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

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...............::::::::c:eseeeeretreee rere i

INTRODUCTION ..........:::cccscccesseeeeeeseseeseensessesentneenenertrasenes l

INTEREST OF AMICUS CURIAE ............:c ey 2

STATEMENT OF FACTS...........:::::::ceeseeeeseseseeenepennesseeeennes 3

SUMMARY OF ARGUMENT ..............:::::::: ects 8

ARGUMENT. ..........:..00:::ccccscscssscvssscesrsesscesssssnnnsesnsecensenserens 9

1. The Court of Appeals Was Correct In

Remanding The Rulemakings to EPA In

Order to Allow the Agency to Explain

Its Reasoming ................:c:ccccerseereeretteteetes 9

II. EPA’s Interpretation of § 109 of the

Clean Air Act Leads to Absurd and

Unjust Results ................::ccccceseeeenererereesenes 12

III. EPA Must Consider Costs and Other

Social and Economic Factor When It

Identifies a Level of Ozone That Is

“Requisite” to Protect “Public Health.” .........15

CONCLUSION ..........:::0:ccccccccsessesseesssenseesssesenssensessenssenseenees. 16

TABLE OF AUTHORITIES

CASES

Amalgamated Meat Cutters v. Connally,

337 F. Supp. 737 (D.D.C. 1971) coco cccccccccssssssssessssssessssseeeeee 8

American Lung Association v. EPA,

134 F.3d 388 (D.C. Cir. 1998), cert. denied

ry toe Ti, 1

American Trucking Associations, Inc. v.

United States Environmental Protection Agency,

175 F.3d 1027 (DC. Cir.), rehg denied,

bee me Cy lome BR 1,5

Carter v. Carter Coal Co.,

EPO U.S. ZEB (1GIG).....cecceccccescesccesseccesceeeenetne ll

Holy Trinity Church v. United States,

143 U.S. 457 (2ODBD..nccsccsoecvevencsonsosssossssslisunuenannnnna 12

Industrial Union Department v.

American Petroleum Institute,

ea dP LA |) 8,9, 11

International Union, UAW v. OSHA,

938 F.2d 1310(DC. Cir. 1991), on remand.

37 F.36 66S (DC. Cop. BOD escnsesecscssssessssseeee 11, 14

Lead Industries Assn v. EPA,

647 F.2d 1130(D.C. Cir. 1980.) ooo. 15

Loving v. United States,

SOT U.S. FAB CIGDGD ccccsecccoccoscoosescsedecsessnesnsune nan 8

Mistretta v. United States,

RE ON 8

Natural Resources Defense Council v. U.S. EPA,

IE I, TIT oc cccnscesscsecuntvescssoorsecorsssesseseess 9

a ,

Py ery ia cece 4

STATUTES

Neen a, canesessvseaneescsoot 2

42 U.S.C. §§ 7407-7410 ooo 2

42 U.S.C. §§ 7408(a2)( A), (D2) oo... eteteteeeeeeeeee 7

Ne a cascccscssssnnscnscssvsssosesneserecssnescees 2,8

scr scacntnasssccctosenne | eae

rs ccanstbsecenseen: Seine Re

os acnnesicsensnecesoscsconeeee erence Te

National Ambient Air Quality Standards for Ozone.

Final Rule, 62 Fed. Reg. 38,855 (July 18, 1997) 0.0... 4,5

National Ambient Air Quality Standards for Ozone

Proposed Decision, 61 Fed. Reg. 65,728

(December 13, 1996) 0... 9 4 5 5

56 Fed. Reg. 56694 (November 6, 1991) ........ : ee

Proposed Rule, 61 Fed. Reg. at 65727 en 5,6

i —

BRIEF OF AMICI CURIAE COMMONWEALTH

OF VIRGINIA

The the Commonwealth of Virginia (“the Amici State”)

