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

Supreme Court, U.S.

FILED

fia OCT 5

9 was

No. 99-1257

——- — ee ee

In the Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS

Vv.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., RESPONDENTS

On Writ of Certiorari to

The United States Court of Appeals

For the District of Columbia Circuit

REPLY BRIEF FOR RESPONDENTS

MASSACHUSETTS AND NEW JERSEY

IN SUPPORT OF PETITIONERS

JOHN J. FARMER THOMAS F. REILLY

Attorney General Attorney General

State of New Jersey Commonwealth of Massachusetts

HOWARD L. GEDULDIG EDWARD G. BOHLEN

JOHN R. RENELLA Assistant Atty. General, Mass.

Deputy Attys. General, NJ. 200 Portland Street

Richard J. Hughes Justice Boston, MA 02114

Complex 7th Floor (617) 727-2200, ext. 3358

P.O. Box 093

Trenton, NJ 08625 LISA HEINZERLING

(609) 633-8109, 984-5612 Counsel of Record

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9115

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TABLE OF CONTENTS

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SUMMARY OF ARGUMENT ..........ccccccscccesees 1

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I. THE CLEAN AIR ACT DOES NOT DELEGATE

LEGISLATIVE AUTHORITY TO THE EXECUTIVE IN

VIOLATION OF THE CONSTITUTION ............ 2

A. The Nondelegation Doctrine Does Not Require

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B. Respondents’ Failure to Specify the Kind of Cost-

Benefit Test They Would Require Under the Clean

Air Act Strips Their Test of Any Meaningful

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C. Respondents Overstate the Determinacy of Cost-

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D. The Nondelegation Doctrine Does Not Mandate a

Single Approach to Establishing a Margin of

Safety, Nor Does it Prohibit Regulation in the Face

of Scientific Uncertainty .............220005. 9

Il. EPA MAY ISSUE REVISED OZONE NAAQS,

DESIGNATE AREAS AS NONATTAINMENT UNDER

THE REVISED NAAQS, AND IMPLEMENT THE

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A. Respondents Improperly Seek to Enlarge the

Judgment They Obtained Below by Asking This

Court to Vacate the Revised Ozone NAAQS . 13

B. The Clean Air Act Permits EPA to Revise the

Ozone Standard that Existed in 1990 ........ 14

C. Subpart 2 of the Clean Air Act Does Not Constrain

EPA’s Authority to Implement the Revised Ozone

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TABLE OF AUTHORITIES

Cases:

American Lung Assn. v. EPA, 134 F.3d 388 (D.C. Cir. 1998) . 4

American Power & Light Co. v. SEC, 329 U.S. 90 (1946) ..... 3

American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490

PGCNEEDREDEeKeesersecaseceececucceceeseesees 5, 6

AT&T Corp. v. lowa Utilities Bd., 525 U.S. 366 (1999) ...... 5

Federal Energy Administration v. Algonquin SNG, Inc.,

SP PE en ecccecesccescesosccesecesesesces 14

FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) ......... +

Industrial Union Dept., AFL-CIO v. American Petroleum Inst.,

Sac censcccnccoccnceceecanesscuseece: 5

International Union, United Auto., Aerospace & Agnic.

Implement Workers of Am., UAW v. OSHA, 938 F.2d 1310

DEE GUEED ecececcncasececcnsucsuccescuceses: we O

Lichter v. United States, 334 U.S. 742 (1948) ............. 11

Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355

SPEED kecccccccesecscosececoscescesesesacousescsess 14

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) . 14

TVA v. Hill, 437 U.S. 153 (1978) o.oo ccc ccc ccc eee eee 5

iv

Statutes:

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21 U.S.C. 346a(b)(2)(B)(iii)(I)-(II) ..... eee. 7

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SOURIS, CII og oie cicsesnsessencacasecvedses »

42 U.S.C. 300g-1(b)(6)(A), (6)(3)(Ciiii) .... 0... eee eee 7

SN GI iisncnnsnvencivassciecseeess 19, 20

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| Ss conn sasunnaseawenennanais 15

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MON BRING ioc cscs ccosacsccnescauessnssess 13

I cca ccsckessssenneuneceanens 17,19

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i ac ccnscekascepaususvensepune 16

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Transportation Equity Act for the 21st Century, Pub. L.

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Other Sources:

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H.R. 2323, 101st Cong., Section 181(e) (1989) ........... 15

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ............ 12

Julie Graham, Don M. Shakow & Christopher Cyr, Risk

Compensation-In Theory and Practice, 25 Envt. 14

SEN ED Swe escbsceccocccetinssesetecssescceeses 9

W. Kip Viscusi, Wesley A. Magat & Joel Huber, An

Investigation of the Rationality of Consumer Valuations of

Multiple Health Risks, 18 RAND J. Econ. 476 (1987) ....... 9

Dr. George T. Wolff, Chair, Clean Air Scientific Advisory

Committee, Closure Letter to Hon. Carol M. Browner (Nov.

