Cross Petition — American Trucking Assns., Inc. v. Browner

Supreme Court brief2000

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Text

No.

DQ FiLted-

991426 FEB 2 & 2000

a vitikt UP THE CLLHA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER OF

COMMERCE OF THE UNITED STATES, ET AL., *

Cross-Petitioners,

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, &T AL.,

Cross-Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CONDITIONAL CROSS-PETITION

FOR WRIT OF CERTIORARI

ROBIN S. CONRAD

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for Cross-Petitioner

Chamber of Commerce of the

United States

EDWARD W. WARREN

Counsel of Record

ROBERT R. GASAWAY

JEFFREY B. CLARK

DARYL JOSEFFER

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Counsel for Cross-Petitioners

American Trucking Associations,

Inc. and Chamber of Commerce

of the United States

* Additional Parties and Counsel Listed on Inside Cover

Feruary 2 2000

BETH L. LAW

ROBERT S. DIGGES

ATA LITIGATION CENTER

2200 Mill Road

Alexandra, VA 22314

Counsel for American Trucking

Associations, Inc., Burns Motor

Freight, Inc., Garner Trucking,

Inc., and Genie Trucking Line,

Inc.

Gary H. BAISE

ELIZABETH S. POLINER

BAISE, MILLER & FREER, P.C.

1020 19th Street, N.W.

Suite 400

Washington, D.C. 20036

Counsel for Equipment

Manufacturers Institute

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

Counsel for National Small

Business United, The American

Portland Cement Alliance, and

The Glouster Company, Inc.

ERIKA Z. JONES

Timothy S. BISHOP

ADAM C. SLOANE |

MAYER, BROWN & PLATT

1909 K Street, N.W.

Washington, D.C. 20006

Counsel for American Farm

Bureau Federation

ROBERT R. GASAWAY

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

Counsel for American Road and

Transportation Builders

Association

JAN S. AMUNDSON

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Counsel for National Association

of Manufacturers

DIMETRIA G. (JIM) DASKAL

THE DASKAL LAW GROUP

3 Church Circle

Suite 500

Annapolis, MD 21401

Counsel for National Coalition

of Petroleum Retailers

DOUGLAS I. GREENHAUS

NATIONAL AUTOMOBILE

DEALERS ASSOCIATION

8400 Westpark Drive

McLean, VA 22102

Counsel for National Automobile

Dealers Association

JEFFREY L. LEITER

CHET M. THOMPSON

COLLIER, SHANNON, RILL &

SCOTT

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

Counsel for Non-Ferrous

Founders’ Society

QUESTION PRESENTED

|. Whether the Clean Air Act requires that the

Environmental Protection Agency must, in setting nationwide

air-quality standards, ignore all factors “other than health effects

relating to pollutants in the air,” given that consideration of such

factors would permit both the Agency and reviewing courts to

avoid confronting constitutional nondelegation issues.

(ii)

PARTIES TO THE PROCEEDINGS

Cross-Petitioners are: American Trucking Associations, Inc.,

Chamber of Commerce of the United States, National Coalition

of Petroleum Retailers, Burns Motor Freight, Inc., Garner

Trucking, Inc., Genie Trucking Line, Inc., National Automobile

Dealers Association, National Association of Manufacturers,

National Small Business United, The American Portland

Cement Alliance, The Glouster Company, Inc., Non-Ferrous

Founders’ Society, Equipment Manufacturers Institute,

American Farm Bureau Federation, and American Road and

Transportation Builders Association.

None of these cross-petitioners has any parent corporations,

and no publicly traded company owns 10 percent or more of

any of these cross-petitioners’ stock.

Respondents, who were respondents in the court of appeals,

are: Carol M. Browner, the Administrator of the Environmental

Protection Agency, and the Environmental Protection Agency.

The following additional entities have filed petitions for

certiorari from the underlying judgment of the court of appeals:

the American Lung Association, the Commonwealth of

Massachusetts, and the State of New Jersey.

The following additional entities participated as parties in the

court of appeals: Alliance of Automobile Manufacturers

(formerly American Automobile Manufacturers Association),

American Forest and Paper Association, American Iron and

Steel Institute, American Petroleum Association, American

Public Power Association, Appalachian Power Company,

Atlantic City Electric Company, Baltimore Gas and Electric

Company, James Bassage, Carolina Power & Light Company,

Centerior Energy Corporation, Central and South West

Services, Inc., Central Hudson Gas & Electric Corporation,

Central Illinois Light Company, Central Illinois Public Service

Company, Central Power & Light Company, Chemical

Manufacturers Association, CINergy Corporation, Citizens for

Balanced Transportation, Cleveland Electric Company,

(iti)

Columbus Southern Power Company, ComEd Company,

Consumers Energy Company, Dayton Power & Light

Company, Delmarva Power & Light Company, The Detroit

Edison Company, Duke Energy Company, Duquesne Light

Company, Edison Electric Institute, FirstEnergy Corporation,

Florida Power Corporation, Michael Gregory, Idaho Mining

Association, Illinois Power Company, Indiana Michigan Power

Company, Indianapolis Power & Light Company, Jacksonville

Electric Authority, Kansas City Power & Light Company,

Judy’s Bakery, Kennecott Energy and Coal Company,

Kennecott Corporation, Kennecott Services Company,

Kentucky Power Company, Kentucy Utilities Company,

Louisville Gas and Electric Company, Madison Gas and Electric

Company, David Matusow, Brain McCarthy, Meridian Gold

Company, The State of Michigan, Midwest Ozone Group,

Minnesota Power, Monongahela Power Company, National

Association of Home Builders, National Indian Business

Association, National Mining Association, National Paint and

Coatings Association, National Petrochemical & Refiners

Association, National Rural Electric Cooperative Association,

National Stone Association, Nevada Mining Association,

Newmont Gold Company, Northern Indiana Public Service

Company, Oglethorpe Power Corporation, The State of Ohio,

Ohio Edison Company, Ohio Power Company, Ohio Valley

Electric Corporation, Oklahoma Gas & Electric Company,

PacificCorp, Plains Electric Generation & Transmission

Cooperative, Inc., Phoenix Cement Company, The Potomac

Edison Company, Potomac Electric Power Company, PP&L

Resources, Public Service Company of New Mexico, Richard

Romero, Salt River Project Agricultural Improvement & Power

District, Small Business Survival Committee, South Carolina

Electric & Gas Company, Southern Company, Tampa Electric

Company, Toledo Edison Company, Union Electric Company,

United Mine Workers of America, AFL-CIO, Virginia Power,

Western Fuels Association, West Penn Power Company, The

State of West Virginia, West Virginia Chamber of Commerce,

and Wisconsin Electric Power Company.

(iv)

The following participated as amici curiae in the court of

appeals: Representative Tom Bliley, Senator Orrin G. Hatch,

New York, Connecticut, New Hampshire, and Vermont.

(v)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................ i

PARTIES TO THE PROCEEDINGS ................ li

TABLE OF AUTHORITIES ...................... vii

ees at en oda 2a eer ie l

ea es 2

PERTINENT CONSTITUTIONAL AND STATUTORY

RES a ces NGS Ga fs ARON eae 2

STATEMENT OF THE CASE .................055. 2

REASONS FOR GRANTING THE WRIT ............ 5

1. THE COURT BELOW WAS FORCED TO CONSIDER

CONSTITUTIONAL NONDELEGATION ISSUES

BECAUSE THAT COURT HAD MISCONSTRUED

THE CLEAN AIR ACT IN LEAD INDUSTRIES AND

SUBSEQUENT CASES .. 0... ccc cece cece 5

A. Issues Arising under the Non-Delegation

Construction Canon, Chevron Review, Arbitrary and

Capricious Review, and Statutory Interpretation Are

Tightly Intertwined in This Case............... 7

1. The Court of Appeals Properly Rejected

EPA’s Interpretation under Chevron ..... . 7

2. The Statutory Interpretation Issues Presented

Here Are Logically Intertwined with

(vi)

B. The Court Cannot Uphold EPA’s Statutory

Interpretation without Considering Whether Lead

Industries and \ts Progeny Are Correct ........ 14

1. This Court’s Decisions Have Steadily Eroded

the Conceptual Underpinnings of Lead

Industries at the Same Time the D.C. Circuit

Has Steadily Expanded Its Reach ....... 15

2. Lead Industries Was Wrongly Decided ... 18

This Court Should Address the Statutory

Interpretation Issues Presented Here in Order

to Increase the Likelihood of Avoiding

Constitutional Issues................. 22

C This Court Should Grant or Hold this Cross-Petition

to Ensure that the Full Range of Statutory

Interpretation Issues Is Properly Presented... .. 27

oe) 0 |) See err 30

(vii)

TABLE OF AUTHORITIES

Page

Cases:

Abbott Labs. v. Young,

ed 7)

Acme Die Casting v. NLRB,

Ue PE GY HEIs ccc cccveccccscccess 10

Allen v. Grand Cent. Aircraft Co.,

I ret aaa on ire 8 ee 11

American Hosp. Ass'n v. NLRB,

I sh ae) 16

American Lung Ass'n v. EPA,

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

I a ee ees ae 13

American Petroleum Inst. v. Costle,

665 F.2d 1176 (D.C. Cir. 1981),

cert. denied sub nom.