submits this brief as amici curiae in support of the American

Trucking Association, Inc. and the States of Michigan, Ohio,

and West Virginia. The Amici State supports the affirmation

of the decision of the United States Court of Appeals for the

District of Columbia Circuit in American Trucking

Associations, Inc. v. United States Environmental Protection

Agency, 175 F.3d 1027(DC. Cir.), reh'g denied, 195 F 3d 4

(DC. Cir. 1999), which remanded the Environmental

Protection Agencv’s (“EPA’s”) revised national ambient air

quality standards (“NAAQS”) for ozone and fine particulate

matter

INTRODUCTION

This is not a case about whether cleaner air should be a

national priority. The Amici State agrees that it must be, and

Congress has so declared it. Instead, this is a case about how

the standards for cleaner air shall be set. Are federal

regulators to have unlimited discretion to set whatever

arbitrary standards they wish? Or shall they be held

accountable for what they do by being required to explain

their decisions and base them on facts? More specifically,

this case is a contest between two competing constructions of

the key provision of the Clean Air Act, section 109, under

which EPA is to set NAAQS “the attainment and

maintenance of which in the judgment of the Administrator,

based on such criteria and allowing an adequate margin of

' This brief focuses on the ozone rulemaking. In the relating

particulate matter proceeding before the court of appeals, the court

held also that EPA violated the nondelegation doctrine. The Amici

further supports the court's holding in this regard and believe that

it dictates a similar conclusion in this case.

2

safety, [as] are requisite to protect the public health” 42

USC. § 7409%b). Presented with two _ possible

interpretations of § 109 - one that allows EPA unconfined

and limitless discretion to alter the NAAQS and one that

affords “intelligible principles” upon whieh to base such a

change - the court of appeals was correct in adopting the

latter. That is, the court was wholly justified in forcing EPA

to explain its decision to revise air quality standards in such a

manner as to facilitate a court’s review.

INTEREST OF AMICUS CURIAE

The protection of public health and the environment is of

manifest importance to the Commonwealth In the

furtherance of this policy, it fully supports strict regulation of

air pollutants which threaten these interests. Congress

established under the Clean Air Act, 42 U.S.C. § 7401, ef

seq. (“CAA”), a unique federal-state partnership for

controlling air pollution. Under this partnership, EPA sets

and revises the NAAQS under § 109; the States maintain

primary responsibility for achieving these standards. CAA

§§ 107-110, 42 USC. §§ 7407-7410.

The Commonwealth has a unique interest in ensuring

that the § 109 is construed in a way that best protects the

public health and welfare of Virginians as well as their social

and economic well being. It also strongly believes that the

statute must be construed to uphold Congress’ federal-state

partnership. The Commonwealth is uniquely positioned to

provide public law and policy arguments on these points on

behalf of its citizens.

EPA’s decisions in this case upset this federal-state

partnership. EPA set new air quality standards without

adequately articulating the health and environmental benefits

of such action. While the benefit to health is not clear, there

is no doubt that EPA’s action would have vast and far

ranging consequences to the welfare of all Virginians. And,

3

as the State partner under the Act, it is left to enforce such

standards which may have been altered without adequate

justification.

This amicus brief is submitted under S. Ct. Rule 37,

which allow the States to file such briefs without permission

of the parties and without leave of court.

STATEMENT OF FACTS

The parties have submitted lengthy briefs setting forth

the detailed statutory and factual background of this case.

The Commonwealth will not repeat that background here. It

is necessary, however, to draw attention to facts which

underscore the impact of EPA’s standardless rulemaking in

this case.

In the 1990 Amendments to the Clean Air Act, Congress

revised the air quality standard for ozone at 12 part per

million (“ppm”). 42 U.S.C. § 7511(a).? Ozone, unlike many

other pollutants, is not directly emitted by sources. Instead,

it is formed from the mixture of two chemical precursors,

nitrogen oxides (“NOx”) and a group of hydrocarbon

pollutants called volatile organic compounds (“VOCs” a

> As a result, States made designations for areas that did not meet

the Congress’ standard (“nonattainment areas”) and EPA

designated approximately 100 areas in the country as

nonattainment for ozone. 56 Fed. Reg. 56694 (November 6, 1991).

Congress included in its Amendments specific attainment

deadlines for these areas; those deadlines are keyed to whether

areas were classified as either “marginal,” “moderate,” “serious,”

“severe,” or “extreme.” CAA § 181(a)(1); 42 U.S.C. § 751 1(a)(1).