30, 1995), <www.epa.gov/sciencel/casac02.pdf> ...... 10

~

REPLY BRIEF FOR RESPONDENTS

MASSACHUSETTS AND NEW JERSEY

IN SUPPORT OF PETITIONERS

SUMMARY OF ARGUMENT

1. Respondents argue that if section 109 of the Clean Air

Act were reinterpreted to permit the open-ended balancing of

“all logically relevant factors,” the constitutional defect they

perceive in the statute would disappear. ATA Br. 11; see also

APC Br. 34 (agency must consider “overall impact of its

decision on society”). Respondents’ constitutional argument

thus amounts to this: section 109 of the Clean Air Act, as

interpreted by the Environmental Protection Agency (EPA) for

thirty years, effects an unconstitutional delegation of

legislative power because it does not confer sufficient

discretion on the agency. This is, to say the least, an unusual

reworking of a constitutional doctrine designed to cabin rather

than enlarge agency discretion.

Respondents’ counterintuitive argument rests on a

misinterpretation of this Court's decisions under the

nondelegation doctrine and on a series of erroneous factual

premises. In legal terms, respondents err by claiming that the

Constitution requires cost-benefit balancing. In factual terms,

respondents err by embracing untenable assumptions about

the monolithism and determinacy of cost-benefit balancing.

They also erroneously suggest that regulating in the face of

scientific uncertainty creates problems of constitutional

dimension.

2. On the statutory issue involved in this case, respondents

improperly seek to enlarge the judgment they received below,

without petitioning for certiorari. They ask this Court to

vacate the revised NAAQS for ozone rather than, as the court

of appeals did, leave them in place. Respondents argue,

contrary to the court of appeals’ ruling, that EPA was not

authorized even to revise the ozone NAAQS in light of new

scientific evidence of ozone’s harmfulness. Because EPA was

not permitted to revise the ozone standards, it follows that the

2

agency may not implement the revised standards.

Respondents’ legal premise is mistaken; the Clean Air Act not

only permits, but requires, EPA to revise the NAAQS for all of

the pollutants regulated under this program in light of

changing scientific knowledge of the harmfulness of these

pollutants. Once EPA’s authority to revise the NAAQS is

acknowledged, its authority to implement revised standards

follows naturally from the language of the statute.

ARGUMENT

I. THE CLEAN AIR ACT DOES NOT DELEGATE

LEGISLATIVE AUTHORITY TO THE EXECUTIVE IN

VIOLATION OF THE CONSTITUTION

As we set forth in our opening brief in this case, the Clean

Air Actis plainly constitutional under this Court's precedents.

The Act places numerous significant constraints on EPA's

discretion in setting the NAAQS: it prescribes the factors EPA

may and may not consider; requires a margin of safety as an

antidote to scientific uncertainty; limits the range of pollutants

regulated by the NAAQS program; limits the life span of each

NAAQS; and imposes large procedural constraints on EPA’s

decisionmaking, including an intensive process of scientific

review. Congress has thus made the most basic and important

decisions that arise in setting air quality standards. Not only

that, it has done so through a close collaboration and dialogue

with the executive regarding the many challenges that arise in

setting NAAQS. Because EPA has always recognized these

manifold constraints on its discretion, EPA’s interpretation of

the Act is constitutional as well. Mass. & NJ Br., No. 99-1257,

at 7-19, 28-43. Respondents’ arguments to the contrary are

wholly unpersuasive. Thus the nondelegation doctrine should

be used neither to invalidate the Clean Air Act and EPA’s

longstanding interpretation of it nor to justify interpreting the

statute to require, contrary to its plain language, cost-benefit

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balancing.

A. The Nondelegation Doctrine Does Not Require Cost-

Benefit Balancing

Remarkably, respondents do not discuss the Clean Air Act

itseif in arguing that the statute is unconstitutional as

construed by EPA for thirty years. The sections of

respondents’ briefs discussing the constitutional issue contain

only the most glancing references to specific provisions of the

Act. ATA Br. 7-25; APC Br. 22-35. Rather than tackling the

language, purpose, history, and context of the statute, as this

Court's precedents on delegation instruct, see, e.g., American

Power & Light Co. v. SEC, 329 US. 90, 104-05 (1946),

respondents argue that the Clean Air Act cannot be

constitutional so long as it precludes EPA from balancing “all

logically relevant factors,” including costs, in setting the

NAAQS. ATA Br. 11; APC Br. 34. This Court has never held

that cost-benefit balancing is constitutionally required, and it

should not do so now. Indeed, it would be most odd to

mandate open-ended balancing by agencies in the name of the

nondelegation doctrine.

Respondents ATA, et al., premise their argument on a

misreading of this Court's cases upholding rate-setting and

price-fixing statutes.' ATA Br. 12-14. Respondents rely

'For their part, Appalachian Power Co., et al., argue in favor of a

balancing requirement by asserting that EPA simply cannot explain

its decisions setting the NAAQS in the absence of such balancing.

APC Br. 22-35. These respondents are, understandably, equivocal

about the constitutional status of their argument; they concede that

their claim might actually find its home in the “arbitrary and

capricious” standard of the Administrative Procedure Act (APA).

APC Br. 23. Respondents Appalachian Power, et al., have succeeded

in completely conflating the delegation doctrine and review under

the APA. Respondents ATA, et al., also often fail to perceive the

4

particularly on this Court's decision in FPC v. Hope Natural Gas

Co., 320 U.S. 591 (1944), which upheld the Federal Power

Commission’s (FPC) authority to fix natural gas rates

according to the “prudent investment” method of rate-making.

