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

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Supreme Court, U.S

FILED

| SEP | 1 2000

inte | CLERK

Supreme Court of the United States

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Petitioners,

AMERICAN TRUCKING ASSOCIATIONS, INC., et ai.,

Respondents.

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On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

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QUESTION PRESENTED

Whether the court of appeals correctly rejected the

Environmental Protection Agency’s standardless interpretation

of Sections 108 and 109 of the Clean Air Act, and remanded

for EPA to fashion and apply a proper interpretation of the Act.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Paciftc Legal

Foundation and the California Chamber of Commerce

respectfully request leave of the Court to file this brief amicus

curiae in support of Respondents, American Trucking

Associations, Inc., et al/.' Counsel for American Trucking

Associations and fourteen other parties, as well as the Office of

the Solicitor General, have consented by letter to the filing of

this brief. Original letters of consent will be lodged with this

Court. However, not all parties have responded, necessitating

the filing of this motion.

IDENTITY AND INTERESTS OF AMICI CURIAE

Pacific Legal Foundation (PLF) is a nonprofit, public

interest organization with thousands of supporters nationwide.

Since its establishment in 1973, PLF has researched and

litigated a broad spectrum of public interest issues. PLF

advocates a balanced approach to agency rule making and

believes that governmental decisions and policies should reflect

a careful assessment of the social and economic costs and

benefits involved.

PLF devotes substantial resources to litigation involving

environmental issues and becomes involved in cases that raise

important public policy considerations that may create

significant legal precedents. PLF is a frequent litigant in this

Court and believes its public policy perspective in support of

rational environmental protection and economic rights will

provide a necessary viewpoint on the issues presented in this

case.

The California Chamber of Commerce (Chamber) is the

largest and most broadly based employer representative in

California with a membership base of more than 11,000

' Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no

counsel for any party in this case authored this brief in whole or part

and that no person or entity made a monetary contribution

specifically for the preparation or submission of this brief.

businesses. These businesses represent every sector of

industry—small, medium, and large—and employ roughly 1.9

million people.

The California Chamber of Commerce recognizes the

importance of clean air to protect human health and the

environment; however, the Chamber has serious concerns about

the economic impacts the Environmental Protection Agency's

(EPA) revised National Ambient Air Quality Standards

(NAAQS) for particulate matter (PM) and ozone will have on

California businesses. These rules have been promulgated

despite the fact that California’s air is significantly cleaner than

it was 25 years ago and is getting better all the time. In

addition, California is already operating under the most

stringent air quality rules in the nation which places California

businesses at a competitive disadvantage. These rules will only

exacerbate this problem.

It will be more expensive for California to implement

these rules than other states because of the incremental costs in

making further emission reductions. Also, pollution controls

like best available control technology, onerous permitting fees,

and stringent enforcement practices will make operations more

costly and complicated for businesses that are currently in

compliance (or “attainment’’) areas, but will fall into non-

— (or “nonattainment”) areas because of the stricter

rules.

Many of the new “nonattainment areas” have no

experience in dealing with such stringent regulations, thus many

businesses will move to “cleaner” districts or relocate to other

states. In California alone, at least three areas will be added as

“nonattainment areas” for particulate matter and ten others for

ozone. These areas will have to develop plans by a specific

date demonstrating how they will meet the new standards. If

these areas do not comply, California could lose valuable

highway funds. This will translate into job losses and reduced

economic opportunities. Higher costs incurred by industries,

including aerospace, electronics, energy, and pharmaceuticals,

will only discourage new businesses and the expansion of

existing facilities. One study predicts that California could lose

over 10,000 jobs. Moreover, according to the Reason Public

Policy Institute, the new standards could cost California $9.1

billion to implement.

The Pacific Legal Foundation and the California Chamber

of Commerce are particularly concerned about the unwilling-

ness of EPA to consider impacts on small business and the

lower court's determination that EPA must not consider costs

and technological feasibility in setting air quality standards.

This is particularly troubling because of concerns that the rules

are not based on sound science.

According to the National Center for Policy Analysis

(NCPA), Brief Analysis, No. 236, July 17, 1997, even members

of EPA’s own Clean Air Scientific Advisory Committee

(CASAC) disagree on the need for stricter standards. Although

the EPA Administrator claims the science supporting the new

rules is indisputable, CASAC was split on what standards to

set, if any. Some committee members thought “no standards

are justified because there is no clear evidence that setting a

standard would yield tangible health benefits.” /d. at 2. The

remaining members of the committee could not agree on

whether current standards are too strict or not strict enough. /d.

Also, NCPA reports that the public never had an

opportunity to review the relevant scientific data because the

primary studies used to justify the ozone standards had not been

released by the Harvard researchers—not even to the EPA. /d.

’ toreover, there is evidence that the new standards may have an

adverse effect on public health and welfare.

Initially, the EPA estimated the new standard for

particulate matter alone would save annually more than 40,000

people from premature death. /d. But later, the EPA “revealed

that this figure is the total number of lives estimated to be saved

by ail clean air regulations.” /d. Then the EPA claimed that

20,000 lives would be saved per year by the new particulate

matter standard—50% less than its original estimate. /d. Three

months after proposing the standard, “the EPA once again

reduced its estimate after an outside researcher found a simple

mathematical error in one of [EPA’s] key studies.” /d. “This

time the EPA reduced the estimated lives saved by another 25

percent, to 15,000.” /d. “The discovery of this error has led

some analysts to question the EPA’s entire statistical analysis.”