> These precursors cook in the sun, during hot weather, and

produce ozone through a complex chain of chemical reactions.

The creation of ozone is a seasonal phenomenon, with

concentrations peaking in the summer, and as a diurnal

occurrence, with concentrations peaking during the afternoon and

4

These precursors originate from a wide variety of natural and

man-made sources. Indeed, they come from virtually every

facet of modern American life, including operating

automobiles, trucks, buses, trains, manufacturing facilities,

and electrical power plants.

Congress’ ozone scheme has been quite effective in

reducing ozone levels throughout the United States.

According to EPA data, between 1987 and 1996, ambient

ozone concentrations in the United States decreased by 15

percent, exceedances of the NAAQS decreased by 73

percent. Office of Air Quality Planning and Standards, EPA,

National Air Quality and Emissions Trends Report, 1996,

EPA Doc. NO. 454/R-97-013,

Virginia's air quality has greatly improved under

Congress’ mandate. In the early 1990s, Virginia designated

eleven counties and seventee cities in nonattainnent for the

ozone NAAQS. VR 120-01, Appendix K, January 1, 1992.

Today, only the five counties and five cities in Northern

Virginia, surrounding Washington DC. are in

nonattainment. 9 VAC 5-20-204.

Against this backdrop of improving air quality, EPA

adopted new and far more stringent air quality standards for

ozone, reducing allowable levels from the .12 ppm standard

to 08 ppm measured over an 8-hour period. National

Ambient Air Quality Standards for Ozone: Final Ku.e, 62

Fed. Reg. 38,855 (July 18, 1997). EPA did so without

pinpointing specific health benefits, if any, of this radical

change or demonstrating why the change was required. EPA

found it hard to differentiate health benefits associated with

this new standard or to demonstrate the elimination of a

falling during the might. See Virginia v. EPA, 108 F.3d 1397 (D.C.

Cir. 1997).

-——————

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5

significant risk to public health, The Clean Air Scientific

Advisory Committee (“CASAC”), upon which EPA relies in

setting air standards, advised EPA that “there is no ‘bright

line’” distinguishing any of the alternatives as “significantly

more protective of public health.” Letter from George

Wolff, Chairman, CASAC, to Carol Browner, Administrator,

regarding CASAC Closure on the Primary Standard Portion

of the Staff Paper for Ozone at 3 (November 30, 1995). It

even highlighted a particular study demonstrating “small”

health differences between “outdoor” children exposed to

ozone at the existing 12 standard and those exposed to

ozone at levels even more stringent that the 08 standard at

issue. /d In fact, CASAC was divided as to what ozone

standard to adopt; a majority of the members supported a

standard less stringent than 08 ppm. National Ambient Air

Quality Standards for Ozone: Proposed Decision, 61 Fed.

Reg. 65,728 (December 13, 1996).

Moreover, EPA seemingly ignored other important

public health information relevant to ozone. For example,

EPA acknowledged that, due to ozone’s screening effect on

harmful ultraviolate radiation, the reduction in ozone levels

mandated by its new standard will increase malignant and

nonmelanoma skin cancers and cataracts. EPA, Calculations

of the Impact of Tropospheric Ozone Changes on UV-B Flux

and Potential Skin Cancers (Draft September, 1994). The

Department of Energy predicted literally thousands of new

cases of skin cancer and cataracts each year. Statement of

Marvin Frazier, DOE Office of Health & Environmental

Research, Before CASAC (March 21, 1995).

As a result, EPA offered only vague references to “the

nature and severity” of health effects, “the size of the

sensitive population(s) at risk,” and the “kind and degree of

uncertainties that must be addressed.” 175 F 3d at 1034-35,

citing Ozone Final Rule, 62 Fed. Reg. at 38,883. In short,

EPA’s decision is not based on science. See Proposed Rule,

61 Fed. Reg. at 65727.

While there is not clear health benefit, there is no doubt

that this rulemaking would have vast and far ranging

consequences. Nationwide, the new standard will place 20%

of American counties into nonattainment. Brobeck, Phleger

& Harrison LLP, Science and the High Cost of Cleaner Air,

October 19, 1997. EPA’s own regulatory impact analysis

estimates the overall cost of complying with the NAAQS to

be $9.6 billion annually. Innovative Strategies and

Economics Group, EPA, Regulatory Impact Analysis for the

Particulate Matter and Ozone National Ambient Air Quality

Standards and Proposed Regional Haze Rule ES-12 (1997).

