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

No. 99-1257 OCT - 5 200

—___ = ==

*

In The

Supreme Court of the United States

¢

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.;

Petitioners,

AMERICAN TRUCKING ASSOCIATIONS, et al.,

Respondents.

e

On Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

S

REPLY BRIEF OF RESPONDENT

AMERICAN LUNG ASSOCIATION

IN SUPPORT OF PETITIONERS

¢

Howaro I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for

American Lung Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-694

OR CALL COLLECT (402) 342-2831

\

|

RULE 29.6 DISCLOSURE

American Lung Association (ALA) adopts the Rule

29.6 disclosure set forth in ALA’s opening brief at ii.

TABLE OF CONTENTS

Page

THE CLEAN AIR ACT COMPLIES WITH THE

NONDELEGATION DOCTRINE................

A.

2

The Clean Air Act Sets Forth Intelligible

Principles Sufficient to Satisfy this Court’s

Nondelegation Precedent, Which Does Not

Require a “Determinate Criterion.” ........

Because the Clean Air Act Is Undisputedly

Constitutional, There Was No Basis for the

D.C. Circuit to Undertake a Constitutionally

Based Examination of EPA’s Interpretation,

Much Less to Require a Constitutionally

Based Narrowing of That Interpretation....

Nonconstitutional Remedies Are Available

to Challenge Any Alleged Failure by EPA to

Follow Congressional Mandates or to

Engage in Reasoned Decisionmaking.......

THE D.C. CIRCUIT ERRED IN LIMITING EPA‘S

AUTHORITY TO IMPLEMENT A NEW OZONE

RN

A.

EPA Has Authority Under Subpart 1 to Imple-

ment a More Protective Ozone NAAQS......

Classifications and attainment dates -

areas with design value 20.121.........

Classifications and attainment dates -

areas with design value <0.121.........

Comtess DESGGNORS. ...<cvis dcckaseeee

12

Designation of nonattainment areas .... 16

TABLE OF CONTENTS - Continued

Page

B. The 1990 Amendments Left Unchanged

EPA's Pre-existing Authority to Promulgate

ee epic ccacccebesceses

The Structure of the Act’s NAAQS Revision

and Implementation Provisions Offers No

Basis for Overriding the Statute’s Express

BME So ccccccescescessccccccsccscccces

i cree cane cesededcccccccccecpeccccess

17

_iv

TABLE OF AUTHORITIES

Page

Cases

American Lung Association v. Browner, 134 F.3d 388

a Bo Pere eee Per,

AT&T Corp. v. lowa Utilities Bd., 525 U.S. 366 (1999)... .. 6

Bowsher v. Synar, 478 U.S. 714 (1986)... 2.6.66 ee, 5

Chevron, U.S.A. v. Natural Resources Defense Coun-

Ci, GET. DE GE GRD 5 bcd dececceccccucwecestences 8

Clinton v. New York, 524 U.S. 417 (1998).............. 5

FEA v. Algonquin SNG, 426 U.S. 548 (1976)........... 7

Greene v. McElroy, 360 U.S. 474 (1959)... ee 6

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....... 6

Heckler v. Chaney, 470 U.S. 821 (1985) 2.222, 8

INS v. Chadha, 462 U.S. 919 (1983) ...............005. 5

me Ch GR, Ge Gk Bee GPU cc cccnccncecccseses 6

Metropolitan Washington Airports Authority v. Citt-

zens for the Abatement of Aircraft Notse, 501 US.

See GION on. nn6o cn bddevnsedeceuadascdetatanedskenn 5

Mistretta v. United States, 488 U.S 361 (1989).......... 8

Skinner v. Mid-America Pipeline Co., 490 U.S. 212

SPOR co gencceuapransauudécucepeceseeensbeaseneenes 5

Yakus v. United States, 321 U.S. 414 (1944) ............ 5

SOURS Di TR Fae Tk, GS Ges ecb cndbedcastecvesss 6

v

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Clean Air Act, § 107, 42 U.S.C. § 7407.............. 16

Clean Air Act, § 109, 42 U.S.C. ; 7409 ....6, 7, 9, 17, 18

Clean Air Act, § 172, 42 U.S.C. § 7502... 14, 15, 17, 18

Clean Air Act, § 181, 42 U.S.C. § 7511...12, 13, 14, 15, 16

Clean Air Act, § 182, 42 U.S.C. § 75]la............. 16

Clean Air Act, § 307, 42 U.S.C. § 7607............. 8, 9

Leaistarive History

116 Cong. Rec. 32900 (September 21, 1970)........... 2

116 Cong. Rec. 42519 (December 18, 1970) ........... 3

S. Rep. No. 1196, Ylst Cong., 2d Sess. (1970)......... 4

S. Rep. No. 228, 10Ist Cong., Ist Sess. (1989)........ 17

Feperat Recister

62 Fed. Reg. 38652 (July 18, 1997).................5. 11

62 Fed. Reg. 38856 (July 18, 1997)............. 4, 10, 11

ALA

APC

ATA

cD

CDPM

EPA

JAO_

JAPM

NAAQS

O3

PM

ppm

RTCPM

vi

GLOSSARY

American Lung Association

Appalachian Power Company

American Trucking Associations

Criteria Document (ozone)

