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

Supreme Court, U.S.

— FILED

SUZ, OCT 5 2000

No. 99-1257 5

In the Supreme Court of the United States

— — =o

CAROL M. BROWNER, ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

ET AL., PETITIONERS

Vv.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

SETH P. WAXMAN

Solicitor General

Counsel of Record

GARY S. GUZY Department of Justice

General Counsel Washington, D.C. 20530-0001

Environmental Protection (202) 514-2217

Agency

Washington, D.C. 20460

TABLE OF CONTENTS

I. The court of appeals erroneously applied the non-

delegation doctrine

A. Section 109 of the Clean Air Act is constitu-

tional under the Court’s established nondelega-

tion jurisprudence ..... *

B. There is no warrant for the Court to amend

2 ..—

C. There is no need for this Court to revise its

nondelegation jurisprudence 7

II. The court of appeals lacked jurisdiction to review

EPA’s preamble statements

III. Ifthe Court reaches the question, it should rule

that EPA may simultaneously implement the one-

hour and eight-hour standards

TABLE OF AUTHORITIES

Cases:

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

1? w

Almendarez-Torres v. United States, 523 U.S.

2 —

American Lung Ass n v. EPA, 134 F.3d 388

(D.C. Cir. 1998) * ee

American Paper Inst. v. American Elec. Power

Serv. Corp., 461 U.S. 402 (1983)

American Petroleum Inst. v. Costle, 665 F.2d 1176

(D.C. Cir. 1981), cert. denied, 455 U.S. 1034

—

1 Co. v. SEC, 329 U.S. 90

(1946) — — — —— —

American Textile Mfrs. Inst. v. Donovan, 452 US.

ü .

(I)

11

15

3,4

II

Cases Continued: Page

American Trucking Ass ns v. EPA, 175 F.3d 1027

(D.C. Cir. 1999) 7

Carter v. Carter Coal Co., 298 U.S. 238 (1936) 4

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837

(1984) 4-5, 17

Lead Indus. Ass’n v. EPA, 647 F.2d 1130

(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980) . 7

Lichter v. United States, 334 U.S. 742 (1948) 5

Loving v. United States, 517 U.S. 748 (1996) 4, 10

Mistretta v. United States, 488 U.S. 361 (1989) 2, 3,

4, 5, 10

NRDC v. EPA:

824 F.2d 1146 (D.C. Cir. 1987) 8

902 F.2d 962 (D.C. Cir. 1990), cert. dismissed, 498 U.S.

1075, cert. denied, 498 U.S. 1082 (1991) 8

Opp Cotton Mills, Inc. v. Administrator, 312 US.

126 —(l6—————.———..-—— 2,3

Panama Refining Co. v. Ryan, 293 U.S. 388

6 — 4

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

i ——— 5

Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978) ....... 5

Yakus v. United States, 321 U.S. 414 (1944) 2. 3

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 et Sec.. 6, 8, 10, 11,

14, 15, 18, 19, 20

Tit. I, 42 U.S.C. 7401 et seg.

§ 107(d), 42 U.S.C. 7407(d) * 16

§ LO7(d)(1)(A), 42 U.S.C. 740d ix) 19

§ 107(d)(1 Ai), 42 U.S.C. T407(A)CI AC) ccceees 16

§ 107(d)(1)( Aili), 42 U.S.C. 7407(d)(1)(A Mii) ............. 16

§ 107(d)(1)(B), 42 U.S.C. 740/dMI (B) 16, 19

§ 108, 42 U.S.C. 7408 (1994 & Supp. IV 1998) .............. 8

LL 1-2, 3, 4, 7, 8, 9, 10

III

Statutes and regulations Continued: Page

§ 109(b)(1), 42 U.S.C. 7409 0b 01) 2

§ 109(b)(2), 42 U.S.C. 74090b) ) 2

§ 109(d), 42 U.S.C. 7409(d) 15

§ 109(d)(1), 42 U.S.C. 7409(d)(1) * 15

§§ 171-179, 42 U.S.C. 7501 et seg. (Subpt. 1) 16, 17,

18, 19, 20

§ 172, 42 U.S.C. 7502 16

§ 172(a), 42 U.S.C. 7502(a) 18, 19

§ 172(a)(1), 42 U.S.C. 7502(a)(1) 16

§ 172(a)(1)(A), 42 U.S.C. 7502(a)(1)(A) 18, 19

§ 172(a)(1(C), 42 U.S.C. 7502(a)(1)(C) 18

§ 172(a)(2), 42 U.S.C. 7502(a)(2) 16, 20

§ 172(aX(2)A), 42 U.S.C. 7502(aX2)A) 18

a2 D), 42 U.S.C. 750 6 D 18

L.? 16

§§ 181-185B, 42 U.S.C. 7511 et seg. (Subpt. 2) 11, 12

16, 17, 18, 19, 20

§ 181(a), 42 U.S.C. 7511(a) 16, 18, 19

§ 181(a)(1), 42 U.S.C. 7511(a)(1) 18, 19

Tit. III. 42 U.S.C. 7601 et seg.

§ 307(d)(9), 42 U.S.C. 7607(d)(9) ——— 6, 8

§ 307(d)(9)(A), 42 U.S.C. 7607(d)(9)(A) * 6

Clean Air Act Amendments of 1990, Pub. L. No. 101-549,

§ 103, 104 Stat. 2423, 42 U.S.C. 7511-7511f 16

40 C. F. R.:

... —— 13, 14

. —.—— 14

Miscellaneous:

EPA, The Benefits and Costs of the Clean Air Act:

1970 to 1990 (Oct. 1997) 11

EPA, The Benefits and Costs of the Clean Air Act,

1990-2010: Report to Congress (Nov. 1999) 11

62 Fed. Reg. (1997):

i, GED —— 6

?— ͤ—ↄ—ß—ͤ—ꝛ— 0 6

898 — — —— — 17

IV

Miscellaneous—Continued: Page

PP. 38,884-38, 885 12, 15

888. 333—8——ß—ß—8—ß—8ß—ß—ß—8—ß—8—ß—ß—ß—ß—ß—ß—ß—ß—ß—ß—ß—ß—— 17

H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1 (1990) 16

A. Scalia, Responsibilities of Regulatory Agencies

Under Environmental Laws, 24 Hous. L. Rev. 97

8

R. Stern et al. „ Court Practice (7th ed.

7 —— — — — —ęE3 10, 12

REPLY BRIEF FOR THE PETITIONERS

In our opening brief, we explain that the court of appeals:

(I) erroneously applied the nondelegation doctrine (Pet. Br.