By contrast, EPA estimates total yearly benefits from

compliance at between $1.5 and $8.5 billion. /d at ES-17.

Other studies are not so conservative. The American

Petroleum Institute estimates the cost of achieving the new

NAAQS ranging from $2.5 to 7.0 billion im the Chicago

metropolitan area alone. The Monetary Benefits of An 8-

Hour 0.08 ppm Ozone Standard in Chicago, Research Study

# 085, August, 1996. Another study suggests costs of $40 to

$60 billion per year. Science and the High Cost of Cleaner

Air, Brobeck, Phleger & Harrison LLP, October 19, 1997.

In Virginia, preliminary projections indicate that 17

counties and 21 cities will be in nonattainment under the .08

standard, including all of its major metropolitan areas. This

portends profound economic and social consequences for the

Commonwealth and its citizens.

In practical terms, States, which must implement the new

standard, will be required to limit emissions from “sources,”

* Once EPA revises an air standard, the Act requires that the

Commonwealth develop and submit to EPA a._ state

implementation plan (“SIP”) under which it will implement,

maintain and enforce the new standard. CAA §110(a)(1); 42

U.S.C. 7410(a(1). The SIP must “include enforceable emission

limitations and other control measures, means, or techniques

——— eee _- —_ <a -

including automobiles, trucks, buses, trains, manufacturing

facilities, refineries, and electrical power plants) A

manufacturing plant, for example, may be forced to reduce

emissions to meet State requirements by shifting capital from

plant expansion to the purchase of advanced technology

pollution control equipment or by reducing its hours of

operation. CAA §§ 108(a)(2)A), (b)(2), 42 USC. §§

7408(a)(2)(A), (b)(2). Either option could cost workers jobs

and result in higher prices for consumers. An electric utility

may be forced to reduce emissions by changing its fuel

source to cleaner burning coal imported from outside the

region, thus driving up prices for consumers. Ordinary

citizens may be required to reduce automobile emissions by

submitting to emissions testing and making expensive

equipment upgrades for older models. CAA 8§§

182(a)(2B)(i), (b)(4), (c3),; 42 U.S.C. §§ 7511. In some

cases, States may even be required to institute transportation

control measures to offset growth or bring emissions within

projected levels. CAA §§ 182 (c)(5, (d)(1)(A), 42 U.S.C. §§

75lla. That is, citizens may be required to curtail

automobile travel and the use of recreational vehicles and

other mechanized equipment. In addition, in nonattainment

areas, businesses are unable to locate or expand unless new

emissions are offset by reductions elsewhere. See CAA §§

182(a)(4), (b)(S), (cK 10) (d)(2), (eM 1), 42 U.S.C. § 7511.

Faced with a choice between locating in a nonattainment or

attainment area, businesses will pass by the nonattainment

area in favor of other areas. Whole communities will be

shackled from development, stunting growth, development,

and quality of life for its citizens.

(including economic incentives such as fees, marketable permits,

and auctions of emissions rights), as well as schedules and

timetables for compliance, as may be necessary or appropriate to

meet the applicable requirements of this Act.” CAA $110

(a)(2)(A); 42 U.S.C. 7410(a)(2)(A).

The costs are even higher under the Act if a State fails to

implement such measures in nonattainment areas. The Act

allows the Administrator to choose between cutting of

federal highway funds and imposing additional emission

offset requirements for new source permits. CAA § 179; 42

U.S.C. § 7509. One estimate suggests that 72% of highway

construction jobs in Virginia would be threatened by such

sanctions and $311,000,843 in highway funds are at stake.

Economic Impact of Proposed EPA Ozone and PM

Standards on the US Highway Construction Industry,

ARTBA, (May, 1997).