Criteria Document (particulate matter)

Environmental Protection Agency

Joint Appendix in D.C. Cir. No. 97-1441

(Ozone NAAQS)

Joint Appendix in D.C. Cir. No. 97-1440

(Particulate Matter NAAQS)

National Ambient Air Quality Standard(s)

ozone

particulate matter

parts per million

Response to Comments (particulate

matter)

1

I. THE CLEAN AIR ACT COMPLIES WITH THE

NONDELEGATION DOCTRINE.

A. The Clean Air Act Sets Forth Intelligible Prin-

ciples Sufficient to Satisfy this Court’s Non-

delegation Precedent, Which Does Not Require

a “Determinate Criterion.”

The core of the D.C. Circuit’s nondelegation ruling is

the assertion that a delegation must be limited by a

“determinate criterion for drawing lines” in order to pass

constitutional muster. App. 6a.' Remarkably, in nearly

500 pages of briefing, industry and its allies fail to cite

even one decision of this Court that supports this central

assertion. In contrast to this telling silence, American

Lung Association (ALA) and others have cited numerous

decisions in which this Court not only upheld highly

nondeterminate delegations, but expressly defended their

nondeterminacy against nondelegation attack. See, ¢.g.,

ALA Br. 28-29.2 And indeed industry itself has retreated

from the “determinate criterion” test, arguing that the

nondelegation doctrine does not require “a rule that

defines precise outcomes in all circumstances,” but

instead “a standard against which an agency’s exercise of

discretion may be tested.” ATA Br. 16-17 (emphasis in

original).

This is a test that the Clean Air Act NAAQS provi-

sions easily meet. It is simply unsustainable to concede

that open-ended standards such as “[rjeasonableness,

! Appendix citations refer to the appendix filed by the

Environmental Protection Agency with its petition for

certiorari.

2 References to briefs are to those in No. 99-1257 unless

otherwise expressly indicated.

2

fairness, justice, equity, and the public interest are not

lawless standards,” Hatch Br. 13 n.9 (emphasis added),

while asserting that the far more specific congressional

guidance governing NAAQS-setting fails to provide intel-

ligible principles. See ALA Br. 18-22; Mass/NJ Br. 12-19.

Industry claims that nondeterminacy is of special

concern here, because NAAQS “affect the whole econ-

omy,” and could theoretically be set at zero. ATA Br. 9-10,

10-11. Industry does not believe its own argument, how-

ever, because it vigorously advocates — as an alleged

solution to the supposed nondelegation problem - an

interpretation of the Act that is far less determinate than

EPA's: specifically, the open-ended assertion that NAAQS

must not be based solely on health effects of air pollu-

tants, but must encompass weighing of the “pros and

cons,” including cost and any other factors which some-

one might deem “logically relevant.” Id. 22-23, 11

(emphasis added). See ALA 99-1426 Br. 40 (quoting ATA),

43-44; Assn. of Amer. Physicians & Surgeons Br. 26.

This interpretation would not in any way reduce the

breadth of the applicability of NAAQS: under industry’s

interpretation, as under EPA’s, NAAQS would be national

standards that potentially have widespread implications

for the economy. Moreover, far from preventing EPA from

setting stringent NAAQS (even at zero), industry’s inter-

pretation would expand the opportunities for EPA to do so

- either by assigning very high monetary values to bene-

fits (such as human life and health) whose quantification

necessarily involves policy judgment, or by invoking

nonquantifiable factors such as distributional equity,

moral or ethical concerns, or a right to breathe clean air.

AEI-Brookings 99-1426 Br. 10; ALA 99-1426 Br. 36-37; 116

Cong. Rec. 32903/2 (1970) (Senator Muskie: “it is time to

3

write .. . into law” the policy that “all citizens have an

inherent right to the enjoyment of pure and uncontami-

nated air”) (emphasis added); id. 42521/3 (Congressman

Hechler); United States Public Interest Research Group

Education Fund (USPIRGEF) 99-1426 Br. 24-26. And of

course, industry’s interpretation would also expand the

opportunities for EPA to promulgate less stringent

NAAQS. ALA 99-1426 Br. 34. By proffering this open-

ended, nondeterminate reading as the only constitu-

tionally permissible construction of the Act, ATA Br. 11,

industry is not only issuing a Lochner-esque invitation for

the Court to enshrine industry’s preferred regulatory pol-

icy approach in the Constitution, USPIRGEF 99-1426 Br.