Respondents argue that Hope Natural Gas stands for the

proposition that the nondelegation doctrine requires “a

weighing of competing interests.” ATA Br. 16. Respondents

are mistaken.

The statutes at issue in Hope Natural Gas and other cases

cited by respondents explicitly focused the agencies’ attention

on the consideration of costs. See, e.g., Hope Natural Gas, 320

US. at 600-01 & n. 8. The Clean Air Act, in contrast, precludes

the EPA from considering costs in setting the NAAQS. Mass.

& NJ Br., No. 99-1426, at 15-37. The observation that setting

rates for natural gas involved “a balancing of the investor and

the consumer interests” (Hope Natural Gas, 320 US. at 603,

quoted in ATA Br. 13), thus means little in this case, where the

statute at issue does not call for such balancing. Moreover,

Hope Natural Gas was not even a nondelegation case: the only

constitutional question posed in that case was whether rates

set according to the “prudent investment” method were

confiscatory under the Fifth Amendment. 320 U'S. at 601.

Respondents’ attempt to create, based on Hope Natural Gas and

distinction between the Constitution and the APA. ATA Br. 17

(citing APA cases as if they were constitutional cases), 18-21

(discussing details of rulemaking record). On respondents’ legal

theory, every garden-variety failure-to-explain case in administrative

law would assume constitutional status. The Court should reject the

call for such a radical expansion of constitutional doctrine.

Respondents Appalachian Power Co., et al., also wrongly claim

that judicial review is impossible absent a cost-benefit balancing

framework. Bizarrely, they rely ona case in which EPA lost a judicial

challenge to a NAAQS under the arbitrary-and-capricious standard

in arguing that judicial review is impossible under EPA's

longstanding interpretation of the Clean Air Act. APC Br. 30, citing

American Lung Assn. v. EPA, 134 F.3d 388 (D.C. Cir. 1998).

5

like cases, a constitutional requirement that agencies consider

“all logically relevant factors,” ATA Br. 11, must fail.”

Ironically, under respondents’ reworking of the

nondelegation doctrine, Congress would find itself in more

trouble, the more it attempted to constrain discretion by

limiting the factors an agency may consider. On respondents’

theory, for example, section 7 of the Endangered Species Act,

16 U.S.C. 1536, must effect an unconstitutional delegation of

legislative power because it requires federal agencies to shape

their actions according to their effect on the contirued

existence of protected species, without regard to cost. TVA v.

Hill, 437 U.S. 153, 172-88 (1978). Similarly, if respondents are

correct, then this Court created a constitutional problem when

it interpreted the Occupational Safety and Health Act

(OSHAct) to require the Occupational Safety and Health

Administration (OSHA) to find a “significant risk” (without

considering cost) before regulating workplace toxins.

Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448

U.S. 607, 639-40 (1980); see also American Textile Mfrs. Inst., Inc.

v. Donovan, 452 U.S. 490, 505 n. 25 (1981) (approving OSHA's

health-based method for finding significant health hazard).°

*Respondents’ argument also runs counter to this Court's

jurisprudence of statutory interpretation. This Court has made clear

that agencies ought not ignore statutory limits on the factors they

may consider in regulating. Thus, in AT&T Corp. v. lowa Utilities Bd.,

525 U.S. 366 (1999), for example, the Court invalidated a rule of the

Federal Communications Commission, finding that the rule

effectively ignored statutory limits on the circumstances under

which the agency could require access to elements of the

telecommunications network of a local exchange carrier. Id. at 388-

89. Far from supporting respondents’ position, as respondents

suggest (ATA Br. 10, 17; APC Br. 25, 35), lowa Utilities Board

undermines their plea to have this Court ignore the Clean Air Act's

limits on the factors EPA may consider in setting the NAAQS.

*Like the Clean Air Act, the OSHAct requires the consideration of

6

In sum, not only would a good deal of federal legislation be

open to the courts’ disapproval under respondents’ view, but

it would be open to such disapproval on the ground that it

confined agency discretion through limitations on the factors

agencies could consider. This topsy-turvy understanding of

the nondelegation doctrine should be rejected.

B. Respondents’ Failure to Specify the Kind of Cost-

Benefit Test They Would Require Under the Clean Air

Act Strips Their Test of Any Meaningful Content

There is another deep irony in respondents’ position. While

respondents castigate the Administrator for failing to provide

what they regard as “a governing principle” for setting the

NAAQS, ATA Br. 4, respondents themselves do not explain

what type of cost-benefit balancing they perceive in the Clean

Air Act. Balancing tests can come in a wide array of forms.

The standards set under these different frameworks will vary

considerably. Respondents’ argument that a simple directive

to EPA to “consider[] costs and other countervailing factors,”

ATA Br., No. 99-1426, at 50, will somehow provide

determinate results is built upon the mistaken premise that

cost-benefit balancing is a monolithic methodology.

Balancing tests in health and safety regulation cover a vast

territory. They include quite traditional “command-and-

control” regulation, mandating the use of particular

technologies, see Clean Water Act, 33 U.S.C. 1314(b)(1)(B);

regulation comparing the risks of not regulating with the risks

of regulating, see Food, Drug, and Cosmetic Act, 21 U.S.C.