Id. \t was Dr. Kay Jones, former senior advisor on air quality

at the President’s Council on Environmental Quality during the

Carter administration who discovered the error. Dr. Jones

completely reanalyze* the EPA’s estimates and concluded the

number is closer to 840 lives saved. /d.

Moreover, ground-level ozone has health benefits EPA

ignored. Ozone screens out potentially deadly ultraviolet

radiation. /d. According to the Department of Energy, the

required ozone reduction would: (1) “Increase malignant

cancers, causing 25 to 50 new deaths a year;” (2) “Cause as

many as 260 new cases of cutaneous melanoma and | | ,000 new

cases of nonmelanoina skin cancer,” and (3) “Cause between

13,000 and 28,000 new incidences of cataracts each year.” /d.

Some analysts estimate that the revised ozone and PM

rules “will eliminate 220,000 jobs and cost the average

household about $1,200 per year in discretionary spending.” /d.

According to the American Thoracic Society, poverty is the

number one risk factor for asthma; therefore, the new rules

“will worsen health by increasing unemployment and lowering

household income.” /d. This is the conclusion of Dr. Wendy

Gramm, former administrator of the Office of Regulatory

Affairs in the United States Office of Management and Budget

(OMB), and Susan Dudley, vice president and director of

environmental analysis at Economists, Inc. /d. Based on OMB

estimates “that for every $9 million to $12 million decline in

aggregate personal income one life is lost and EPA cost

estimates for the rules, Gramm and Dudley found that the new

ozone standard alone could result in 7,000 deaths a year.” /d

This is the type of balanced analysis the EPA should do,

but has not done, to ensure its environmental regulations are

reasonable and beneficial. Clearly, this case will set a

affecting numerous statutory schemes and literally millions of

lives. Regulations that impose bureaucratically defined

concepts for safety, environmental protection, or economic

relationships must take into account the economic and social

costs of those regulations.

For the foregoing reasons, Pacific Legal Foundation and

the California Chamber of Commerce move to file a brief

amicus curiae in this case.

DATED: September, 2000.

Respectfully submitted,

M. REED Hopper

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

‘ Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

California Chamber of Commerce

TABLE OF CONTENTS

Page

QUESTION PRESENTED

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SUMMARY OF THE ARGUMENT ..................... 3

EE Seen ndacnisencundadcesedsssadesetietesies 4

1. THE CLEAN AIR ACT DOES NOT PLAINLY

SATISFY THE NONDELEGATION DOCTRINE ..... 5

A. This Case Involves a Sweeping Delegation

of Power on a Par with Schechter ............... 5

B. Neither the Statute Nor EPA Provide Any

Guiding Principles to Determine the Level at

Which NAAQS Must Be Set ................... 7

C. Because of a Lack of Guiding Principles the

EPA Acted Arbitrarily in Setting NAAQS for

Ozone and Particulate Matter .................. 7)

il. THIS COURT SHOULD READ THE STATUTE

TO AVOID A CONSTITUTIONAL ISSUE.......... 11

Ill. AN INTELLIGIBLE PRINCIPLE CAN BE

EXTRACTED FROM SECTION 109 OF THE

CLEAN AIR ACT THAT CHANNELS THE EPA’S

ET SUPE ccc ccccccvcscececceescesess 17

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TABLE OF AUTHORITIES

Page

Cases

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.

GED 0 hbk ccccbesiksensbecdondensssveucenss 5

American Trucking Associations v. Environmental

Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999).... 1

Califano v. Yamasaki, 442 U.S. 682 (1979) ........ 15-16

City of Amsterdam v. Helsby, 37 N.Y .2d 19,

371 N.Y.S.2d 404, 332 N.E.2d 290 (1975) ........... 7

Greene v. McElroy, 360 U.S. 474 (1959) «2.2.2.2... 13-14

Loving v. United States, 517 U.S. 748 (1996) .......... 12

Mistretta v. United States, 488 U.S. 361 (1989) .. 12-13, 15

Natural Resources Defense Council v.

Environmental Protection Agency,

824 F.2d 1147 (D.C. Cir. 1987) .................. 19

Panama Refining Co. v. Rvan, 293 U.S. 388 (1935) ...... 5

Statutes and Regulations

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8 PPO TOPE CT Te ree Tore CTT ye Tee l

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62 Fed. Reg. 38,668 (1997) .....cccccccccccccvccens 12

Miscellaneous

Association of Particulate Matter Components

with Daily Mortality and Morbidity in Urban

Populations, Part 11, Sensitivity Analysis,

Research Report 95, Health Effects Institute,

Es 0.206 bb neces edevésscoseaccecs 1]

Kenneth Culp Davis, Administrative Law

Treatise 176 (Second Printing 1979) ........ 5-6, 17-18

iil

TABLE OF AUTHORITIES—Continued

Kenneth Culp Davis, Administrative Law

Treatise 211 (Second Printing 1979) .............. 17

Michael Richard Dimino, D.C. Circuit Revives

Nordelegation Doctrine... Or Does It?,

23 Harv. J.L. & Pub. Pol’y 594 (Spring 2000) ........ 7

STATEMENT OF THE CASE

The Clean Air Act sets up a scheme to regulate air

pollutants the “emissions of which, in [the Administrator’s]

judgment cause or contribute to air pollution which may

reasonably be anticipated to endanger public health or welfare.”

