implement

the designation in a way that conflicts with Subpart 2.

In its petition for rehearing before the lower court,

EPA argued for the first time, as it argues here, that the ozone

rulemaking was not a final action ripe for review. Instead,

EPA argues, the court’s jurisdiction ended with its review of

whether the statutory provisions at issue precluded EPA from

promulgating the revised standard. EPA’s position and the

alleged need to address this issue stem from a

mischaracterization of the issues before the Court in two

important respects.

First, as described above, this case is not simply about

implementation of a properly-revised rule. Rather, it is about

EPA’s power to revise the ozone standard at all, i.e., its

power to revoke Congress’s plan for regulation of ozone and

to require States to implement a new and different standard.

Indeed, that is precisely the issue presented and briefed

before the court of appeals.

Second, EPA’s focus on the preamble and its

“explanation” of the rule, as distinguished from the rule

itself, suggests that petitioners challenged nothing more than

vague statements about uncertain future actions by EPA. But

petitioners challenged EPA’s entire rulemaking to revise the

one-hour ozone standard. That rulemaking included

promulgation of 40 C.F.R. 50.9(b), which provides, “The |-

hour standards set forth in this section will no longer apply to

an area once EPA determines that the area has air quality

meeting the |-hour standard.” 62 Fed. Reg. 38894 (1997).

This codification of EPA’s implementation of the rulemaking

is hardly an undeveloped or unreviewable “explanation” of

EPA’s intentions.

As EPA concedes, promulgation of an air standard is

undoubtedly “agency action” and subject to review under

Section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1). EPA

Brief at 34. Thus, considered as a whole and properly

framed, EPA’s rulemaking leaves no doubt that the issues

before this and the lower court — whether, and to what extent,

EPA has authority to change Congress’s scheme for ozone

regulation — are subject to judicial review. Accordingly, this

Court need not address EPA’s jurisdictional question

(Question 2).

B. Consideration Of Traditional Notions Of

Finality And Ripeness Leads Inevitably To

The Conclusion That EPA’s Rulemaking

Was Final Agency Action Ripe For Review.

But even considering these issues in the misdirected

way EPA has presented them, it is plain that the court of

appeals had jurisdiction to answer the questions raised in this

case. EPA argues three points: first, the disputed portions of

the rule are not “agency action” within Section 307(b)(1) of

the Act, 42 U.S.C. 7607(b)(1); second, they are not “final”

agency action because they do not mark the consummation of

EPA’s implementation process; and third, they are not ripe

for review because the issues are “too abstract” at this stage

and will not be sufficiently complete until EPA actually

implements the new standard. EPA Brief at 34-44. EPA’s

arguments misrepresent the scope of the rulemaking at issue,

ignore the plain language of the Act, are unsupported by

relevant precedent, and would, if adopted, represent a drastic

departure from well-established principles of judicial review.

Therefore, if the Court reaches this question, it should affirm

the D.C. Circuit’s ruling that it had jurisdiction to address

these issues.

1. EPA’s rulemaking was “agency

action” within Section 307 of the

Act.

Section 307 of the Act provides that “action of the

Administrator in promulgating any [NAAQS], . . . or any

other nationally applicable regulations promulgated, or final

action taken, by the Administrator under this Act may be

filed only in the United States Court of Appeals for the

District of Columbia.” CAA §307(b)(1); 42 U.S.C.

7607(b)(1 (emphasis added). This statute broadly includes

all nationally applicable regulations and all final action, not

just the promulgation of standards.

To overcome Section 307, EPA relies upon the

Administrative Procedure Act (APA) definition of an

“agency action,” 5 U.S.C. 551(13), and court decisions

construing this definition to argue that the dispute portions of

the final rule are not “agency action.” EPA Brief at 36-37.

However, even that definition supports the Respondents’

position on this issue. As this Court noted in Federal Trade

Comm'n v. Standard Oil, 449 U.S. 232, 238, n. 7 (1980),

even preliminary agency orders or activities are “agency

action” as defined by the APA. Congress intended this

phrase to apply very broadly.