American Petroleum Inst. v. Gorsuch,

455 US. 1034(1982) ....................... 5, 18

Andrus v. Idaho,

445 U.S. 715 (1980) .................. 0. ee ee. 29

Animal Legal Defense Fund, Inc. v. Glickman,

No. 97-5009, 2000 WL 46028

re ices ae

AT&T Corp. v. Iowa Utils. Bd.,

I ESS ee 8

Brotherhood of Locomotive Eng'rs v. United States,

101 F.3d 718 (DC. Cir. 1996)................... 12

Building & Constr. Trades Dep't v. Brock,

838 F.2d 1258 (D.C. Cir. 1988).................. 25

(viii)

Burlington Truck Lines, Inc. v. United States,

371 U.S. 196 (I9GZ) .. 6. ewe ee eeees aaaee 11

Chamber of Commerce v. FEC,

69 F.3d 600 (D.C. Cir. 1995)... 0. ee ene 13

Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837 (1984) .... 0... eee ee. 5, 17, 19, 23

City of Kansas City v. Department of

Housing & Urban Dev.,

923 F.2d 188 (D.C. Cir. 1991). ... 00... eee 9, 10

Corrosion Proof Fittings v. EPA,

947 F.2d 1201 (Sth Cir. 1991)... 0... 25

District of Columbia v. Train,

§21 F.2d 971 (D.C. Cir. 1975),

vacated on mootness grounds sub nom.

EPA v. Brown,

431 US. 99, reinstated in part sub nom.

District of Columbia v. Costle,

567 F.2d 1091 (D.C. Cir. 1977)... ... 00.0. eee eee 13

Edward J. DeBartolo Corp. v. Florida

Constr. Bldg. & Trades Council,

485 U.S. 568 (1988) ...... LOPE PPT COTE TT err 12

Hess & Clark v. FDA,

495 F.2d 975 (D.C. Cir. 1974)... 0066 ae 25

Hodel v. Indiana,

GIB, BIOCITBAD 2c ccc cccccsvccccsccvcsvess 7

Industrial Union Dep't v. American

Petroleum Inst.,

448 US. 607(1980) .. 0... cee 5, 8, 9, 16

INS v. Chadha,

462 U.S. 919 (19GB) 0... cc ccc cere e ec eenceens 16

International Harvester Co. v. Ruckelshaus,

478 F.2d 615 (D.C. Cir. 1973)... 0... eee 25

Jones v. United States,

8 eee 27

Kolstad v. American Dental Ass'n,

119S. Ct. 2118 (1999) ....... 27

Lead Industries Ass'n v. EPA,

647 F.2d 1130(D.C. Cir. 1980).......... 1, 15, 20, 21

Missouri v. Jenkins,

ERE Te gee ES Pa, 27

Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co.,

I son a Te een 12, 25

National Cable Television Ass'n v. United States,

415 U.S. 336 (1974) ow ccc wc ee, ®

NRDC v. EPA,

824 F.2d 1146(D.C. Cir. 1987)............ 17, 20, 26

NRDC v. EPA,

902 F.2d 962 (D.C. Cir. 1990), vacated in part,

921 F.2d 326 (D.C. Cir.), cert. dismissed sub nom.

Alabama Power Co. v. NRDC, 498 U.S. 1075 (1991) . 18

NRDC v. Reilly,

976 F.2d 36 (D.C. Cir. 1992)....................., 9

Pearson v. Shalala,

164 F.3d 650 (D.C. Cir. 1999)........... 0... 13

Public Citizen v. Young,

831 F.2d 1108 (D.C. Cir. 1987).................. 23

Public Util. Comm'n of Cal. v. United States,

a 1]

R.A.V. v. City of St. Paul,

ong oa iti hb ce wk dnt aes 28

SEC v. Chenery Corp.,

RE re eee 1]

(x)

Smiley v. Citibank (S.D.), N.A.,

y, . &. [ Serer rere 13

Sullivan v. Zebley, a

' Lit @ 0) Serer ere

United States v. American Ry. Express Co.,

BGS UG. GBS CIGDE) 2... nc cc cccccccevcccnes 27, 29

United States v. McGoff,

831 F.2d 1071 (D.C. Cir. 1987) ...........-.--06- 16

Statutes:

21 U.S.C. § 34B(CM3MA) «6.2 eee eee ee eee 22

y Lik Coat Do) |) ee eee 2

Clean Air Act § 108(a)(2), -

42 U.S.C. § T40B(aN2) . 0... eee eee ene

Clean Air Act § 108(b)(1), ‘ie

42 U.S.C. § T40B(DM1) . «eee ee eee

Clean Air Act § 109(b)(1), ‘is

42 U.S.C. § T4ODQOM1) . «eee ee ees .

Clean Air Act § 109(d)(1), -

42 U.S.C. § T4OKHGM1) 0. cece eee 19,

Clean Air Act § 112(b)(1)(B),

42 U.S.C. § 7412(b)(1)(B) (1982) ...... 6 ee eee 17

Clean Air Act § 302(h), 2

Peas Com be

Clean Air Act § 307(b)(1), is

42 U.S.C. § TEOTQDM1) «eee eee 2,

Clean Air Act § 307(d)(3), =

42 U.S.C. § T607(dM3) .. 6... eee eee eee

Clean Air Act § 307(d)(4)(BXi),

42 U.S.C. § 7607(d4 (BMI)... eee 23

(xi)

Clean Air Act § 307(d)(6)(B),

42 U.S.C. § 7607(dX6)B) .................. 23, 24

OSHA Act § 3(8),

RE RD a a ee ate 15

OSHA Act § 6(b)(5),

Ee ee aa 15

United States Constitution,

ee een 2

Miscellaneous:

61 Fed. Reg. 65,716 (Dec. 13, 1996)................. 3

62 Fed. Reg. 38,421 (July 18,1997)................. 24

62 Fed. Reg. 38,652 (July 18,1997) ............ 6, 9, 20

62 Fed. Reg. 38,856 (July 18,1997) ............ 6, 9, 20

H.R. Rep. No. 95-564 (1977),

reprinted in 1977 U.S.C.C.A.N. 1502 ............. 23

Frank P. Grad, PUBLIC HEALTH LAW MANUAL (1965) .. . 25

John F. Manning, 7extualism as a

Nondelegation Doctrine,

97 Colum. L. Rev. 673 (1997)

Robert L. Stern ef al., SUPREME COURT PRACTICE

eA IE Se opera a re IN 27-29

Karl T. Ulrich and Steven D. Eppinger,

PRODUCT DESIGN AND DEVELOPMENT (2d ed. 1997) .. 26

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY

RON re ate 20

The American Trucking Associations, Inc., the Chamber of

Commerce of the United States, and the other “Small Business

Petitioners” below (collectively “ATA”), respectfully submit this

conditional cross-petition. ATA requests that its cross-petition

be granted or, at a minimum, held in abeyance if the Court

grants certiorari on any form of the first question presented in

the petition filed by the Environmental Protection Agency

(“EPA” or “Agency”.

ATA’s cross-petition presents a statutory interpretation issue

that inheres in the first question presented by EPA. It also

provides a vehicle for avoiding the constitutional nondelegation

issue on which EPA focuses. Specifically, this conditional

cross-petition asks whether the court of appeals was correct

when it held, based on Lead Industries Ass'n v. EPA, 647 F.2d

1130, 1148 (D.C. Cir. 1980), and its D.C. Circuit progeny, that

EPA must ignore all non-health factors, including costs, in

setting the National Ambient Air Quality Standards

(“NAAQS”).

Despite its adherence to Lead Industries, the court below

invalidated EPA’s interpretation of the Act. While this Court

could do likewise, it could not possibly uphold either EPA’s

interpretation, or the regulations based on it, without first

considering whether those D.C. Circuit precedents — cases

never examined by this Court -- were correctly decided.

For the reasons discussed in Part C, pp. 27-30, infra, ATA

submits that a cross-petition is not technically required to

preserve this issue. Nevertheless, ATA cross-petitions both to

ensure that the Court fully appreciates the statutory

interpretation question presented by this case, and to avoid even

a remote possibility that the Court might consider itself barred

from considering any aspect of that question.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-69a) is reported

at 175 F.3d 1027. The opinions on the petitions for rehearing

(App. 70a-101a) are reported at 195 F.3d 4.

JURISDICTION

The court of appeals entered its judgment on May 14, 1999.

On October 29, 1999, timely petitions for panel rehearing were

granted in part and denied in part, with suggestions for en banc

rehearing denied in their entirety. The petitions for certiorari

were timely filed on January 28, 2000. Supreme Court Rule

12.5 and 28 U.S.C. § 1254(1) provide the basis for jurisdiction

over this conditional cross-petition, which is timely filed under

Supreme Court Rule 12.5.

PERTINENT CONSTITUTIONAL AND STATUTORY

PROVISIONS

The following constitutional and statutory provisions are

central to this case:

1. Article I, Section 1 of the United States Constitution

provides in relevant part: “All legislative Powers herein granted

shall be vested in a Congress of the United States.”

2. Relevant portions of Sections 108, 109, and 307 of the

Clean Air Act are set forth in the Appendix.

STATEMENT OF THE CASE

ATA provided a Statement of the Case in its Brief in

Opposition and accordingly will focus here on only those

aspects of the proceedings below that are pertinent to the

matters covered by this cross-petition.

Acting pursuant to its jurisdiction under Clean Air Act

(“CAA” or “Act”) § 307(b\(1), 42 U.S.C. § 7607(b)(1), and

5 USC. § 611, the court of appeals invalidated the

interpretation of Section 109(b) and related provisions of the

Act used by EPA in setting new NAAQS for ozone, fine

particulate matter (“PM,,;”), and coarse particulate matter

(“PM,,”). The court of appeals did not hold these statutory

provisions unconstitutional. Instead, it agreed with the

argument made by ATA below that Section 109 and related

provisions must be construed in light of the Act’s text,

background, purpose, and statutory context to provide an

Se of EPA

e App. 5a-18a, 75a-76a. s discretion.