21-34); (II) lacked jurisdiction to review EPA’s preamble

statements on the scope of its authority to implement a

revised ozone NAAQS (id. at 34-44); and (III) improperly

restricted EPA’s authority to implement the revised ozone

NAAQS (id. at 44-56). In response, American Trucking

Associations (ATA) and its supporters rewrite the questions

presented, disregard controlling precedent, and ask for

affirmance on alternative, but unpersuasive, rationales. We

reply by reference to the three core questions that our

petition places before this Court.’

I. The Court Of Appeals Erroneously Applied The

Nondelegation Doctrine

Industry respondents and their amici offer three incon-

sistent defenses of the court of appeals’ judgment: (A) APC

argues that the Court should affirm the court of appeals’

nondelegation ruling on the ground that EPA has not

articulated an “intelligible principle” in setting NAAQS

(APC Br. 22-35); (B) ATA argues that the Court can avoid

the nondelegation issue by reinterpreting Section 109 of the

We employ the following abbreviations: Brief for Massachusetts et

al. (Mass. Br.); Brief for American Lung Ass’n (ALA Br.); Brief for

American Trucking Ass’ns et al. (ATA Br.); Brief for Appalachian Power

Co. et al. (APC Br.); Brief for Ohio et al. (Ohio Br.); Amici Brief for

California et al. (Calif. Br.); Amici Brief for New York et al. (N.Y. Br.);

Amici Brief for Clean Air Trust et al. (CAT Br.), Amicus Brief for United

States Public Interest Research Group (USPIRG Br.); Amicus Brief for

General Electric Co. (GE Br.); Amici Brief for American Institute of

Certified Public Accountants, et al. (AICPA Br.); Amici Brief for Intel

Corp. et al. (Intel Br.); Amici Brief for Senator Orrin Hatch et al. (Hatch

Br.); Amici Brief for Gary E. Marchant et al. (Marchant Br.); Amici Brief

for Institute for Justice et al. (IFJ Br.); Amici Brief for the Manufacturers

Alliance/MAPI, Inc. et al. (Mfrs. Br.); Amici Brief for Pacific Legal

Foundation et al. (PLF Br.); Amici Brief for the Lincoln Institute for

Research and Education et al. (LI Br.).

(1)

2

Clean Air Act (CAA) to require EPA to consider compliance

costs in setting NAAQS (ATA Br. 7-25); and (C) diverse

amici argue that the Court should revise the nondelegation

doctrine to curtail government regulation of all sorts (see,

e.g., AICPA Br. 4-5; IFJ Br. 11-13; LI Br. 27-30). Only the

first theory defends the court of appeals’ reasoning, and none

of the theories finds support in this Court’s decisions.”

A. Section 109 of the CAA is constitutional under this

Court’s established nondelegation jurisprudence. The initial

issue before this Court is whether Section 109 of the CAA

violates the nondelegation doctrine. This Court has articu-

lated and reaffirmed the basic rule:

“The Constitution has never been regarded as denying to

the Congress the necessary resources of flexibility and

practicality, which will enable it to perform its function.”

Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).

Accordingly, this Court has deemed it “constitutionally

sufficient if Congress clearly delineates the general pol-

icy, the public agency which is to apply it, and the

boundaries of this delegated authority.” American

Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

Mistretta v. United States, 488 U.S. 361, 372-373 (1989); ac-

cord, e.g., Yakus v. United States, 321 U.S. 414, 424-425

(1944); Opp Cotton Mills, Inc. v. Administrator, 312 U.S.

126, 144-146 (1941). See Pet. Br. 21-22; Mass. Br. 28-29; ALA

Br. 17-18.

The Court’s oft-repeated statement resolves the nondele-

gation issue here. Section 109 of the CAA states that EPA

shall set NAAQS at levels that are “requisite” to protect

“public health” and “public welfare.” 42 U.S.C. 7409(b)(1)

and (2). Thus, Congress has clearly delineated “the general

2 The States of Ohio, Michigan, and West Virginia and a group of

electronics industry amici make no attempt to defend the court of appeals’

nondelegation ruling. See Ohio Br. 10, Intel Br. 25.

3

policy” and “the public agency which is to apply it.” Mis-

tretta, 488 U.S. at 373. In addition, Congress has set out, in

extraordinary detail, “the boundaries of this delegated

authority” (ibid.) by specifying the factors that EPA must

consider, a body of experts that it must consult, and a rigor-

ous set of procedures that EPA must follow in setting the

NAAQS. See Pet. Br. 23-26; see also Mass. Br. 29-35."

Accordingly, Section 109, by its plain terms, amply satis-

fies nondelegation requirements. Congress has fulfilled its

legislative function by making the fundamental policy choice

to set NAAQS at a level requisite to protect public health

and public welfare Congress has properly assigned to EPA

the executive responsibility to determine, based on current

scientific knowledge and extensive public input, the specific

numerical values.’ There is, accordingly, no sound basis for

asserting that Section 109 is unconstitutional under this

Court’s established nondelegation jurisprudence.°

3 The nondelegation doctrine does not prevent Congress from direct-

ing an agency to make scientific inquiries and to exercise judgment in the

face of scientific uncertainty. See, eg, Yakus, 321 U.S. at 425 (“It is no

objection that the determination of facts and the inferences to be drawn

from them in the light of the statutory standards and declaration of policy

call for the exercise of judgment, and for the formulation of subsidiary

administrative policy within the prescribed siatutory framework.”);

accord Opp Cotton Mills, 312 U.S. at 146.