360c(a)(2), Food Quality Protection Act of 1996, 21 U.S.C.

costs in determining exactly what requirements will be imposed on

individual sources of risk. Cotton Dust, 452 U.S. at 508-09 (feasibility

analysis required in setting workplace standards); Mass. & NJ Br.,

No. 99-1426, at 24-28 (discussing manifold ways in which costs and

feasibility relevant to decisions implementing the NAAQS).

J

346a(b)(2)(B)(iii)(1)-(II); open-ended balancing of a wide range

of factors, see Toxic Substances Control Act, 15 U.S.C.

2605(c)(1); and regulation based on formal cost-benefit analysis

and consumer willingness to pay for reductions in health risks,

see Safe Drinking Water Act Amendments of 1996, 42 U.S.C.

300g-1(b)(6)(A), (b)(3)(C) (iii).

Thus, where Congress has called for balancing in standard-

setting, it has chosen from a wide array of options and has

tailored the balancing to fit the specific circumstances at hand.

Because the Clean Air Act does not provide for the

consideration of costs in setting the NAAQS, see Mass. & NJ

Br., No. 99-1426, respondents cannot tell this Court what sort

of cost-benefit balancing should be required under the Act.

Congress's failure to identify a specific kind of cost-benefit

balancing in section 109 of the Act bolsters the conclusion that

Congress simply did not permit such balancing to occur in

setting the NAAQS. Moreover, respondents’ consequent

inability, themselves, to identify the nature of the balancing

they have in mind unravels their argument that their

reinterpretation of the Act would limit EPA’s discretion.

Faced with respondents’ suggested directive-to “consider all

logically relevant factors” in setting the NAAQS, ATA Br.

11-EPA would be free to do anything from setting technology-

based, command-and-control-style regulations, to balancing

risk against risk, to ceasing regulation at the point where the

people hurt by air pollution were unwilling to pay the amount

it would cost to prevent the pollution that hurt them. Clearly,

it is not a limit on agency discretion that respondents are after;

it is merely a limit on regulation that they desire.‘

C. Respondents Overstate the Determinacy of Cost-

‘Amicus General Electric now concedes that the cost-benefit

balancing that it devoted a separate brief (in No. 99-1426) to

defending would not fix the nondelegation problem as GE sees it.

GE Am. Br. 30, n. 8.

Benefit Analysis

Although respondents shy away from explicitly identifying

the kind of cost-benefit balancing they would require in setting

the NAAQS, they occasionally hint that formal cost-benefit

analysis is what they have in mind. For example, respondents

ATA, et al., cite with approval the D.C. Circuit’s opinion in

International Union, United Auto., Aerospace & Agric. Implement

Workers of Am., UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991)

(Lockout/Tagout I), ATA Br. at 22, which suggested thatOSHA

could avoid the invalidation of the safety-related provisions of

the OSHAct on nondelegation grounds by interpreting those

provisions to allow cost-benefit analysis. 938 F.2d at 1316-21.

While respondents imply that the kind of analysis the court

contemplated was nothing more than Benjamin Franklin's

“moral or prudential algebra” (ATA Br. 22), this quaint

descrip*ion vastly understates the contentiousness and

complexity of the cost-benefit analysis the court had in mind.

Writing for the court in Lockout/Tagout I, Judge Williams

explained what he meant by cost-benefit analysis: “Cost-

benefit analysis requires identifying values for lost years of

human life and for suffering and other losses from non-fatal

injuries.” 938 F.2d at 1320. What the court failed to appreciate

is that the potential “range of values,” id., for human life and

human suffering is vast, perhaps even infinite, even when

these values are determined by considering individuals’

willingness to bargain for risk-related benefits.’ Sometimes,

for example, people simply refuse to participate in markets for

risks to human life; in one study, researchers found that the

*In a concurrence to his own panel opinion, Judge Williams further

elaborated on the process of setting a “numerical value on human

life,” noting that “[p]reference-based techniques are a commonly

used approach, but are subject to such pitfalls as wealth bias, age

bias and inconsistency.” Lockout/Tagout I, 938 F.2d at 1326 & n. 1

(citation omitted).

9

majority of parents asked how steep a price discount they

would require to accept riskier household products responded

that they would not buy the products at all.° Other researchers

have found, in contrast, that some workers receive no extra

wage for riskier work; such results imply that, in some cases,

enhanced risk has zero value in the marketplace.’ “Willi

to pay” values for human life thus might plausibly range from

zero to priceless. The bare requirement of cost-benefit analysis

thus arguably enlarges rather than constricts the range of

permissible agency responses to matters of life and death.

Indeed, respondents themselves showcase the vast degree of

discretion afforded an agency under a cost-benefit standard.

ATA Br. 23.

D. The Nondelegation Doctrine Does Not Mandate a

Single Approach to Establishing a Margin of Safety,

Nor Does it Prohibit Regulation in the Face of

Scientific Uncertainty

In promulgating the NAAQS at issue here, the

Administrator emphasized the different issues and challenges

that arise in setting NAAQS for different air pollutants.

Because the air pollutants regulated by the NAAQS program

cause very different kinds of health effects, and because

estimates of these health effects are surrounded by different

kinds and degrees of scientific uncertainty, the Administrator

concluded that she could not identify one single correct

approach to setting the margin of safety for all criteria air

pollutants. NAAQS for Particulate Matter, 62 Fed. Reg. 38,652,

38,883 (1997). In remarks that play a prominent role in

*See W. Kip Viscusi, Wesley A. Magat & Joel Huber, An Investigation

of the Rationality of Consumer Valuations of Multiple Health Risks, 18

RAND J. Econ. 476, 477 (1987).