Section 109(b)(1) directs EPA’s Administrator to set a

primary NAAQS that is “requisite to protect the public health”

with “an adequate margin of safety.” CAA § 109(b)(1), 42

U.S.C. § 7409(b)(1). In revising the ozone NAAQS for

example, EPA confronted a wide range of options differing in

three separate dimensions: the level, form, and averaging period

of the standard. EPA’s proposal requested comment on levels

of 0.07 to 0.09 parts per million (“ppm”). See 61 Fed Reg

65,716 (Dec. 13, 1996). For each level, EPA invited comment

on several different forms, including standards ranging from the

second- to the fifth-highest annual exceedance or concentration

Id. at 65,730-33. As to averaging time, EPA strongl ,

advocated changing from a one-hour to an eight-hour sated

See id. at 65,727. In considering this array of options EPA’s

Clean Air Scientific Advisory Committee (“CASAC”)

— that “there is no ‘bright line’ which distinguishes any

y — o tonae ru ~~ a the level or the number of

_ ;,

public health.” J.A. (Ozone) — eer

These options differed markedly in their predict

attainability. EPA estimated, for onteth that y sos

bringing all areas of the country into compliance with its chosen

ozone standard (a 0.08 ppm, fourth-highest, eight-hour

measurement) by 2010 would amount to $9.6 billion annually.

See J A. (Ozone) 2934. These costs, not to mention the

predictable impact on small businesses, could be substantial

reduced by, for example, setting the standard at the fifth-highest

rather than the fourth-highest reading - or even more

significantly, by adjusting the level from 0.08 to 0.09 ppm. See

id. at 1975, 2929, 2969, 2995. ATA argued below that these

differences mattered, especially since CASAC had found the

options considered by EPA to be effectively indistinguishable

from a public health standpoint. See Ozone Br. of Small Bus

Pet’rs at 7-8, 19-20; Ozone Reply Br. of Small Bus. Pet’rs at 7

The court of appeals nevertheless held that it was prevented

by Lead Industries from requiring EPA to consider the costs

and attainment consequences of its standards. See App. 7a,

15a. That said, the panel went on to hold that the health factors

mentioned by EPA, while “reasonable” as a starting point, were

insufficient because they “lack[ed] any determinate criteria for

drawing lines.” /d. at Sa-6a. The court illustrated EPA’s failure

to “speak to the issue of degree” by reference to the Agency’s

justification for choosing the 0.08 ppm level for the ozone

NAAQS. See id. at 8a-1la. As the court explained, while EPA

claims to have chosen 0.08 ppm over 0.09 ppm “because more

people are exposed to more serious effects at 0.09 than at

0.08,” it “never contradict[ed] the intuitive proposition,

confirmed by data in its Staff Paper, that reducing the [0.08]

standard to [0.07] would bring about comparable changes.” /d.

at 8a.

EPA responded that “a 0.07 standard would be ‘closer to

peak background levels,”” but “a 0.08 level, of course, is also

closer to these peak levels than 0.09.” Jd. at 9a (emphasis in

original). Indeed, in the case of the PM standard (where EPA

estimated compliance costs of at least $37 billion annually by

2010, see J.A. (PM) 3470), the court observed that similar

rationales “could also be employed to justify a refusal to reduce

levels below those associated with London’s ‘Killer Fog’ of

1952.” App. 11a; see also id. at 13a. The court of appeals thus

found it inescapable that “EPA has construed §§ 108 & 109 of

the Clean Air Act so loosely as to render them unconstitutional

delegations of legislative power.” /d. at 5a.

While the panel felt bound by Lead Industries and its

progeny, it recognized that some form of cost-benefit test or

similar analysis could functionally serve as the necessary

“intelligible principle” to avoid an unconstitutional construction

of Sections 108 and 109. See id. at 14a-15a. The court further

acknowledged the difficulty of formulating an “intelligible

principle” so long as EPA was barred from considering “any

factor other than health effects relating to pollutants in the air.”

/d. at 15a (internal quotation omitted), 18a.

The court conducted its analysis within the framework

provided by this Court in Chevron U.S.A. Inc. v. NRDC, 467

U.S. 837, 866 (1984). It thus concluded that the appropriate

remedy was to remand for EPA to “develop a construction of

the act that satisfies this constitutional requirement,” and, “if

appropniate, [to] modify the disputed NAAQS in accordance

with that construction.” App. 4a- Sa.

In response to EPA’s petition for rehearing, the court of

appeals reemphasized both that the Act could be interpreted to

provide a constitutionally sufficient “intelligible principle,” and

that it is the job of EPA, not the court, to develop such an

interpretation in the first instance. See id. at 75a. As the court

explained, “just as we must defer to an agency’s reasonable

interpretation of an ambiguous statutory term, we must defer to

an agency’s reasonable interpretation of a statute containing

only an ambiguous principle by which to guide its exercise of its

delegated authority... . In sum, the approach of the Benzene

case, in which the Supreme Cour itself identified an intelligible

principle in an ambiguous statute, has given way to the

approach of Chevron.” Jd. at 76a (citing /ndustrial Union

Dep't v. American Petroleum Inst., 448 U.S. 607 (1980)

(“Benzene”)).

REASONS FOR GRANTING THE WRIT

1. THE COURT BELOW WAS FORCED TO CONSIDER

CONSTITUTIONAL NONDELEGATION ISSUES

BECAUSE THAT COURT HAD MISCONSTRUED

THE CLEAN AIR ACT IN LEAD INDUSTRIES AND

SUBSEQUENT CASES.

This case is first and foremost about how to construe what all

sides recognize are the most important provisions of the Clean

Air Act. This Court has never accepted review of such a case,

although it has declined review on at least four occasions See,

e.g., American Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C.

Cir. 1981), cert. denied sub nom. American Petroleum Inst. v.

Gorsuch, 455 U.S. 1034 (1982). Under the usual methods of

statutory construction, the Court should first consider the

statute and EPA’s interpretation before addressing the lower

court’s use of the nondelegati. toctrine as a construction tool

— a tool that became relevan largely because non-health

considerations were unavailable to serve as limiting principles

under the Lead Industries line of D.C. Circuit precedent.

With Lead /ndustries as binding precedent, the court of

appeals confronted an open-ended EPA interpretation that

required it to use all of the tools at its disposal to determine

whether EPA’s construction was permissible. EPA explained

its interpretation of the key statutory terms — “requisite to

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

~ as follows: “[T]he Administrator is not limited to any single

approach to determining an adequate margin of safety and may,

in the exercise of her judgment, choose an integrative approach,

a two-step approach, or peshaps some other approach,

depending on the particular circumstances confronting her in a

given NAAQS review.” 62 Fed. Reg. 38,856, 38,883 (July 18,

1997); 62 Fed. Reg. 38,652, 38,688 (July 18, 1997).

Against such a standardless assertion of authority, the panel

was surely correct to deploy the nondelegation canon — and to

rely on this Court’s pre-Chevron decision in Benzene — as a

basis for invalidating EPA’s unreasonable interpretation. This

Court, however, is not fettered by Lead Industries. lt is

therefore free to construe the Act afresh and deploy the

nondelegation canon (or not) depending on whether it is needed

after the Court’s interpretive work under Chevron is completed.

See Part A below.

According to the lower court, Lead Industries precludes

EPA from considering “any factor other than health effects

relating to pollutants in the air” — a construction that curtails the

range of “intelligible principles” that can be derived from the

Act’s standard-setting provisions. See App. 15a (internal

quotation omitted), id at 14a-15Sa, 18a. That construction

would not matter if Lead /ndustries and progeny were correctly

decided. But, as summarized below, those cases were wrong

Court's decisions in Benzene, Chevron, Chadha, and all of the

subsequent cases following their lead. See Part B below.

ATA acknowledges that the validity of Lead Industries is so

intertwined with the lower court’s invalidation of EPA’s

statutory interpretation that this conditional cross-petition is

probably not required. In particular, the ability to assert a

correct construction of the Act (and hence the invalidity of Lead

Industries) is logically entailed by any fair reading of EPA’s first

question presented. Nevertheless, since this point involves

subtleties that might not be apparent without a cross-petition,

and since the jurisprudence of cross-petitions is not without its

ambiguities, ATA submits this cross-petition for the reasons

elaborated in Part C below.

A. Issues Arising under the Non-Delegation

Construction Canon, Chevron Review, Arbitrary

and Capricious Review, and Statutory

Interpretation Are Tightly Intertwined in This Case.

1. The Court of Appeals Properly Rejected

EPA’s Interpretation under Chevron.

_ As explained above, Lead Industries is inextricably

intertwined with the first question presented because it forced

the court of appeals to employ the nondelegation doctrine as a

tool of statutory interpretation to invalidate EPA’s

interpretation of Section 109. Although EPA's petition drops

hints of statutory invalidation, and seeks to portray the court of

appeals’ decision as “a radical departure from settled law

respecting the nondelegation doctrine,” Pet. 9, nothing could be

farther from the truth.