42 U.S.C. § 7408(a)(1)(A). The Administrator must publish

“air quality criteria” for these pollutants and establish national

ambient air quality standards (NAAQS) based on these criteria.

See id. §§ 7408-09. The standards are of two types—

“primary” and “secondary.” A “primary” standard indicates a

concentration level “requisite to protect the public health” with

an “adequate margin of safety.” Whereas a “secondary”

standard indicates a concentration level “requisite to protect the

public welfare.” /d. § 7409(b).

On July 18, 1997, the Environmental Protection Agency

(EPA) adopted new, stricter national ambient air quality

standards for ground-level ozone (smog) and particulate matter

(soot). Public outcry over the severity of these standards

resulted in congressional oversight hearings and scores of suits

from industry, states, and other parties challenging the legality

of the standards. Among others, the grounds for suit included

an argument that the EPA construed Sections 108 and 109 of

the Clean Air Act “so loosely as to render them

unconstitutional.” American Trucking Associations v.

Environmental Protection Agency, 175 F.3d 1027, 1034 (D.C.

Cir. 1999) (ATA). The Court of Appeals agreed:

Although the factors EPA uses in determining the

degree of public health concern associated with

different levels of ozone and PM [particulate matter]

are reasonable, EPA appears to have articulated no

“intelligible principle” to channel its application of

these factors; nor is one apparent from the statute.

The nondelegation doctrine requires such a principle.

See J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409, 72 L. Ed. 624, 48 S.Ct. 348

(1928). Here it is as though Congress commanded

EPA to select “big guys,” and EPA announced that

it would evaluate candidates based on height and

weight, but revealed no cut-off point. The

announcement, though sensible in what it does say,

is fatally incomplete. The reasonable person

“responds, “How tall? How heavy?”

ATA, 175 F.3d at 1034.

EPA regards ozone definitely, and PM likely, as

nonthreshold pollutants, or pollutants that have some possibility

of adverse health effects at any level above zero. Thus, the

court found EPA’s explanations for choosing one standard over

another amounted to nothing more than assertions that stricter

standards mean less pollution and less harm while less strict

standards mean more pollution and more harm. According to

the court:

Such arguments only support the intuitive

proposition that more pollution will not benefit

public health, not that keeping pollution at or below

any particular level is “requisite” or not requisite to

“protect the public health” with an “adequate margin

of safety,” the formula set out by § 109(b)(1).

Id. at 1035.

Another ground for suit was the claim that the EPA must

consider costs, technological feasibility, and other nonhealth

factors in setting the ozone and PM standards. However, the

court rejected this claim. Specifically, with respect to costs, the

court held: “As this court long ago made clear, in setting

NAAQS under § 109(b) of the Clean Air Act, the EPA is not

permitted to consider the cost of implementing those standards.

See Lead Industries, 647 F.2d [1130,] 1148 (DC Cir. 1980).”

Id. at 1040.

The court also rejected the argument that EPA erred in

failing to consider detrimental health effects that are traceable

to the cost of complying with the revised national ambient air

quality standards. Citing a previous decision in the D.C.

Circuit, the court held “it is only health effects relating to

pollutants in the air that EPA may consider.” /d. at 1041.

Nevertheless, the court did hold that EPA must consider

not only the maleficent effects of a pollutant but also the

beneficent effects. The court observed that the presence of

ground-level ozone causes respiratory problems in some people

but it also shields people from the deleterious effects of

ultraviolet radiation that can cause certain forms of cancer. /d.

at 1052.

Ultimately, the court determined that the standards not

only violated the nondelegation principle but that the ozone

standard could not be enforced due to restrictions in other

provisions of the Clean Air Act. The court also invalidated the

PM standard as arbitrary and remanded to the agency to select

a new standard.

Both sides filed petitions for writ of certiorari in this

Court. The EPA sought review of the nondelegation

determination, among other things, while the opposing parties

sought review of the scope of Section 109. Review was granted

in both instances and separate briefing is required in each case.

This case deals with the delegation issue.

SUMMARY OF THE ARGUMENT

Contrary to the claims of Petitioners, Section 109 of the

Clean Air Act does not plainly satisfy the nondelegation

doctrine. Rather, the nondelegation doctrine is not satisfied

because the authority granted EPA under the Clean Air Act is

as sweeping as that struck down by this Court in Schechter. In

addition, neither the EPA nor the Clean Air Act provide the

Administrator with an “intelligible principle” to channel her

discretion in setting NAAQS. And, as the court below found,

because of a lack ofa guiding principle, the Administrator acted

arbitrarily when she adopted emissions standards for ozone and

particulate matter.

However, to avoid the harsh remedy of invalidating the

Clean Air Act, or one of its provisions, this Court should adopt

a construction of the Act that avoids the constitutional conflict.

In both Greene and Yamasaki, this Court “assumed that

Congress intended” to afford those affected by the agency

action certain constitutional safeguards. This Court read into

the statute or law a construction that avoided a constitutional

issue. This rationale applies equally to the nondelegation

doctrine. This Court should assume, as it did in Greene and

Yamasaki, that, whether the statute expressly states so or not,

Congress intended EPA to apply the Clean Air Act in a manner

that would not allow EPA unfettered discretion to usurp the role

of Congress in making the basic policy choices covered by the

law. Congress intended, and the Act requires, that EPA adopt

an “intelligible principle” that upholds the balance of power in

our system of government and deters arbitrary agency action.