’See Julie Graham, Don M. Shakow & Christopher Cyr, Risk

Compensation-In Theory and Practice, 25 Envt. 14, 19-20 (Feb. 1983).

10

respondents’ briefing, the Administrator disclaimed an

obligation and even a capacity to set marginsof safety based

ona “generalized paradigm” and instead ackiowledged that

setting margins of safety was “largely judgnental in nature”

and “may not be amenable to quantification. ..” Id. The

Administrator noted that it would te particularly

inappropriate to adopt an approach to seting margins of

safety that assumed that air pollutants ceise to have an

adverse effect on public health below a certainthreshold level,

if in fact no such threshold level has been preven. Id.

Respondents cite these snippets from the reord as evidence

of the unconstitutionality of EPA’s decisons under the

nondeiegation doctrine. ATA Br. 5, 11, 17; APC Br. 21, 27."

*Respondents Appalachian Power, et al., also assertthat the scientific

evidence before EPA showed that there was no reevant difference

between alternative ozone levels. APC Br. 8-9, 2627. In support of

this contention, respondents quote the Clean Air Scentific Advisory

Committee’s (CASAC) “closure letter” on the ozorestandard, which

stated that “there is no ‘bright line’ which distingtishes any of the

proposed standards (either the level of the number >f exceed[a}nces)

as being significantly more protective of public helth.” APC Br. 8.

In a portion of the letter not cited by respondents, CASAC went on

to observe that the differences among the alternatve standards did

appear “considerable” when viewed from the perspective of the

absolute number of excess hospital admissions due to cone. Dr. George

T. Wolff, Chair, Clean Air Scientific Advisory Conmittee, Closure

Letter to Hon. Carol M. Browner (Nev. 30, 1995),

<www.epa.gov/sciencel/casac02.pdf>. Thus, CASAC concluded,

the choice between the standards turned on a “ policy judgment” as

to whether the percentage of total asthma admissions(due to any cause)

represented by the admissions due to ozone, or the wsolute number of

hospital admissions due to ozone, was the relevant regulatory

determinant. Id. Contrary to respondents’ assertons, CASAC did

not suggest that there was no difference betwee the alternative

ozone standards; rather, it observed that the perceived magnitude of

the difference between the standards depended onone’s view of the

11

This argument comes in three parts. First, respondents imply

that EPA must specify a single m-thod for

margins of safety. ATA Br. 11. Second, respondents ATA, et

al., argue that the approach EPA chooses in setting margins of

safety must include the identification of a safe threshold for the

relevant pollutant. ATA Br. 19 (EPA may not regulate criteria

air pollutants unless it “affirmatively determines a health

effects threshold and sets the standard with that threshold as

the starting point ... “); see also id. at 18. Finally, respondents

argue thet if EPA has not determined a safe threshold for an

air pollutant, its regulation of that pollutant will of necessity

be unprincipled. ATA Br. 15-19.

Each of these arguments misses the mark. First of all, this

Court has never used the nondelegation doctrine as a lever for

requiring an administrative agency to adopt a particular

rulemaking formula or methodology. In rejecting such an

approach in Lichter v. United States, 334 U.S. 742 (1948), this

Court observed:

It is not necessary the Congress supply administrative

officials with a specific formula for their guidance in a field

where flexibility and the adaptation of the congressional

policy to infinitely variable conditions constitute the

essence of the program.

id. at 785. In faulting EPA for failing to adopt one single

approach to establishing margins of safety for very different

air pollutants, respondents would require just the “specific

formula” that this Court has held is not constitutionally

required.

Second, ATA’s claim that EPA must find a threshold for

every criteria air pollutant in order to avoid constitutional

invalidation amounts to an argument that EPA may not

regulate in the face of scientific uncertainty. As the

Department of Health, Education, and Welfare (HEW)

recognized in the very first criteria documents that, at

relevant public policies.

12

Congress’s direction, formed the basis of the very first

NAAQS, it is typically not possible to identify a single “safe”

(or “threshold”) level of air pollution. Mass. & NJ Br., No. 99-

1257, at 14-18. Respondents’ arguraent that EPA must identify

a threshold for the criteria air pollutants would effectively shut

down the NAAQS program because it would require from

science an answer that science seldom can provide.

Respondents would thus forbid Congress from delegating

lawmaking authority to an agency where, as is frequently the

case, the agency mus‘ exercise its policy judgment based on

evidence that is scientifically uncertain. Nothing in this

Court's nondelegation jurisprudence requires such a result.

Indeed, this Court's delegation cases are pervaded with

cautious recognition of the fact that too severe an approach to

questions of delegation might stop the government in its

tracks. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 US.

381, 398 (1940).

