Amicus Curiae Brief — Whitman v. American Trucking Assns., Inc.

& | Supreme Court, U.S.

Supreme Court of the Ani 2b SGRERK

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al.

PETITIONERS,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICI CURIAE OF INTEL CORPORATION,

ELECTRONIC INDUSTRIES ALLIANCE AND

ARIZONA ASSOCIATION OF INDUSTRIES, IN

SUPPORT OF RESPONDENTS APPALACHIAN

POWER COMPANY, ET AL.

GREGORY S. SLATER RICHARD P. BREss*

INTEL CORPORATION JULIA A. HATCHER

5000 West Chandler Boulevard CLAUDIA M. O'BRIEN

Mail Stop CH-6 404 LATHAM & WATKINS

Chandler, AZ 85226-8699 1001 Pennsylvania Ave., N.W.

(480) 554-4082 Suite 1300

‘ Washington, D.C. 20004

(202) 637-2200 /

) - *Counsel of Record for the Amici Ouriae —

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QUESTION PRESENTED

Whether the comprehensive framework and long term

program Congress enacted in 1990 to achieve attainment of

the then-existing ozone national ambient air quality

standard (“NAAQS”) restricts EPA’s general authority

under other provisions of the Clean Air Act to implement a

new and more protective ozone NAAQS until the prior

standard is attained.

TABLE OF CONTENTS

Page

| __,___ i

INTEREST OF THE AMICI CURIAE ......cccccccccesseseseeeeeees 1

STATEMENT OF THIS CASE .............sccsscsscssssssesscessceessenees 3

SUMMARY OF ARGUMENT. 2000.00... ccscssssssescescesseeeeeeensenees 3

nc T 6

I. Everyone Agrees That The Revised

NAAQS Cannot Be Implemented

Se IIE Uileccicinccscnnsoneseccncsnsenesenennnmnensnssnnesnnnennsssssets 6

II. IfThe Court Decides EPA Has

Authority To Implement The Revised

Ozone NAAQS Under Subpart 1, EPA

Could Conceivably Have That

Authority Only In Those Areas That

Have Attained Compliance With The

Current NAAQS Under Subpart 2..............cccsseesseeees 11

A. Congress Enacted Subpart 2 As A

Detailed And Comprehensive Framework

For Implementation Of The Ozone

NAAQS seummmemeuemenemennsns 12

iv

B. Simultaneous Implementation Of The

Current And Revised Ozone NAAQS

Would Conflict With The Plain Language

Of The Statute And Would Nullify

Subpart 2’s Comprehensive And

Reticulated Enforcement Scheme...................-.+++ 15

1.

Subpart 1 — By Its Clear Terms — Does

Not Apply To Areas Governed By

Attainment Dates Specified In

IIS © cacscsnsszzsscnsssesscessennssnsssessssesssennnssssnense 15

Simultaneous Implementation Of The

Current And Revised NAAQS Would

So Undermine The Purposes Of

Vv

TABLE OF AUTHORITIES

CASES Page(s)

American Petroleum Inst. v. United States EPA,

198 F.3d 275 (D.C. Cir. 2000) .......-..cccccccocercesseessseseees 8

American Tobacco Co. v. Patterson,

a ae Go Ga rerrenenrnmeenensee 10

American Trucking Ass’ns v. Browner,

175 F.3d 1027 (D.C. Cir. 1999) ............c.c-cceeeeee 19, 24

American Trucking Ass’ns v. Browner,

195 F.3d 4 (D.C. Cir. 1999)................-00+ 6, 11, 17, 25

Chevron USA Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ..........ccccccececeeeees 17

FDA v. Brown & Williamson Tobacco Corp.,

SG, Se, Se Ga crreererenensecnenmengen 16, 17, 18

Griffin v. Oceanic Contractors. Inc.,

GD Sa Ge Greene 10

International Paper Co. v. Ouellete,

Ga as Ge Ge rnnenenemnmnnne 18

Massachusetts Mut. Life Ins. Co. v. Russell,

473 U.S. 184 (19B5)....0..cccccccccsecsccseseesees 24

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993)... mesmmpaneneussssnememesnsaneanets 24

United States v. An Article of Drug . . . Bacto-Unidisk,

394 U.S. 784 (1969) 16

TABLE OF AUTHORITIES

Page(s)

STATUTES

Clean Air Act (“CAA”) § 107, 42 U.S.C. § 7407................. 19

Subpart 1 of Part D of Title I of the CAA §§ 171-179B,

42 U.S.C. §§ 7501-7509a - 3, 6

Subpart 2 of Part D of Title I of the CAA §§ 181-185B,

42 US.C. §§ 7511-7511f 3, 6, 12

CAA § 172, 42 U.S.C. § 7502 .. .. passim

CAA § 179, 42 U.S.C. § 7509 10, 24

CAA § 181, 42 U.S.C. § 7511 passim

CAA § 182, 42 U.S.C. § 751la 9, 13, 23

CAA § 185, 42 U.S.C. § 7511d 10

CAA § 186, 42 U.S.C. § 7512 22

Transportation Equity Act of the 21st Century,

Pub. L. No. 105-178, §§ 6102(d), 6103(a), (b),

112 Stat. 107, (1998) 19

REGULATIONS

40 C.F.R. § 50.10(b) 7

40 C.F.R. § 50.4(a) 21

40 C.F.R. § 50.4(b) 21

40 C.F.R. § 50.8(a)(1) 21, 22

40 C.F.R. § 50.8(a)(2) 21, 22

40 C.F.R. § 50.9(b) 19

40 C.F.R. Part 81 17, 21

40 C.F.R. § 81.300-.356 12

61 Fed. Reg. 25,566 (1996) 21

62 Fed. Reg. 38,856 (1997) 7,8

LEGISLATIVE MATERIALS

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

reprinted in Senate Comm. On Env’t

& Pub. Works, A Legislative History

of the Clean Air Act Amendments of

1990, S. Print 103-38 (1993)

(“Legislative History”) .......ccsesessessessesseees passim

B. Rew. Ne. 201-EEB (RBBB) .nccnccccccsssessscesesssesssssnsssssssssessensesse

OTHER AUTHORITY

EPA Office of Air Quality Planning & Standards,

Regulatory Impact Analysis for the Particular

Matter and Ozone National Ambient Air Quality

Standards and Proposed Regional Haze

DG ee

Memorandum from EPA Office of Air Quality

Planning & Standards, Proposed Implementation

Guidance for the Revised Ozone and Particular

Matter (PM) National Ambient Air Quality

Standards (NAAQS) and the Regional Haze

Pragvens Gee. 3%, BBGED cccsssscssssssssssssssssgessssesesnesee

In the

Supreme Court of the Anited States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al.

PETITIONERS,

V.