Therefore, Section 109 of the Clean Air Act requires the

Administrator of the EPA to base her decisions on clearly

articulable standards that demonstrate for the court that EPA is

acting consistent with the will of Congress.

The court below believed an “intelligible principle” could

be extracted from Section 109 of the Clean Air Act and even

suggested some possibilities. One approach suggested by the

court, the most practical approach, would involve a cost-benefit

analysis. However, the court argued this approach was

precluded by the cases in the D.C. Circuit that held EPA may

not consider nonhealth factors in setting NAAQS. But these

cases are wrong. They don’t adequately accvunt for the plain

text of the Act that requires EPA to set emission standards with

an “adequate margin of safety.” Where a pollutant, such as

ozone or particulate matter, poses a health risk at any level

above zero, the EPA must consider nonhealth factors, including

cost. For these reasons, this Court should require EPA to

identify determinate and binding principles to guide the

Administrator’s decision making as to the level of emissions

required to protect public health and safety and declare, as a

matter of law, that cost-benefit analysis is such a principle.

ARGUMENT

Petitioners claim that “[b]ecause Section 109 [of the Clean

Air Act] plainly satisfies the nondelegation doctrine, there is no

need to consider . .. whether EPA should have read Section 109

more narrowly to avoid a constitutional issue.” Brief for the

Petitioners at 26 n.20. But Petitioners are wrong. Section 109,

at least as interpreted by EPA, does not plainly satisfy the

nondelegation doctrine; therefore, this Court should read the

statute to avoid a constitutional issue.

THE CLEAN AIR ACT DOES NOT PLAINLY

SATISFY THE NONDELEGATION DOCTRINE

The nondelegation doctrine is not satisfied in this case

because (1) EPA exercises unprecedented power through the

Clean Air Act; (2) neither the statute nor EPA provide any

guiding principles for determining the level at which emission

standards must be set; and (3) because of a lack of guiding

principles, EPA has acted arbitrarily in setting NAAQS for

ozone and particulate matter.

A. This Case Involves a Sweeping Delegation

of Power on a Par with Schechter

In noting that this Court has only twice struck down a

statute based on nondelegation—Panama Refining Co. v. Ryan,

293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935)—Kenneth Davis argues that

the key may lie in the scope of the challenged law. As to the

Panama case, “parts of the Act provided for ‘delegation

running riot.” ” Kenneth Culp Davis, Administrative Law

Treatise 176 (Second Printing 1979). And,

[t]he Schechter case involved the most sweeping

congressional delegation of all time. True, the

standards, in the sense of the statutory phrases

expressing policy, were the same as those in the

Panama case-the statements in Title I of the

National Industrial Recovery Act. But the delegation

was not merely of a small power to determine

whether and when a prescribed provision should

become effective; the delegation included power to

approve detailed codes to govern all business subject

to federal authority. Not the vagueness of all the

standards but the scope of the delegation

distinguishes the Schechter case from all others. The

Court’s opinion is devoted mainly to discussion of

standards, but the court did declare: “In view of the

scope of that broad declaration, and of the nature of

the few restrictions that are imposed, the discretion

of the President in approving or prescribing codes,

and thus enacting laws for the government of trade

and industry throughout the country, is virtually

unfettered.”

Id.

This case involves a similarly sweeping delegation. To

meet its statutory mandate to establish NAAQS “requisite to

protect the public health” with an “adequate margin of safety,”

the court below acknowledged that EPA could eradicate health

risks by setting emission limits to zero, even if it meant

dismantling the industrial state:

A zero-risk policy might seem to imply de-

industrialization, but in fact even that seems

inadequate to the task (and even if the calculus is

confined to direct risks from pollutants, as opposed

to risks from the concomitant poverty). First, PM (at

least) results from almost all combustion, so only

total prohibition of fire or universal application of

some heretofore unknown control technology would

reduce manmade emissions to zero. See PM [EPA]

Staff Paper at IV-1. Second, the combustion

associated with pastoral life appears to be rather

deadly. See World Bank, World Development

Report 1992: Development and the Environment 52

(1992) (noting that “biomass” fuels (i.e., wood,

straw, or dung) are often the only fuels that “poor

households, mostly in rural areas” can obtain or

afford, and that indoor smoke from biomass burning

“contributes to acute respiratory infections that cause

an estimated 4 million deaths annually among infants

and children’’).

ATA, 175 F.3d at 1038 n.4.

Likewise, in his article critiquing the case at bar, Michael

Dimino alludes to the broad scope of agency power under the

Clean Air Act and concludes:

[T]he delegation to the EPA in the Clean Air Act

authorizes the EPA to balance public health against

the entire industrial economy. This exceeds any

delegation of authority previously upheld under

Article I.

Michael Richard Dimino, D.C. Circuit Revives Nondelegation

Doctrine .. . Or Does It?, 23 Harv. J.L. & Pub. Pol’y 594

(Spring 2000). See also City of Amsterdam v. Helsby, 37

N.Y.2d 19, 371 N.Y.S.2d 404, 332 N.E.2d 290, 299 (1975)

(“the desideratum should be safeguards proportionate to the

grant; the larger the grant, the greater the safeguards required”).