Certainly, radical changes such as the new ozone

standard must be based on “intelligible principles” that will

facilitate a court’s review. EPA failed to articulate such

principles. Rather, it hides behind laudable statutory goals;

at the same time, it conceals the real policy driven basis for

the regulatory actions at issue.

SUMMARY OF ARGUMENT

A federal agency must explain its regulatory decisions in

such a manner as to allow “meaningful judicial review.”

Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737,

759 (D.D.C. 1971) (three judge panel). E£.g., Loving v.

United States, 517 U.S. 748, 771 (1996); Mistretta v. United

States, 488 US. 361, 379 (1989). The nondelegation

doctrine “ensures that courts charged with reviewing the

exercise of delegated legislative discretion will be able to test

that exercise against ascertainable standards.” /ndustrial

Union Dept. v. A rican Petroleum Institute, 448 U.S. 607,

685-86 (1980) (“Benzene”).

Under section 109(b), EPA is to set NAAQS “the

attainment and maintenance of which in the judgment of the

Administrator, based ou such criteria and allowing an

adequate margin of safety, are requisite to protect the public

health.” 42 USC. § 7409(b). Attempting to alter a

oa . eee Cl

—— ee

Congressionally ratified standard for ozone, EPA adopted a

new, more stringent standard without the minimal finding

that the new standard was “requisite” or not requisite “to

protect the public health” with “an adequate margin of

safety,” the formula set out by § 109(b)(1). As a result, the

court of appeals was correct in concluding that EPA had not

articulated “intelligible principles” in deciding whether and

how to revise the ozone and particulate matter NAAQS. The

court of appeals’ decision is consistent with precedent and

guarantees that the States and their citizens will not be

without recourse to challenge arbitrary government action.

-ARGUMENT

I. The Court of Appeals Was Correct In Remanding The

Rulemakings to EPA In Order to Allow the Agency To

Explain Its Reasoning.

The nondelegation doctrine “ensures that courts charged

with reviewing the exercise of delegated legislative

discretion will be able to test that exercise against

ascertainable standards.” Benzene, 448 US. at 685-86. As

explained below, the court of appeals was correct to remand

the revised standards to the agency “to give the agency an

Opportunity to extract a determinate standard on its own.”

175 F.3d at 1038.

Prior to EPA’s challenged rulemaking, Congress set the

ozone standard at 12 ppm. Section 109 of the Clean Air Act

dictates that EPA’s revised standard must be at a level

“requisite to protect public health” with “an adequate margin

of safety.” Ozone itself complicates this statutory directive,

it is a non-threshold pollutant — meaning that there is no level

below which all health risks disappear. 175 F.3d at 1034; 62

Fed. Reg at 38,863. See also Natural Resources Defense

Council v. U.S. EPA, 824 F.2d 1146, 1148 (D.C. Cir. 1987)

(“Vinyl Chloride”) (a “non-threshold” pollutant is one that

“appears to create a risk to health at all non-zero levels of

10

emission”). Thus, in order to change the level imposed by

Congress to something other than zero, EPA must explain

why it settled on a specific level, and not some other,

because any presence of ozone is presumed to present some

threat to health or the environment.

But EPA failed to provide the court of appeals with any

ascertainable standard which might have facilitated the

court’s review of its action. It did not identify a level of air

quality that is “requisite” to protect public health. That is,

EPA does not elucidate why measuring ozone at 08 ppm is

requisite while other levels — for example, 07 ppm or .09

ppm - are not. EPA did not explain how the level it chose

presents “an adequate margin of safety.” The court of

appeals carefully reviewed the administrative record and

found that EPA’s three primary reasons for its new NAAQS

amounts to nothing more than a reflection that lower levels

moving towards zero “are associated with lower risk to

public health.” 175 F.3d at 1035. Given that ozone is

created naturally in the environment and that the results of

EPA’s standardless revision have the potential of affecting

nearly every aspect of modern life, including the operation of

automobiles, trucks, buses, trains, manufacturing facilities,

and electrical power plants, the court was entirely correct.