In particular, the court below never disputed that this Court

is loathe to declare statutes unconstitutional on nondelegation

grounds, or, for that matter, on any grounds. See, e.g., Hodel

v. Indiana, 452 U.S. 314, 323 (1981) (“legislative Acts .. .

come to the Court with a presumption of constitutionality”)

(internal quotation omitted). Instead, the appellate court

properly invoked this Court’s line of cases that have construed

statutes narrowly to provide an “intelligible principle” for

guiding agency discretion. App. 14a, 74a-76a; see also

National Cable Television Ass'n v. United States, 415 U.S.

336, 342-43 (1974) (interpreting statute “narrowly to avoid

constitutional problems” under the nondelegation doctrine).

This Court’s decision in Benzene is the most relevant such

case. In Benzene, a four-justice plurality (in combination with

a concurrence from then-Justice Rehnquist that would have

gone farther still) held that the agency interpretation before it

“would make such a sweeping delegation of legislative power

that it might be unconstitutional.” 448 U.S. at 646 (emphasis

added and internal quotation omitted). The Court thereupon

adopted a narrowing interpretation because “[a] construction of

the statute that avoids this kind of open-ended grant should

certainly be favored.” /d. Like the court below, Benzene used

the nondelegation construction canon to reject an agency’s

essentially standardless construction of its organic statute.

EPA's protestations notwithstanding, the court of appeals’

rejection of EPA’s statutory interpretation amounts to nothing

more than applying these settled constitutional principles in the

context of review after Chevron. Indeed, Chevron review has

often been used by courts, including this one, to invalidate

open-ended statutory interpretations quite analogous to the one

rejected below. Just last term, for example, this Court used

Chevron to reject the FCC’s interpretation of the “necessary

and impair” provisions of Section 251(dX(2) of the 1996

Telecommunications Act. It reasoned that, whereas the FCC

had failed to give those terms any concrete meaning, “the Act

requires the FCC to apply some limiting standard, rationally

related to the goals of the Act, which it has simply failed to do.”

AT&T Corp. v. Iowa Utils. Bd., 119 S. Ct. 721, 734-35 (1999)

(emphasis in original).

The D.C. Circuit has likewise used the second step of

Chevron to reject standardless agency interpretations of key

statutory terms, see, ¢.g., Abbott Labs. v. Young, 920 F.2d 984,

987-88 (D.C. Cir. 1990), especially where, as here, the agency’s

interpretation is so limitless as to amount to almost no

interpretation at all. See City of Kansas City v. Department of

Housing & Urban Dev., 923 F.2d 188, 189 (D.C. Cir. 1991).

The obvious flaw in such interpretations is that they “fail{] the

second step of Chevron because the agency seeks to exploit the

ambiguity rather than to resolve it, and to advance its own

policy objectives rather than Congress’.”. NRDC v. , 976 F.2d

36, 44 (D.C. Cir. 1992) (Silberman, J., concurring).

Here, EPA treated the critical statutory terms — “requisite to

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

~ as if they conferred just the sort of “unprecedented power

over American industry” that Benzene understandably rejected

as “unreasonable.” 448 U.S. at 645. Moreover, in this case, as

in Jowa Utilities, the Agency refused to give real meaning to

key terms, asserting instead that “the Administrator is not

limited to any single approach to determining an adequate

margin of safety and may, in the exercise of her judgment,

choose an integrative approach, a two-step approach, or

perhaps some other approach, depending on the particular

circumstances confronting her in a given NAAQS review.” 62

Fed. Reg. at 38,883; 62 Fed. Reg. at 38,688.

As for ATA’s contentions that EPA should set a “significant

risk” cutoff in defining public health protection, or consider

costs in setting an “adequate margin of safety,” EPA

unashamedly asserted that its decisions (1) need be based on

“no generalized paradigm,” (2) “may not be amenable to

quantification in terms of what risk is ‘acceptable’ or any other

metric,” and (3) in any event, are “largely judgmental in nature.”

62 Fed. Reg. at 38,883 (emphasis added); 62 Fed. Reg. at

38,688 (emphasis added). EPA’s construction of the Act even

allowed it to ignore record evidence from the Department of

Energy, an OMB investigator (Lutter et al.), and, remarkably,

EPA’s own internal analyst (Cupitt) — all of which indicated that

reducing ground-level ozone by the amounts projected under

EPA’s revised NAAQS would lead to thousands of additional

skin cancer and cataract cases each year. See Ozone Br. of

Small Bus. Pet’rs at 21-24 (summarizing these studies); App.

45a, 47a-48a (invalidating this part of EPA's interpretation).

Confronted with this construction of the Act, the court of

appeals, not surprisingly, found such ad hoc interpretation

inherently tautological and unlawful:

EPA's explanations for its decisions amount to assertions

that a less stringent standard would allow the relevant

pollutant to inflict a greater quantum of harm on public

health, and that a more stringent standard would result in

less harm. Such arguments only support the intuitive

proposition that more pollution will not benefit public

health, not that keeping pollution at or below any

particular level is “requisite” or not requisite to “protect

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

formula set out by § 109(b)(1).

App. 7a.

The statutory interpretation underpinnings of the holding

below are further underscored by the court of appeals’ remedy

— remand to the agency, the traditional remedy after an agency

interpretation has been invalidated under the second prong of

Chevron. See City of Kansas City, 923 F.2d at 192 (“[W]here

the agency’s administrator has failed to provide us with a

reasonable construction to which we can defer, we must remand

to the agency for consideration of the statutory question in the

first instance.”); Acme Die Casting v. NLRB, 26 F.3d 162, 166

(D.C. Cir. 1994) (“The NLRA is ambiguous, so under Chevron

we will be bound to accept any reasonable rule that the Board

selects as an appropriate gap-filling-measure. But the Board

must select the rule.”). The rationale underlying this principle

is the compelling need “to avoid ‘propel[ling] the court into the

domain which Congress has set aside exclusively for the

administrative agency.’” Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 169 (1962) (quoting SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947)).

Although EPA takes strenuous exception to the court of

appeals’ selection of the remand remedy, its objection is based

on the incorrect premise that the court ordered the Agency to

impose “artificial[],” or extra-statutory restraints on itself. See

Pet. 9. In actuality, the court of appeals here did no more than

ask EPA to do what many other agencies have done before it -

interpret a statute in conformance with constitutional principles.

See, e.g., App. 14a. Agencies, like courts, are bound to

interpret statutes to avoid constitutional questions. This Court

precisely so that agencies, not courts, will engage many such

questions in the first instance. See Public Util. Comm'n of

Cal. v. United States, 355 U.S. 534, 539-40 (1958); Allen v.

Grand Cent. Aircraft Co., 347 U.S. 535, 553 & n.22 (1954).

Nor is the fact that the Agency’s interpretation was found

unlawful after application of the nondelegation canon a reason

to rule out categorically the traditional administrative law

remedy. See App. 14a, 75a-76a. “[{C)}hoos{ing] among

permissible interpretations of an ambiguous principle” is a task

for the agencies, not the courts. /d 75a (citing Chevron).

Though this Court’s Benzene decision employed a different

remedy by fashioning a limiting principle on its own, that

difference, far from “artificial” or “remarkable,” is quite easily

— As the D.C. Circuit noted, Benzene predates

In sum, the court of appeals faced a recalcitrant agency that

had consciously determined not to articulate a lawfully bounded

Or constitutionally sufficient interpretation of its authorizing act.

In those circumstances, the court did precisely what a court is

supposed to do under Benzene, Chevron, and most recently,

lowa Utilities — it rejected, not Section 109 itself, but the

Agency’s unlawful interpretation of Section 109. That

invalidation could have been avoided, however, if EPA had

followed an “intelligible principle,” including one of those that

Lead Industries had foreclosed from consideration. See pp. 22-

26 infra (discussing such principles).

2. The Statutory Interpretation Issues

Presented Here Are Logically Intertwined

with “Arbitrary and Capricious” Review.

There is nothing surprising about the court of appeals

considering and rejecting the Agency’s statutory interpretation

before reaching respondents’ “arbitrary and capricious”

challenges. Although EPA makes extravagant claims of judicial

overreaching, see, e.g., Pet. 9, 16, the court was certainly within

its authority in addressing statutory issues before conducting an

“arbitrary and capricious” inquiry.

Statutory interpretation, including use of the nondelegation

canon, is logically antecedent to “arbitrary and capricious”

review. That is so because review under the “arbitrary and

capricious” standard requires consideration of an agency's

“applications of its statutory interpretation to the facts of the

cases before it.” Brotherhood of Locomotive Eng'rs v. United

States, 101 F.3d 718, 729 (D.C. Cir. 1996). In particular, the

reviewing court must interpret the statute in order to determine

“whether the decision was based on a consideration of the

relevant factors,” and whether the agency has made “a rational

connection between the facts found and the choice made.”

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983) (internal quotation omitted), see also

Sullivan v. Zebley, 493 U.S. 521, 528-29 (1990) (reversing

agency based on statute’s structure, consideration of which

logically precedes the issue whether agency acted arbitrarily and

capriciously).

Courts therefore routinely decide questions of statutory

interpretation before undertaking “arbitrary and capricious”

review — even where, as here, the statutory issues raise serious

constitutional concerns. See, e.g., Edward J. DeBartolo Corp.

v. Florida Constr. Bldg. & Trades Council, 485 U.S. 568, 574-

75 (1988) (rejecting agency’s interpretation on

constitutional avoidance); Chamber preteen v. — 4

F.3d 600, 604-07 (D.C. Cir. 1995) (rejecting agency definition

of statutory term on ground that it presented “serious

constitutional difficulties,” before noting in dictum that the

agency's rule was arbitrary and capricious as well); District of

Columbia v. Train, 521 F.2d 971, 981-95 (D.C. Cir. 1975)

(invoking avoidance canon before addressing “arbitrary and

capricious”’-based challenge), vacated on mootness grounds sub

nom. EPA v. Brown, 431 U.S. 99, reinstated in part sub nom

District of Columbia v. Costle, 567 F.2d 1091 (D.C. Cir. 1977)

Although treating statutory issues first is both logi

conventional, ATA agrees that “arbitrary and jo

principles are closely akin to review under Chevron’s second

step, and that their application would provide a strong

alternative basis for affirmance in this case. See Smiley v.