* See, eg, Opp Cotton Mills, 312 U.S. at 144 (“The adoption of the

declared policy of Congress and its definition of the circumstances in

which its command is to be effective, constitute the performance, in the

constitutional sense, of the legislative function.”).

5 See, eg, Yakus, 321 U.S. at 424 (The Constitution “does not require

that Congress find for itself every fact upon which it desires to base

legislative action or that it make for itself detailed determinations which it

has declared to be prerequisite to the application of the legislative policy

to particular facts and circumstances impossible for Congress itself

properly to investigate.”).

Several amici (e.g., PLF Br. 5-6; GE Br. 6-7) argue that this case is

similar to the only two cases in which the Court has invalidated federal

legislation on nondelegation grounds. See A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495 (1935) (fair competition provisions of the

4

APC attempts to avoid the clear import of this Court’s

decisions by asserting that the nondelegation doctrine im-

poses constitutional constraints on agency action. Relying

on the court of appeals’ reasoning, APC argues that EPA’s

construction of Section 109 violates a “weak” form of the

nondelegation doctrine because EPA has not announced an

“intelligible principle” to “guide its exercise of public health

risk management judgment.” APC Br. 22-23. APC’s argu-

ment makes a muddle of this Court’s nondelegation deci-

sions. The question in a nondelegation challenge is whether

Congress has conferred legislative power. Thus, the Court

has stated that Congress must set out an “intelligible princi-

ple” in legislation to ensure that Congress does not delegate

legislative power. See, e.g., Loving v. United States, 517

U.S. 748, 771 (1996). APC’s assertion that EPA must articu-

late an “intelligible principle” when promulgating NAAQS

borrows the Court’s words, but places them in a context that

distorts their meaning.’

National Industrial Recovery Act (NIRA)); Panama Refining, supra

(“hot oil” provisions of the NIRA). Those comparisons are preposterous.

In Schechter, Congress had delegated rulemaking power to private par-

ties. See Schechter, 295 U.S. at 537. See also Carter v. Carter Coal Co.,

298 U.S. 238, 311 (1936) (invalidating provisions of the Bituminous Coal

Conservation Act on similar substantive due process grounds). And in

both Schechter and Panama Refining, “Congress had failed to articulate

any policy or standard that would serve to confine the discretion of the

authorities to whom Congress had delegated power.” Mistretta, 488 U.S.

at 373 n.7 (emphasis added). See Schechter, 295 U.S. at 541; Panama

Refining, 293 U.S. at 415. Section 109 possesses none of those characteris-

tics and, indeed, illustrates the very type of legislative authorization the

Court considered permissible. See Schechter, 295 U.S. at 530 (Congress

may “perform its function in laying down policies and establishing

standards, while leaving to selected instrumentalities the making of

subordinate rules within prescribed limits and the determination of facts

to which the policy as declared by the Legislature is to apply.”); accord

Panama Refining, 293 U.S. at 421.

7 If APC disagrees with EPA’s construction of Section 109, then it

may articulate that issue as a nonconstitutional challenge to an agency’s

interpretation. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-845

5

The Court has never suggested that the Constitution

requires an agency to announce an “intelligible principle” as

a precondition for implementing the underlying statute. To

the contrary, the Court has repeatedly emphasized that, so

long as Congress has set out an intelligible principle, the

agency is entitled to exercise discretion in carrying out the

congressional program.” In exercising that discretion, the

agency may describe the governing principles at the outset,

or it may make its determinations on a case-by-case basis.’

If Congress has not mandated a precise course for the

agency, then the agency has discretion in determining how

to effectuate congressional! intent. See Chevron, 467 U.S. at

843. The courts play an important role in ensuring that the

agency ultimately complies with statutory directives, see,

e.g., American Power & Light, 329 U.S. at 105, but the courts

carry out that role by applying the congressionally pre-

scribed standards for judicial review of agency action, see,

e. g., id. at 108-112. See Pet. Br. 26-31.

(1984). But APC cannot rationally contend that EPA has itself violated

the nondelegation doctrine.

5 See, e., Mistretta, 488 U.S. at 378 (“our cases do not at all suggest

that delegations of this type may not carry with them the need to exercise

judgment on matters of policy”); Lichter v. United States, 334 U.S. 742,

785 (1948) (“It is not necessary that Congress supply administrative

officials with a specific formula for their guidance in a field where flexibil-

ity and the adaptation of the congressional policy to infinitely variable con-

ditions constitute the essence of the program.”); accord American Power

& Light, 329 U.S. at 105; Sunshine Anthracite Coal Co. v. Adkins, 310

U.S. 381, 398 (1940).

% See American Power & Light, 329 U.S. at 106 (“Nor is there any

constitutional requirement that the legislative standards be translated (by

the agency] into formal and detailed rules of thumb prior to their applica-

tion to a particular case. If [the] agency wishes to proceed by the more

flexible case-by-case method, the Constitution poses no obstacle. All that

can be required is that the [agency] conform to the statutory language and

policy.”); ef. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519, 543-545 (1978).

6

At bottom, APC’s objection to EPA’s actions in this case

has nothing to do with separation-of-powers principles.

Rather, APC disputes EPA’s methodology for setting

NAAQS and its specific judgments in selecting the levels for

the revised ozone and PM NAAQS. See APC Br. 24-33.

Congress has directed, however, that those questions should

be resolved under the CAA’s standards for judicial review.

See CAA § 307(d)(9), 42 U.S.C. 7607(d)(9). The court of

appeals failed to resolve those questions under the

prescribed statutory standard. That standard requires the

court to examine the whole record—which includes EPA’s

full rationale and the scientific evidence on which it relies—

to decide whether EPA’s actions are “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with

law.“ 42 U.S.C. 7607(d)(9)(A). APC’s arguments do not

address—and certainly provide no basis for excusing—the

court of appeals’ fundamental error. See Pet. Br. 30-31.“

10 In making their nondelegation claims, the industry respondents

distort many specific aspects of EPA's regulatory decision and the record

below. Those mischaracterizations are irrelevant to the nondelegation

issue, and we do not dwell on them here. We trust that, if the court of

appeals conducts a careful review of the agency's actions on remand in

accordance with the CAA’s requirements, see 42 U.S.C. 7607(d)(9), it will

discern that EPA revised the NAAQS based on a comprehensive and

reasoned analysis of the significance and reliability of new scientific

knowledge about the health and welfare effects of the pollutants at issue.

