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

THE FOLLOWING PAGES WERE POOR HARD COPY

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Supreme Sour, U.S.

FILED

SEP 14 2000

NO. 99-1257

CLERK

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

BRIEF OF AMICUS CURIAE OF

ALCAN ALUMINUM CORPORATION IN SUPPORT OF

RESPONDENTS

Lawrence A. Salibra, Il

Elisa P. Pizzino

Alcan Aluminum Corporation

6060 Parkland Boulevard

Mayfield Heights, Ohio 44124-4185

(440) 423-6918

QUESTIONS PRESENTED

Whether the Clean Act requires that the Environmental!

Protection Agency must. in setting nationwide air-quality standards

ignore all factors “other that health effects relating to pollutants in

the air.” given that consideration of such factors would permit both

Agency and reviewing courts to avoid confronting constitutional

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INTEREST OF THE AMICUS CURIAE'

Amicus Curiae, Alcan Aluminum Corporation (“Alcan”) is a

subsidiary of Alcan Aluminum Limited, a Canadian Corporation.

Alcan is engaged in the business of aluminum smelting and

fabrication. It has major manufacturing facilities in the United

States, which are subject to regulation by the Environmental

Protection Agency as well as other federal agencies. It employs

4500 men and women and operates facilities in 13 States. Because

of the substantial investment in operations in the United States,

Alcan has a direct interest in insuring that the regulatory activities

by federal agencies are predicted on a reliable basis to msure that

the actions which Congress sought to achieve are in fact attained

and that the regulated are not subjected to unnecessary costs which

do not achieve the intended benefit.

SUMMARY OF ARGUMENT

Alcan believes that the manner in which present constitutional

issue is framed by the lower court, presents an mescapable

implication in the position of the United States Environmental

Protection Agency (“EPA”) that it is not required to, and in fact has

not complied, with the reliability requirement for the promulgation

of standards.

By taking the position that it is not obligated by the Clean Air Act

to undertake a cost-benefit analysis, the EPA has implicitly

conceded that it does not have the substantiation and has not

undertaken the appropriate effort in the rulemaking process to

comply with the reliability requirements of 42 USC §7607. This

shortcoming is a two-prong failure. First, to properly evaluate

' No counsel for a party authored this brief in whole or in part, and no

person or entity, other than Amicus Curiae and their counsel, made a

monetary contribution to the preparation and submission of this brief.

Consent letters for all parties have been filed with this brief.

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benefits, one must necessarily evaluate costs. Among the costs to be

considered are not merely the costs of implementing the standards

in terms of absolute dollars to the regulated, but the consequences

of the standard’s impact from a comprehensive standpoint to insure

it does not result in changes of behavior of the regulated and the

public such that any presumed reduction of risk from the standard

is etther negated or overall nsk is enhanced.

The second part of the reliability requirement is to ensure that

conclusions conceming risk associated with various limits on air

standards complies with the requirements that this Court articulated

in Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579

(1993)

Before this Court resolves the constitutional issue presented

unnecessarily, we urge this Court to consider a remand of this case

for comprehensive review of the record to msure that the

regulations at issue meet these reliability requirement

ARGUMENT

I. A FEDERAL COURT SHOULD NOT RESOLVE A

DISPUTE BY REACHING A CONSTITUTIONAL

ISSUE WHEN THE CASE MAY BE RESOLVED ON

ALTERNATIVE GROUNDS.

It is a well embedded principle that federal courts should

not reach a constitutional issue if there is a non-constitutional

ground for deciding the case. See Gulf Oil Co. v. Bernard 452

US 89, 99 (1981): Mobile v Bolden. 446 U.S. 55, 60 (1980).

Burton v US. 196 US. 283,295 (1905): Ashwander v. Tenn

Valley Authority, 297 U.S. 288, 347 (1936)

ll. THE STATUTORY SCHEME CLEARLY REQUIRES

THE EPA TO CONSIDER CONSEQUENTIAL COSTS

OF THE PROMULGATION OF AIR QUALITY

CRITERIA.

The EPA paraphrases its obligation under the Clean Air Act to

use “the latest scientific knowledge” to develop air quality criteria

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based on “all identifiable effects on public health or welfare”

Petitioners Brief at 4. The EPA has apparently interpreted 42

U.S.C. 7408 to limit its consideration exclusively to the umpact of

the pollutant alone on health. The present dispute before this Court

arises because the EPA has taken the position that the statute does

not permit it to consider economic umnpact, feasibility or

significance of the nsk. However, the EPA’s statutory obligation

to evaluate “all identifiable effects on public health or welfare” is

more comprehensive than the simple dose-response analysis

conducted by the EPA.