Citibank (S.D.), N.A., 517 U.S. 735, 741-42 (1996) (reading

Chevron II to overlap with “arbitrary and capricious” review);

Animal Legal Defense Fund, Inc. v. Glickman, No. 97-5009,

2000 WL 46028, at *4 (D.C. Cir. Feb. 1, 2000) (noting that

Chevron Il and “arbitrary and capricious” review “overlap at the

margins”) (internal quotation omitted). The relationship

between statutory interpretation and “arbitrary and capricious”

review is especially close where, as here, an Agency has

essentially refused to identify any standard under which it would

exercise its discretion. See, e.g., Pearson v. Shalala, 164 F.3d

650, 660 (D.C. Cir. 1999) (remanding agency determination

because “[t]o refuse to define the [statutory] criteria . . . is

equivalent to simply saying no without an explanation”).

Accordingly, a separate D.C. Circuit invali

different NAAQS rulemaking on es ad ont

grounds very similar to the statutory grounds employed below.

See American Lung Ass'n v. EPA, 134 F.3d 388, 392-93 (D.C.

Cir. 1 998) (“[U)nless [the Administrator] describes the standard

under which she has arrived at this conclusion, supported by a

plausible explanation, we have no basis for exercising our

responsibility to determine whether her decision is arbitrary [or]

capricious”) (internal quotations and citation omitted), cert.

denied, 120 S. Ct. 58 (1999). Moreover, one D.C. Circuit

judge strongly hinted that he would have invalidated the agency

rules here on “arbitrary and capricious” grounds. See App. 96a

(Silberman, J., dissenting) (“I am quite uncertain whether EPA’s

regulatory choice meets” the “arbitrary and capricious” test).

And even the strongest objector to the use of the nondelegation

canon refused to declare that EPA’s rules are lawful under the

“arbitrary and capricious” standard. Cf id. at 68a (Tatel, J.,

dissenting) (arguing that the panel majority’s concerns “relate

to whether the NAAQS are arbitrary and capricious,” but not

resolving that question).

Although the court below did not need to reach respondents’

“arbitrary and capricious” challenge, the strength and substance

of that challenge further underscores the interrelated nature of

the various alternative bases for affirmance — as well as the

statutory interpretation underpinnings of those theories.

B. The Court Cannot Uphold EPA’s Statutory

Interpretation without Considering Whether Lead

Industries and Its Progeny Are Correct.

As explained below, the validity of Lead Jndustries needs to

be addressed if the Court grants certiorari on any form of

EPA’s first question presented. First, the D.C. Circuit decisions

are now in clear tension with this Court’s constitutional and

administrative law jurisprudence. Second, those decisions are

simply wrong on several critical interpretive issues that can

never produce a split in the circuits. And finally, consideration

of these decisions is essential both to interpreting the Clean Air

Act as a whole and to affording the Court a basis, if it so

chooses, to avoid constitutional nondelegation issues.

1. This Court’s Decisions Have Steadily Eroded

the Conceptual Underpinnings of Lead

Industries at the Same Time the D.C. Circuit

Has Steadily Expanded Its Reach.

Lead Industries, read today, is a monument to the pre-

Chevron approach to statutory construction. Confronted with

a dispute over the meaning of the Act’s key statutory phrase

(“requisite to protect the public health”), Lead Industries

responded by brushing aside the statutory text with the assertion

that “Section 109(b) does not specify precisely what Congress

had in mind.” 647 F.2d at 1152. Having made short work of

the text, the court proceeded to rely extensively on snippets of

legislative history — to the point of virtually codifying “adverse

health effects,” a term that appeared in a 1970 Senate

committee report, but not in the statute itself. Jd. Largely on

the basis of two passages from that report, the court rejected

(1) claims that a showing of effects that are “clearly harmful” is

needed before EPA may regulate on public health grounds, id.

at 1153-54, and (2) a related claim that “the Administrator must

consider the economic impact of the proposed standard . . . in

Pope ing the appropriate allowance for a margin of safety.”

. at 1148.

Only five days after Lead Industries was decided, this Court

cast serious doubt on its validity by issuing its Benzene decision.

Benzene turned on statutory provisions expressed aspirationally,

using terms much like Section 109’s “requisite to protect public

health with an adequate margin of safety” standard. Under the

OSH Act, the Department of Labor is directed to set toxic

material standards so that “no employee will suffer material

impairment of health or functional capacity,” subject to the

overriding provision that standards must be “reasonably

necessary Of appropriate to provide safe or healthful

employment.” OSHA Act §§ 6(b\5), 3(8), 29 U.S.C.

§§ 6(b)(5), 3(8). These provisions, like CAA § 109(b), express

goals but contemplate the setting of precise numerical standards

that are to be broadly enforced across the entire economy.

Benzene’s principal opinion, after a painstaking review of

statutory text and structure, 448 U.S. at 642-46, and after

concluding that the agency’s interpretation “would make such

a sweeping delegation of legislative power that it might be

unconstitutional,” id. at 646 (internal quotation omitted),

determined that “Congress intended, at a bare minimum, that

the Secretary [of Labor] find a significant risk of harm .. .

before establishing a new standard” under the relevant statute.

Id. at 644. Only after reviewing the statute and the agency’s

interpretation through the lens of constitutional avoidance, did

Benzene turn (in a separate opinion section) to look for

confirming “support” in legislative history. See id.

The erosion of Lead Industries begun by Benzene soon

picked up steam, first in JNS v. Chadha, 462 U.S. 919 (1983),

and then in Chevron. Chadha relied on the constitutional

requirements of bicameralism and presentment to invalidate a

“single-House” veto provision. Although seemingly unrelated,

Chadha in fact undermines the legitimacy of the sort of near-

exclusive reliance on legislative history exemplified by Lead

Industries. \f Congress may not delegate lawmaking power to

itself through a single-House veto, then surely it likewise may

not delegate lawmaking authority to a House or Senate

Committee, much less to a bill’s sponsors or to members

speaking individually. See American Hosp. Ass'n v. NLRB, 499

U.S. 606, 616 (1991) (“Petitioner does not — and obviously

could not — contend that this statement in the Committee

Reports has the force of law, for the Constitution is quite

explicit about the procedure that Congress must follow in

legislating”); United States v. McGoff, 831 F.2d 1071, 1080 &

n.19 (D.C. Cir. 1987) (same); see generally John F. Manning,

Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev.

673 (1997).

In a similar vein, while Chevron did announce its familiar rule

of deference to agencies’ statutory interpretations, it also made

plain that this rule applies only to reasonable interpretations,

and comes into play at all only if the court finds ambiguity after

deploying all the “traditional tools of statutory construction.”

467 U.S. at 843 n.9, 845. A court’s duty in construing Section

109 after Chadha and Chevron is therefore to do exactly what

Benzene did: employ “traditional tools” (such as careful

examination of text and structure), apply appropriate canons

(including the canon of constitutional avoidance), and use

legislative history judiciously and, if at all, only in a

supporting” role (not as a means of filling “a gap” in the

Statute, see 467 U.S. at 843-44).

Notwithstanding the serious doubts about its continuing

validity, the D.C. Circuit has never seriously reexamined Lead

Industries, even after Benzene, Chadha, and Chevron. The

Circuit did, however, issue a brief treatment that reaffirmed

Lead Industries, based on Lead Industries’ own reasoning, in

the “Vinyl Chloride” case. See NRDC v. EPA, 824 F.2d 1146

(D.C. Cir. 1987) (en banc).

Vinyl Chloride, however, only continues Lead Industries’

erosion. The statute at issue in Vinyl Chloride, former Clean Air

Act Section 112 (b)(1)B), directed EPA to set hazardous air

pollutant standards “at the level which in the [Administrator’s]

judgment provides an ample margin of safety to protect public

health.” CAA § 112(b)(1B), 42 U.S.C. § 7412(b\1\B)

(1982) (emphasis added). While conceding that the term

“ample” implied a greater degree of health protection than the

parallel term “adequate” in Section 109(b), Vinyl Chloride

nonetheless relied on Benzene to find that the presence of a

“significant risk” was a precondition to regulation. 824 F. 2d at

1153. In addition, the court went on to hold that Section 112

did not preclude EPA from considering non-health factors under

d Chevron step one analysis and authorized EPA to consider

compliance costs and related matters in setting the statutory

“ample margin of safety.” /d. at 1158, 1163-66. The fact that

Vinyl Chloride reached conclusions opposite to Lead Industries

on these key issues — especially in context of the more health-

protective “ample margin of safety” formulation — strongly

suggests that even the D.C. Circuit itself now lacks confidence

in ead Industries’ reasoning.

Even so, the D.C. Circuit has steadily extended Lead

Industries precedential reach. Lead Industries directly

addressed (and rejected) only the argument that cost had to be

used in establishing “margins of safety” under Section 109, plus

the argument that the Agency was required to show “clear”

health effects before regulating to protect “public health.” But

under later decisions, Lead Jndustries has been read to preclude

consideration of all factors of “cost and technology feasibility,”

American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C.