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICI CURIAE OF INTEL CORPORATION,

ELECTRONIC INDUSTRIES ALLIANCE AND

ARIZONA ASSOCIATION OF INDUSTRIES, IN

SUPPORT OF RESPONDENTS APPALACHIAN

POWER COMPANY, ET AL.

INTEREST OF THE AMICI CURIAE

Amici curiae Intel Corporation, the Electronic

Industries Alliance (“EIA”), and the Arizona Association of

Industries (“AAI”) advocate in rulemaking, policy-making

and law-making venues to ensure that environmental

programs are sufficiently protective, »ut do not impose

undue impediments to operational flexibility. In particular,

Intel has partnered with the Environmental Protection

Agency (“EPA”) and State agencies to develop permits that

incorporate control measures and requirements in a manner

that allows the flexibility to undertake the hundreds of

process upgrades, advancements and innovations necessary

to compete in the global marketplace, control costs, maintain

quality, meet corporate pollution prevention goals and

satisfy new regulatory requirements. EIA represents its

membership - comprised of technology-driven electronics

companies — on air quality matters ranging from innovative

programs to address emerging issues, such as climate

change, to rulemakings under the Clean Air Act (“CAA” or

“Act”), including the rulemaking at issue in this case. ELA’s

paramount goal has been to ensure the appropriate balance

between environmental protection and operational

flexibility. Finally, AAI has been a leader in promoting

State adoption of ozone control measures ahead of schedule,

but in a manner that does not significantly hamper growth.

AAI members include many of Arizona’s most prestigious

manufacturing companies, from the State’s largest private

employers to small businesses. Most AAI members are

located in Maricopa County, an area in Arizona classified as

nonattainment for the current one-hour ozone standard.

To remain globally competitive, amici have a strong

interest in ensuring that any revised ozone National

Ambient Air Quality Standard (“NAAQS”) is achievable and

that its implementation is reasonable and predictable.

Attainment of EPA’s revised eight-hour NAAQS will

impose substantial costs on the nation. EPA itself estimates

that compliance with the new eight-hour ozone NAAQS will

cost at least $9.6 billion per year in addition to the cost of

compliance with the one-hour standard. Respondents

Appalachian Power Co., et al. (“Industry Respondents”)

estimate the cost to be substantially higher. Moreover,

EPA is seeking to implement the more str’s ~© \t eight-hour

standard immediately, even in areasthat ar. “% struggling

to reach attainment with the one-hour stand wu. Much of

this additional burden will be placed on industrial sources

such as those of amici. Amici therefore have a substantial

interest in ensuring that implementation of any revised

NAAQS occurs in a reasonable, cost-effective manner

consistent with the language and structure of the statute.

STATEMENT OF THIS CASE

Amici concur with and adopt the statement of the case

proffered by Industry Respondents.

SUMMARY OF ARGUMENT

In 1990, Congress amended the Clean Air Act to create a

detailed and comprehensive framework to address the

failure of many areas of the country to attain compliance

with the ozone NAAQS. The new framework, codified as

Subpart 2 of Part D of Title I of the Act, classifies areas

based on the severity of their ozone problem, provides

milestones and deadlines for attainment, consequences for

failure to meet those deadlines, and rules for continued

maintenance of attainment levels. Despite Congress’s

express intent through Subpart 2 to provide a

comprehensive regulatory framework for ozone attainment,

EPA now asserts that it has the power simultaneously to

enforce a revised (and more stringent) ozone standard, and

to require attainment of this revised standard even before

Congress directed that the old one be attained. EPA has no

such authority. The regulations it has promulgated exceed

EPA’s statutory discretion, conflict facially with the plain

language of the statute, and wholly undermine the purpose

of the 1990 amendments.

1. Two different provisions of the Act theoretically

could govern the implementation of EPA’s revised ozone

NAAQS: Subpart 1 of Part D of Title I (CAA §§ 171-179B;

42 U.S.C. $§ 7501-7509a) and Subpart 2 of Part D of Title I

(CAA §§181-185B; 42 U.S.C. §§ 7511-7511f). Every party

who has examined the question, however, agrees that

implementation under Subpart 2 simply would be

unworkable: Subpart 2 codifies design values, a classification

scheme, and deadlines specifically tailored to the current,

one-hour, 0.12 ppm ozone NAAQS, and this framework

simply cannot be applied — from a plain language or practical

standpoint - to the revised eight-hour, 0.08 ppm ozone

NAAQS without producing absurd resu:ts. Only two

possible conclusions can be drawn: either the revised

NAAQS. Only two possible conclusions can be drawn:

either the revised NAAQS cannot be implemented at all or

implementation of the revised NAAQS must occur under

Subpart 1.

2. Industry Respondents maintain that the language,

structure, and legislative history of the Act demonstrate

that Congress intended Subpart 2 to constitute the

comprehensive and exclusive framework for implementation

of ozone NAAQS, and that EPA has no authority under

Subpart 1 or Subpart 2 to implement a revised ozone

NAAQS. We agree completely, but will not repeat those

arguments here.

3. EPA not only asserts the authority to revise the

NAAQS that Congress established in Subpart 2, and to

implement its revised NAAQS under Subpart 1. The

Agency claims, moreover, that it has the power under

Subpart 1 to require an area to take all steps necessary to

comply with its more stringent, revised NAAQS at the same

time (or even before) the area was required by Congress to

attain the less stringent NAAQS under Subpart 2. EPA’s

position cannot be reconciled with the language and

structure of the statute or with its legislative history. If

EPA has any power to enforce revised ozone NAAQS under

Subpart 1, it could conceivably have that authority,

consistent with the statute, only in areas that have already

attained the existing one-hour 0.12 ppm NAAQS in

accordance with Subpart 2.

4. EPA’s assertion that it can implement a revised

ozone NAAQS under Subpart 1 before an area has attained

the NAAQS mandated by Congress in Subpart 2 is

foreclosed by the plain language of the statute. Although

Subpart 1 allows EPA generally to classify and set

attainment dates for nonattainment areas, the statute

expressly withholds such authority from EPA “with respect

to nonattainment areas for which” classifications and

attainment dates “are specifically provided under other

provisions of [Part D].” CAA § 172(a)(1)(C), (aX(2)(D), 42

US.C. § 7502(aXiMC), (a\(2)(D). Classifications and

attainment dates for “[eJach area designated nonattainment

for ozone” are “specifically provide[d]’ under an “other

provision” of Part D - Subpart 2. CAA §181(a)(1), 42 U.S.C.

§ 7511(a)(1), Table 1. Accordingly, EPA has no authority

under Subpart 1 to classify or to set attainment dates for

areas that are not yet in attainment with the Subpart 2

NAAQS.