26-30 — it is also conceding the bankruptcy of the proposi-

tion that nondeterminacy is unconstitutional.

Under a proper reading of the Act, EPA’s attention is

far more narrowly focused, addressing the protection of

human health from air pollutants. While industry and its

allies claim that a health-only approach cannot be imple-

mented for “non-threshold” pollutants, that argument is

a makeweight, as demonstrated by ATA’s claim that even

if there were an effects threshold, the nondelegation doctrine

would still be violated unless EPA “found that no health

risks exist below that level.” ATA Br. 18 (emphasis

added). In any event, ALA and others have already

shown that if standards are based on adverse effects

documented by scientific evidence (and on margins of

safety), they need not be set at zero or background levels

even for nonthreshold pollutants. ALA 99-1426 Br. 42-43;

Mass/NJ 99-1426 Br. 41-43.

To be sure, it is impossible to reduce the setting of a

NAAQS - especially a margin of safety — to a determinate

4

formula: in particular, one of the key purposes of a mar-

gin of safety is to account for scientific uncertainty. S. Rep.

1196, Yist Cong., 2d Sess. 10 (1970); Mass/NJ Br. 15-17.

The D.C. Circuit's demand for a quantification of uncer-

tainty - for a “principle [that] reveals how much uncer-

tainty is too much” (App. 10a) - is simply impossible to

satisfy. By their nature, scientific uncertainties include

important qualitative elements that cannot be precisely

calculated based on current scientific information — such

as gauging the health significance of certain observed

biological effects (see, ¢.g., 62 Fed. Reg. 38868/1-2 { 5,

JAO 13) and assigning safety factors for sensitive popula-

tions such as children. Thus, Congress necessarily

entrusted to EPA the duty — subject to normal require-

ments of reasoned decisionmaking — to make judgments

concerning how such uncertainties should be factored

into standard-setting. Contrary to ATA’s suggestion (ATA

Br. 18), the Constitution does not require Congress to

avoid such agency judgments by mandating a zero-risk

policy.

While NAAQS do have implications for the economy,

ATA Br. 9, far broader multi-industry delegations have

been upheld by this Court. App 60a; ALA Br. 31-32.

Indeed, unlike the agency actions authorized by the stat-

utory provisions upheld in those cases, NAAQS do not

directly regulate industry, but rather are narrowly

addressed to specifying pollution concentrations suffi-

cient to protect health. The implications for industry

become concrete only through subsequent implementa-

tion actions by the states or (if the states fall short) by

EPA. These implementation actions take years, and offer

ample opportunity for Congress to intervene and make

adjustments to avoid excessive socioeconomic effects — as

5

it has done repeatedly in the past. Skinner v. Mid-America

Pipeline Co., 490 U.S. 212, 222 (1989) (rejecting nondelega-

tion challenge: “Congress . . . can modify [agency]

. rulings it considers improper”) (citation omitted).

Industry’s attempts to distinguish this Court’s non-

delegation precedent are unavailing. In particular, that

precedent offers no support for the notion (ATA Br. 12-13)

that more specificity is required for delegations with

“general and prospective effect” or for those involving

setting of numeric values. See, e.g., Yakus v. United States,

321 U.S. 414, 426-27 (1944) (approving authority to set

“fair and equitable” prices). Likewise, this Court's prece-

dent approving broad delegations involving balancing of

competing considerations (ATA Br. 13-14) supports rather

than undermines the validity of the Clean Air Act’s far

narrower NAAQS provisions, where Congress did the

balancing and directed EPA to set standards based on

health. Finally, industry irrelevantly cites cases that were

not even decided under the constitutional “intelligible

principle” test, but instead involved other kinds of sep-

aration of powers arguments® or claims that government

3 See, e.g., Bowsher v. Synar, 478 U.S. 714, 736 n.10 (1986)

(striking down statute that assigned executive functions to an

official subject to removal only by Congress; nondelegation

doctrine distinguished); INS v. Chadha, 462 U.S. 919, 952 n.16

(1983) (striking down statute that authorized congressional

veto; nondelegation doctrine distinguished); Clinton v. New

York, 524 U.S. 417 (1998) (striking down statute that authorized ~

Presidential line item veto); Metropolitan Washington Airports

Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S.

252 (1991) (striking down statute that authorized board of

review consisting of nine members of Congress).

6

action impinged on constitutionally protected liberties* -—

or were decided on nonconstitutional grounds.®

In short, the key point remains: industry has failed to

cite a single decision of this Court supporting the D.C.

Circuit’s assertion (App. 6a) that the constitutional non-

delegation doctrine requires a “determinate criterion for

drawing lines.” Indeed, recognizing that the Court’s non-

delegation precedent offers no basis for overturning the

carefully circumscribed delegation at issue here, some

allies of industry attack that precedent and urge the Court

to abandon it. See, e.g., Inst. Justice/Cato Br. 11-13. ALA

respectfully submits that these arguments are misguided:

if industry and its allies believe that the Clean Air Act's

mandate should be changed, they should seek such

change from the democratically elected Congress, not the

unelected judiciary.

