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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A29

## Record

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

## Text

& | 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 —
LABLE COPY F
Ce eee as mt ax: De ie} axe wigs of a's pease 4 we a
bE tee 4 ! as ey Se ee

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) . 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)

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A29. Public record. Not legal advice.