The court of appeals decision to remand was not novel or

drastic. Indeed, it is entirely consistent with this Court’s

jurisprudence. As Chief Justice Rehnquist has explained the

nondelegation doctrine serves important functions:

First, and most abstractly, [the nondelegation doctrine]

ensures to the extent consistent with orderly governmental

administration that important choices of social policy are

made by Congress, the branch of our Government most

responsive to the popular will. Second, the doctrine

guarantees that, to the extent Congress finds it necessary to

delegate authority, it provides the recipient of that authority

with an “intelligible principle” to guide the exercise of the

a << -—

ll

delegated discretion. Third, and derivative of the second, the

doctrine ensures that courts charged with reviewing the

exercise of delegated legislative discretion will be able to test

that exercise against ascertainable standards.

Industrial Union Dept. v. American Petroleum Institute,

448 US. 607, 685-86 (1980) (“Benzene”).

This case does not involve the first or second

components of the Chief Justice’s narrative. The court of

appeals has not determined that § 109 delegated too much

power to a federal agency, e.g., Carter v. Carter Coal Co.,

298 US. 238 (1936) (striking down Bituminous Coal

Conservation Act of 1935), or failed to set forth standards to

constrain agency discretion. Rather, this case involves the

final component - the court deployed the nondelegation

doctrine as a tool of statutory construction to prevent a

federal agency from interpreting its delegated authority so

broadly as to give it unfettered, and virtually unreviewable,

discretion.

The court of appeals’ decision is entirely consistent with

its own precedent. That court has not hesitated to require

federal agencies to explain their reasoning in order that such

reasoning could be reviewed. See, e.g., American Lung

Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998), cert. denied,

120 S.Ct. 58 (1999) (remanding for EPA to determine what

risks are tolerable), /nternational Union, UAW v. OSHA, 938

F2d 1310 (DC. Cir. 1991) (remanding lockout/tagout

regulation so that OSHA could articulate principles

constraining its application of rulemaking authority under the

OSH Act), on remand, 37 F.3d 665 (DC. Cir. 1994)

(approving regulations because agency supplied sufficient

list of principles).

The court of appeals decision also is workable. EPA

itself admits in its Petition for Certiorari that it might be able

to discern such intelligible principles under § 109. For

12

example, EPA calls attention to the Clean Air Act’s

legislative history, which requires EPA to focus on health

effects that are “medically significant,” and not “merely

detectable,” and which requires it to consider the “public

health,” and not “individual health.” Petition at 15.

In short, EPA did not articulate intelligible principles in

deciding whether and how to revise the NAAQS. EPA

should not be free to ratchet its standards ever more

stringently based solely on whim or conjecture. This Court

should affirm the court of appeals and require that EPA

explain its reasoning why its new standard is required.

Il. EPA’s Interpretation of § 109 of the Clean Air Act

Leads to Absurd and Unjust Results.

Presented with two possible interpretations of § 109 -

one that allows EPA virtually unlimited discretion to alter

the ozone NAAQS and one that precludes it - the court of

appeals was obligated to interpret it in a way that avoids an

absurd and unjust result.

This Court has long held that where a statute is

susceptible of more than one interpretation, a court must

avoid an interpretation that leads to an absurdity or an unjust

result, if an alternate, reasonable interpretation may be

found:

If a literal construction of the words of a statute be absurd,

the act must be so constructed to avoid the absurdity. The

court must restrain the words. The object designed to be

reached by the act must limit and control the literal import of

the terms and phrases employed.

Holy Trinity Church v. United States, 143 U.S. 457, 460 .

(1892). “General terms should be so limited in their

application as not to lead to injustice, oppression, or an

absurd consequence. It will always, therefore, be presumed

13

that the Legislature intended exceptions to its language,

which would avoid results of this character.” United States

v. Kirby, 74 U.S. 482, 486-87 (7 Wall. 482) (1869).