Finally, respondents are mistaken in suggesting that any

approach to setting margins of safety that does not include the

establishment of a safe threshold for each pollutant will

necessarily be unprincipled. ATA Br. 18-19. In the rulemaking

proceedings at issue here, EPA’s observation that particulate

matter and ozone may be “nonthreshold” pollutants was

nothing more than an admission that the agency had not

proven the existence of a level at which these pollutants had

no effects on human health. It was not a claim that the agency

had shown that these pollutants do have effects on human

health at every concentration level above zero. It was not a

claim that the agency would regard all such effects on health,

if detected, to be sufficiently “adverse” to warrant a regulatory

response. See S. Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970).

Nor was it a claim that the agency would regard all such

effects to be effects on public health within the meaning of the

Clean Air Act. 42 U.S.C. 7409(b)(1). Thus, even where a safe

level (a “threshold”) for a pollutant has not been proven, EPA

still may, nonarbitrarily, set the NAAQS for that pollutant

13

based on its judgment with respect to such factors as

uncertainties surrounding the evidence of health effects, the

adverse nature of the detectable effects, and the size of the

population affected. And indeed that is exactly the process

EPA has followed in thirty years of regulation under the

NAAQS program. Nothing in this Court's jurisprudence of

delegation forbids administrative agencies to make judgments

involving science and policy. Indeed, that is the very essence

of the modern administrative state.

ILEPA MAY ISSUE REVISED OZONE NAAQS,

DESIGNATE AREAS AS NONATTAINMENT UNDER

THE REVISED NAAQS, AND IMPLEMENT THE

REVISED NAAQS

A. Respondents Improperly Seek to Enlarge the

Judgment They Obtained Below by Asking This Court

to Vacate the Revised Ozone NAAQS

The court of appeals held that EPA was permitted to revise

the ozone NAAQS and required to designate areas as

nonattainment under any revised NAAQS. U.S. Pet. App. 361.

However, the court also held that the agenc: could implement

the revised NAAQS only in conformity with the classifications,

attainment dates, and control measures set forth in Subpart 2

of Part D of the Clean Air Act, 42 U.S.C. 7511-7511f. US Pet.

App. 34a. The court decided not to vacate the revised”

standard because EPA had authority to issue it and because

the standard was “unlikely to engender costly compliance

activities” by virtue of the court's ruling limiting

implementation. U.S. Pet. App. 57a.

Respondents Appalachian Power, et al., and Ohio, et al.,

now seek to enlarge the judgment they obtained in the court

of appeals by asking this Court to vacate the revised ozone

standard on the ground that EPA had no authority to revise

the prior ozone standard. APC Br. 2, 50; Ohio Br. 10, 40; cf.

14

ATA Br. 39 (conditionally embracing Ohio’s argument).

Respondents Ohio et al. are mistaken in asserting that their

for vacatur of the ozone standard would lead this

Court to “affirm the lower court judgment,” Ohio Br. 12 n. 1,

because, as noted, the lower court chose not to vacate the

ozone standard. U.S. Pet. App. 57a.

” A cross-petition is required ... when the respondent seeks

to alter the judgment below.” Northwest Airlines, Inc. v. County

of Kent, 510 U.S. 355, 364 (1994); see also, e.g., Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14 (1985). This

Court has refused to consider arguments that, if accepted,

would require modification of the judgment below in the

absence of a petition for certiorari raising such issues. See

Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S.

548, 560, n. 11 (1976). Having found that EPA was authorized

to issue a revised ozone standard, the court of appeals

deliberately chose not to vacate that standard. Respondents

cannot now ask this Court to hold that EPA may not revise the

ozone standard, and to vacate the revised standard, when they

did not petition for certiorari on this point.’

B. The Clean Air Act Permits EPA to Revise the Ozone

Standard that Existed in 1990

If this Court decides, despite the absence of a petition for

certiorari on this issue, to reach the question whether the court

of appeals was correct in holding that EPA had no authority

*The cross-petitions in No. 99-1426, challenging EPA's longstanding

interpretation of section 109 of the Clean Air Act, do not justify

respondents’ independent efforts to alter the judgment below on the

basis of Subpart 2. If this Court were to uphold EPA’s interpretation

of section 109 of the Clean Air Act, then there would remain no

properly presented argument that the Court should vacate EPA’s

revised NAAQS. Indeed, ATA et al., stated that their cross-petition

“would not change the form of the judgment.” ATA Cross-Pet. 28.

15

even to revise the ozone standard, it should hold that EPA has

such authority.

The Clean Air Act imposes on EPA an obligation

periodically to review and to revise the air quality criteria and

NAAQS. Section 109(d)(1) of the Act provides:

Not later than December 31, 1980, and at five-year intervals

thereafter, the Administrator shall complete a thorough

review of the criteria published under section 7408 of this

title and the national ambient air quality standards

promulgated under this section and shall make such revisions

in such criteria and standards and promulgate such new

standards as may be appropriate in accordance with section

7408 of this title and subsection (b) of this section.

42 U.S.C. 7409(d)(1) (emphasis added). Under this section,

EPA is clearly obligated to conduct a periodic review of the

criteria and NAAQS, and to revise them if appropriate in light

of the requirements of sections 108 and 109(b) of the Act.

Nothing in the statute erases EPA’s obligation to review

and revise the criteria and standards for all criteria pollutants,

including ozone. The 1990 amendments, which added Subpart

2's specific requirements for implementing the ozone NAAQS

that existed in 1990, did not alter section 109(d)(1) of the Act.