Thus without some intelligible principle to guide the

Administrator’s broad discretion under Section 109, the Clean

Air Act—much like the statutory provisions involved in

Panama and Schechter—does not plainly satisfy the

nondelegation doctrine.

B. Neither the Statute Nor EPA Provide Any Guiding

Principles to Determine the Level at Which

NAAQS Must Be Set

What the court below found most troubling about the

standard-setting process under Section 109 of the Clean Air Act

was the Administrator’s failure to articulate an “intelligible

principle” to channel her consideration of the various factors

she must weigh in setting NAAQS. See ATA, 175 F.3d at 1034.

“The nondelegation doctrine,” the court concluded, “requires

such a principle.” /d. As the court explained:

Here it is as though Congress commanded EPA to

select “big guys,” and EPA announced that it would

evaluate candidates based on height and weight, but

revealed no cut-off point. The announcement,

though sensible in what it does say, is fatally

incomplete. The reasonable person responds, “How

tall? How heavy?”

Id.

Although the court approved the factors the Administrator

considers to establish NAAQS, such as the severity of effect,

certainty of effect, and size of population affected, the court

believed these considerations did not go far enough in defining

an acceptable level of risk.

These criteria, long ago approved by the judiciary,

see Lead Industries Ass'n v. EPA, 208 U.S. App.

D.C. 1, 647, F.2d 1130, 1161 (D.C. Cir. 1980)

(“Lead Industries”), do not themselves speak to the

issue of degree.

ATA, 175 F.3d at 1035.

As the court points out, EPA is given to defending its

decision not to adopt a more severe emission limit on the basis

that there is greater uncertainty about health effects at the lower

levels. ‘In this case, for example, EPA claims it is inappropriate

to reduce the ozone standard from 0.08 to 0.07 ppm because the

more serious effects are less certain at the lower limit and the

lower limit is closer to background levels. /d. at 1036. But, the

court correctly observes that “the increasing-uncertainty

argument is helpful only if some principle reveals how much

uncertainty is too much.” /d. After all, the same could be said

for the 0.08 ppm level as for the 0.07 ppm level. 0.08 ppm has

less certain health effects than 0.09 ppm and it is closer to

background levels too. The principle EPA invokes to set each

level of emissions is, according to the court, simply that it is

“possible, but not certain” that health effects exist at that level.

ATA, 175 F.2d at 1036. But this principle could just as easily

justify a standard of zero. /d.

In this case, EPA has provided no limiting principle, nor

pointed to such a principle in the statute. Rather, EPA’s

explanations for its ozone and particulate matter standards

amount to mere assertions

that a less stringent standard would allow the

relevant pollutant to inflict a greater quantum of

harm on public health, and that a more stringent

standard would result in less harm. Such arguments

only support the intuitive proposition that more

pollution will not benefit public health, not that

keeping pollution at or below any particular level is

“requisite” or not requisite to “protect the public

health” with an “adequate margin of safety,” the

formula set out by § 109(b)(1).

Id. at 1035.

The result of the EPA’s indefinite approach to setting

NAAQS is that the Administrator is “free to pick any point

between zero and a hair below the concentrations yielding

London’s Killer Fog,” whereby 4,000 deaths in one week are

attributed to high levels of soot in the air. /d. at 1037. Thus, in

the absence of an intelligible principle to guide the

Administrator in setting NAAQS, the statute does not plainly

satisfy the nondelegation doctrine.

C. Because of a Lack of Guiding Principles the

EPA Acted Arbitrarily in Setting NAAQS

for Ozone and Particulate Matter

In support of their claim that the Administrator is cabined

by strict standards, Petitioners recite the complexity of the

Clean Air Act, the opportunity for public input and the specific

criteria that the Administrator must consider to set NAAQS.

See Brief for the Petitioners at 24-25. But these factors do not

go to the crucial question of degree (critical to the court below).

Nor do they constitute a meaningful guide for, or constraint on,

agency rule making as evidenced by the EPA’s arbitrary

adoption of ozone and particulate matter standards in this case.

The court below had good cause to find the Administrator acted

capriciously and remand the rules back to the agency for

reconsideration and adoption of determinate and binding

standards.

Although Petitioners imply the experts the Administrator

consulted were supportive of her adoption of the 0.08 ppm

ozone standard, nothing could be further from the truth.

Section 109(d) of the Act establishes the Clean Air Scientific

Advisory Committee or CASAC. This eminent scientific

committee reviews the evidence on which the Administrator

relies and makes recommendations for NAAQS. With respect

to the ozone standard, however, the advisory committee was

unable to make a scientific recommendation. Citing lack of

conclusive studies and the fact that ozone is a nonthreshold

pollutant that could have adverse health effects at any

concentration, the committee acknowledged the selection of an

ozone standard above zero must be a matter of policy rather

than science. Thus, the CASAC members offered only what

they termed “personal preferences.” Four experts favored an

ozone standard of at least 0.09 ppm, whereas three experts

favored 0.08 ppm, and one expert favored a range of 0.08-0.09

ppm. See Brief for Cross-Petitioners (related case 99-1426) at

7. The court below rejected the CASAC “recommendations” as

baseless. ATA, 175 F.3d at 1035-36.