+ See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88 (1976);

Kent v. Dulles, 357 U.S. 116 (1958); Zemel v. Rusk, 381 U.S. 1

(1965); Greene v. McElroy, 360 U.S. 474 (1959). The “void for

vagueness” cases (see Mfrs. Alliance Br. 10) likewise involve

protection of individuals’ liberty and property interests against

liability, and are irrelevant for another reason as well: § 109

imposes neither civil nor criminal liability on the regulated

community, but rather directs EPA to promulgate regulations.

> See, e.g., AT&T Corp. v. lowa Utilities Bd., 525 U.S. 366, 388

(1999) (“the Act requires the FCC to apply some limiting

standard”) (first emphasis added).

7

B. Because the Clean Air Act Is Undisputedly

Constitutional, There Was No Basis for the D.C.

Circuit to Undertake a Constitutionally Based

Examination of EPA’s Interpretation, Much Less

to Require a Constitutionally Based Narrowing

of That Interpretation. -

The foregoing discussion demonstrates the error in

the D.C. Circuit’s requirement that EPA adopt a narrow-

ing construction of the Act. Like the statute at issue in

FEA v. Algonquin SNG, 426 U.S. 548, 559 (1976), the Clean

Air Act’s NAAQS provisions are “clearly sufficient to

meet any delegation doctrine attack.” Accord, ATA Rsp. to

Cert. Petitions at 15 (§ 109 is “undisputedly” constitu-

tional). Accordingly, just as the Court rejected the request

for a narrowing construction there, it should do the same

here. See also USPIRGEF 99-1426 Br. Pt. II.

Moreover, industry has failed to cite a single decision

of this Court supporting the D.C. Circuit’s ruling — char-

acterized by one of industry’s own allies as “novel” and

“unprecedented” (Mercatus Br. 13) — that Congress's con-

stitutionally conferred legislative power can be protected

by requiring an Executive Branch agency to enunciate an

intelligible principle. As another of industry’s allies

notes, if the Act’s NAAQS provisions set forth an intellig-

ible principle to guide EPA, then the agency’s alieged

“failure to articulate that principle, while legally troub-

ling on other grounds,” would “not implicate the non-

delegation doctrine.” Inst. Justice/Cato Br. 29 (emphasis

added). See also Hatch Br. 30 n.22.

Finally, the specific interpretation requested by

industry — that EPA must balance health against cost and

other factors - would broaden the Act’s mandate (see pp.

8

2-3, supra), and thus does not constitute a “narrow” con-

struction within the meaning of Mistretta v. United States,

488 U.S. 361, 373 n.7 (1989). ALA 99-1426 Br. 40. And

because industry’s interpretation is contrary to clear con-

gressional intent, id. 29-32, its adoption would constitute,

not a “construction” of the Act at all, but a congression-

ally unauthorized amendment. See USPIRGEF 99-1426 Br.

11.

C. Nonconstitutional Remedies Are Available to

Challenge Any Alleged Failure by EPA to Fol-

low Congressional Mandates or to Engage in

Reasoned Decisionmaking.

Industry's true objections to EPA’s NAAQS are statu-

tory, not constitutional. The assertion that EPA has taken

actions “incompatible with the scope of authority dele-

gated .. . by Congress” (APC Br. 2; see also id. 32) is

reviewable as a claim that EPA has acted “not in accor-

dance with law.” CAA § 307(d)(9)(A). See Chevron, U.S.A.

v. Natural Resources Defense Council, 467 U.S. 837 (1984)

(setting forth a two-step process for reviewing such

claims). The contention that EPA has failed to “explain

the statutory standard that guides [its] . . . exercise of

rulemaking discretion and how consideration of relevant

science is applied in reference to that standard” (APC Br.

29) is reviewable as a claim that the agency acted in an

“arbitrary” and “capricious” manner. CAA

§ 307(d)(9)(A). Indeed, Appalachian Power concedes that

“the Clean Air Act unquestionably provides law to

apply,” APC Br. 28 — from which it necessarily follows

that the Act provides a “meaningful standard against

which to judge the agency’s exercise of discretion.” Heck-

ler v. Chaney, 470 U.S. 821, 830 (1985). Thus, the Act offers

9

an intelligible principle sufficient to permit judicial

review, and the D.C. Circuit’s recourse to the constitu-

tional nondelegation doctrine — instead of to normal non-

constitutional review — was error.®

Arguing the contrary, Appalachian Power unper-

suasively suggests that, although “there are several ways

the lower court could have reached the same result”

(including constitutional nondelegation review as well as

nonconstitutional arbitrary-and-capricious or statutory

interpretation review), “[w]hichever basis for decision

one chooses, the essential principle is the same: an agency

must explain what it does in light of Congress’ delegation

of authority.” APC Br. 23. In short, Appalachian Power is

asserting that the D.C. Circuit had the choice between

deciding this case on constitutional and nonconstitutional

grounds, and chose the constitutional ground. This

approach stands the doctrine of constitutional avoidance

on its head.

