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

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## Record

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

## Text

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

SEDGE CATON coc cvescvscccsedcevnadsends iii
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-
PU TEED oon cvcccenssvevvessentenées 7

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
PPV NEED vc ccccacccnssunctéevasssavens 13

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
SREP Terre TT rere ree ree 18

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iil
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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Oe er, cud denaeenbeneeumnntae 5
21 U.S.C. 346a(b)(2)(B)(iii)(I)-(II) ..... eee. 7
ORE SIRI oc ccunsvoneccsencncasensennsasnns »
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
LUG. PABPUED ..... ccc cccccccccccccccccscccses 18
ES © ooh is acdeunngeueaneanss 12, 16
| Ss conn sasunnaseawenennanais 15
I ii cicdcckesnainesneemaatanetaes 15
MON BRING ioc cscs ccosacsccnescauessnssess 13
I cca ccsckessssenneuneceanens 17,19
ee eT ecatcaaueaesnenenwan 16
i ac ccnscekascepaususvensepune 16
ON DN os cc odevnansandannncssses 16
es ee ee 16

—— =

LT mmm semen

Vv

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

PP EE OE cece sec cdcccesccesesscceveocess 19
Other Sources:

SPP ENED vscevcesssccssessecesouee 9,10
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), ...... 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

en ————_ 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),
. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A41. Public record. Not legal advice.