Moreover, the EPA refused to allow CASAC to review

scientific literature that showed the positive health effects of

ground-level ozone. Brief for Cross-Petitioners at 8. The

United States Department of Energy sought to impress the

importance of this literature on CASAC with testimony that the

ozone standard proposed by the Administrator would produce

approximately 2,000 to 11,000 additional cases of skin cancer

per year, including 25 to 30 deaths per year, and 28,000

additional cases of cataracts annually. /d. at 9. The Office of

Management and Budget also concluded that the adverse effects

of the Administrator’s ozone standard would be comparable in

magnitude to the positive effects of the standard. Jd. CASAC

members expressed an interest in reviewing the literature on

this subject and “EPA conceded that DOE’s concern ‘could be

big,’” but the Administrator prohibited a consideration of the

data. /d. This crabbed view of what the Clean Air Act required

caused the circuit court to opine:

[I]t seems bizarre that a statute intended to improve

human health would, as EPA claimed at argument,

lock the agency into looking at only half of a

substance’s health effects in determining the

maximum level of that substance.

ATA, 175 F.3d at 1052.

Scientific support for the EPA’s particulate matter

standard was no greater than that provided for ozone. CASAC

was split on the level of emissions that should be regulated for

certain types of particulate matter. With respect to fine

particulate matter only two of the twenty-one experts on the

advisory committee endorsed the standard proposed by the

ete

Administrator while eight experts opposed any such standard.

Brief for Cross-Petitioners at 15. According to the CASAC

report, those in opposition “‘were influenced, to varying

degrees, by the many unanswered questions and uncertainties

regarding the issue of causality,”” particularly the inconclusive-

ness of epidemiological studies on which the Administrator

relied. /d.

Moreover, these epidemiological studies were not made

available for public review and comment. Only after the

regulations had been adopted and Congress demanded a review

of the data did EPA submit the data to the Health Effects

Institute (HEI) for re-analysis. HEI only recently released the

results of its study, about three years after the EPA finalized its

regulations. While EPA claims the data prove that particulate

matter in the air is responsible for thousands of deaths each

year, justifying onerous regulations and billions in costs, HEI

was considerably less certain. The institute guardedly

concluded: “{I]t is important to bear in mind that the results of

our reanalysis alone are insufficient to identify causal relations

with mortality.” Association of Particulate Matter Components

with Daily Mortality and Morbidity in Urban Populations,

Part II, Sensitivity Analysis, Research Report 95, Health Effects

Institute, 236 (August 2000).

Contrary to Petitioners’ assertions, the statutory and

administrative standards that apply to NAAQS do not cabin the

discretion of the Administrator. To the contrary, her arbitrary

selection of emission limits for ozone and particulate matter in

this case demonstrates, as the lower court concluded, the danger

inherent in a rule-making process that is not guided by a

specific and intelligible principle. Section 109 of the Clean Air

Act does not plainly satisfy the nondelegation doctrine.

Therefore, this Court should read the statute to avoid a

constitutional conflict.

THIS COURT SHOULD READ THE STATUTE

TO AVOID A CONSTITUTIONAL ISSUE

Petitioners recognize that the nondelegation doctrine is

“rooted in the principle of separation of powers.’” Brief for

Petitioners at 21 (quoting Mistretta v. United States, 488 U.S.

361, 371 (1989)). They also recognize that**‘[t]he fundamental

precept of the delegation doctrine is that the lawmaking

function belongs to Congress, U.S. Const., art. 1, § 1, and may

not be conveyed to another branch or entity.’ Brief for

Petitioners at 21 (quoting Loving v. United States, 517 U.S.

748, 758 (1996)). Nevertheless, the EPA Administrator asserts

she may set National Ambient Air Quality Standards pursuant

to her own policy preferences without pointing to any guiding

principles to avert arbitrary decision making. According to the

Administrator, the selection of NAAQS is “largely judgmental

in nature” and she is obliged to follow “no generalized

paradigm.” 62 Fed. Reg. 38,688 (1997) (to be codified at

40 C.F.R. pt. 50).

Petitioners hold in disdain the lower court’s determination

that the Administrator must establish a “ ‘determinate criterion

for drawing lines’ and suggest such a standard is contrary to

the purpose of the nondelegation doctrine and requires EPA to

“supply a single principle that would enable the court to

conclude that EPA’s NAAQS are set at what the court deems

exactly the ‘right’ level.” Brief for the Petitioners at 26-27. But

this hyperbolic reading of the decision below is inaccurate both

as to the court’s holding and the result of that holding.

The D.C. Circuit did not require EPA to set a “single

principle” to control NAAQS or to satisfy the court’s subjective

belief as to the “right level” of emissions. Rather, the court

directed EPA to develop “determinate, binding standards for

itself” to reduce the likelihood that the Administrator will

“exercise the delegated authority arbitrarily” and to “enhance

the likelihood that meaningful judicial review will prove

feasible.” ATA, 175 F.3d at 1038. This is in full harmony with

the purposes of the nondelegation doctrine and the precedents

of this Court. This Court has said:

Only if we could say that there is an absence of

standards for the guidance of the [agency’s] action,

so that it would be impossible in a proper proceeding

to ascertain whether the will of Congress has been

obeyed, would we be justified in overriding its

choice of means for effecting its declared purpose

Mistretta, 488 U.S. at 379 (quoting Yakus, 321 U.S. at 425-26).

