Opposition Brief — American Trucking Assns., Inc. v. Browner

Supreme Court of the U

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COMMONWEALTH OF MASSACHUSETTS

AND THE STATE OF NEW JERSEY, et ai.,

Petitioners,

Vv.

AMERIGAN TRUCKING ASSOCIATIONS, INC.), et al.,

Respondents.

o-—

On Petition For A Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

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OPPOSITION OF MASSACHUSETTS AND NEW JERSEY

TO CONDITIONAL CROSS-PETITIONS

FOR A WRIT OF CERTIORARI

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JOHN J. FARMER THOMAS F. REILLY

Attorney General Attorney General

State of New Jersey Commonwealth of

Massachusetts

HOWARD L. GEDULDIG

JOHN R. RENELLA LISA HEINZERLING

Deputy Attorneys General, Counsel of Record

New Jersey Special Assistant Attorney

Richard J. Hughes Justice

Complex, 7th Floor

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

General, Massachusetts

Georgetown University

Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9115

EDWARD G. BOHLEN

Assistant Attorney General,

Massachusetts

200 Portland Street

Boston, MA 02114

(617) 727-2200, Ext. 3358

iISao

r

Ps

QUESTION PRESENTED

Whether the court of appeals correctly found, consistent

with the Environmental Protection Agency’s (“EPA”)

longstanding and unwavering interpretation, that the Clean Air

Act unambiguously requires EPA, in setting national ambient

air quality standards for an air pollutant, to consider only the

effects on public health or welfare that may be anticipated from

the presence of such air pollutant in the ambient air.

TABLE OF CONTENTS

Pee l

Reasons for granting the petition ..................... 3

OO eee 1]

TABLE OF AUTHORITIES

Cases:

American Iron and Steel Institute v. EPA, 498 U.S. 1082

{0 rere neecesndauceean 4

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

1981), cert. denied, 455 U.S. 1034 (1984) ......... 2,4

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Ree., 47 US. G57 CGB. ca seccunnctunbeneeee 5

Davis v. United States, 417 U.S. 333 (1974) ............ 4

Food and Drug Administration v. Brown & Williamson

Tobacco Corp., 2000 U.S. LEXIS 2195 (March 21, 2000)6

Industrial Union Dep't v. Amer. Petroleum Inst., 448 U.S.

GOe CODED occ cccvvecceseuseneueen sae 5

INS v. Chadha, 462 U.S. 919 (1983) .............0005. 5

Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert

denied, 449 U.S. 1042 (1980) ............... 2, 3, 4,6

Natural Resources Defense Council, Inc. v. EPA, 824 F.2d

toot tes Brrr 4

Natural Resources Defense Council, Inc. v. EPA, 902 F.2d

962 (D.C. Cir. 1990), cert. denied, 498 U.S. 1082

(i) Perr ee rrr 3,4

St. Joe's Minerals Corp. v. EPA, 449 U.S. 1042 (1980) ... 4

Train v. Natural Resources Defense Council, Inc., 421 U.S.

GECESVED vo cccccvcceesucendaneeeunueenaeeee 8

Union Electric Co. v. EPA,, 427 U.S. 246 (1976) ...... 7,8

il

Statutes:

he cckeseecceececeess 1, 2, 6, 7, 8,9, 10

EE ccccuesceeeccccoccess 1, 2, 6, 7, 8,9, 10

EEE 7

Ee ses cw kccececesceeececcess 7

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AEE SE SEES SEPP PEOPLE SELES 7

reece es cokaendeceesccceccces 7

eed cecbecdoceecccccccececes 7

ee coke cceceusseccocccecs 3

Miscellaneous:

Clean Air Act Amendments of 1977, 91 Stat. 685, 790-91

(codified as amended at 42 U.S.C. § 7408 (1994)) ..... 6

Clean Air Act Amendments of 1977, sec. 106, § 109, 91 Stat.

ns cocci eeccececorcecs 6

National Ambient Air Quality Standards for Particulate

Matter, 62 Fed. Reg. 38,652, 38,683 (1997) ........ 2,9

National Primary and Secondary Ambient Air Quality

Standards, 36 Fed. Reg. 8186 (1971)................ 2

ili

BRIEF IN OPPOSITION FOR PETITIONERS

COMMONWEALTH OF MASSACHUSETTS AND

STATE OF NEW JERSEY

Petitioners Massachusetts and New Jersey file this brief in

Mon tp the fitional — of / :

Trucking Associations, Inc., ef al. (“ATA Cross-Pet.”) and

Appalachian Power Co., et al. (“App. Pwr. Cross-Pet.”).