The term “agency action” brings together

previously defined terms in order to simplify the

language of the judicial-review provisions of

section 10 [of the APA] and to assure the

complete coverage of every form of agency

power, proceeding, action or inaction. In that

respect, the term includes the supporting

procedures, findings, conclusions, or statements

or reason or basis for the action or inaction.

Id., citing S.Doc. No. 248, 79" Cong., 2” Sess., 255 (1946).

For these reasons, this Court should reject EPA’s

argument that some portions of the final rule are “agency

action” and others are not.

2. The entire rule constitutes “final”

agency action that is judicially

reviewable.

EPA further contends that the disputed portions of the

rule are not “final,” even if they are “agency action.” It

correctly sets forth the two conditions that must be satisfied

for agency action to be “final.” Bennett v. Spear, 520 U.S.

154 (1997). First, “the action must mark the ‘consummation’

of the agency’s decisionmaking process . . . — it must not be

of a merely tentative or interlocutory nature.” /d. at 177-78,

citing Chicago & Southern Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 103, 113 (1948). Second, “the action must

be one by which ‘rights or obligations have been determined’

or from which ‘legal consequences will flow.’” Bennett, 520

U.S. at 178, citing Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970).

Contrary to EPA’s suggestion, the court of appeals applied

this well-established test and correctly determined that EPA’s

action meets both elements.

First, EPA’s interpretation of Subpart 2 marks the

“consummation” of its decisionmaking process. In the

preamble to the final rule, EPA stated:

4. Final decision on the primary standard.

After carefully considering the information

presented in the Criteria Document and the

Staff Paper, the advice and recommendations

of [the Clean Air Scientific Advisory

Committee], public comments received on the

proposal, and for the reasons discussed above,

the Administrator is replacing the existing 1I-

hour, 0.12 ppm primary standard with a new

8-hour, 0.08 ppm primary standard. The new

8-hour standard will become effective

September 16, 1997,

62 Fed. Reg. 38873 (1997 (italics in original). EPA

explained that this “final decision” represented a change from

its original intent to impose the one-hour standard once it had

approved state plans for implementing the new standard. /d.

EPA codified this decision in 40 C.F.R. 50.9(b), from which

the petitions below sought review. That section provides,

“The |-hour standards set forth in this section will no longer

apply to an area once EPA determines that the area has air

quality meeting the 1-hour standard.” 40 C.F.R. 50.9(b); 62

Fed. Reg. 38894 (1997).

Second, EPA’s promulgation of a revised ozone

standard triggered a number of “obligations” and “legal

consequences.” Section 107 of the Act requires the Governor

of each State, within one year after EPA’s promulgation of a

revised standard, to submit to EPA a list of designations for

all areas in the State. CAA §107(d); 42 U.S.C. 7407(d). Ifa

State does not submit a list, EPA will do so. /d. This list of

designations then triggers other actions by EPA to

promulgate the designations, CAA §107(d)(1)(B); 42 J.S.C.

7407(d)(1)(B), classify the areas, CAA §172(a)(1); 42 U.S.C.

7502(a)(1), and apply attainment dates, CAA §172(a)(1); 42

U.S.C. 7502(a)(1). After EPA completes these steps, each

State must develop and implement a plan (a SIP) for meeting

the revised requirements. CAA §172(b); 42 U.S.C. 7502(b).

Once a state plan is in place, the standard becomes fully

effective and results in operational controls imposed directly

on sources (such as manufacturing plants, electric utilities,

and automobiles).

The “designation” step of implementation is

particularly consequential. For instance, Section 173 of the

Act imposes requirements for issuing permits to new sources

of air pollution in areas designated as nonattainment. 42

U.S.C. 7503. These “new source review” requirements are

far more stringent than the permitting rules that apply in

attainment areas. See, e.g., CAA §173(a)(1)(A); 42 U.S.C.

7503(a)(1 (A)(requiring emission reduction offsets from

existing sources in the region); CAA §173(a)(2); 42 U.S.C.

7503(a)(2)(requiring new sources to comply with the lowest

achievable emission rate); CAA §173(a)(5); 42 U.S.C.