Moreover, Appalachian Power’s attempt to equate

the D.C. Circuit’s nondelegation ruling with garden vari-

ety nonconstitutional judicial review is refuted by the

© The argument that EPA failed to provide sufficient

protection against health effects (Hatch Br. 29) is not a

constitutional argument, but rather a nonconstitutional

administrative law challenge under CAA § 307(d)(9)(A). See,

e.g., American Lung Association v. EPA, 134 F.3d 388 (D.C. Cir.

1998) (responding to plaintiffs’ arguments that EPA had failed

to provide sufficient health protection, court reviewed and

remanded an EPA decision under § 109(b)(1)); Cross-petition of

Citizens for Balanced Transportation at 8-12 (arguing that the

1997 PM NAAQS is insufficiently health-protective, but

emphasizing that that claim is a nonconstitutional claim that

raises no nondelegation issues).

10

D.C. Circuit itself. That court “agree[d]” with circuit pre-

cedent holding that, “when there is uncertainty about the

health effects of concentrations of a particular pollutant

within a particular range, EPA may use its discretion to

make the ‘policy judgment’ to set the standards at one

point within the relevant range rather than another.”

App. 12a. But the court shunted that precedent aside,

asserting that “none of those panels addressed the claim of

undue delegation that we face here.” Id. (emphasis added).

Thus, the D.C. Circuit clearly believed that its invocation

of the constitutionally based nondelegation doctrine

made possible a ruling that the court would not have

been able to issue on nonconstitutional grounds. See App.

96a (Silberman, J., dissenting).

The conclusion that the D.C. Circuit’s constitutional

ruling was error fully disposes of EPA’s Question #1, and

the Court need not and should not address industry's

nonconstitutional judicial review. arguments. While these

arguments are not before the Court, ALA offers a few

brief observations in response to industry’s attacks on the

evidence underlying the NAAQS. First, industry’s asser-

tion that EPA did not rely on the adverse nature of health

effects occurring at pollution levels allowed by the prior

NAAQS (APC Br. 6) is simply wrong: EPA made express

findings of adverseness for both PM and ozone. 62 Fed.

Reg. 38657/1 (1997), JAPM 7; 62 Fed. Reg. 38864/1-2

(1997), JAO 9.

Moreover, the assertion that these effects are not

“demonstrated” by the scientific evidence (APC Br. 6) is

equally mistaken. For PM, the Criteria Document

expressly noted “recent studies providing evidence that

serious health effects (mortality, exacerbation of chronic

11

disease, increased hospital admissions, etc.) are associ-

ated with exposures to ambient levels of PM found in

contemporary U.S. urban air sheds even at concentrations

below current [i.e., pre-1997] U.S. PM standards.” CDPM

13-1, JA 1779 (emphasis added). See also 62 Fed. Reg.

38665 /2, JAPM 15 (evidence that pre-existing NAAQS do

not adequately protect health is “strong”). Contrary to

industry's assertions (ATA Br. 21; APC Br. 12 n.27), EPA

did not rely solely on the statistical significance of these

studies, but also concluded on the basis of extensive

analysis that the observed effects were unlikely to have

been caused by other factors (such as other pollutants),

see, ¢.g., PMSP V-55 to 56, JAPM 2012-14; RTCPM A-22,

JAPM 344; CDPM 13-57, JAPM 1835; 62 Fed. Reg.

38660-61, JPM 10-11, and that the consistency and

strength of the statistical association was substantial

enough to support a finding of causation. RTCPM 68,

A22-23, JAPM 295, 344-45; 62 Fed. Reg. 38658-59, JAPM

8-9.

For ozone, EPA examined human clinical studies -

studies that “relate known O3 exposures directly to

responses in individuals,” 62 Fed. Reg. 38872/1, JAO 17 -

and concluded that these studies provide “clear evi-

dence” of health effects (including adverse effects) at

ozone levels allowed by the prior NAAQS. Id. 38863-64,

JAO 8-9. Likewise, epidemiological studies provided

“strong evidence” of adverse effects at ozone concentra-

tions below the prior NAAQS. CDO 7-171, JAO 1624.

For both PM and ozone, this compelling evidence is

more than sufficient demonstration of adverse health

12

effects, especially in light of the Act’s precautionary man-

date. See ALA Br. 20-21; App. 54a-56a.”