Although the two cross-petitions frame the question

presented somewhat differently, both cross-petitions ask this

Court to enlarge the set of factors EPA considers in setting

National Ambient Air Quality Standards (“NAAQS”) under

sections 108 and 109 of the Clean Air Act, 42 U.S.C. §§ 7408-

09. In doing so, cross-petitioners ask this Court to disturb the

interpretation of these provisions that has prevailed — in EPA,

in the courts, and in Congress — since the provisions were

written thirty years ago. The law as to the issues raised by

cross-petitionersis so well-settled and consistent, and so plainly

correct, that cross-petitioners’ challenge to it does not present

an issue worthy of this Court’s review. Moreover, far from

helping this Court to avoid a constitutional issue, the varied and

conflicting reinterpretations of the Clean Air Act proferred by

cross-petitioners would nourish the very constitutional issue

cross-petitioners purport to avoid.

STATEMENT

Massachusetts and New Jersey provided a Statement of the

Case in their petition and thus will focus here on matters

relevant to the conditional cross-petitions.

1. Sections 108 and 109 of the Clean Air Act, 42 U.S.C. §§

7408-7409, direct the Administrator of the EPA to set and

periodically revise the NAAQS for a limited subset of air

l

pollutants. Section 109 defines the NAAQS as 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.” 42

U.S.C. § 7409(b)(1) (emphasis added). “Criteria” refers to the

air quality criteria that section 108 requires the Administrator

to issue before setting the NAAQS. These criteria must 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...” 42 U.S.C. § 7408(a)(2). Section 109

provides that NAAQS “may be revised in the same manner as

promulgated.” 42 U.S.C. § 7409(b)(1).

2. EPA has, beginning in 1971 with the very first NAAQS

issued under the then-new Clean Air Act, consistently

interpreted the Act to preclude the agency, in setting NAAQS,

from considering factors other than the effects on public health

or welfare caused by the presence of the relevant air pollutant

in the ambient air. National Primary and Secondary Ambient

Air Quality Standards, 36 Fed. Reg. 8186, 8186 (1971). EPA

adhered to this interpretation in the rulemakings at issue in this

case. National Ambient Air Quality Standards for Particulate

Matter, 62 Fed. Reg. 38,652, 38,683 (1997) (“PM Final Rule”).

3. The court below unanimously rejected cross-petitioners’

claim that EPA had erred in construing the Clean Air Act as

precluding the Agency’s consideration of factors other than the

effects on public health or welfare caused by the presence of the

relevant air pollutant in the ambient air. (Pet. App. 17-20). The

panel relied on the circuit's own precedent, which has

consistently rejected virtually identical industry claims in more

than twenty years of challenges to EPA-promulgated NAAQS.

See Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.

1980) (“Lead Industries’), American Petroleum Inst. v. Costle,

665 F.2d 1176 (D.C. Cir. 1981); Natural Resources Defense

Council, Inc. v. EPA, 902 F.2d 962 (D.C. Cir. 1990). Cross-

petitioners did not seek en banc review of the question they ask

this Court to hear. This Court has repeatedly denied certiorari

on the issues presented by cross-petitioners(ATA Cross-Pet. 5-

6), including denying certiorari in Lead Industries itself. 449

U.S. 1042 (1980).