5. Simultaneous enforcement of the revised ozone

NAAQS under Subpart 1 would also undermine the core

purposes of Subpart 2. When Congress enacted Subpart 2

in 1990, it codified a considered and detailed plan to ensure

progress towards, and eventual attainment of, the one-hour,

0.12 ppm ozone standard in all areas of the country. The

requirements of Subpart 2 reflect a careful balance of

environmental goals and economic realities, and a

recognition that areas with more serious air quality

problems need more time to reach attainment. Once

enacted, the specifications of Subpart 2 stripped EPA and

the States of much of the discretion they had enjoyed under

Subpart 1 to determine when and how the ozone NAAQS

would be attained.

6. EPA’s interpretation of the statute would allow the

Agency to circumvent and render meaningless Congress’s

comprehensive and reticulated legislative framework simply

by revising the NAAQS. Under EPA’s interpretation, for

example, the Agency could have promulgated a more

stringent revised NAAQS immediately after Subpart 2 was

enacted and required areas to meet the original and revised

NAAQS “simultaneously,” such that areas which Congress

had given 15, 17 or even 20 years to meet the 0.12 ppm

NAAQS under Subpart 2 could have been forced, at the

Agency’s discretion, to meet in only five years the more

stringent, revised NAAQS under Subpart 1. This Court

should not lightly presume that Congress delegated to EPA

the discretion to make its comprehensive ozone attainment

scheme utterly superfluous.

7. As the D.C. Circuit correctly held, the plain language

and purpose of the 1990 amendments require

implementation of any ozone NAAQS to occur “in

conformity with Subpart 2.” American Trucking Ass’ns v..

Browner, 195 F.3d 4, 10 (D.C. Cir. 1999) (‘ATA IT”). That

necessarily means that, even if EPA has authority to

implement a revised NAAQS under Subpart 1, an area must

first adhere to the mandate of Subpart 2 - and only that

mandate - until it has attained the preexisting NAAQS.

EPA may not require an area simultaneously to undertake

measures to attain a more stringent revised NAAQS.

ARGUMENT

I. EVERYONE AGREES THAT THE REVISED

NAAQS CANNOT BE IMPLEMENTED

UNDER SUBPART 2

The parties to this litigation have advanced various and

conflicting interpretations of the interplay between Subpart

1 of Part D of Title I of the Clean Air Act, entitled

“Nonattainment Areas in General” (see CAA §§ 171-179B, 42

U.S.C. §§ 7501-09a), and Subpart 2 of Part D of Title I,

entitled “Additional Provisions for Ozone Nonattainment

Areas” (see CAA §§ 181-185B, 42 U.S.C. §§ 7511-7511f). But

no one — neither EPA nor industry (nor intervenors or

amici in support of either EPA or industry) — has suggested

that the revised ozone NAAQS can be implemented under

Subpart 2. Everyone who has examined and taken a

position on how Subpart 2 might apply to the revised ozone

standard agrees that Subpart 2 implementation would be

unworkable. The design values, classification scheme, and

deadlines set forth in Section 181 of Subpart 2 establish a

NAAQS implementation framework specifically tailored to

the existing one-hour, 0.12 ppm NAAQS. This framework

simply has no applicability to any revised ozone NAAQS.

Indeed, any attempt by EPA to apply this framework to the

revised eight-hour, 0.08 ppm ozone NAAQS would produce

nonsensical results.

To begin with, EPA’s revised ozone standard cannot be

used to classify areas under Subpart 2. Section 181(a)(1)

requires that an area’s design value (i.e., the quantitative

measurement of its air quality) - which determines the

area’s attainment/nonattainment status - “be calculated

according to the interpretation methodology issued by the

Administrator most recently before November 15, 1990.”

CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1). In other words,

Subpart 2 requires use of the particular air quality measure

that was specifically developed for the ozone standard

existing in 1990.1 EPA’s pre-i990 air quality measure for

the 0.12 ppm NAAQS is based on a one-hour averaging time

and an examination of the number of days the current

standard is exceeded. 62 Fed. Reg. 38,856, 38,857 (1997),

Ozone Joint Appendix in D.C. Cir. No. 97-1441 (“OJA”) at 1,

2. In contrast, the revised 0.08 ppm standard is based on an

eight-hour averaging time and a determination of whether

certain readings exceed the revised standard2 Thus,

compliance with the revised standard is based on an entirely

different averaging period and statistical form than the

existing standard. Because the form of the ozone standard

1 The statute provides that if EPA modifies the design value in

severe nonattainment areas, “a design value or other indicator

comparable to 0.140 in terms of its relationship to the standard shall be

used in lieu of 0.140... .” See CAA § 181(b)(4\(D), 42 U.S.C. §

7511(b)(4)(D). This is the only context in which the statute gives EPA

authority to modify the design value in Subpart 2. Even in this context,

the statute requires that any revised methodology be “comparable” to

the methodology prescribed by Section 7511(a)(1) (which is linked to the

one-hour standard), precluding the adoption of a new methodology for

the significantly different eight-hour standard.

2 Attainment is measured by whether the three-year average of

the annual fourth-highest daily maximum eight-hour average

concentration exceeds 0.08 ppm. 40 C.F.R. § 50.10(b) (1999).

is a crucial part of the standard itself,? it is not possible to

classify areas for the eight-hour standard using the

methodology developed for the one-hour standard.

Second, even if classification were somehow possible, if

Subpart 2 governs implementation of the revised NAAQS,

then every area that has attained the 0.12 ppm, one-hour

standard by the time of its designation under any revised

NAAQS would be forever exempt from complying with the

revised standard. That is so because Subpart 2 requires

that “[eJach area designated [as] nonattainment for ozone . .

. be classified at the time of such designation, wnder table 1,

by operation of law, as a Marginal Area, a Moderate Area, a

Serious Area, a Severe Area, or an Extreme Area based on

the design value for the area.” CAA § 181(a)(1), 42 U.S.C. §

7511(a)(1) (emphasis added). Table 1, in turn, contains five

different ranges of design values - with each range

specifying a different nonattainment classification and

attainment date — but the lowest design value addressed in

Table J is 0.121 ppm, which falls just above the current 0.12

ppm ozone NAAQS. Thus, if Subpart 2 governs the

implementation of revised ozone NAAQS, the revised eight-

hour, 0.08 ppm standard promulgated by EPA would not

apply to any areas that meet the current one-hour, 0.12 ppm

standard - which comprise the vast majority of areas likely

to be above the revised, eight-hour 0.08 ppm NAAQS.4 See

American Petroleum Inst. v. United States EPA, 198 F.3d

275, 278-80 (D.C. Cir. 2000) (holding that areas in

nonattainment with the current standard but with a design

value of less than 0.12 are not covered by Table 1).