The statute further defines what it means by “all identifiable

effects” to imchude “those variable factors (including atmospheric

conditions) which of themselves or m combmation with other

factors may alter the effects on public health or welfare of such air

pollutant.” 42 U.S.C. 7408 (a) (2) (A). This broad requirement

imposes on the EPA the obligation to evaluate the totality of the

consequences of its proposed regulatory efforts. Even if the EPA is

correct that it 1s not obligated to consider the economic impact on

the regulated entity as a factor in itself, to the extent that such

impact translates mto adverse umpact on public health or welfare,

such as making needed energy for heating, cooling or transportation

practically unavailable to certam groups such a requirement is

mandated

It appears clear that the EPA has developed no reliable data to

address this requirement. In fact, it does not even appear to have

rehhable data to demonstrate the likely consequences of the approach

it has chosen on the simple dose-response issue as contrasted with

the other alternative options available. Thus concludes Professor

Cass R. Sunstein’ who studied the record in depth that the final

rules at issue are not accompanied by any quantification of the nsks

associated with competing standards. Nor is there an explanation of

* 9) La) Ue

> Cass R. Sunstein. /s the Clean Air Act Unconstitutional?, 98 MICH.

Law REV. 303, 328 (1999).

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the basic value judgment showing what level of nsk was chosen and

why they are requisme to protect public health

This Coun should remand this case wah mstrucuans to the EPA to

develop the record as required by 42 U SC 7408 (a) () (A)

11.1T DOES NOT APFITAR THAT THE BASIS ON

WHICH THE tfA PROMULGATED THE

CHALLENGED REGULATIONS [S BASED ON

RELIABLE EVIDENCE AS REQUIRED BY DAUBERT.

This case is an appropnate case for this Court to confirm that

the Dawbert standard which established the standard for

“reliability” for expert testimony in federal! court ts also applicable

to agency tule makmg Doawbert and its progeny “establishes a

standard of evidentiary reliability” Commentators have

recognized the logica! relationship between the reliability standard

for admussibility and the same requirement for federal agency

action

_ The APA has express language that directly supports

the application of the Supreme Court's Dawhert Four

APA section 556(d) states that “sanction may not be

umposed or rule or order issued except |when]}

sxpported by and m accordance with reliaole, probative

and substantial evidence *

The Federal Appellate Courts have reougs.zed that any deference to

an agoncy is based on its status as an expert and as such its

—_ a

‘Kamho Tire Co | Carmichae!, 118 $C. 1167, 1175 (quoung Dauber:

12* L Ed 2d at 482). (emphasis added)

+ Charles D Weiler and David B. Gruham. \ew ippreacnes To

Environmenia! Law and Agency Regulation he Daubert Linganon

Sandard V0 BLR 10857, 10568 (2000) The authors argue that there 1s

no plausible reason why Vawocr should not bo applied tc all agency

adjudication or rule making. at 1/569 Ln fact courts have already

uuported Danbert into agency nile makuny See fabas © feud Lion

inc , 171 F.3d 308 (8 Cir 1998)

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position must comport with expert behavior See Chicago Boord

of Trade v. SEC. \87 F.3d 7!3 (7 Cir 1999) (stressmg that

agency must act like an expert to receive deference) and Bechie!

v PCC. 10 Fed 3* 875 (DC Cir 1993) (agency action set aside

when it failed to undertake the ermpincal analysis to support factua!

Propositions)

Since the EPA did not attompt to quantify the risks, is virtually

umpossible to determume why the agency chose the standards

adopted Wrhout specificanon of the range of benefits attainable

from vanous approaches. “there is 2 weak role for sound science in

standard setting” ’ It is unpossible to evaluate the reliability of the

agency rulemaking because « is impossible to discern the basis for

the EPA judgments

CONCLUSION

For the foregomg reasons, Alcan believes that the EPA has not

established that «ts standards are rooted m sufficiently rehable

evidence Accordingly, the Court should vacate the EPA ozone and

particulate standards on thrs basis and remand this case with

instructions to the EPA to promulgate new standards based on the

rebability standard articulated m Daubert

Respectfully submated.

Lawrence A. Sahbra, I]

Alcan Alumimum Corporation

6060 Parkland Bivd

Mayfield hiewhts, Om 44124

(440) 423-6918

Attorneys jor Amicus ( uric

Alcan Aluminum Corporation

‘ Sunstom sume aip -o!

301 737 0732:# 3/ 3