Cir. 1981) — and even indirect health effects like “costs

associated with alleged health risks from unemployment” caused

by more stringent air quality standards. NRDC v. EPA, 902

F.2d 962, 973 (D.C. Cir. 1990), vacated in part, 921 F.2d 326

(D.C. Cir.), cert. dismissed sub nom. Alabama Power Co. v.

NRDC, 498 U.S. 1075 (1991). In fact, Lead Industries is so

entrenched that the court below declined to address arguments

that EPA’s revised ozone standards reflect unsound “public

health policy” because they would disrupt on-going, long-term,

air-quality improvement efforts by the States. Ozone Br. of

Non-State Clean Air Act Petitioners at 23.

2. Lead Industries Was Wrongly Decided.

Whenever this Court comes to review Lead Industries, it will

find that the D.C. Circuit incorrectly decided issues of far-

reaching economic and social consequence — issues that have

been long delayed in reaching the Court because the D.C.

Circuit’s status as sole venue for reviewing NAAQS standard-

setting, see CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), ensures

such issues can never gain the Court’s attention by way of a

circuit split.

By quickly brushing aside the statutory text, Lead Industries

overlooked important indicia of Congressional intent that

emerge from a careful reading of the statute. The essential text

of Section 109(b) is as follows:

National primary ambient air quality standards... shall be

ambient air quality standards the attainment and

maintenance of which in the judgment of the

Administrator, based on such criteria and allowing an

adequate margin of safety, are requisite to protect the

public health.

CAA § 10%b\(1), 42 U.S.C. § 7409%(b)\(1); see also CAA

§ 109(d)(1), 42 U.S.C. § 7409(d)(1). The term “criteria” here

is an important cross-reference to an informational document

that the Act’s Section 108(a)(2) directs EPA’s Administrator to

develop:

Air quality criteria for an air pollutant shall accurately

reflect the latest scientific knowledge useful in indicating

the kind and extent of all identifiable effects on public

health or welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

CAA § 108(a)(2), 42 U.S.C. § 7408(a)(2). Section 108 then

goes on to lay out, in its subparagraphs (A), (B), and (C), three

specific types of material that an air-quality criteria

informational document “shall” - “to the extent practicable” —

“include.” (A) “variable factors” which may alter the effects of

the pollutant on “public heath or welfare;” (B) other “air

pollutants” that “may interact” with the pollutant under study in

the atmosphere “to produce an adverse effect on public health

or welfare;” and (C) “any known or anticipated adverse effects

on welfare.” Jd.

As demonstrated below, this statutory framework does not

support the court of appeals’ conclusions that “Congress has

directly spoken to the precise question,” Chevron, 467 U.S. at

842, of whether EPA is “permitted to consider the cost of

implementing” air-quality standards, App. 19a (emphasis

added), and responded with a negative answer. Id. While

allegiance to circuit precedent is understandable, the court

below should have recognized that Lead Industries is now in

significant conflict not only with this Court’s precedents,

including its interpretation of a similarly open-ended statute in

Benzene, but also with the D.C. Circuit’s own decisions,

including its interpretation of a parallel text in Vinyl Chloride.

Even more problematic, however, Lead Industries was not

at all persuasive when decided. In particular, Lead Industries’

detours through legislative history resulted in shunting its

principal discussion of statutory text and structure into a single

footnote buried in the middle of the opinion — footnote 37.

That footnote contains the whole of the two textual arguments

identified as most important when Lead Industries was

distinguished by the D.C. Circuit’s en banc decision in Vinyl

Chloride. 824 F.2d at 1159. The critical footnote begins by

baldly asserting that the Administrator is not “allowed” to

consider costs because Section 108(a)(2) “outlines the criteria

on which air quality standards are to be based” and “makes no

mention of such factors.” Lead Industries, 647 F.2d at 1149

n.37 (emphasis added).

But that assertion is based on an obvious solecism — the

court’s failure to read the key statutory term (“criteria”) in

context. To be sure, outside the Clean Air Act, “criteria” can

indeed refer to a standard on which “a decision may be based.”

See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY at 307

(9th ed. 1987). But in the Section 108 context, “criteria” refers

quite precisely to, not decisional standards, but an extensive

informational compilation that the Act requires EPA to use in

NAAQS standard setting — a compilation that the Agency itself

usually refers to in capital letters as a “Criteria Document.” See,

e.g., 62 Fed Reg. at 38,654 (PM rule); 62 Fed. Reg. at 38,857

(Ozone rule).

Once “criteria” is understood to mean a “criteria document,”

Lead Industries’ misreading of Section 108 is apparent. Section

108 does specify certain information that criteria documents

must include (but not be limited to) — the information listed in

subparagraphs 108(a)(2)(A), (B), and (C). But that specification

was never intended to be a listing of decisionmaking “factors,”

much less an exclusive one. In fact, subparagraphs (A), (B),

and (C) quite evidently were added, not because of the

importance of the listed information, but because consideration

of the secondary matters of “variable factors,” cross-pollutant

interactions, and “welfare effects” might otherwise be

overlooked entirely.

Lead Industries should have realized that (1) “criteria” refers

to a document, (2) the statute’s enumeration refers to

information that must be compiled, not factors for

ie a (3) this enumeration is mandatory, but not

way to precluding EPA’s consideration of costs and

attainability.

Lead Industries’ s second footnote 37 argument, which Viny/

Chloride also emphasizes, fares no better. That argument

consists entirely of a recitation of the following: States may

consider “economic and technological feasibility in selecting the

mix of [pollution] control devices;” they may do so “only

insofar as this does not interfere with meeting the strict

deadlines for attainment of the standards;” and the EPA

Administrator “may not consider” such factors in reviewing and

approving these State plans. 647 F.2d at 1149 n.37. But these

observations, while true, do not remotely prove Lead

Industries’ point. They show, rather, that the economic

decisions taken by both EPA and States are binding That is,

States may not second-guess economic and pragmatic decisions

that EPA makes in setting standards by declaring those

standards infeasible, or extending “the strict deadlines for

attainment of the standards.” EPA likewise “may not consider,”

much less second-guess, a State’s economic or pragmatic

decisions by reviewing implementation plans on the basis of cost

or cost-benefit considerations.

But neither of these points logically implies that EPA itself

cannot consider economic or pragmatic factors in setting

NAAQS. Indeed, given that States may not second-guess

EPA’s decisions, if non-health factors are ever to be given their

proper role, they must be considered at the outset, in standard-

setting. As demonstrated above, there is plainly nothing to

preclude such consideration in view of the Act’s text, the

constitutional avoidance principles relied on in Benzene, and the

textual analysis of parallel provisions in Vinyl Chloride.

3. This Court Should Address the Statutory

Interpretation Issues Presented Here in

Order to Increase the Likelihood of Avoiding

Constitutional Issues.

The court of appeals could hardly have been more clear that

permitting consideration of non-health factors in setting

NAAQS would have helped to establish the “intelligible

principle” needed to cabin EPA’s discretion and permit

meaningful judicial review. See App. 14a-15a, 74a-76a. This

Court, if it grants certiorari on any form of the first question

presented by EPA, should accordingly take care that it does not

artificially (or accidentally) predetermine what it can and cannot

consider in construing the Act. This suggestion is respectfully

offered in order to enable the parties to frame the issues in the

most helpful manner possible and to enable the Court, if it

chooses, to resolve the case on a variety of non-constitutional

grounds. To that end, ATA sketches the following arguments

that, among others, ATA will likely present should certiorari be

granted.

1. Permitting Consideration of Economic and Pragmatic

Factors. The Act’s standard-setting provisions say nothing on

their face directing the absolute exclusion of indirect health

effects, costs, and related considerations. Section 109(b)(1) says

instead that EPA shall issue standards that are “requisite to

protect the public health.” That text does not contain a

categorical directive even remotely comparable to those

contained in statutes like the celebrated Delaney Clause. See 21

U.S.C. § 348(c)(3)(A) (“[N]o additive shall be deemed to be

safe if it is found to induce cancer when ingested by man or

animal.”); Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir.

1987) (Williams, J.). By its terms, the key text of Section

109(b) rules in consideration of “public health,” but fails to rule

out consideration of anything.

Section 109 does include text, emphasized in Lead

Industries, that says that air-quality standards shall be “based

on” the Section 108 “criteria” document. But here again, the

language Congress used is neither categorical nor exclusive. To

the contrary, the Act elsewhere directs that EPA consider other

informational sources too, including recommendations by a

seven-member Scientific Review Committee, CAA § 307(d)(3),

42 U.S.C. § 7607(d)(3), and “written comments, data, or

documentary information” submitted by the public, CAA

§ 307(d)(4)(B){i), 42 U.S.C. § 7607(d)4)(BXi). Cf Chevron,

467 U.S. at 863 (at step two, courts must consider whether

agency's “reasoning is supported by the public record

developed in the rulemaking process”).

That these other sources of information are to be considered

and acted upon every bit as much as the information in criteria

documents is clear from the requirement that EPA must respond

to significant public “comments, criticism, and new data,” CAA

§ 307(d)(6\(B), 42 U.S.C. § 7607(d)(6)(B), and offer “an

explanation of the reasons” for departures from Scientific

Advisory Committee recommendations. CAA § 307(d)(3), 42

U.S.C. § 7607(d\(3). EPA must therefore “base” its

decisionmaking on the criteria information, but, as the statute

repeatedly underscores, not only on the criteria information.