3 See 62 Fed. Reg. at 38,863 (“Taken together, the level and form

of the standard, for a given averaging time, determine the degree of

public health protection afforded by the standard. Consideration of the

level of the standard . . . reflects a recognition of this linkage between

level and form. . . .”).

4 See infra at 17.

Third, if Subpart 2 governs implementation of revised

ozone NAAQS, most areas that do not yet meet the current

one-hour, 0.12 ppm standard - and that therefore would be

required to meet the revised eight-hour, 0.08 ppm standard

- (including, for example, Atlanta, Dallas, Phoenix, San

Diego, St. Louis, Pittsburgh, Louisville and Washington

D.C.) would be required to meet the more stringent, revised

standard immediately. That is so because the timetables

and deadlines under Subpart 2 began to run in 1990, and

three of the five attainment deadlines already have passed.

See CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1), Table 1

(specifying 1993, 1996, and 1999, as well as 2005 and 2010, as

attainment dates). For example, areas with current ozone

levels in the range of 0.120 - 0.138 ppm (“marginal”

nonattainment areas) would need to have met the revised

0.08 ppm standard in 1993, even though the revised

standard was not promulgated until 1997. Moreover, having

missed that 1993 attainment date, as well as the next two

attainment dates (1996 and 1999), these areas would now be

classified as “severe” and would immediately be subject to

enhanced control measures, emission reduction milestones,

and other requirements for severe nonattainment areas. See

generally CAA § 182, 42 U.S.C. § 7511a.5 Indeed, Subpart 2

would have the absurd result of rendering most of these

nonattainment areas liable for punitive sanctions (including

the loss of federal highway funds) even though these areas

would have had no opportunity to work toward attainment.

CAA § 179(b)(1), 42 U.S.C. § 7509(b)(1); see also CAA §

185(b), 42 U.S.C. § 7511d(b) (penalty of $5000 per ton

5 EPA’s authority to modify the attainment dates in Table 1 is

strictly limited to areas redesignated to nonattainment after having been

initially designated in attainment for the one-hour standard following

enactment of the 1990 amendments (i.e., under Section 107(d)(4)). CAA §

181(b)(1), 42 U.S.C. § 7511(>)(1). EPA has no authority to modify the

attainment dates for areas nonattainment for the revised

standard pursuant to section 107(d)(1)(B).

10

imposed on major sources in certain areas that fail to attain

the current standard).

In sum, any attempt to implement a revised ozone

standard under Subpart 2 would be legally, technically and

practically unworkable. Some currently less polluted areas

would not be required to comply with the revised standard

even though they would be in clear violation of it.

Meanwhile, other currently more polluted nonattainment

areas would have no reasonable opportunity to work

towards attainment before severe sanctions were imposed

on them (contrary to Congress’ clear desire in enacting

Subpart 2 to provide more polluted areas with more, not

less, time to come into compliance). See, e.g., H.R. Rep. No.

101-490, pt. 1, at 234, reprinted in Senate Comm. on Env’t &

Pub. Works, 2 A Legislative History of the Clean Air Act

Amendments of 1990, S. Print 103-38, at 3258 (1993)

(“Legislative History”), OJA at 3603 (“Areas with more

serious pollution problems are given more time to attain the

standards, but required to put in place a more aggressive

program of control measures.”); House Debate on the

Conference Report (Oct. 26, 1990), reprinted in 1 Legislative

History at 1236 (statement of Rep. Fields, co-sponsor of

H.R. 3030, 101ist Cong. (1990)) (“House Debate”), OJA at

3543 (“We have placed what we hope are more realistic

deadlines in the new law.”).

Consequently, the parties correctly agree that the

statute cannot reasonably be read to permit implementation

of revised ozone NAAQS under Subpart 2. See Griffin v.

Oceanic Contractors. Imc., 458 U.S. 564, 575 (1982)

(“interpretations of a statute which would produce absurd

results are to be avoided if alternative interpretations

consistent with the legislative purpose are available”);

American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982)

(“avoid . . . unreasonable results whenever possible”).

11

Il. IF THE COURT DECIDES EPA HAS

AUTHORITY TO IMPLEMENT REVISED

OZONE NAAQS UNDER SUBPART 1, EPA

COULD CONCEIVABLY HAVE THAT

AUTHORITY ONLY IN THOSE AREAS THAT

HAVE ATTAINED COMPLIANCE WITH THE

CURRENT NAAQS UNDER SUBPART 2

Because revised ozone NAAQS cannot practicably be

implemented under Subpart 2, there are only two

alternatives: (i) either revised NAAQS cannot be

implemented at all (which is the thrust of Industry

Respondents’ argument), or (ii) revised NAAQS must be

implemented under Subpart 1 (as EPA contends). We agree

completely with Industry Respondents’ view, but will not

repeat their arguments here. Instead, we assume for

purposes of this brief that EPA could implement the revised

NAAQS under Subpart 1, and we address solely how that

might be accomplished.

Judge Tatel in his concurring opinion suggested that,

once an area attains the existing one-hour, 0.12 ppm

standard in accordanee with Subpart 2, EPA then might

implement the revised eight-hour, 0.08 ppm standard under

Subpart 1. ATA II, 195 F.3d at 12. EPA argues that it has

the authority to require areas to comply with the revised

eight-hour NAAQS and the one-hour NAAQS

simultaneously. In EPA’s view, because “Subpart 1 and

Subpart 2 require that all areas attain the NAAQS as

‘expeditiously as practicable,”” the Agency “is justified in

concluding that it should implement the revised ozone

standard without delay throughout the Nation.” Brief for

the Petitioners (“Pet. Br.”) at 49.6

6 See also id. (“It is entirely reasonable . . . for Congress to

require thai, once EPA determines that a revised NAAQS is necessary

to protect public health, the revised NAAQS should be attained without

avoidable delay notwithstanding the timetable that Congress envisioned

for the standard then in effect.”) (emphasis added).

12

EPA’s interpretation would as a practical matter allow

the Agency to override Subpart 2 entirely whenever EPA

decides that the NAAQS should be revised. That

interpretation cannot be squared with the statute’s plain

language or its legislative history.

A. Congress Enacted Subpart 2 As A Detailed

And Comprehensive Framework For

Implementation Of The Ozone NAAQS

Congress recognized in 1990 that attainment of the one-

hour, 0.12 ppm ozone NAAQS in many areas of the country

posed particular and seemingly intractable problems.

Although the Act required all areas of the country to attain

the NAAQS “as expeditiously as practicable but no later

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

areas still had not attained the ozone standard by 1990. See

H.R. Rep. No. 101-490, pt. 1, at 145-50, reprinted in 2

Legislative History at 3170-71 (“In 1977, Congress tried to

waive [sic] a ‘magic wand’ and command that all

nonattainment areas [for ozone] will meet the applicable

[NAAQS] by December 31, 1982. . . . [That] date[] ha[s]}

come and gone and it is clear that . . . we had no ‘taagic’

solutions”). Indeed, in 1990, 186 areas were in

nonattainment,’ and many of those arezs did not even have

plans for how the standard could ever be attained.