Indeed, the 1990 amendments specifically contemplated that

the NAAQS might be revised. Section 172(e) provides:

If the Administrator relaxes a national primary ambient air

quality standard after November 15, 1990, the

Administrator shall, within 12 months after the relaxation,

promulgate requirements applicable to all areas which have

not attained that standard as of the date of such relaxation.

Such requirements shall provide for controls which are not

less stringent than the controls applicable to areas

designated nonattainment before such relaxation.

42 U.S.C. 7502(e). By its terms, section 7502(e) applies to all of

the primary NAAQS, including the ozone NAAQS. Despite

the court of appeals’ express reliance on section 172(e) in

holding that EPA may revise the ozone standard, US. Pet.

16

App. 35a, respondents do not even mention section 172(e) in

their briefs."

Respondents’ argument not only flouts the clear language

of the Act, it also would produce unreasonable consequences.

Not even respondents argue that subpart 2 silently eliminates

EPA’s obligation to review and revise the air quality criteria for

the ozone NAAQS, nor could they, given that in order to effect

the relaxation of standards contemplated by section 172(e),

new criteria documents would be ~equired. Thus, under

respondents’ view, EPA must updet: the criteria documents

for ozone to reflect the latest scientific information on ozone’s

adverse effects on human health and welfare, but if that

information shows that ozone is more harmful than EPA had

previously believed it to be, it-has no power to change the

regulatory regime to reflect that new information. Requiring

the enormous expenditure of time and resources that ges into

developing criteria documents, all to no purpose if the

documents showed greater health effects than had previously

"Instead, respondents Ohio, et al., discuss 4 provision of a House bill

that was not enacted. That provision set a schedule for developing

control requirements for a revised ozone NAAQS. Ohio Br. 15, citing

H.R. 2323, 101st Cong., Section 181(e) (1989), as introduced, reprinted

in II 1990 Leg. Hist. at 4060. Respondents do not mention that the

cited provision stated that requirements pertaining to any revised

ozone NAAQS “shall provide for controls which are not less

stringent than the controls applicable to areas classified under this

subpart.” Id. Nor do they note that the House bill included this

identical provision with respect to the other two pollutants discussed

in that bill, carbon monoxide (id. at 4079) and particulate matter (id.

at 4090). These provisions were clearly the precursors to section

172(e) of the enacted statute. Respondents’ selective citations to the

unenacted House bill, and their complete neglect of the parallel

provision of the enacted statute, convey a wholly misleading

impression of Congress's actions. —

17

been predicted, would make no sense."

Moreover, respondents’ argument that Subpart 2 silently

codifies the ozone standard existing in 1990 ignores the fact

that the classifications and attainment dates set forth in

Subpart 2 apply only to the primary ozone standard, not to the

secondary standard. 42 U.S.C. 7511(a)(1) (Table 1).

Respondents make a weak attempt to suggest that the

secondary standard should be covered by Subpart 2, too,

because section 181(a)(1) refers to “ozone nonattainment

areas” generally. This argument ignores section 181(a)(1)’s

explicit and exclusive reference to “primary standard

attainment dates.” 42 U.S.C. 7511(a)(1). Section 181(a)(1) thus

clearly does not codify the secondary ozone standard existing

in 1990. It would be very awkward to conclude that Congress

had left EPA free only to change the secondary, but not the

primary, ozone NAAQS.

Respondents offer two textual arguments in support of their

claim that EPA may not revise the ozone NAAQS that existed

in 1990. First, they argue that revision of the ozone NAAQS is

not “appropriate” within the meaning of section 109(d)(1)

because such a standard cannot be implemented except within

the confines of Subpart 2. APC Br. 49; ATA Br. 39. As the

court of appeals held, however, this argument “pointedly

ignores the text immediately following the word ‘appropriate,’

which specifies that appropriateness is to be determined ‘in

accordance with section 7408 ... and [ section 7409(b)] ...‘” U.S.

Pet. App. 35a-36a. The court of appeals correctly concluded

"ATA, et al., suggest that EPA could share its information with

Congress. ATA Br. 39-40. But that is not the regime created by

section 109(b) of the Act, which clearly requires EPA to act upon the

information developed in the criteria documents. 42 U.S.C. 7409(b).

In many other sections of the Act, Congress required EPA to report

to it on various matters, which would then be handled by Congress

itself (see 42 U.S.C. 7548, 7511f, 7491-92, 7612); section 109(b) does not

establish such a reporting scheme.

18

that Subpart 2 could not render revision of the ozone NAAQS

inappropriate where Subpart 2 was neither listed in section

109(d)(1) nor incorporated by reference through section 108 or

109(b). U.S. Pet. App. 36a. Here, too, respondents simply

ignore statutory language that runs counter to their preferred

interpretation of the statute.

Second, respondents argue that it would make no sense to

have a NAAQS that could not be implemented. Because, they

contend, Subpart 2 precludes the implementation of any

revised ozone NAAQS, this must mean that EPA may not

revise the ozone NAAQS in the first place. APC Br. 42-47;

Ohio Br. 13-16; ATA Br. 39. We agree that it makes no sense to

have a standard that cannot be implemented. But we draw the

opposite inference from this premise: because the Clean Air

Act clearly obligates EPA to review and revise the air quality

criteria and standards where appropriate in light of changing

scientific knowledge, 42 U.S.C. 7408, 7409, EPA must be able’

to implement the standards it has deemed requisite to protect

the public health and welfare.