Moreover, the absence of any express textual limits on what

EPA can consider is supported (rather than undermined, as

Lead Industries assumed) by the legislative history. That history

memorializes the expectation of many members of Congress

that “economic and social consequences” would indeed play a

significant role in NAAQS standard setting. See H.R. Rep. No.

95-564 (1977), reprinted in 1977 U.S.C.C.A.N. 1502.

An additional confirmation that the Act anticipates a

significant role for non-health factors is found in the otherwise

inexplicable directive that EPA must issue — “simultaneously”

with the criteria document and before EPA opens a NAAQS

rulemaking — “information” on the “cost” of “air pollution

control techniques.” CAA § 108(b)(1), 42 U.S.C. § 7408(6)1).

The self-evident purpose of that requirement is to equip the

States with the information necessary to critique effectively

EPA’s cost and attainability assessments in the NAAQS

rulemaking proceedings. Cf CAA § 307(d)(6)(B), 42 U.S.C.

§ 7607(d6\B) (EPA required to “respond to significant”

public “comments, criticism, and new data”) (emphasis added).

The requirement that this cost information be provided before

the rulemaking begins would serve no purpose if in the

standard-setting rulemaking itself EPA were permitted to ignore

costs altogether.

But the final confirmation that EPA may, and indeed should,

consider costs, is the fact that EPA now does consider costs,

albeit in back-door fashion. Even while the Agency was giving

lip-service to Lead Jndustries, EP A issued, simultaneously with

its final ozone and PM rules, a “soft” $10,000 (per ton of

emissions reductions) compliance-cost cap. 62 Fed. Reg.

38,421, 38,429 (July 18, 1997). Given this suggestive fact, and

the role that pragmatic factors play in any rational

decisionmaking process, this Court should now consider

whether Lead Industries, as implemented by EPA, is partially

fiction — and, if so, whether such a fiction serves mainly to

impede reasonable standard-setting, encourage covert

decisonmaking, and defeat effective review.

2. Requiring Significant Risk as a Precondition to Imposing

New Measures to Protect Public Health. Wholly apart from

any role that costs might play, Section 109’s “requisite to

protect the public health” test surely means that EPA can issue

new or tightened standards only upon a showing that there is a

“significant risk” to public health under the existing standards.

Unlike its cognate statutory term, “the public welfare,” the term

“public health” is left undefined by the Act. Compare CAA

§ 302(h), 42 U.S.C. § 7602(h) (defining “welfare”). This

suggests that Congress expected that the latter term would take

meaning from regulatory context and background legal

principles. In fact, “Public Health Law” was a well-established

field when Section 109 was added to the Act in 1970. Practiced

mainly through local health boards, its principal objective has

never been to achieve complete safety, much less “esthetic”

enjoyment. Rather, the term “public health” has connoted the

practical but “preventive” goal of eliminating unacceptable

public health risks. See Frank P. Grad, PUBLIC HEALTH LAW

MANUAL at 8-9 (1965).

That Congress expected EPA to regulate only “significant

risks” to “public health” is strongly supported by the Benzene

decision, not to mention this Court’s analysis of “passive

restraints” in Motor Vehicle Manufacturers Ass'n v. State Farm

Mutual Automobile Insurance Co., 463 U.S. 29, 51-59 (1983),

and many lower court decisions. See e.g., Corrosion Proof

Fittings v. EPA, 947 F.2d 1201 (Sth Cir. 1991); Hess & Clark

v. FDA, 495 F.2d 975, 994 (D.C. Cir. 1974) (Leventhal, J);

International Harvester Co. v. Ruckelshaus, 478 F.2d 615,

636-41 (D.C. Cir. 1973) (Leventhal, J).

EPA pretends to understand this point when it awkwardly

conjoins a form of Benzene 's “significant risk” test with Lead

Industries’ regrettable misuse of the 1970 Senate report. EPA

thus claims that the legislative report “indicates that the health

effects justifying a NAAQS must be ‘adverse’ and therefore

must be medically significant and not merely detectable.” Pet.

15 (emphasis added). But that formulation only clouds the

analysis that must be performed in any scientifically defensible

determination of “significant risk.” See Building & Constr.

Trades Dep't v. Brock, 838 F.2d 1258, 1264-67 (D.C. Cir.

1988). Importantly, EPA argued vigorously below that the

Benzene “significant risk of harm’” test is inapposite because

“a ‘test’ under which the Administrator must first make a

‘finding’ that the existing standard permits a ‘significant risk of

harm’ to public health, and then demonstrate that the revised

standard is ‘needed to improve demonstrably the overall public

health,” would be “plainly inconsistent” with the text of the

Act, and precluded by Lead Industries. EPA Ozone Br. 42 &

n.40. This Court should accordingly take care not to conflate

an illegitimately grounded concept of “medically significant”

“health effects” espoused by EPA with something quite different

— the term “significant risk” as used by this and other courts.

3. Requiring Consideration of Costs in Setting the Safety

Margin. The Act contains an additional limitation that applies

with respect to Section 109(b)(1)’s directive that the

Administrator establish an “adequate margin of safety.” The

D.C. Circuit noted in Vinyl Chloride that “margin of safety” is

derived from an engineering term meaning “a safety factor . . .

meant to compensate for uncertainties and variabilities.” 824

F.2d at 1152 (internal quotation omitted). Because no product

has ever been engineered for complete safety, however, this

derivation reconfirms the Benzene pronouncement that “safe”

is not the equivalent of “risk free.” Moreover, it suggests that

Section 109 safety margins must trade off the costs and benefits

of additional safety, just as designers strive to engineer

“adequate” — but never complete — safety into every product

they design. Cf. Karl T. Ulrich and Steven D. Eppinger,

PRODUCT DESIGN AND DEVELOPMENT at 5 (2d ed. 1997)

(managing “tradeoffs in a way that maximizes success” listed as

the first “challenge” of product engineering). Tellingly, even the

D.C. Circuit has acknowledged that costs may be used for

setting safety margins in the context of former Section 112 of

the Act — a provision that, as discussed above, is the close

textual sibling to Section 109. See Vinyl Chloride, 824 F.2d

atl157, 1165.

os This Court Should Grant or Hold this Cross-

Petition to Ensure that the Full Range of

Statutory Interpretation Issues Is Properly

Presented.

ATA recognizes that this conditional cross-petition very

likely is not required. In particular, even a cursory look to

EPA’s first question reveals that it refers to EPA’s

“«nterpret[ation]” of the statute, see Pet. (i), which must

necessarily include inquiry into any and all ways that the Act

may be properly construed. Given how the Government itself

has framed its first question, a cross-petition specifically raising

statutory issues, such as overruling Lead Industries, appears

unnecessary. See pp. 18-22, above; Kolstad v. American

Denial Ass'n, 119 S. Ct. 2118, 2127 (1999) (issue “intimately

bound up” with primary question properly before the Court);

Missouri v. Jenkins, 515 U.S. 70, 84-85 (1995) (issue

“necessary for a proper determination of” primary question

properly before the Court).

Likewise, alternative grounds for affirmance will be argued

should certiorari be granted — alternative grounds arising not

only from Lead Industries and other interpretive issues under

the Act, but also from “arbitrary and capricious” review. Like

the disposition below, those grounds would require a remand

for new EPA proceedings. Accordingly, under this Court’s

familiar rule, no cross-petition should be needed: “A prevailing

party need not cross-petition to defend a judgment on any

ground properly raised below, so long as that party seeks to

preserve, and not to change, the judgment.” Jones v. United

States, 119 S. Ct. 2090, 2106 (1999) (emphasis added; internal

quotation omitted); accord United States v. American Ry.

Express Co., 265 U.S. 425, 435 (1924); Robert L. Stern et al.,

SUPREME COURT PRACTICE § 6.35 at 363 (7th ed. 1993).

ATA nonetheless files this conditional cross-petition for two

reasons. First, EPA has sometimes appeared to characterize the

court of appeals’ holding as an attack on the constitutionality of

Section 109 itself, as opposed to an invalidation of EPA's

interpretation of Section 109. See pp. 7-8 above. Against this

backdrop, a bold advocate might be tempted to read EPA’s

question so narrowly as to exclude the full set of statutory

interpretation issues. Cf. R.A.V. v. City of St. Paul, 505 U.S.

377, 381 n.3 (1992) (construing question presented in light of

argument advanced in petition).

Second, this Court’s cross-petition jurisprudence does not

directly resolve the question whether a cross-petition is required

in the unusual circumstances presented here. Ordinarily, the

court of appeals would have affirmed or reversed a district

court judgment, and the effect of the court’s rulings on the

rights of the parties would be clear. Here, however, the court

of appeals (1) undertook direct review of an agency rulemaking;

and (2) did not make a binary, up-or-down determination on the

validity of the NAAQS. Rather, the court “remand[ed] the

cases to EPA for further consideration of all standards at issue”

without vacating the NAAQS. App. 57a. The court’s judgment

is thus, out of deference to the Agency, deliberately vague: it

leaves to EPA the tasks of developing a method for assessing in

the first instance how to abide by the decision while remand

proceedings are in progress.

In these circumstances, there can be no absolute certainty

about how this Court’s already somewhat flexible cross-petition

jurisprudence might apply. See SUPREME COURT PRACTICE,

§ 6.35 at 366-68. In particular, overruling Lead Industries

would not change the form of the judgment, because these cases

would still be remanded for further consideration. On the other

hand, the substance of the remand could be somewhat different

compared to, say, affirming the D.C. Circuit’s reasoning or

remanding on “arbitrary and capricious” grounds. That is, if

Lead Industries were overruled, EPA would be newly

empowered to consider non-health factors, or engage in a

“significant risk” inquiry, or apply some other principle

identified by the Court.