Congress addressed this situation by substantially

revising the Clean Air Act to add, among other provisions,

specific implementation requirements for ozone. These

provisions are codified as Subpart 2 of Part D of Title I of

the Clean Air Act, 42 U.S.C. §§ 7511-7511f The Act

specifically provides, moreover, that the Subpart 2 program

overrides Subpart 1 in certain key respects (e.g., area

7 See 40 C.F.R. § 81.300-.356 (1990). Areas could be as small as a

single county (e.g., Campbell County, Kentucky) or as large as an entire

State (e.g., Massachusetts).

13

designations and classifications for the one-hour standard).®

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

(aX2)(D); CAA § 181(a), (b), 42 U.S.C. § 7511(a), (b).

Recognizing that air quality in some areas was worse

than in others, and that some areas would unquestionably

need more time than others to attain the existing ozone

NAAQS, Congress allowed the various nonattainment areas

between 3 and 20 years to come into attainment, depending

upon the severity of the area’s ozone problem. CAA §

181(aX(1), 42 U.S.C. § 7511(a)(1), Table 1. At the same time,

Congress required areas with more severe nonattainment

problems to impose more stringent mandated measures to

reduce emissions. Congress also established “reasonable

further progress,” or milestone, requirements to ensure

that States made steady progress towards meeting the

NAAQS. CAA § 182(b)(1), 42 U.S.C. § 7511a(b)(1); see also

CAA § 182(a), (b), (c), (d) and (e), 42 U.S.C. § 7511(a), (b), (e),

(d) and (e). As discussed in the debate over the 1990

amendments, these “milestone provisions of the bill [were

designed to avoid a repeat of the situation that occurred

when [Congress] passed the 1977 amendments,” which

allowed States to go for years without having to

demonstrate progress. See Senate Debate (Jan. 23, 1990), 4

Legislative History at 4837 (statement of Senator Chafee,

co-sponsor of S. 1630, 101st Cong. (1990)).

Congress required areas classified as “serious,” “severe”

or “extreme” nonattainment to include “contingency plans”

with specific measures that must be implemented if the area

fails to meet these milestones. See CAA § 182(c)(9), (d) and

(e), 42 U.S.C. § 7511a(cX9), (d) and (e). Moreover, if an area

misses its attainment deadline, Subpart 2 provides iiat the

8 — See, e.g., H.R. Rep. No. 101-490, pt. 3, at 3, reprinted in 2

Legislative History at 3721 (“The Clean Air Act Amendments of 1990

provide a comprehensive legisiative framework for obtaining [sic -

attaining] and maintaining the national ambient air quality standards.”)

(emphasis added).

14

area “bumps up” to the next classification, with a new

attainment deadline but more stringent control measures.

CAA §181(b)(2), 42 U.S.C. § 7511(b)(2). In summary, under

Subpart 2, “[aJreas with more serious pollution problems are

given more time to attain the standards, but required to put

in place a more aggressive program of control measures.”

H.R. Rep. No. 101-490, pt. 1, at 234, reprinted in 2

Legislative History at 3258, OJA at 3603.

Subpart 2 represented a fundamental departure from

the historic approach to implementing the NAAQS.

Previously, the Act merely set a single overall attainment

date, allowing States wide latitude in determining what

controls should be imposed. CAA § 172, 42 U.S.C. § 7502

(1988). In enacting Subpart 2, Congress established a

graduated series of attainment deadlines (rather than

allowing EPA to set the deadlines) and at the same time

stripped States of much of their discretion to determine

appropriate control measures. Congress did so because the

old model simply had not succeeded in resolving the ozone

problem. See House Debate, reprinted in 1 Legislative

History at 1236, OJA at 3543 (statement of Rep. Fields)

(“We have placed what we hope are more realistic deadlines

in the new law. We have not, however, simply continued to

tell the states to do a plan to clean their air. That did not

work. We have imposed some very stringent requirements

on nonattainment are[a]s which will in turn have to impose

such requirements on industry in those areas.”); see also

Senate Debate (Mar. 21, 1990), reprinted in 4 Legislative

History at 6056 (statement of Sen. Baucus, co-sponsor of S.

1630, 10ist Cong. (1990)) (Subpart 2 includes “a lot of

requirements on [non]attainment areas to get the job done. .

. . [Subpart 2] is tailored as well as it covld be to help

encourage those [nonJattainment areas to get the job

done.”).

In enacting Subpart 2, Congress also consciously

balanced economic and environmental considerations. See

H.R. Rep. 101-490, pt. 1, at 235, reprinted in 2 Legislative

15

History at 3259, OJA at 3604 (noting the Committee’s goal of

“reconcil[ing] economic growth with clean air”); id. at 3258,

OJA at 3603 (“This program is intended to allow economic

growth and the development of new pollution sources and

modifications to continue in seriously polluted areas, while

assuring that emissions are actually reduced.”); House

Dehate, reprinted in 1 Legislative History at 1414

(statement of Rep. Oxley) (“(TJhroughout the development

of this legislation, we have worked to ensure that

environmental progress does not jeopardize economic

growth.”); House Debate (May 21, 1990), reprinted in 2

Legislative History at 2655 (statement of Rep. Shuster) (“So

while we must support clean air, we must likewise be

equally concerned that there be a balance, a balance that

recognizes not only the importance of clean air, but the

importance of providing jobs for our people and creating a

continuing growing economy.”). Thus, Congress crafted a

compromise program that forced progress, but also set

achievable goals within a reasonable timeline that took into

account economic concerns.

B. Simultaneous Implementation Of The

Current And Revised Ozone NAAQS

Would Conflict With The Plain Language

Of The Statute And Would Nullify Subpart

2’s Comprehensive And _ Reticulated

Enforcement Scheme

1. Subpart 1 — By Its Clear Terms — Does

Not Apply To Areas Governed By The

Attainment Dates Specified In Subpart

2.

Under EPA’s interpretation, Congress gave the Agency

discretion to nullify Subpart 2’s comprehensive and

reticulated enforcement scheme at any time simply by

revising the ozone NAAQS. That interpretation cannot be -

and is not - correct. As this Court has cautioned, “{iJn our

anxiety to effectuate the Congressional purpose of

16

protecting the public, we must take care not to extend the

scope of the statute beyond the point where Congress

indicated it would stop.” United States v. An Article of

Drug . . . Bacto-Unidisk, 394 U.S. 784, 800 (1969) (citation

omitted) (cited in FDA v. Brown & Williamson Tobacco

Corp., 1208. Ct. 1291, 1315 (2000)).