Il. THE D.C. CIRCUIT ERRED IN LIMITING EPA‘S

AUTHORITY TO IMPLEMENT A NEW OZONE

NAAQS.

A. EPA Has Authority Under Subpart 1 to Imple-

ment a More Protective Ozone NAAQS.

Though conceding that EPA has authority to promul-

gate a more protective ozone NAAQS, ATA Br. 39, ATA

erroneously claims that EPA lacks authority to implement

it. Id. 29.

Classifications and attainment dates - areas with

design value 20.121. The core of the D.C. Circuit's ruling

(as modified on rehearing) is that Subpart 2 sets forth

classifications and attainment dates under the 1997 ozone

NAAQS for areas with design value 20.121. ATA argues

that this ruling means that the 1997 NAAQS cannot be

implemented at all for areas with design value 20.121.

ATA Br. 29 (the Act precludes implementation “in any

fashion” of a more stringent ozone NAAQS). To the con-

trary: if Subpart 2 sets forth classifications and attainment

dates for such areas under the 1997 NAAOS, the third

sentence of § 181(a)(1) would clearly require that the

“primary standard attainment date for ozone” be the

” EPA’s statement that the risk assessments do not constitute

demonstrated effects (APC Br. 6 n.6) does not purport to

address the evidence documenting adverse effects at PM and

ozone concentrations below the prior NAAQS - but rather,

characterizes EPA’s attempts to predict how often individuals

would come into contact with such concentrations. Such

assessments are not a required component of NAAQS-setting.

ALA 99-1426 Br. 49-50.

13

appropriate date specified in § 181(a)(1)’s Table 1. For

many areas, the Table 1 dates had already expired as of

the July 1997 promulgation date of the new NAAQS. ALA

Br. 40-41, 45.

ATA cannot have it both ways: if the first sentence of

§ 181(a)(1) is to be read broadly to encompass all ozone

nonattainment areas, and not just those under the 1979

NAAQS, then the third sentence of that provision must

be given a similarly broad reading eonsistent with its

unqualified scope. Instead, ATA’s interpretation treats

that sentence’s unqualified reference to “the primary

standard attainment date for ozone” as a scrivener’s error

~ and amends it to read “the primary standard attainment

date for the 1979 ozone NAAQS.”

In short, the hybrid approach advocated by ATA (that

the first sentence of 181(a)(1) applies broadly to any

ozone NAAQS, but the third sentence applies only to the

1979 NAAQS) is not an available reading of the statutory

text. Instead, this case presents two choices for areas with

design value 20.121: either (1) Subpart 2 specifies classi-

fications and attainment dates under the 1997 NAAQS,

and those attainment dates for many areas had already

expired when the NAAQS was promulgated in July 1997

(i.e., both the first sentence and the third sentence of

§ 181(a)(1) apply to the 1997 NAAQS), or (2) Subpart 2

specifies no classifications or attainment dates for the

1997 NAAQS (i.¢., neither the first sentence nor the third

sentence of § 181(a)(1) applies to the 1997 NAAQS).

Because interpretation #(1) “makes no sense” (Ohio Br.

30) (citation omitted) and is “absurd” (Intel Br. 9), inter-

pretation #(2) is the only plausible reading of the Act.

Thus, because Subpart 2 specifies no classifications or

attainment dates under the 1997 NAAQS for areas with

14

design value 20.121, the ouster clauses of § 172(a)(1)(C)

and (a)(2)(D) do not apply, and the Subpart 1 classifica-

tion and attainment date provisions govern.

Classifications and attainment dates - areas with

design value <0.121. ATA likewise argues that the 1997

ozone NAAQS cannot be implemented at all for areas

with design value less than 0.121. ATA Br. 28-29. But see

App. 89a (Tatel, J., concurring). Once again, ATA’s read-

ing ignores the plain language of the statute. If the first

sentence of § 181(a)(1) is read to encompass areas desig-

nated nonattainment under the 1997 NAAOS, that same

sentence would expressly provide that “/eJach” such area

“shall be classified at the time of such designation, under

table 1, by operation of law, as a Marginal Area, a Mode-

rate Area, a Serious Area, a Severe Area, or an Extreme

Area, based on the design value for the area.” (Emphasis

added.) But by ATA’s own admission, such classification

is impossible for areas with design value <0.121, because

Table 1 establishes classifications (and attainment dates)

“only for areas with ozone levels above 0.12 parts per

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

ATA Br. 28 (second emphasis added). ATA’s reading, by

assigning to § 181(a)(1) nonattainment areas that cannot

be classified under Table 1, would treat as a scrivener’s

error § 181(a)(1)’s unqualified mandate that “[e]ach” Sub-

part 2 area “shall” be classified under that table. In short,

for areas with design value <0.121, the choice is not

between an absurd reading and a sensible one - it is

between an impossible reading (that § 181(a)(1) applies to

nonattainment areas under the 1997 NAAQS with design

value <0.121) and a possible one (that § 181(a)(1) does not

apply to such areas). Thus, because Subpart 2 specifies no

classifications or attainment dates under the 1997

15

NAAQS for areas with design value <0.121, the ouster

clauses of § 172(a)(1)(C) and (a)(2)(D) do not apply, and

the Subpart 1 classification and attainment date provi-

sions govern.