See, eg, 62 Fed. Reg. 38,655-38,679 (1997) (rationale for the revised PM

primary NAAQS); id. at 38,859-38,874 (rationale for the revised primary

ozone NAAQS); see also PM and Ozone Staff Papers and Criteria

Documents (lodged with the Clerk of the Court). Contrary to the industry

respondents’ repeated claims (e.g., ATA Br. 11; APC Br. 24), EPA has

never claimed boundless discretion to set NAAQS. See, e.g., Pet. Br. 28-29

& n.22, 31-34.

The comments of some of supposedly disinterested amici warrant brief

mention. The Marchant amici and two members of Congress assert that

EPA engages in a “science charade” in which the agency improperly

purports to set NAAQS based on science alone, without regard to policy

considerations. See Marchant Br. 3-4, 9; Hatch Br. 1. Those amici simply

ignore the rulemaking record. For example, EPA prepared a detailed

= 7

B. There is no warrant for the Court to amend Section

109. ATA makes little effort to defend the court of appeals’

reasoning. Rather, ATA argues that the court of appeals has

consistently erred, beginning with its decision in Lead Ind-

ustries Ass’n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert.

denied, 449 U.S. 1042 (1980), in holding that Section 109

requires EPA to set NAAQS without regard to compliance

costs. ATA Br. 7. ATA asserts that “the nondelegation

problem that produced the decision below is readily resolved

by rejecting Lead Industries 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.” Id.

at 11. ATA’s position has three basic flaws.

First and foremost, despite ATA’s rhetoric to the contrary

(see, e.g., ATA Br. 1-2), there is simply no merit to ATA’s

construction of Section 109. The statutory text, its historical

origins, its underlying policy, and Congress’s repeated reaf-

firmations conclusively establish that Congress has directed

EPA to establish NAAQS based solely on consideration of

the public health and public welfare effects caused by the

presence of criteria pollutants in the ambient air. See, e.g.,

99-1426 Fed. Resp. Br. 17-31; 99-1426 Mass. Br. 15-28; 99-

1426 ALA Br. 1-25, 29-32; 99-1426 Calif. Br. 5-30; 99-1426

CAT Br. 5-29. EPA and the court of appeals have

consistently adhered to that construction of Section 109—

“Policy Assessment of Scientific and Technical Information” in each

rulemaking “to evaluate the policy implications of the key studies and

scientific information contained in [the Criteria Document]}”). See PM

Staff Paper, at I-1 (lodged with the Clerk); accord Ozone Staff Paper; see

also Pet. Br. 4 (describing Staff Papers). Moreover, although Marchant

portrays himself as a disinterested law professor (see Marchant Br. 19), he

actually served as one of ATA’s primary counsel in the proceedings below.

See ATA v. EPA, 175 F.3d 1027, 1031-1032 (D.C. Cir. 1999). The

congressional amici acknowledge that their brief was funded by a private

organization called “Citizens for a Sound Economy.” Hatch Br. 1 n.1.

8

and rejected industry’s shopworn arguments that NAAQS

should take into account the compliance costs—because it is

the only rational construction of the statutory text.

Second, this case does not present a “nondelegation prob-

lem” (ATA Br. 11). Congress has satisfied the nondelegation

doctrine by providing intelligible principles in the

CAA—such as requiring that NAAQS be set, based on the

Section 108 “criteria,” at levels “requisite” to protect public

health and public welfare—that constrain EPA’s exercise of

discretion. What ATA posits as “nondelegation problems”

(id. at 15-21) are simply its disagreements with judgments

that EPA has made in exercising its statutory discretion.

ATA may raise such objections in the rulemaking process,

and it may seek judicial review of EPA’s final rules on the

basis of properly preserved objections under the CAA’s

“arbitrary or capricious standard.” 42 U.S.C. 7607(d)(9).

But ATA’s objections are not matters of constitutional

character. Hence, even if Section 109’s plain language were

ambiguous, there would be no need to adopt a narrowing

construction to avoid confronting a nondelegation problem.

See, e.g., Almendarez-Torres v. United States, 523 U.S. 224,

237-239 (1998); see also 99-1426 Fed. Resp. Br. 47-48; 99-1426

USPIRG Br. 5-12.

Third, even if Section 109 were ambiguous and it legiti-

mately presented “nondelegation problems,” ATA’s pro-

See Pet. App. 19a-21a; American Lung Ass’n v. EPA, 134 F.3d 388,

389 (D.C. Cir. 1998); NRDC v. EPA, 902 F.2d 962, 973 (D.C. Cir. 1990),

cert. dismissed, 498 U.S. 1075, and cert. denied, 498 U.S. 1082 (1991);

Ame ican Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981),

cert. denied, 455 U.S. 1034 (1982); see also NRDC v. EPA, 824 F.2d 1146,

1158-1159 (D.C. Cir. 1987) (en banc) (Vinyl Chloride); A. Scalia, Respon-

sibilities of Regulatory Agencies Under Environmental Laws, 24 Hous. L.

Rev. 97, 102 (1987) (“national primary ambient air quality standards are to

be established not in light of what is ‘feasible’ or ‘reasonable’ (a formula-

tion that would ....ble counterbalancing costs to be offset against the

benefit of clean air) bu* rather on the sole basis of what is ‘requisite to

protect the public health’”).

|

9

posed construction would exacerbate, rather than amelio-

rate, those problems. Lead Industries and subsequent cases

hold that Congress made a policy choice to cabin EPA’s

discretion by requiring the agency to set NAAQS on the

basis of a specific body of information: the latest scientific

knowledge on the public health and welfare effects caused by

the presence of criteria pollutants in the ambient air. Under

ATA’s construction, EPA’s Administrator would be

“constrained only by the requirement that she overtly and

systematically consider all logically relevant factors in

setting those standards.” ATA Br. 11 (emphasis added).