Contrary to EPA’s view, at a minimum, Subpart 2 must

be allowed to run its course before any revised ozone

standard can be implemented under Subpart 1. In other

words, areas must be allowed to comply with the mandate of

Subpart 2 until they have attained the one-hour, 0.12 ppm

NAAQS. Only once they have done so could EPA

conceivably have the authority to require measures to attain

the more stringent eight-hour, 0.08 ppm NAAQS in

accordance with the provisions of Subpart 1. The plain

language of the statute forbids EPA’s simultaneous-

implementation approach.

While Subpart 1 (Section 172(a)(1)(A)) allows EPA

generally to “classify” areas as attainment or nonattainment,

the statute makes it clear that such authorization does “not

apply with respect to nonattainment areas for which

classifications are specifically provided under other

provisions of [Part D of Title IJ.” CAA § 172(a)(1)(C), 42

U.S.C. § 7502(aX(1X(C). Similarly, while Section 172(a)(2)

provides that the NAAQS attainment date for an area under

Subpart 1 shall be “as expeditiously as practicable, but no

later than 5 years from the date such area was designated

nonattainment,” CAA § 172(aX(2)(A), 42 USC. §

7502(aX2)(A), the statute makes clear that EPA has no

authority to set an attainment date “with respect to

nonattainment areas for which attainment dates are

specifically provided under other provisions of [Part D of

Title I.” CAA § 172(aX2)(D), 42 U.S.C. § 7502(a)(2)D).

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-

17

hour, 0.12 ppm ozone standard. CAA § 181(a)(1), 42 U.S.C. §

7511(a)(1), Table 1.

Of the approximately 3,000 “areas” in the United States,

33 currently are in nonattainment with the one-hour ozone

standard. See 40 C.F.R. Part 81. These 33 areas plainly are

“nonattainment areas for which [classifications and]

attainment dates are specifically provided” under an “other

provision” of Part D - Subpart 2. Thus, under the plain

language of the statute, EPA has no avthority under

Subpart 1 either to classify or to set attainment dates

concerning a revised NAAQS for these areas. Any

implementation authority that EPA might have under

Subpart 1 could only be exercised once each of these 33

areas attains the one-hour NAAQS, thus ceasing to be a

“nonattainment area” for which classifications and

attainment dates are specifically provided under other

provisions of Part D. As Judge Tatel explained in his

concurrence, only this approach allows EPA to implement

the revised ozone NAAQS under Subpart 1 “without

conflicting with Subpart 2’s classifications and attainment

dates.” ATA II, 195 F.3d at 11 (emphasis added).9

9 EPA insists that Judge Tatel’s reading is not correct because

Section 181(a) (in Subpart 2) establishes the maximum amount of time

allowable for attainment. Pet. Br. at 48. EPA’s argument is an utter

non sequitor: Whether the dates in Section 181(a) are outside limits does

not change the fact that, for those areas within its purview, Section

181(a) is a provision of Part D distinct from Subpart 1 which “specifically

provides” attainment dates, thereby ousting - pursuant to the plain

language of the Act - EPA’s authority to set other attainment dates for

such areas under Subpart 1. See Chevron USA Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (Where “Congress has

directly spoken to the precise question at issue . . . the court . . . must

give effect to the unambiguously expressed intent of Congress.”); Brown

& Williamson Tobacco, 120 S. Ct. at 1300 (same). Moreover, because

Table 1 of Section 181(a) allows areas to take the maximum time to reach

attainment, it provides no support for EPA’s claim that the Agency can

require these same areas to do more, and more quickly, pursuant to

Subpart 1. See, ¢.g., H.R. Rep. No. 101-490, pt. 1, at 229, reprinted in 2

Legislative History at 3253, OJA at 3598 (the deadlines in Table 1 are

18

Not only does the statutory language make it

abundantly clear that Congress intended Subpart 2 to have

primacy over ozone NAAQS attainment, but as detailed

below, EPA’s contrary interpretation also would pernit the

Agency to render Subpart 2 a nullity whenever it decides to

revise the ozone NAAQS. It is inconceivable that Congress

could have delegated that wholesale authority to EPA

without ever saying so. See, e.g., Brown & Williamson

Tobacco, 120 S. Ct. at 1315 (“(WJe are confident that

Congress could not have intended to delegate a decision of

such economic and political significance to an agency in so

cryptic a fashion.”); cf. International Paper Co. v. Ouellette,

479 U.S. 481, 494 (1987) (“[W]e do not believe Congress

intended to undermine this carefully drawn statute through

a general savings clause.”).

2. Simultaneous Implementation Of The

Current And Revised NAAQS Would

So Undermine the Purposes of Subpart

2 As To Render Subpart 2 A Nullity

Under EPA’s reading of the Act, the Agency in 1991

could have revised the ozone NAAQS slightly to be, say,

0.119 ppm, using the very same one-hour averaging scheme

as under the prior standard. Although virtually identical to

the one-hour, 0.12 ppm NAAQS for which Congress created

Subpart 2, according to EPA’s logic, the Agency could have

implemented this revised 0.119 ppm NAAQS under Subpart

1 simultaneously with implementation of the 0.12 ppm

standard under Subpart 2. Indeed, under EPA’s reading of

the statute, the Agency could have set a dramatically more

stringent NAAQS in 1991 — 0.04 ppm, for example - and

demanded compliance with that substantially more

stringent standard in only five years.!°

“intended to provide a reasonable target for a large class of

nonattainment areas”).

10 See CAA § 172(aX(2)(A), 42 U.S.C. § 7502(a)(2)(A). In contrast,

Congress expressly granted Los Angeles twenty years to meet the 0.12

19

These examples demonstrate dramatically that, under

EPA’s view of the statute, the Act gives EPA the discretion

to use Subpart 1 to supersede Subpart 2 whenever EPA

revises the NAAQS. That is surely not what Congress

intended. As the D.C. Circuit noted, EPA’s explanation

“does not square with . . . the long-term nature of the

attainment scheme enacted in Subpart 2; under EPA’s

interpretation, that scheme would have been stillborn had

the EPA revised the ozone NAAQS immediately after the

Congress enacted the 1990 amendments.” American

Trucking Ass’ns v. Browner, 175 F.3d 1027, 1050 (D.C. Cir.

1999) (“ATA I’).

There is no need, however, to resort to hypotheticals:

Simultaneous enforcement of the eight-hour, 0.08 ppm ozone

NAAQS that EPA actually adopted also would frustrate the

intent of Subpart 2 because it would require several of this

country’s largest metropolitan areas to comply with the

Agency’s more stringent, revised NAAQS within the same

period - or even faster than - Congress established in

Subpart 2 for attainment of the existing standard.