Control Measures. Strikingly, industry and Ohio

offer no defense whatsoever of the D.C. Circuit's ruling

(App. 34a) that the 1997 NAAQS must be implemented

only in accordance with the “control measures” of Sub-

part 2, and no response to ALA’s refutation of this ruling.

See ALA Br. 42-44. In particular, they have pointed to no

statutory ouster provision (comparable to § 172(a)(1)(C)

and (a)(2)(D)) that even colorably could be said to dis-

place the § 172(b) and (c) provisions concerning submis-

sion and content of pollution control plans. Instead, by

arguing broadly that the new NAAQS cannot be imple-

mented “in any fashion” (ATA Br. 29) — an assertion

which if accepted would override the pollution control

plan provisions of § 172(b) and (c) — ATA treats as a

scrivener’s error the absence from § 172(b) and (c) of an

ouster provision.

ATA’s argument must be rejected for another reason

as well. If ATA were correct that § 181(a)(1) applies to all

nonattainment areas under the 1997 ozone NAAQS, then

many areas with design value 20.121 would by the

express terms of the Act be required to submit — by dates

that had already expired when the 1997 NAAQS was

promulgated —- pollution control plans providing for

attainment of that NAAQS. ALA Br. 42-44. What was said

above concerning classifications and attainment dates for

such areas applies here also: a hybrid reading (under

which the first sentence of § 181(a)(1) applies to areas

designated nonattainment under the new NAAQS, but

the pollution control plan submission requirements of

16

§ 182(b)(1)(A)(i) and (c)(2)(A) apply only to the 1979

NAAQS) is not an available reading of the statute. ATA’s

attempt to advance such a hybrid argument reduces the

broad language of § 182(b)(1)(A)(i) and (c)(2)(A) — which

refers to plans to attain “the national primary ambient air

quality standard for ozone” and “the ozone national

ambient air quality standard,” rather than just the 1979

standard — to a scrivener’s error.

Designation of nonattainment areas. ATA’s argu-

ment that EPA may not designate nonattainment areas

under the new NAAQS, ATA Br. 39, 41, must (assuming

arguendo it is properly before the Court) be rejected — as it

was by the D.C. Circuit. App. 36a-37a. Aside from being

based on the erroneous premise that § 181(a)(1) applies to

the new NAAQS, ATA’s argument ignores the plain lan-

guage of 107(d), which provides that, “not later than 1

year after promulgation of a new or revised” NAAQS, “the

Governor of each State shall . . . submit to the Administra-

tor a list of all areas (or portions thereof) in the State,

designating as . . . nonattainment, any area that does not

meet” that NAAQS. § 107(d)(1)(A) (emphasis added).

Once again, ATA attempts to treat comprehensive and

mandatory statutory language as a scrivener’s error.®

§’ Contrary to ATA (Br. 39, 41), where available information

indicates an area is violating a revised NAAQS, the area cannot

be designated as “unclassifiable” for that NAAQS. Such a

designation is available only for an area that “cannot be

classified on the basis of available information as meeting or not

meeting” NAAQS. § 107(d)(1)(A)(iii) (emphasis added).

17

B. The 1990 Amendments Left Unchanged EPA’s

Pre-existing Authority to Promulgate Revised

NAAQS.

Recognizing that EPA cannot plausibly be barred

from implementing a NAAQS that it has validly promul-

gated, Ohio argues that the 1990 Amendments stripped

EPA of authority to promulgate a revised ozone NAAQS

in the first place. Ohio Br. 29-31. This argument - again,

assuming arguendo it is properly before the Court — must

be rejected. As the D.C. Circuit correctly held, the 1990

Amendments made no change in EPA’s duty to review -

and, as appropriate, revise - NAAQS at least every five

years. App. 34a (citing § 109(d)(1)). Neither Ohio nor

anyone else has pointed to a shred of evidence in the

statutory text (or even legislative history) that the 1990

Amendments intended to limit or abrogate this funda-

mental duty, which is the very heart of the Act’s health-

protection mandate. See generally ALA 99-1426 Br. Incredi-

bly, Ohio cites as support for precluding tightening of the

1979 ozone NAAQS a committee report that recognized

such tightening might well be necessary to protect public

health. S. Rep. 228, 101st Cong., Ist Sess. 6-7 (1989). See

Ohio Br. 22, 23, 25.

Far from revoking EPA's pre-existing revision author-

ity, the 1990 Amendments enacted § 172(e), which clearly

presupposes that EPA retains authority to revise NAAQS.