That construction broadens—rather than constrains—EPA’s

discretion. See 99-1426 Fed. Resp. Br. 47-49.”

C. There is no need for this Court to revise its nondele-

gation jurisprudence. Amici representing diverse special

interest groups, ranging from accountants to gun owners,

argue that this Court should reformulate its nondelegation

jurisprudence in various ways, ranging from subjecting Con-

gress to a “clear statement” requirement (AICPA Br. 4) to

ignoring its 20th century decisions altogether (LI Br. 27-30).

Those amici implicitly acknowledge that Section 109, which

has been in place for 30 years, could be invalidated only if the

2 ATA might suggest that EPA’s discretion would be constrained if

EPA were further required to make decisions on a strict cost-benefit

basis, formally weighing all “logically relevant” costs against all “logically

relevant“ benefits. But that reasoning is flawed in two additional re-

spects. First, as we explain in No. 99-1426, the process of quantifying the

nationwide environmental costs and benefits of NAAQS is highly sub-

jective and fraught with uncertainty. 99-1426 Fed. Resp. Br. 45-47. If

EPA attempted to set NAAQS on the basis of a strict cost-benefit analy-

sis, it would need to exercise additional discretion in identifying and

monetizing projected costs and benefits. That process would simply

create new and different controversies. Second, this Court should be

particularly reluctant to direct an agency to engage in strict cost-benefit

analysis in the absence of clear direction from Congress. “When Congress

has intended that an agency engage in cost-benefit analysis, it has clearly

indicated such intent on the face of the statute.” American Textile Mfrs.

Inst. v. Donovan, 452 U.S. 490, 510 (1981).

10

Court radically altered nondelegation principles that have

been in place for more than 60 years. See, e.g., Pet. App.

59a-60a (Tatel, J., dissenting).

There is clearly no warrant for doing so, and particularly

not here, where Congress has not only carefully specified

EPA’s responsibilities, but has also carefully monitored

EPA’s actions.“ As Massachusetts and New Jersey chroni-

cle in their brief, Congress and the Executive Branch have

engaged in a decades-long collaborative effort to protect the

public from air pollution, and that collaboration has led

to ongoing legislative refinements based on the federal and

state experience in formulating and implementing the

NAAQS. See Mass. Br. 7-19. The CAA illustrates how

“({s]eparation-of-;vwers principles are vindicated, not dis-

served, by measured cooperation between the two political

branches of the Government, each contributing to a lawful

objective through its own processes.” Loving, 517 U.S. at

773. That cooperative effort has produced consistent

improvements in air quality and, in turn, unquestioned

public health and public welfare benefits. Judged even by

the industry respondents’ preferred criterion—cost-benefit

analysis—the program has been a tremendous success. Sce

13 As Judge Tatel noted in dissent, the CAA’s grant of authority “is far

more specific than the sweeping statutory delegations consistently upheld

by the Supreme Court for more than 60 years.” Pet. App. 97a. See Lov-

ing, 517 U.S. at 771 (noting that the Court has “upheld, without exception,

delegations under standards phrased in sweeping terms”); Mistretta, 488

U.S. at 373-374 (collecting a sampling of those cases); see also id. at 415-

416 (Scalia, J., dissenting). As the amici rightly perceive, the Court cannot

invalidate Section 109 without calling into question countless Acts of

Congress.

14 Indeed, to the extent that the amici urge altering the court of

appeals’ remand order in a manner not presented by the questions on

which this Court has granted review, the contentions are not properly

before the Court. See R. Stern et al., Supreme Court Practice 363 (7th ed.

1993); see also note 17, infra.

11

EPA, The Benefits and Costs of the Clean Air Act: 1970 to

1990 (Oct. 1997).”°

II. The Court Of Appeals Lacked Jurisdiction To

Review EPA’s Preamble Statements

As we explain in our opening brief, the court of appeals

erred in dictating how EPA should implement the ozone

NAAQS before EPA has taken judicially reviewable agency

action—including additional notice and comment rulemaking

—to implement that NAAQS. Pet. Br. 34-44. The industry

respondents and their supporters fail to provide a defensible

justification for the court of appeals’ decision to address an

issue that was not yet before it. Indeed, only Ohio and APC

meaningfully attempt to defend the court’s jurisdictional

decision, and their arguments highlight why the court of

appeals erred.

As Ohio acknowledges, several midwestern States and the

industry parties argued below that EPA lacked statutory

authority to revise the ozone NAAQS because future imple-

mentation of a revised NAAQS would conflict with the

CAA’s Subpart 2 scheme for implementing the existing

NAAQS. See Ohio Br. 32-33.“ EPA had considered that

argument and rejected it in the rulemaking. See Pet. Br.

15 Although many benefits of the CAA cannot be quantified in mone-

tary terms, EPA has estimated that the Act as a whole yielded approxi-

mately 22 trillion dollars in quantifiable benefits between 1970 and 1990,

compared to direct compliance costs of approximately 0.5 trillion dollars

over the same period. See EPA, supra, at ES-8 (summarizing results); see

also 99-1426 Mass. Br. 12-13. EPA expects that the CAA will continue to

produce substantial public health and public welfare benefits in the next

decade. See EPA, The Benefits and Costs of the Clean Air Act, 1990-2010:

Report to Congress 61, 102 (Nov. 1999).

16 Ohio expressly states that this case “is about EPA’s power to revise

the ozone standard at all” and “that is precisely the issue presented and

briefed before the court of appeals.” Ohio Br. 32-33. See also ATA Br. 45

(“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”).

12

App. la-6a (62 Fed. Reg. at 38,884-38,885). The court of

appeals correctly affirmed EPA’s determination tat it had

“power to revise” the ozone NAAQS. Pet. App. 34a-37a.