Under Section 107(d) of the Act, EPA was required to

designate all areas as attainment or nonattainment within

two years after revising the NAAQS in 1997. CAA §

107(d)(1)(B)i), 42 U.S.C. § 7407(d)(1)(B)G@). Congress in

subsequent legislation, however, delayed this deadline by a

year, to 2000 (although it expressly took no position on the

validity of the revised ozone NAAQS itself). Transportation

Equity Act for the 21st Century, Pub. L. No. 105-178, §§

6102(d), 6103(a), (b), 112 Stat. 107, 464-65 (1998). Subpart 1

requires attainment with the NAAQS “as expeditiously as

practicable, but no later than 5 years” from the date an area

was designated nonattainment. CAA § 172(a)(2)(A), 42

U.S.C. § 7502(a)(2)(A). While EPA may provide up to a five

ppm NAAQS under Subpart 2, giving Chicago, New York City and

Houston 17 years and Baltimore, Philadelphia and Sacramento 15 years.

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

20

year extension of the attainment deadline, Congress

intended such extensions to be used sparingly. See S. Rep.

No. 101-228, at 25 (1990), reprinted in 5 Legislative History

at 8365 (“Except in unusual circumstances of severe levels of

pollution and pollution sources that are exceptionally

difficult to control, areas designated nonattainment should

be required to achieve the health standards in, at most, five

years from the date they are designated nonattainment. If

the Administrator determines that attainment in five years

is not feasible because of unusual circumstances, the

extension should be for the minimal time needed, not

automatically for an additional five years”) (emphasis

added).

As a result, the attainment deadline for all areas under

the revised eight-hour ozone NAAQS is no later than 2005

(unless EPA grants the full five year extension to 2010).!!

Moreover, because EPA currently requires that an area

have three years of clean data before it is deemed to meet

the standard, an area effectively must have air that is clean

enough to meet the revised standard by 2002 (or 2007 with

the maximum extension). Memorandum from EPA Office of

Air Quality Planning & Standards, Proposed

Implementation Guidance for the Revised Ozone and

Particulate Matter (PM) National Ambient Air Quality

Standards (NAAQS) and the Regional Haze Program 1, 83

(Nov. 17, 1998). Under the comprehensive ozone attainment

scheme established pursuant to Subpart 2, however, Los

Angeles has until 2010 to attain the one-hour standard, and

11 Upon application by the State, EPA may grant two additional

“Extension Years,” but only if an area has had “no more than a minimal

number of exceedances” of the NAAQS “in the year preceding the

Extension Year.” CAA § 172(aX2)(C\ii), 42 U.S.C. § 7502(aX2)(C\(ii).

Accordingly, an area cannot receive an “extension” until the year by

which it is required to meet the NAAQS, and then only if the area is

very close to attainment. Because they cannot be granted in advance,

these “Extension Years” cannot be counted when determining

attainment deadlines.

21

several other major metropolitan areas — Chicago, Houston,

and New York City, among others — have until 2007 to reach

attainment. !2 Thus, under EPA’s _ simultaneous-

implementation scheme, these areas could be required to

meet the more stringent 0.08 ppm eight-hour ozone

standard under Subpart 1 somewhat before being required

to attain the less stringent one-hour standard under

Subpart 2. Congress plainly never intended that result.

Indeed, even if EPA granted all of these areas the ten-

year maximum to meet the revised standard, these areas

still would be required to continue to implement current

control measures to attain the 0.12 ppm one-hour standard

while simultaneously implementing more _ substantial

measures to attain the more stringent 0.08 ppm eight-hour

standard. Otherwise, an area could not feasibly achieve the

first year of “clean air’ under the revised eight-hour

standard at the same time it meets the 2007 Subpart 2

attainment deadline.

12 Los Angeles is the only area with a 2010 attainment deadline.

The following areas have 2007 attainment deadlines: Chicago-Gary-Lake

County, IL-IN; Houston-Galveston-Brazoria, TX; Milwaukee-Racine,

WI; New York-N. New Jersey-Long Island, NJ-NJ-CT; Southeast

Desert Modified AQMA, CA. See 40 C.F.R. Part 81.

13 EPA claims that it is not unusual for areas to be subject to more

than one NAAQS at a given time, Pet. Br. at 49, n.31 (citing 40 C.F.R.

§$§ 50.4(a)-(b), 50.8(a)(1)-(2)), but neither of the references cited by EPA

involve two standards for the same pollutant that are intended to

address the same health effects and are implemented simultaneously

under separate statutory schemes.

Specifically, 40 C.F.R. § 50.4(a) and (b) sets two primary standards for

sulfur oxides (SO,): A twenty-four-hour standard (0.14 ppm) and an

annual (0.03 ppm) standard. The preamble in the rule establishing these

standards clearly states that the one-hour SO, standard was specifically

meant to protect against spikes, whereas the annual SO. standard is

ee 61 Fed. Reg. 25,566, 25,579

1

EPA’s other reference, 40 C.F.R. § 50.8(a)(1) and (2), establishes two

primary standards for carbon monoxide (CO): A one-hour (35 ppm)

standard and an eight-hour (9 ppm) standard. Only the eight-hour CO

22

For these areas - as well as areas such as Baltimore,

Philadelphia and Sacramento, which have 2005 attainment

deadlines under Subpart 2 - EPA’s simultaneous-

implementation approach will, at a minimum, impose

tremendous additional costs that Congress never

contemplated or approved when it enacted Subpart 2. Los

Angeles alone, for example, currently spends $1.7 billion per

year to reach attainment with the one-hour NAAQS.!4

According to EPA, “full attainment costs of the selected

[revised] standard are estimated at $9.6 billion per year

incremental to the current standard.” EPA Office of Air

Quality Planning and Standards, Regulatory Impact

Analysis for the Particulate Matter and Ozone National

Ambient Air Quality Standards & Proposed Regional Haze

Rule ES-13, 9-1 July 16, 1997) (“EPA RIA”) (emphasis

added). EPA acknowledges its cost estimates are

incomplete, however, because new technologies will need to

standard is used in determining attainment status, however. See CAA §

186(a), 42 U.S.C. § 7512(a). Thus, the two primary standards for CO and

SO, are factually distinguishable from the one-hour and eight-hour ozone

standards. More importantly, neither the primary standards for CO nor

those for SC, have dual impleinentation schemes.

14 South Coast Air Quality Management District, Socioeconomic

Report for the 1997 Atr Quality Management Plan ES-2 (last modified

Jan. 10, 1997) <http//www.aqmd.gov/agmp/97agmp>. This cost is

estimated to result in an annual 2,264 jobs forgone in Los Angeles. Id.