App. 35a. The D.C. Circuit found “[tlelling[ ]” the failure

of industry and Ohio to address § 172(e), id., and their

continuing failure to do so in this Court is even more

striking.®

* Contrary to Appalachian Power's implication, APC Br.

49-50, EPA’s revision authority is not limited to promulgating

18

C. The Structure of the Act’s NAAQS Revision

and Implementation Provisions Offers No Basis

for Overriding the Statute’s Express Language.

Deprived of its purported textual argument, industry

is left with the vague assertion that Congress intended

Subpart 2 to be the exclusive ozone program for the

nation, thus displacing Subpart 1. ATA Br. 32-38; APC Br.

47-49; Ohio Br. 21-26. But Congress specified, in the ous-

ter provisions of § 172(a)(1)(C) and (a)(2)(D), the exact

extent to which it wanted Subpart 2 to displace Subpart 1

~ and those ouster clauses do not apply to the new ozone

NAAQS.

Where the ouster clauses are inapplicable, applica-

tion of Subpart 1 not only does not disserve congressional

intent — it is necessary in order to obey Congress’s intent

that Subpart 1 apply to “any revised standard, including a

revision of any standard in effect on November 15, 1990.”

§ 172(a)(1)(A) (emphasis added). Far from being a pre-

existing relic that Congress “abandoned” (Ohio Br. 9) or

“ghettoized” (ATA Br. 38), Subpart 1 was extensively

rewritten in 1990, and thus reflects the contemporaneous

intent of the same Congress that enacted Subpart 2.

Indeed, the 1990 House committee report - the same

report cited by industry as evidence of the alleged exclu-

siveness of Subpart 2 (APC Br. 47; ATA Br. 33; Ohio Br.

13) - expressly reaffirms the applicability of Subpart 1 to

ozone. ALA Br. 42. Thus, the Act’s language, as well as its

relaxations of NAAQS. Section 172(e), while clearly establishing

the 1990 Congress's intent that EPA retain its NAAQS revision

authority, does not itself confer such authority. Rather, EPA’s

NAAQS revision authority emanates from § 109, which clearly

requires the agency to promulgate whatever revised NAAQS are

“appropriate” in light of the health effects evidence.

19

legislative history, refute the notion that Subpart 2 was

intended to be the nation’s sole ozone abatement pro-

gram.

Moreover, the argument that implementation of the

new NAAQS under Subpart 1 will undermine Subpart 2

is meritless. First, for areas that are in attainment of the

1979 NAAQS, Subpart 2 specifies no classifications and

attainment dates. See pp. 14-15, supra. Accordingly, appli-

cation of Subpart 1 in such areas could not possibly

conflict with the Subpart 2 program. See App. 84a-88a

(Tatel, J., concurring).

Second, for areas that are in nonattainment status

under the 1979 standard, application of Subpart 1 will

likewise not undermine Subpart 2. EPA has expressly

decided that the 1979 NAAQS - and the associated Sub-

part 2 implementation strategies — will remain in place

for each such area until the area meets the 1979 NAAQS.

In the meantime, EPA requires areas to move towards

compliance with both standards, thus respecting the clear

timetables of § 172, and avoiding the adverse impacts that

would flow from sequential implementation: specifically,

requiring implementation of the 1997 NAAQS to await

attainment of the 1979 NAAQS would prolong the time

period during which the public suffers adverse health

impacts, ALA Br. 49, and would also be less efficient for

industry and for government anti-pollution officials, who

would need to gear up for two rounds of pollution reduc-

tions addressing largely the same emissions sources.'°

10 In any event, EPA has stated that there is only one area

where compliance with the 1997 standard could be required at

the same time as with the 1979 standard. App. 88a. While Intel

notes that areas must have three years of clean data in order to

20

CONCLUSION

The Court should grant the relief requested in ALA’s

opening brief (at 50). In doing so, the Court should reject

industry’s argument (ATA Br. 47-48) that EPA’s Question

#3 challenges only the rationale of the D.C. Circuit's

decision: the D.C. Circuit’s Subpart 2 implementation

ruling was not a rationale for the court’s ruling concern-

ing EPA’s authority to revise the NAAQS and designate

nonattainment areas, but rather was a separate ruling

reached only after the court had disposed of the revision

and designation issues. App. 34a-43a. Finally, if this

Court reaches the revision and designation issues, it

should affirm the D.C. Circuit’s ruling on those issues.

DATED: October 5, 2000.

Respectfully submitted,

Howarp I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for

American Lung Association

be considered in attainment of the 1997 NAAQS by the Subpart

1 deadline, Intel Br. 20-21, it fails to point out that three years of

clean data are also required in order for areas to be considered

in attainment of the 1979 NAAQS by the Subpart 2 deadlines. App.

32a n.6.