The court of appeals’ decision has therefore conclusively

resolved that matter. See generally Pet. Br. 34-35. 7

We do not question that the court of appeals was entitled

to resolve whether EPA had statutory authority to revise

the ozone NAAQS. The problem here is that the court did

not stop at that point, but went on to issue an advisory opin-

ion on another important matter that would be the subject of

future rulemaking—namely, how EPA should implement the

revised ozone NAAQS in conjunction with the CAA’s

Subpart 2 scheme for implementing the pre-existing 1-hour

ozone NAAQS. See Pet. App. 37a-43a. The court of appeals

directed that, when the time comes for EPA to issue rules

governing implementation of the revised ozone NAAQS,

“EPA must enforce any revised primary ozone NAAQS

under Subpart 2 [of Title I of the CAA].” Id. at 43a.

The federal parties objected to the court of appeals’ swa

sponte ruling on that matter at the first opportunity by filing

a petition for rehearing explaining that EPA had not yet

taken any final agency action to implement the revised ozone

7 In disregard of this Court’s procedures, Ohio has resurrected and

extensively briefed that issue (as well as others) without filing a cross-

petition for writ of certiorari. Ohio Br. 10-31. ATA and APC have also

improperly suggested that this Court should reverse the court of appeals’

determination on the statutory basis that Ohio puts forward, even though

they did not file a cross-petition on the issue. APC Br. 49-50; ATA Br. 25.

A cross-petition is necessary because their argument does not provide an

alternative ground for affirming any question presented in our petition.

Instead, their argument would require the Court to alter the judgment

below. If this Court accepted their contention that the CAA’s Subpart 2

provisions implicitly prohibit revision of the ozone NAAQS, the Court

would be required to invalidate the revised ozone NAAQS outright, rather

than to remand the case to the agency to develop an “intelligible principle”

for revising the ozone NAAQS. See R. Stern et al., supra, at 363 (under

“established doctrine, * * * a party must cross-appeal or cross-petition if

such party seeks to change the judgment below or any part thereof”).

i3

NAAQS. The court of appeals nevertheless justified its

decision on the basis that EPA’s preamble statements

describing why it had authority to revise the ozone NAAQS

constituted final agency action for purposes of determining

how EPA should implement the ozone NAAQS. Pet. App.

77a-79a. As our opening brief explains, EPA’s preamble

statements describing the possible content of future rules do

not constitute final agency action that is ripe for review—

they are not themselves agency actions that affect legal

rights. See Pet. Br. 36-44. Ohio suggests no persuasive

basis for treating EPA’s preamble statements as final

agency action. Ohio simply treats the preamble statements

as if they were themselves rules. See Ohio Br. 34-39.

APC takes a similar approach. It argues that “EPA’s

determination of its authority to revise the ozone NAAQS is

final action.” APC Br. 36 (emphasis added). But the issue

here is whether EPA has taken final action on how it will

ſej nforce“ the revised ozone NAAQS. Pet. App. 37a (emp-

hasis added). APC simply conflates what the court of ap-

peals itself treated as two distinct questions, and then

confuses the picture still further by mischaracterizing EPA’s

actions in the ozone rulemaking. According to APC, EPA

issued “a rule that simultaneously established a more

stringent 8-hour ozone NAAQS and made a I-hour ozone

NAAQS and related Subpart 2 program automatically inap-

plicable to an area once EPA determines that its air quality

meets the I-hour NAAQS. 40 C. F. R. 50.9(b) & 50.10.” APC

Br. 37 (emphasis added). But as the citations following

APC’s statement make clear, EPA issued two rules, and

APC is improperly treating those two distinct rules as one.

As we explain in our opening brief, EPA issued 40 C. F. R.

50.9(b) to change the way that the existing 1-hour ozone

NAAQS would be implemented in the future. Pet. Br. 39

n.26. That rule is final agency action, but it does not

implement the revised 8-hour ozone NAAQS. EPA issued a

14

separate rule promulgating the revised ozone NAAQS, 40

C.F.R. 50.10. That rule is also final agency action, but it

likewise does not implement the revised ozone NAAQS.

Indeed, if this Court merely examines the text of the two

rules, it will discern that neither rule specifies how EPA will

enforce the revised ozone NAAQS. See Pet. Br. 39 n.26 (40

C. F. R. 50.9(b)); Pet. App. 104a (40 C. F. R. 50.10).”

The tortuous arguments that Ohio and the industry re-

spondents make in defense of the court of appeals’ juris-

dictional ruling underscore why courts should respect the

basic procedural principles that govern judicial review of

agency action. The CAA specifies a methodical, step-by-step

approach to carry out the complex task of promulgating and

implementing NAAQS. That approach provides opportuni-

ties for public participation and judicial review at critical

stages of the sequential decisionmaking process. See Pet.

Br. 3-8; Mass. Br. 3-6. Each of those stages presents compli-

cated scientific and legal questions that deserve careful con-

sideration before proceeding to the next stage of the process.

The court in this case leapfrogged over critical steps in the

administrative process and prescribed the outcome for fu-

ture administrative proceedings before the agency has itself

18 As we note in our opening brief, no party in this case specifically

challenged 40 C.F.R. 50.9(b), and the court of appeals did not review that

rule. Even if a party had challenged 40 C.F.R. 50.9(b) and the challenge

were successful, that could properly have resulted merely in invalidation

of that rule. It would not have given the court license to prescribe how

EPA should implement the revised ozone NAAQS, which remains a

subject for future rulemaking. APC notes that an environmental group

challenged 40 C. F. R. 50.9(b) after the time period for seeking review of

that rule had run, and the government objected to that challenge on that

basis. APC Br. 39-40. Contrary to APC’s implication, there is nothing in-

consistent in the government's objection. In that case, the environmental

group had filed an untimely challenge to 40 C.F.R. 50.9(b), while in this

case, the States and industry parties—which filed a timely challenge to

the revised ozone NAAQS, 40 C.F.R. 50.10—did not challenge 40 C. F. R.

50.9(b) before the court of appeals.

15

determined its course through final regulatory action that is

ripe for review. The consequences are particularly serious in

the case of the CAA, which creates a regulatory program of

extraordinary scope and complexity. If a court intervenes

prematurely, it improperly injects itself into a policymaking

role and increases the likelihood that it will err.