While other areas tend not to publish the estimated costs of ozone

attainment, the cost of implementing extensive emissions reduction

programs clearly is substantial. See, eg., New York State Dep’t of

Envtl Conservation Air Resources, Draft Ozone Attainment

Demonstration for the New York City Metropolitan Area Including

nas 6 Cantee & Se Se See SS ee

(proposed Standard —-- Plan SIP”) for the one-hour

NAAQS for New York City-Northern New Jersey-Long Island); Texas

Natural Resources Conservation Commission, Houston-Galveston Clear

Air Rules and Plans (last modified Aug. 23, 2000)

<http://www.torce.state.tx.us/oprd/hgasip,html> (proposed SIP for the

Houston-Galveston area).

23

be developed to allow some areas to reach attainment with

the eight-hour standard. See id.15

EPA’s approach — of requiring areas such as Baltimore,

Chicago, Houston, Los Angeles, New York City,

Philadelphia, and Sacramento to do more, and more quickly,

than was provided under Subpart 2 - frustrates the

purposes of Subpart 2. Indeed, Congress set forth specific

emission reduction milestones in Subpart 2: in order to

show “reasonable further progress” toward attainment,

areas currently classified as moderate or above must achieve

emission reductions of 15 percent over the period from

November 1990 to November 1996. CAA § 182(b)(1)(A), 42

US.C. § 75lla(b)(1(A). In addition, areas currently

classified as serious or above must achieve at least a 9

percent reduction in emissions over each 3 year period from

1996 until attainment. CAA § 182(c)(2)(B), 42 U.S.C. §

751la(c(2)(B). In other words, Congress in Subpart 2

mandated slow but steady progress towards meeting the

NAAQS.

While Subpart 1 includes no specific reduction mandates,

as a practical matter States would be required to impose

15 Indeed, EPA has acknowledged that some areas will not be

capable of attaining the revised standard by 2010. See EPA RIA at ES-

4, 4-69; see also id. at 9-3 (“{TJhese areas [with the most difficult air

quality challenges will) achieve approximately one third of the reductions

needed to attain the new standards in 2010.”) (emphasis added).

According to EPA, these areas will have to rely on control technologies

that have not even been developed in order to meet the revised standard.

See id. at 9-2 (“However, for some of the areas with the most difficult air

quality challenges, substantial technological advance is needed.”). The

RIA stresses that “EPA wishes to pursue an approach analogous to that

established by Congress in [Subpart 2,] section 182(e)(5),” which allows

States to rely on new and developing technologies that are not currently

available for purposes of demonstrating that their most serious

nonattainment areas will attain the NAAQS. Id. at 9-14. In other

words, EPA intends to incorporate a provision in Subpart 2 into its

attainment program under Subpart 1 to make it easier for areas

with the current standard to show they can achieve

attainment with the revised standard.

24

more stringent emission reduction targets to meet the

deadlines for attaining the revised NAAQS. See, e.g., CAA

§ 179(d)(2), 42 U.S.C. § 7&09(d)(2) (if an area fails to attain

the relevant standard, EPA may reasonably prescribe any

measure that can be feasibly implemented in the area),

Simultaneous implementation of more stringent emission

reduction milestones under Subpart 1 would undermine

Congress’ careful balancing in Subpart 2 of environmental]

and economic concerns.

Congress cannot have intended to permit EPA so easily

to subvert the carefully wrought attainment scheme for the

existing NAAQS that Congress created in Subpart 2. When

faced with similarly “comprehensive and reticulated”

statutes, this Court has noted its “reluctan[ce] to tamper

with an enforcement scheme crafted with such evident

care.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S.

134, 146-47 (1985) (citation omitted); see also Mertens v.

Hewitt Assocs., 508 U.S. 248, 262-63 (1993) (In evaluating

“an enormously complex and detailed statute that resolved

innumerable disputes between powerful competing interests

. , [w]e will not attempt to adjust the balance between

those competing goals that the text adopted by Congress

has struck.”).!6 Similarly here, adopting EPA’s reading of

the statute would tamper with the comprehensive

implementation scheme enacted in Subpart 2, thereby

changing the balance struck by Congress between

environmental protection and economic realities.!7

16 As the D.C. Circuit found, “{tJhat 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.” ATA I, 175 F.3d at 1049. The “wide discretion

[that EPA claims under Subpart 1] is inconsistent . . . with Subpart 2, in

which the Congress stripped the EPA of discretion to decide which ozone

nonattainment areas should receive more time to reach attainment.” Id.

17 ‘The D.C. Circuit held that, because Subpart 2 applies only to the

primary ozone NAAQS, it does not preclude EPA from requiring

attainment of the secondary ozone NAAQS “as expeditiously as

CONCLUSION

The statutory language and legislative history make

abundantly clear that Congress intended Subpart 2 to serve

as the comprehensive and exclusive framework for

implementation of the ozone NAAQS. If the Court finds

that EPA can implement revised NAAQS under Subpart 1,

however, EPA could conceivably do so, consistent with the

text, structure, and history of the Act, only in areas that

have already attained the one hour ozone NAAQS pursuant

to Subpart 2. Amici take no position on Questions 1 and 2

presented by EPA in its brief.

practicable.” ATA II, 195 F.3d at 10. That holding cannot be correct.

The statute clearly establishes that areas are to focus first on attainment

of the primary standards: both Subpart 1 and Subpart 2 provide that

primary standards are to be attained “as expeditiously as practicable,

but no later than” a date certain. CAA § 172 (a)(2)(A), 42 U.S.C. §

T02(aX(2)(A); CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1). While secondary

CAA § 172(a)(2)(B), 42 U.S.C. § 7502(a2)(B), demonstrating both that

Congress considered secondary standards (which protect “public

welfare” as opposed to “public health”) to be a lower priority and that

Congress expected attainment of secondary standards generally to occur

after attainment of primary standards. Congress clearly did not intend

to allow EPA to circumvent the comprehensive and reticulated

attainment program it established under Subpart 2 for the primary

standard by implementing a more stringent secondary standard under

Subpart 1. Indeed, Congress’s express determination that areas must be

allowed to take the full amount of time specified in Table 1 of Subpart 2

to reach attainment should flatly foreclose EPA from requiring areas to

se © ome

Respectfully submitted,

GREGORY S. SLATER RICHARD P. BRESS

INTEL CORPORATION (COUNSEL OF RECORD)

5000 West Chandler Boulevard JULIA A. HATCHER

Mail Stop CH-6 404 CLAUDIA M. O'BRIEN

Chandler, AZ 85226-3699 LATHAM & WATKINS

(480) 554-4032 1001 Pennsylvania Ave., N.W.

Suite 1300

Washington, D.C. 20004

(202) 638-3690

*Counsel of Record for the Amici Curiae