The “absence of standards for the guidance of. . . lagency]

action” is apparent in this case. Under EPA’s interpretation of

the Clean Air Act, it is impossible for a court to determine

whether the will of Congress has been obeyed. This is a clear

violation of the nondelegation doctrine which would require

overriding the statute. However, as the court below observed,

the harsh result of invalidating the Act can be avoided by proper

statutory construction—a construction that recognizes Congress

intended, and the Act requires, that EPA adopt an “intelligible

principle” that upholds the balance of power in our system of

government and deters arbitrary agency action.

Consider the case of Greene v. McElroy, 360 U.S. 474

(1959). In that case, this Court considered whether the

President or Congress had delegated to the Department of

Defense, in an industrial security program, the authority to deny

an individual the opportunity to follow his chosen private

profession without the safeguard of a fair hearing. The

petitioner was general manager of a private corporation that

developed for the Armed Forces goods involving military

secrets. Under regulations adopted by the Secretary of

Defense, petitioner was denied security clearance without

access to adverse information or an opportunity to cross-

examine witnesses that allegedly established his Communistic

sympathies. Consequently, petitioner was fired and he was

unable to obtain employment elsewhere. Petitioner sued

claiming the revocation of his security clearance was unlawful.

The Secretary argued that the President has inherent

authority to maintain military secrets inviolate and that a

statutory grant of authority to revoke a security clearance

without a full hearing may be inferred from congressional

legislation dealing with the armed services. /d. at 495.

However, this Court reframed the question:

But the question which must be decided in this case

is not whether the President has inherent power to

act or whether Congress has granted him such a

power; rather, it is whether either the President or

Congress exercised such a power and delegated to

the Department of Defense the authority to fashion

such a program.

ld. at 496.

After a recitation of certain principles that “have remained

relatively immutable” in this Court’s jurisprudence, such as the

right to confront one’s accusers, this Court found that neither

the President nor Congress had expressly delegated to the

Secretary authority to deprive a private contractor of his

security clearance without a full evidentiary hearing. An

explicit statement, this Court held, is constitutionally required.

[I]t must be made clear that the President or

Congress, within their respective constitutional

powers, specifically has decided that the imposed

procedures are necessary and warranted and has

authorized their use.

Id. at 507.

And further,

[t]hey must be made explicitly not only to assure that

individuals are not deprived of cherished rights

under procedures not actually authorized, see Peters

v. Hobby, supra, but also because explicit action,

especially in areas of doubtful constitutionality,

requires careful and purposeful consideration by

those responsible for enacting and implementing our

laws. Without explicit action by lawmakers,

decisions of great constitutional import and effect

would be relegated by default to administrators who,

under our system of government, are not endowed

with authority to decide them.

Id.

- 15

However, this Court concluded that where administrative

action raises serious constitutional questions, this “Court has

assumed that Congress or the President intended to afford those

affected by the action” traditional constitutional safeguards. /d.

That is, this Court assumed a statutory construction that avoided

a constitutional conflict, and read into the law a requirement for

a fair hearing.

This reasoning is applicable to the case at bar. Like

Greene, this case raises serious constitutional questions about

congressionally delegated authority. As immutable as the right

to confront one’s accusers is the bedrock principle of separation

of powers that is upheld by the nondelegation doctrine inherent

in Article I. Indeed, as this Court has noted, the nondelegation

doctrine is “rooted in the principle of separation of powers.”

Mistretta v. United States, 488 U.S. at 371. Thus, this Court

may assume that Congress intended to afford those affected by

the Clean Air Act the traditional constitutional safeguard of a

legitimate delegation of power.

In Greene, this Court found a hearing is statutorily

required for revocation of security clearance although no statute

specifically required such. Likewise, this Court should find a

requirement for a guiding principle in the establishment of

NAAQS under the Clean Air Act.

This Court’s decision in Califano v. Yamasaki, 442 U.S.

682 (1979), which relied on Greene, further illustrates this

point. Yamasaki involved a question of procedure under the

Social Security Act. Section 204 of the Act authorized the

government to recoup overpayments of social security benefits

by adjusting future payments. The normal practice allowed the

Secretary of the Department of Health, Education, and Welfare

to make an ex parte determination of overpayment. Only after

that determination would the recipient have an opportunity for

an oral hearing, if the recipient requested it.

This Court found no express provision in the Act requiring

a prerecoupment hearing. However, to avoid a constitutional

conflict, this Court assumed that such a hearing is statutorily

required.

Due respect for the coordinate branches of govern-

ment, as well as a reluctance when conscious of fall-

ibility to speak with our utmost finality, see Brown ..

Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,

concurring in result), counsels against unnecessary

constitutional adjudication. And if“a construction of

the statute is fairly possible by which [a serious

doubt of constitutionality] may be avoided,” Crowell

v. Benson, 285 U.S. 22, 62 (1932), a court should

adopt that construction. /n particular, this Court has

been willing to assume a congressional solicitude for

fair procedure, absent explicit statutory language to

the contrary. See Greene v. McElroy, 360 U.S. 474,

507-508 (1959).

Yamasaki, 442 U.S. at 692-93 (emphasis added; brackets in

original).

Thus, this Court read into Section 204 of the Social

Security Act a requirement of constitutional regularity that

provided traditional safeguards but avoided the harsh remedy of

invalidating the statute or one of its provisions. This rationale

applies equally to the nondelegation doctrine. This Court

should assume, as it did in Greene and Yamasaki, that whether

the law expressly states so or not, Congress intended the Clean

Air Act to be administered by EPA in a manner that would not

allow EPA unbridled administrative discretion so as to usurp

the role of Congress in making the basic policy choices covered

by the law. Congress intended, and the Act requires, that EPA

adopt an “intelligible principle” that upholds the balance of

power in our system of government and deters arbitrary agency

action. Therefore, Section 109 of the Clean Air Act requires the

Administrator of the EPA to base her decisions on clearly

articulable standards that demonstrate for the court that EPA is

acting consistent with the will of Congress.