7503(a)(5 (requiring analysis of alternative sites, sizes,

production processes, and control techniques demonstrating

that the benefits of the new source significantly outweigh the

resulting environmental and social costs).

The Act also restricts the receipt of federal funds for

activities proposed in nonattainment areas. CAA §176; 42

U.S.C. 7506. For these areas, Section 176 prohibits the use

of federal funds, most notably federal highway money, for

any project that does not “conform” to a state plan. CAA

§176(c); 42 U.S.C. 7506(c). For these purposes, a project

does not “conform” if it will produce new air quality

violations, worsen existing violations, or delay timely

attainment. See 40 C.F.R. 51.390; 40 C.F.R. Part 93, Subpart

A (“Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed,

Funded or Approved Under Title 23 U.S.C. or the Federal

Transit Laws”). The review process necessary to show

conformity is long, complex, and costly and results in

obvious and detrimental consequences for States and local

governments — consequences that flow directly from a

nonattainment designation based on a new national standard.

These events that follow revision of an air standard

are not mere predictions of what may occur. Rather, each is

a certainty once EPA revises a standard. Given such

significant, costly, and certain consequences, EPA’s

suggestion that its rulemaking does not “create rights or

obligations” (EPA Brief at 19-20) must fail.

3. EPA’s action is ripe for review.

In determining that EPA’s action was ripe for review,

the court of appeals applied the well-established guidelines of

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). As

this Court has often stated, the question of ripeness turns on

“the fitness of the issues for judicial decision” and “the

hardship to the parties of withholding court consideration.”

Id. at 149. Here, the lower court determined that the case

was fit for review because it presented “a pure question of

law, the resolution of which would not benefit from a more

concrete setting.” 195 F.3d at 9; Pet. App. at 79a.

EPA asks that review of implementation issues be

deferred so that it may “work through the various

implementation provisions in more concrete settings,

reconcile conflicts, make policy judgments, and apply its

expertise as necessary to resolve ambiguities in the statute.”

EPA Brief at 43. EPA’s codification of its revocation of the

one-hour standard in areas meeting that standard needs no

further consideration. As issues of law, they need not await

further development, even if additional interpretation would

prove useful. Pacific Gas & Elec. Co. v. State Energy

Resources Conservation and Dev. Comm'n, 461 U.S. 190,

201-02 (1983).

Furthermore, the denial of review at this stage would

result in serious hardships and legal obligations for the

Respondent States. As noted above, EPA’s action triggers

numerous inevitable requirements under the Clean Air Act.

The certainty of these requirements forces States and local

governments to conduct long term planning, budget

sufficient funds, allocate appropriate staff, and spend a

portion of the limited governmental resources available for

environmental protection — all of which occur once EPA

revises the standard. To suggest under these circumstances

that EPA’s action is “too abstract” for review at this stage is

to ignore altogether the realities of EPA: rulemaking and the

impact upon States and local governments.

Correctly framed, the issues before the Court are

whether EPA has the authority to change Congress’s scheme

for ozone regulation and, if so, how far that authority

extends. Given the inevitable consequences of EPA’s

attempt to usurp such authority, these issues are final and ripe

for review.

Indeed, the inevitable consequences flowing from

EPA’s revision of the ozone standard provide yet another

prism through which the full extent of EPA’s action can be

appreciated. EPA’s change to the existing structure was

substantial, and the consequences of that change are

widespread. For better or worse, however, Congress has

spoken clearly and comprehensively to the control of ozone

in this country. Congress having spoken, EPA may not

abrogate the congressional plan.

CONCLUSION

The EPA rulemaking at issue here changed

Congress's scheme for regulation of ozone and, therefore,

exceeded Congress’s grant of authority to promulgate

national air standards. Accordingly, this Court should affirm

the decision of the court of appeals on the grounds that EPA

was not only without power to implement a revised ozone

standard, but it was without power to revise the standard in

the first instance. EPA’s ozone standard, therefore, should be

vacated.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

JAMES G. TASSIE

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Flr.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

*Counsel of Record

[ Additional Counsel Listed on Next Page]

MARK J. RUDOLPH

Deputy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hansford Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan

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