III. If The Court Reaches The Question, It Should

Rule That EPA May Simultaneously Implement

The One-Hour And Eight-Hour Standards

If this Court decides to reach the question, it should reject

the court of appeals’ limits on how EPA may enforce the

revised ozone NAAQS. We reply by reference to the brief of

the amici Intel et al., which provides a defense of the court of

appeals’ decision on this point that, while mistaken, is more

cogent than the others proffered in this case. As Intel points

out (Intel Br. 3, 6), every party that addresses the issue

agrees that the court of appeals’ initial ruling—that “EPA

must enforce any revised primary ozone NAAQS under

Subpart 2” (Pet. App. 43a)—is untenable and would produce

“absurd results.” See also Pet. Br. 47-48. Intel posits two

alternatives: “either the revised NAAQS cannot be imple-

mented at all or implementation of the revised NAAQS must

occur under Subpart 1.” Intel Br. 4, 11.

The first alternative—which ATA and APC espouse (ATA

Br. 25; APC Br. 49-50)—is illogical and precluded by those

portions of the court of appeals’ judgment that the respon-

dents have not challenged. The court of appeals correctly

rejected industry’s argument that EPA lacks authority to

revise the ozone NAAQS. Pet. App. 34a-37a." No party has

'9 Indeed, the court of appeals’ conclusion is led by the CAA’s

plain language. As the court of appeals correctly explained (Pet. App.

34a), Section 109d) categorically requires EPA periodically to review and

revise all of the NAAQS in light of new scientific information, and Section

109(d) makes no exception for the ozone NAAQS. 42 U.S.C. 7409(d)(1).

See generally 62 Fed. Reg. at 38,884-38,885 (reproduced at Pet. Br. App.

16

filed a cross-petition for writ of certiorari on that issue, see

note 17, supra, and it is therefore beyond dispute that EPA

not only has the power, but also the obligation, to revise the

ozone NAAQS periodically in light of new scientific infor-

mation. It is absurd to suggest that Congress would have

required that EPA periodically undertake the elaborate pro-

cess of reviewing and revising the ozone NAAQS, but at the

same time prohibited EPA from implementing the revis-

ions.” Thus, the first alternative that Intel offers is

foreclosed.

la-Ga). The court of appeals also correctly concluded (Pet. App. 36a-37a)—

sithough it did not need to reach the iasue—that Section 107(d) authorizes

EPA to designate areas as nor ttainment for “revised [NAAQS).” 42

U.S.C. 7407(d)(1(B). ATA’s new argument (ATA Br. 39) that EPA must

designate areas as “unclassifiable” for the revised ozone standard is not

properly before the Court because ATA did not cross-petition on the issue

and a ruling in favor of ATA would alter the court of appeals judgment.

It is al o plainly inconsistent with the definitions of “nonattainment” and

“unclassifiabie.” 42 U.S.C. 7407(d)(1)(A)(i) and (iii).

2 See, e.g., American Paper Inst. v. American Elec. Power Serv.

Corp., 461 US. 402, 421 (1983) (the Court will not “imput{e] te Congress a

purpose to paralyze with one hand what it sought to promote with the

other.”). ATA incorrectly argues, from a rewriting of legislative history,

that Congress enacted the 1990 Clean Air Act Amendments—and

specifically Subpart 2—to eliminate EPA’s authority to implement a

revised ozone standard under Subpart 1. See e.g., ATA Br. 36-38. Cen

trary to ATA’s premise, Subpart 1 does not consist of “ghettoized pre-

1990 provisions (ATA Br. 38). Section 172 of newly-created Subpart 1

contains new attainment date and classification authority to implement

revised standards, 42 U.S.C. 7502(a)(1) and (2), together with additional

new authorities for implementing all NAAQS in all nonattainment areas.

See, e.g., 42 U.S.C. 7502(c); H.R. Rep. No. 490, 101st Cong. 2d Sess. Pt. 1,

at 223-224 (1990) (“revised section 172(c) establishes requirements for all

nonattainment area plans, including those for ozone * * * nonattainment

areas”) (emphasis added); see also Pet. Br. 7-8, 44-46. Congress added

Subpart 2 to provide additional provisions, and a specific attainment date

scheme in Section 181(a), for the limited purpose of addressing attainment

of the then-existing ozone standards. See Pet. Br. 46-48; see also 42

U.S.C. 7511-7511f (“Subpart 2— Additional Provisions for Ozone Non-

attainment Areas”).

17

Intel properly focuses on the second alternative. Intel

recognizes that EPA must implement the revised NAAQS

under Subpart 1, and the only question, therefore, is how

EPA should reconcile its responsibility to implement the

revised ozone NAAQS under Subpart 1 with the statutory

provisions of Subpart 2. The court of appeals’ revised

opinion addresses the question opaquely, stating that “EPA

can enforce a revised primary ozone NAAQS only in confor-

mity with Subpart 2.” Pet. App. Sla. Intel urges, in accor-

dance with Judge Tatel’s concurring opinion, that EPA can-

not enforce the revised 8-hour ozone NAAQS under Subpart

in the areas subject to Subpart 2 until those nonattainment

areas have had the opportunity to attain the pre-existing 1-

hour NAAQS in accordance with the timetable set out in

Subpart 2. See Intel Br. 4, 11. That question, however, pre-

sents a matter within EPA’s special expertise. See Chevron,

467 U.S. at 844-845. EPA maintains that Congress intended

the agency to implement and enforce the revised 8-hour

ozone NAAQS on a nationwide basis in accordance with the

statutory deadlines established under Subpart 1. In EPA’s

view, those areas that remain subject to Subpart 2 because

they have not attained the pre-existing 1-hour NAAQS must

continue to work toward achieving that goal, but they must

also work toward attaining the stricter 8-hour NAAQS in

accordance with the statutory timetable and substantive

programs for the revised NAAQS.”

Intel argues that EPA should delay implementing the

revised ozone NAAQS in the “1989 nonattainment areas”

described in Subpart 2 because Congress enacted Subpart 2

as “a detailed and comprehensive framework” for imple-

menting the I-hour ozone NAAQS that was then in exis-

*! Despite the court of appeals’ confusion on the matter (e., Pet. App.