AN INTELLIGIBLE PRINCIPLE

CAN BE EXTRACTED FROM SECTION 109

OF THE CLEAN AIR ACT THAT CHANNELS

THE EPA’S DECISION MAKING

Although the lower court found that EPA’s interpretation

of the Clean Air Act violated the nondelegation doctrine, the

court remanded the case to the agency rather than invalidate the

Statute.

Where (as here) statutory language and an existing

agency interpretation involve an unconstitutional

delegation of power, but an interpretation without

the constitutional weakness is or may be available,

our response 1s not to strike down the statute but to

give the agency an opportunity to extract a

determinate standard on its own. Lockout/Tagout I,

938 F.2d at 1313.

ATA, 175 F.3d at 1038.

Remand, the court said, serves the rationales of the

nondelegation doctrine of reducing the likelihood that the

agency will “exercise the delegated authority arbitrarily” and

enhancing “the likelihood that meaningful judicial review will

prove feasible.” /d.

Although the court acknowledged the difficulties inherent

in articulating an intelligible principle that will guide the

Administrator in setting the level of emissions for NAAQS, the

court was optimistic that EPA could find such a principle.

Kenneth Davis is equally optimistic:

The weakness of a judicial requirement of statutory

standards is that legislators are often unable or

unwilling to supply them. The strength of 2 judicial

requirement of administrative standards is that, with

the nght kind of judicial prodding, the administrators

can be expected to supply them.

Kenneth Culp Davis, Administrative Law Treatise 211 (Second

Printing 1979).

The lower court even offered some suggestions. For

example, the court seemed to approve a standard suggested by

the dissent that emission limits reflect controllable human

activity and not uncontrollable natural levels. The problem in

this case was that the EPA never suggested it.

EPA’s language, coupled with the data on

background ozone levels, may add up to a

backhanded way of saying that, given the national

character of NAAQS, it is inappropriate to set a

standard below a level that can be achieved

throughout the country without action affirmatively

extracting chemicals from nature. That may well be

a sound reading of the statute, but EPA has not

explicitly adopted it.

ATA, 175 F.3d at 1027, 1036.

The court suggested the familiar “more probable than not”

criterion might be appropriate in some cases and even

recommended EPA take a close look at the standards utilized by

the State of Oregon (which the court discussed at length) in

establishing its health plan for the poor. /d. at 1039.

But the most practical standard the court suggested for an

“intelligible principle” is a cost-benefit analysis. /d. at 1038.

This approach would address the concerns of Respondents and

avoid a constitutional conflict. The only problem the court

found with this approach is the circuit’s own cases that interpret

Section 109 to bar EPA from considering any nonhealth factors

in setting NAAQS. However, these cases are wrong.

As we argued in the companion case (99-1426) to this

case, Section 109 of the Clean Air Act requires the EPA to set

ambient air quality standards to protect public health and

welfare, but with “an adequate margin of safety.” That term

implies discretion and requires the EPA to consider nonhealth

factors. In interpreting a similar term under Section 112, that

requires the EPA to set standards for hazardous pollutants with

“an ample margin of safety,” the D.C. Circuit Court of Appeals

determined that term does not preclude the EPA from

considering costs, technological feasibility, or other nonhealth

wee

factors. See Natural Resources Defense Council v. Environ-

mental Protection Agency, 824 F.2d 1147 (D.C. Cir. 1987)

(Vinyl Chloride). Rather, the court determined the text of the

statute granted considerable discretion to the EPA to set

emission standards and that such discretion is necessary because

of the scientific uncertainty associated with determining a safe

level of exposure for substances for which there may be no

“risk-free” limit. The court held that a determination of what is

“safe” must be made only with a consideration of health-related

factors, but that the EPA had wide latitude in what it could

consider to set the appropriate margin of safety.

The language of Section 109 is almost identical to the

language of Section 112. Therefore, the term “adequate margin

of safety” should be understood to mean, as with Section 112,

that EPA can consider nonhealth factors in setting NAAQS. In

fact, since ozone and particulate matter are considered

‘“nonthreshold” substances—substances that may affect health

at any exposure level above zero—it would be hard to credit

how the EPA could set an “adequate margin of safety,” except

at zero emissions, without a consideration of nonhealth factors.

For these reasons, this Court should determine that EPA

must extract an “intelligible principle” from Section 109 of the

Clean Air Act to channel its decision making and that a cost-

benefit analysis is, as a matter of law, such a principle.

CONCLUSION

Section 109 of the Clean Air Act does not plainly satisfy

the nondelegation doctrine. To the contrary, without an

“intelligible principle” by which to measure the level of risk,

the Act plainly violates the nondelegation doctrine. However,

this Court can avoid a constitutional conflict by assuming, as it

has in other cases, that Congress intended the EPA to apply the

Clean Air Act in a constitutional manner; that is, with some

“intelligible principle” that would avert arbitrary agency action.

Such a principle is the cost-benefit analysis. The Act does not

preclude such analysis. It requires it.