C. Subpart 2 of the Clean Air Act Does Not Constrain

EPA’s Authority to Implement the Revised Ozone

NAAQS

In our opening brief in this case, we canvassed the reasons

for concluding, based on the language, history, and purpose of

the statutory provisions, that Subpart 2 does not prevent EPA

from implementing the revised ozone standard. Mass. & NJ

Br., No. 99-1257, at 43-50. Respondents Ohio, et al., and

Appalachian Power, et al., effectively concede that the court of

appeals’ ruling that EPA may revise the ozone standard, but

may not implement the revised standard, makes no sense.

Ohio Br. 24. The implication they draw from this insight-that

EPA may not even revise the standard-is, as we have

explained, inconsistent with the text of the statute itself.

For its part, ATA continues to argue that EPA may issue but

19

not implement a revised ozone standard. ATA Br. 39. It rests

this argument on an untenable claim: contrary to the court of

appeals’ decision, ATA argues that EPA may not designate

areas as nonattainment under a revised ozone standard. ATA

Br. 39. ATA must recognize that its argument that the revised

ozone standard may be implemented only in conformity with

Subpart 2 would make no sense if EPA were under an

obligation to designate areas as nonattainment under the

revised ozone NAAQS. _ Section 181(a)(1) makes the

classifications it specifies turn on the “interpretation

methodology” of the prior ozone standard. 42 U.S.C.

7511(a)(1). Thus it is not possible to classify nonattainment

areas under the revised ozone standard under section 181(a)(1).

Mass. & NJ Br., No. 99-1257, at 46-48. Implicitly

acknowledging that it would be absurd to require EPA to

designate areas and then to ignore those same designations in

promulgating classifications, respondents argue that EPA may

not even designate areas as nonattainment under the revised

ozone standard. ATA Br. 39. This argument flies in the face of

the statutory language.

In 1990, at the same time as it was refining the requirements

for implementing the then-existing NAAQS, Congress

amended section 107(d)(1) of the Act to read as follows:

By such date as the Administrator may reasonably require,

but not later than 1 year after promulgation of a new or

revised national ambient air quality standard for any

pollutant under section 7409 of this title, the Governor of

each State shall ... submit to the Administrator a list of all

areas (or portions therefore) in the State, designating [areas]

as ... nonattainment, ... attainment, ... or unclassifiable ...

42 U.S.C. 7407(d)(1)(A) (emphasis added). Section 107(d)(1)

goes on to require the Administrator to

promulgate the designations of all areas ... submitted under

subparagraph (A) as expeditiously as practicable, but in no

case later than 2 years from the date of promulgation of the

new or revised national ambient air quality standard.

20

42 U.S.C. 7407(d)(1)(B)(i) (emphasis added).

Once again, these provisions do not carve out any exception

for the ozone standard; they apply equally to all revised

NAAQS. Indeed, in legislation specifically aimed at EPA’s

revised ozone standard, Congress extended the states’

deadline for designations to two years and shortened EPA’s

deadline to one year. See Transportation Equity Act for the

21st Century, Pub. L. 105-178, §6103, 112 Stat. 107, 465. This

statute reinforces the conclusion that EPA may (indeed, must)

designate areas under the revised ozone standard.

Implicitly recognizing that EPA is under an obligation to

promulgate some designation pursuant to section 107(d)(1),

respondents recommend that EPA designate all areas as

“unclassifiable.” ATA Br. 39. But such a designation is

permissible only where it is not possible “on the basis of

available information” to say whether an area “meet[s] or

[does] not meet{[] the national primary or secondary ambient

air quality standard for the pollutant.” 42 USC.

7407(d)(1)(A)(iii). No one argues that it is not possible to say

whether an area’s air quality meets the revised NAAQS for

ozone, and thus respondents’ suggestion is misguided.

Perhaps recognizing the weakness of their claim, respondents

ATA, et al., quickly fall back on the argument embraced by the

other respondents: EPA may not revise the ozone standard.

ATA Br. at 39. For the reasons stated in the preceding section,

this argument is mistaken.

CONCLUSION

This Court should reverse the court of appeals’ ruling that

the Clean Air Act and EPA’s longstanding interpretation of it

violate the nondelegation doctrine. The Court should affirm

the lower court's ruling that EPA may revise the NAAQS for

ozone and designate nonattainment areas under that NAAQS,

but it should reverse the court's decision that EPA may not

implement the revised standard outside Subpart 2 of the Act.

Respectfully submitted.

JOHN J. FARMER

Attorney General

State of New Jersey

HOWARD L. GEDULDIG

JOHN R. RENELLA

Deputy Attys. Gen., N.J.

Richard J. Hughes Justice

Complex, 7th floor

P.O. Box 093

Trenton, NJ 08625

THOMAS F. REILLY

Attorney General

Commonwealth of Massachusetts

EDWARD G. BOHLEN

Assistant Atty. General, Mass.

200 Portland Street

Boston, MA 02114

LISA HEINZERLING

Counsel of Record

Special Asst. Atty. Gen., Mass.

Special Counsel, N.].

Georgetown Univ. Law Center

600 New Jersey Ave. N.W.

Washington, DC 20001

(202) 662-9115