Moreover, it is not possible to say categorically whether or

not such a change would enlarge the respondents’ rights — the

traditional trigger for the need to file a cross-petition. See, e.g.,

Andrus v. Idaho, 445 U.S. 715, 725 n.6 (1980). Any judgment

on this score is further complicated by the f*~* *hat EPA is

required by statute to undertake lengthy NAAQs rulemakings

every five years. See CAA § 109%d)1), 42 U.S.C.

§ 7409(d)(1). Accordingly, “remand” proceedings easily elide

into entirely different “rulemakings,” with the result that the

practical effect of any given court decision becomes harder to

discern.

ATA submits that a cross-petition could conceivably be

required, but only where acceptance of an alternative theory

offered to support the judgment would change either the range

of substantive outcomes available to, or the procedural steps

required of, the agency on remand. That test is clearly

preferable to a rule that requires a cross-petition whenever the

agency’s action on remand would be affected by a change in

rationale, for such a rule would require cross-petitions wherever

the reasoning of this Court might differ from that of the court

of appeals. This latter rule would be directly at odds with this

Court’s frequent pronouncements that a respondent may launch

“an attack upon the reasoning of the lower court” without filing

a Cross-petition. American Ry. Express Co., 265 U.S. at 435;

SUPREME COURT PRACTICE, § 6.35 at 363.

At least in the ozone and coarse PM rulemakings, even

rejecting Lead Industries outright would not enlarge the

substantive results EPA would be permitted to reach, nor

require additional procedural steps. As to the ozone standard,

EPA must in any event undertake a full-blown reconsideration

of the record so that it can determine whether a revision can be

justified in light of ozone’s net effect on public health. See Opp.

pp. 16-17. Likewise, the coarse PM standard will have to be

reconsidered from the ground up as EPA reexamines its

definition of a “coarse” particle. See App. 49a-53a. Fine PM

might arguably present a different situation, because there

EPA’s failure to abide by an “intelligible principle” provided the

sole basis for remand. But this distinction appears wholly

technical, given that EPA already has begun another statutorily-

required round of review — proceedings that are just as

extensive as the ones required as a matter of law for ozone and

coarse PM. In sum, even assuming that the rule were as stated

above, cross-petitions still clearly should not be required for the

ozone and coarse particulate matter rulemakings, and perhaps

not for the fine PM rulemaking as well.

CONCLUSION

For the foregoing reasons, this Court should either grant or

hold this conditional cross-petition in the event that the Court

grants certiorari on any form of the first question presented in

EPA’s petition.

Respectfully submitted,

ROBIN S. CONRAD EDWARD W. WARREN

NATIONAL CHAMBER Counsel of Record

LITIGATION CENTER, INC. ROBERT R. GASAWAY

1615 H Street, N.W. JEFFREY B. CLARK

Washington, D.C. 20062 DARYL JOSEFFER

(202) 463-5337 KIRKLAND & ELLIs

Counsel for Chamber of 655 Fifteenth Street, N.W.

Commerce of the Washington, D.C. 20005

United States (202) 879-5000

Counsel for American

Trucking Associations, Inc.

and Chamber of Commerce

of the United States

APPENDIX

CAA § 108, 42 U.S.C. § 7408. Air quality criteria and

control techniques

(a) Air pollutant list; publication and revision by

Administrator; issuance of air quality criteria for air

pollutants

(1) For the purpose of establishing national primary and

secondary ambient air quality standards, the Administrator shall

within 30 days after December 31, 1970, publish, and shall from

time to time thereafter revise, a list which includes each air

pollutant —

(A) emissions of which, in his judgment, cause or contribute

to air pollution which may reasonably be anticipated to

endanger public health or welfare,

(B) the presence of which in the ambient air results from

numerous or diverse mobile or stationary sources, and

December 31, 1970, but for which he plans to issue air quality

(2) The Administrator shall issue air quality criteria for an air

pollutant within 12 months after he has included such pollutant

in a list under paragraph (1). Air quality criteria for an air

pollutant shall accurately reflect the latest scientific knowledge

useful in indicating the kind and extent of all identifiable effects

on public health or welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

quantities. The criteria for an air pollutant, to the extent

practicable, shall include information on —

(A) those variable factors (including atmospheric conditions)

which of themselves or in combination with other factors may

alter the effects on public health or welfare of such air pollutant;

(B) the types of air pollutants which, when present in the

atmosphere, may interact with such pollutant to produce an

adverse effect on public health or welfare; and

(b) Issuance by Administrator of information on air

pollution control techniques; standing consulting

committees for air pollutants; establishment; membership

(1) Simultaneously with the issuance of criteria under

subsection (a) of this section, the Administrator shall, after

consultation with appropnate advisory committees and Federal

departments and agencies, issue to the States and appropnate

air pollution control agencies information on air pollution

control techniques, which information shall include data relating

to the cost of installation and operation, energy requirements,

emission reduction benefits, and environmental impact of the

emission control technology. Such information shall include

such data as are available on available technology and

alternative methods of prevention and control of air pollution.

Such information shall also include data on alternative fuels,

processes, and operating methods which will result in

elimination or significant reduction of emissions.

CAA § 109, 42 U.S.C. § 7409. National primary and

secondary ambient air quality standards

(a) Promulgation

(1) The Administrator -

(A) within 30 days after December 31, 1970, shall publish

proposed regulations prescribing a national primary ambient air

quality standard and a national secondary ambient air quality

standard for each air pollutant for which air quality criteria have

been issued prior to such date; and

(B) after a reasonable time for interested persons to submit

written comments thereon (but no later than 90 days after the

initial publication of such proposed standards) shall by

regulation promulgate such proposed national primary and

secondary ambient air quality standards with such modifications

as he deems appropriate.

(2) With respect to any air pollutant for which air quality

criteria are issued after December 31, 1970, the Administrator

shall publish, simultaneously with the issuance of such criteria

and information, proposed national primary and secondary

ambient air quality standards for any such pollutant. The

procedure provided for in paragraph (1)(B) of this subsection

shall apply to the promulgation of such standards.

(b) Protection of public health and welfare

(1) National primary ambient air quality standards, prescribed

under subsection (a) of this section shall be ambient air quality

standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to protect

the public health. Such primary standards may be revised in the

same manner as promulgated.

(2) Any national secondary ambient air quality standard

prescribed under subsection (a) of this section shall specify a

level of air quality the attainment and maintenance of which in

the judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of such

air pollutant in the ambient air. Such secondary standards may

be revised in the same manner as promulgated.

(d) Review and revision of criteria and standards;

independent scientific review committee; appointment;

advisory functions

(2A) The Administrator shall appoint an independent

scientific review committee composed of seven members

including at least one member of the National Academy of

Sciences, one physician, and one person representing State air

(B) Not later than January 1, 1980, and at five-year intervals

thereafter, the committee referred to in subparagraph (A) shall

complete a review of the criteria published under section 7408

of this title and the national primary and secondary ambient air

quality standards promulgated under this section and shall

recommend to the Administrator any new national ambient air

quality standards and revisions of existing criteria and standards

as may be appropriate under section 7408 of this title and

subsection (b) of this section.

areas in which additional knowledge is required to appraise the

adequacy and basis of existing, new, or revised national ambient

air quality standards, (ii) describe the research efforts necessary

to provide the required information, (iii) advise the

Administrator on the relative contribution to air pollution

concentrations of natural as well as anthropogenic activity, and

(iv) advise the Administrator of any adverse public health,

welfare, social, economic, or energy effects which may result

from various strategies for attainment and maintenance of such

national ambient air quality standards.

CAA § 307, 42 U.S.C. § 7607. Administrative proceedi

and judicial review saad

(d) Rulemaking

(1) This subsection applies to -

(A) the promulgation or revision of any national ambient air

quality standard under section 7409 of this title,

(3) In the case of any rule to which this subsection applies,

notice of proposed rulemaking shall be published in the Federal

accompanied by a statement of its basis and purpose and shall

specify the period available for public comment (hereinafter

referred to as the “comment period”). The notice of proposed

rulemaking shall also state the docket number, the location or

locations of the docket, and the times it will be open to public

inspection. The statement of basis and purpose shall include a

summary of —

(A) the factual data on which the proposed rule is based;

(B) the methodology used in obtaining the data and in

analyzing the data; and

underlying the proposed rule.

The statement shall also set forth or summarize and provide a

reference to any pertinent findings, recommendations, and

comments by the Scientific Review Committee established

under section 7409(d) of this title and the National Academy of

Sciences, and, if the proposal differs in any important respect

from any of these recommendations, an explanation of the

reasons for such differences. All data, information, and

documents referred to in this paragraph on which the proposed

rule relies shall be included in the docket on the date of

publication of the proposed rule. |

+++

(5) In promulgating a rule to which this subsection applies

(i) the Administrator shall allow any person to submit written

comments, data, or documentary information . . . .

(6)(A) The promulgated rule shall be accompanied by (i) a

statement of basis and purpose like that referred to in paragraph

(3) with respect to a proposed rule and (ii) an explanation of the

reasons for any major changes in the promulgated rule from the

proposed rule.

(B) The promulgated rule shall also be accompanied by a

response to each of the significant comments, criticisms, and

new data submitted in written or oral presentations during the

comment period.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.