In this case, the court of appeals’ interpretation of § 109,

which precludes EPA from implementing new air standards

without adequately explaining why, avoids absurd and unjust

results. Indeed, following EPA’s reasoning to its logical

conclusion, it is not difficult to ascertain the absurdity of

altering the existing standards for ozone without such an

explanation. First, as explained above, ozone is a non-

threshold pollutant - meaning that there is no level below

which all health risks disappear. Without being required to

explain why its new standard is “requisite” or not requisite

“to protect the public health” with “an adequate margin of

safety,” the formula set out in § 109, EPA conceivably is free

to ratchet its standard ever more stringently based solely on

some incremental health risk. Such a result could have, in

practical terms, devastating social and economic

consequences. As explained above, both the natural

environment and activities involving nearly every aspect of

modern life result in emission of the precursor elements for

ozone, including the operation of automobiles, trucks, buses,

trains, manufacturing facilities, and electrical power plants

In light of the controls States are required to implement for

nonattainment areas, the consequences of setting an

exceedingly sigingent ozone NAAQS are not hard to

conceptualize. They include reduced economic

development, wholesale reduction of business activities, with

the attendant increase in unemployment, higher production

and transportation costs, which will be passed on to the

consumer, higher utility costs and/or reduction in electrical

supplies, with attendant health consequences for those

without adequate climate control, and limitations upon the

use of personal automobiles. Surely Congress did not intend

EPA to exercise such power without identifying a standard

against which a court might gauge its merit

14

The lower court’s decision in /nternational Union

illustrates the point. There OSHA issued new regulations

requiring that employers install safety devices on machinery

that could suddenly move and injure workers. Employers

were required to install locks to keep the machines from

Starting or post warning tags. #38 F.2d at 1312. In

remanding the standard to OSHA, che court was particularly

wary of the agency’s reliance on incremental improvement

for workplace safety as justification for the regulation. “The

upshot is an asserted power, once significant risk is found, to

require precautions that take the industry to the verge of

economic ruin (so long as the increment reduces a significant

risk)... . or to do nothing at all. All positions in between are

evidently equally valid” 938 F.2d at 1317 (citations

omitted) Moreover, the court recognized “the power to vary

the stringency of the standard is the power to decide which

firms will live and which will die. At the simplest level, for

example, compliance may involve economies of scale, so

that a tough standard will erase small, marginal firms and

leave the field to a small group of larger ones.” /d The

Court remanded the standard to OSHA and upheld it only

after remand when OSHA returned with a “Supplemental

Statement of Reasons” for the regulation, which included

significant risk, feasibility, and cost-effectiveness.

[International Union, UAW v. OSHA, 37 F 3d 665, 668 (D.C.

Cir. 1994).

The court’s concerns in /nternational Union are equally

applicable to the case at bar. Like the potential power

asserted by OSHA in /nternational Union, EPA’s assertion

of authority in this case allows it to adopt any level of ozone

with “[a]ll positions in between are evidently equally valid.”

From a practical standpoint, EPA would have the power to

decide which communities will remain vibrant and growing

and which will not simply by picking a number.

15

ill. EPA Must Consider Costs and Other Social and

Economic Factors When It Identifies a Level of

Ozone That Is “Requisite” To Protect “Public

Health.”

For the reasons set out above, Amici submit that the court

of appeals was correct in remanding the ozone and

particulate matter standards to EPA in order to articulate “a

determinate standard on its own.” 175 F.3d at 1038. If the

Court affirms the court of appeals on this issue, Amici further

submit that EPA must be able to consider social and

economic factors and indirect public health effects forclosed

by the court of appeals decision in Lead Industries Asss'n v.

EPA, 647 F.2d 1130 (DC. Cir. 1980.) The cross-petitioners

in Case 99-1426 have already submitted detailed briefs on

this issue and Amici will not repeat those arguments here. In

short, “a standard-setting process that ignored economic

considerations would result in a serious misallocation of

resources and a lower effective level of safety than could be

achieved under standards set with reference to the

comparative benefits available at a lower cost.” Benzene,

448 US. at 670. Amici fully support the positions stated in

the briefs submitted by the States of Ohio, Michigan, and

West Virginia and the American Trucking Associations.

16

CONCLUSION

EPA's rulemaking in this case stands as a stark example

of a federal agency’s unconfined and vagrant use of

delegated power. The court of appeals should be affirmed.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA

By Counsel

MARK L. EARLEY

Attomey General of Virginia

WILLIAM HURD

Solicitor General

ROGER L. CHAFFE

Senior Assistant Attorney General

STEWART T LEETH

Assistant Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-6957 (voice)

(804) 786-0034 (fax)