79a-81a), EPA has consistently explained its preliminary view that the

revised ozone NAAQS should be implemented in accordance with Subpart

1. See 62 Fed. Reg. at 38,873, 38,885.

18

tence. Intel Br. 12-15. But Congress clearly did not intend

that the 1-hour ozone NAAQS would be the final word in

protecting the public from ozone hazards. Congress also

directed EPA to revise the ozone NAAQS if new scientific

information showed that the I-hour standard did not ade-

quately protect public health and public welfare. See note

19, supra. Congress did not explicitly direct EPA to give the

“1989 nonattainment areas” special treatment if EPA found

it necessary to revise the ozone NAAQS, and a court should

not lightly infer that Congress intended to exempt particular

areas from a NAAQS that EPA has revised specifically to

protect the public from harm. Contrary to Intel’s sugges-

tions (Intel Br. 15), simultaneous implementation of the pre-

existing 1-hour NAAQS and the revised 8-hour NAAQS

would neither conflict with the CAA’s Apllain [lJanguage”

nor “{nJullify” Subpart 2.

First, as our opening brief explains (Pet. Br. 45-46), there

is no statutory basis for delaying implementation of the

revised ozone NAAQS in Subpart 2 nonattainment areas.

Section 172(a) of the CAA—within Subpart 1 of Part D—

authorizes EPA to establish classifications and attainment

dates for all areas designated as “nonattainment” for the re-

vised NAAQS. See 42 U.S.C. 7502(a)(1)(A) and (2)(A). See-

tion 172(a) does not apply to nonattainment areas for which

classifications and attainment dates are “specifically pro-

vided” under other provisions of the CAA. See 42 U.S.C.

7502(a)(1)(C) and (2D). But no provisions of the CAA,

other than Section 172(a), provide for classifications and

attainment dates for areas designated as nonattainment

under the revised ozone NAAQS. See Pet. Br. 47-48. EPA

2 Intel correctly observes that “Section 181(a)(1), Table 1—within

Subpart 2 of Part D—‘specifically provides’ classifications and attainment

dates for areas that are not in attainment with the existing one-hour, 0.12

ppm ozene standard.” Intel Br. 16-17. See 42 U.S.C. 7511(a)(1). Indeed,

Section 181(a)’s caption—“Classification and attainment dates for 1989

nonattainment areas”—makes that point clear. See Pet. Br. 46. But

19

has accordingly expressed the view that it should implement

the revised ozone NAAQS under the implementation

schedule that Section 172(a) sets out for “any revised stan-

dard.” 42 U.S.C. 7502(a)(1)(A).

Second, Intel errs in asserting that simultaneous imple-

mentation of the pre-existing and revised ozone NAAQS

would “so undermine the purposes of Subpart 2 as to render

Subpart 2 a nullity.” Intel Br. 18. Three of Subpart 2’s five

compliance deadlines have already passed, and only a small

number of areas are entitled to additional time for com-

pliance with the pre-existing I-hour standard. See CAA

§ 181(a)(1), 42 U.S.C. 7511(a)(1) (Table 1). Those areas,

which have the most serious ozone nonattainment problems,

will continue to have additional time to comply with the 1-

hour standard. But there is no clear basis for inferring that,

when Congress gave those areas of the country additional

time to comply wia that standard, it implicitly intended that

EPA alter the sta’ tory timetable set out in Subpart 1 for

complying with a revised ozone NAAQS. The CAA creates

national ambient air quality standards, and, in the absence

of clear instruction from Congress, EPA can properly con-

clude that Congress wished to extend the benefits of any

revised ozone NAAQS to the Nation’s entire population—

including persons residing in areas with the most serious

ozone problems. Any intention by Congress to except cer-

tain areas from the generally applicable attainment dead-

lines is, at most, ambiguous. Subpart 2 certainly does not

Section 181(a) does not provide classifications and attainment dates for

areas designated nonattainment under the revised ozone NAAQS. See

Pet. Br. 46; Mass. Br. 45-46. See also 42 U.S.C. 7407(d)(1)(A) and (B)

(indicating that area designations are established by reference to parti-

cular standards). Indeed, Section 181(a), which predated the revised

ozone NAAQS by seven years, could not provide classifications and attain-

ment dates for an ozone NAAQS that had not yet been promulgated. See

Pet. Br. 47-48; see also Mass. Br. 46-47; ALA Br. 38-44.

20 a

categorically require EPA to delay implementation of the

revised ozone NAAQS in any area.”

Accordingly, if this Court concludes to reach the issue that

the court of appeals addressed prematurely, then it should

adhere to the timetable set out in Subpart 1 and to the

CAA’s explicit policy that all NAAQS are to be attained “as

expeditiously as practicable.” See CAA § 172(a)(2), 42

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

For the foregoing reasons and those stated in our opening

brief, the judgment of the court of appeals should be re-

versed.

Respectfully submitted.

SETH P. WAXMAN

GARY S. GuZY Solicitor General

General Counsel

Environmental Protection

Agency

OCTOBER 2000

Intel speculates that, if EPA implements the revised ozone NAAQS

in the “1989 nonattainment areas,” that action would impose economic

hardships on those areas. Intel Br. 19-24. But this Court is in no position

to determine, on the record before it, whether those assertions are true or

how much additional time particular areas might need to comply with the

revised ozone NAAQS. Indeed, it is significant that most of the States

that will face those supposed hardships, including New Jersey, California,

Maryland, New York, and Pennsylvania, do not agree with Intel’s con-

struction. See Mass. Br. 43-50; N.Y. Br..14-21. Furthermore, Intel’s

extra-record speculations on the question of hardship raise additional

extra-record issues—for example, to what extent delaying implementation

would subject sensitive populations, including children and asthmatics, to

increased health risks. Intel’s extra-record arguments simply underscore

our point that the court of appeals has prematurely addressed the

question of how EPA should reconcile its duties under Subpart 1 and

Subpart 2 before EPA has taken any final agency action that properly

places the issue before a reviewing court.