REASONS FOR DENYING THE PETITION

In this case, the D.C. Circuit adhered to its longstanding

conclusion that the Clean Air Act does not permit EPA to

consider factors other than the direct public health or welfare

effects of air pollution in setting the NAAQS. This decision

creates no conflict either with decisions of this Court or with

other decisions of the D.C. Circuit (the only lower court with

jurisdiction over nationwide Clean Air Act rules, 42 U.S.C. §

7607(b)(1)). Moreover, Congress has had ample opportunity to

reconsider the interpretation of the Clean Air Act embodied in

the court’s opinion, and has never done so even though it has

twice substantially amended the Act, including amending the

very provisions at issue in this case. Finally, EPA’s

construction of those provisions is clearly correct in light of the

plain meaning of the relevant statutory language. The well-

settled questions presented by cross-petitioners do not,

therefore, warrant this Court’s review.

1. Cross-petitioners do not claim that the decision below

presents a circuit conflict. Nor could they in light of the D.C.

Circuit’s exclusive jurisdiction to review challenges to EPA’s

promulgation of NAAQS under the Act (see 42 U.S.C. §

7607(b)(1)) and that court’s consistent rulings during the past

two decades on the precise issue presented by the cross-

petition.' The D.C. Circuit has repeatedly upheld EPA’s

position that the Clean Air Act permits the Agency, in setting

the NAAQS for an air pollutant, to consider only the effects on

public health or welfare that may be anticipated from the

presence of such air pollutant in the ambient air.’ And this

Court has denied certiorari on every occasion that further

review has been sought on the issues discussed in the cross-

petitions. See Lead Industries Ass'n v. EPA, 449 U.S. 1042

(1980); St. Joe 's Minerals Corp. v. EPA, 449 U.S. 1042 (1980),

American Petroleum Institute v. Gorsuch, 455 U.S. 1034

(1984); American Iron and Steel Institute v. EPA, 498 U.S.

1082 (1991). The lower court in this case merely followed

settled, longstanding precedent.

'Cross-petitioners wrongly claim that the D.C. Circuit’s

decisions in Lead Industries, 647 F.2d 1130, adhered to in this

case, and in Natural Resources Defense Council, Inc. v. EPA,

824 F.2d 1146 (D.C. Cir. 1987) (“Vinyl Chloride”), are

inconsistent with each other. (App. Pwr. Cross-Pet. 16; ATA

Cross-Pet. 17-18; see also Brief of State Respondents in

Support of Cross-Petitions 9-13 (“Ohio Brief in Support”).) :

Vinyl Chloride itself reconciled its holding with Lead Industries

(see 824 F.2d 1146, 1158-59), and reasonably so: not only did

the two cases involve two different statutory provisions, but

they involved two different agency approaches to those

different provisions. Of course, even if there were such a split

within the circuit, the most appropriate vehicle for resolving it

would be en banc review, not review in this Court (see Davis

v. United States, 417 U.S. 333, 340 (1974)), and cross-

petitioners declined to seek the former.

*See Lead Industries, 647 F.2d 1130 (D.C. Cir. 1980);

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

1981); Natural Resources Defense Council, Inc. v. EPA, 902

F.2d 962 (D.C. Cir. 1990).

Cross-petitioners nonetheless argue that review is now

warranted based on their assertion that the D.C. Circuit’s ruling

presents a “conflict” with the decisions of this Court. They do

not, however, rely on any recent decisions of this Court. They

rely instead on three rulings of this Court issued between 16

and 20 years ago, which were the basis of some of the prior

unsuccessful efforts at obtaining the Court’s review. ATA

Cross-Pet. 16-18, citing Jndustrial Union Dep't v. American

Petroleum Inst., 448 U.S. 607 (1980) (“Benzene”); Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984); and even INS v. Chadha, 462 U.S. 919 (1983).

None of these three cases, moreover, supports cross-

petitioners’ most recent request for review. There is no merit

to the suggestion that the lower court’s interpretation of the

Clean Air Act is in tension with the plurality opinion in

Benzene because the court below did not look “through the lens

of constitutional avoidance.” (ATA Cross-Pet. 16.) Given that

cross-petitioners’ responses to the petitions for certiorari

asserted that the D.C. Circuit’s invocation of the nondelegation

doctrine correcily followed Benzene (ATA Resp. 12; see also

App. Pwr. Resp. 14-15), it is odd that cross-petitioners now

criticize the D.C. Circuit for inconsistency with Benzene. Nor

is cross-petitioners’ reliance on Chevron any more persuasive:

if cross-petitioners(arguing as respondents) are to be believed,

the D.C. Circuit’s decision was simply a “work-a-day” remand

under Chevron. (ATA Resp. 14; see also App. Pwr. Resp. at

15.) In any event, nothing in Benzene or Chevron requires or

permits a court to distort the language, structure, and history of

a statute the way cross-petitioners would have this Court do in

this case. Finally, the lower court’s reliance on legislative

history does not create an inconsistency with JNS v. Chadha,

462 U.S. 919 (1983), justifying this Court’s review. Not only

is the court’s interpretation of the Clean Air Act amply

supported by the plain language and structure of the statute,

quite apart from its legislative history, but reliance on

legislative history is certainly not an automatic trigger for

certiorari, \et alone for condemnation. See, e.g., Food and

Drug Administration v. Brown & Williamson Tobacco Corp.,

2000 U.S. LEXIS 2195 (March 21, 2000).

Further counseling against this Court’s review is the fact that

Congress has rejected invitations to reverse EPA’s longstanding

interpretation by changing the relevant statutory language. See

Lead Industries, 647 F.2d at 1150, n. 39. Instead, Congress

has substantially revised the Clean Air Act twice, and has

substantially amended the very provisions at issue here, without

questioning the interpretation long embraced by the D.C.

Circuit and by EPA.’ There is simply no reason for this Court

to disturb the settled and well-grounded meaning of sections

108 and 109 of the Clean Air Act, 42 U.S.C. §§ 7408-09.

2. Moreover, the D.C. Circuit’s decision is plainly correct.

The language, structure, and history of sections 108 and 109 of

the Clean Air Act unambiguously preclude the consideration of

factors other than an air pollutant’s direct effects on public

health and welfare when EPA sets the NAAQS for that

pollutant.

*Clean Air Act Amendments of 1977, sec. 401, § 108

(a)(1 A), 91 Stat. 685, 790-91 (codified as amended at 42

U.S.C. § 7408 (1994)) (amending section 108 to confirm the

authority of the Administrator to list criteria pollutants when,

“in his judgment,” they “may reasonably be anticipated to

endanger public health or welfare”) (emphasis added); Clean

Air Act Amendments of 1977, sec. 106, § 109, 91 Stat. at 691

(amending section 109 to require the appointment of a scientific

advisory committee to assist in reviewing the scientific basis

for the NAAQS).

a. Section 109(b)(1) of the Clean Air Act requires NAAQS

to be “based on” scientific criteria, which themselves must,

according to section 108 of the Act, reflect “the latest scientific

knowledge” regarding the “effects on public health or welfare

which may be expected from the presence of such pollutant in

the ambient air...” 42 U.S.C. §§ 7409(b)(1) (emphasis

added), 7408(a)(2). Section 109(b)(1) also provides that

NAAQS must be “requisite to protect the public health,”

allowing an “adequate margin of safety.” 42 U.S.C. §

7409(b)(1). NAAQS “may be revised in the same manner as

promulgated.” 42 U.S.C. § 7409(b)(1). See also 42 U.S.C. §

7409(d)(1).

Thus Congress clearly specified that initial and revised

NAAQS may only be “based on” the information developed in

the criteria document, and that they must be “requisite to

protect the public health.” 42 U.S.C. § 7409(b)(1). Where

Congress specifies the factors to be considered, it is not up to

the courts to introduce additional, unnamed, and unrelated

factors into the statutory scheme. See, e.g., Union Electric Co.

v. EPA, 427 U.S. 246, 256-66 (1976). This point has particular

force where, as here, many sections of the statute under

consideration explicitly direct the agency’s attention to costs

and/or feasibility. See 42 U.S.C. §§ 7411(a)(1); 7411(h)(1);

7821(a)(2); 7521(ay(3 (AD); 7521(aX(3 (BD; 7521(a(3)(D);

7545(c)\(1)(B); 7571(b); 7585(b); 7590(a); see also Union

Electric, 427 U.S. at 257, n. 5. Where Congress wanted EPA

to consider such issues, Congress said so.

The structure of the NAAQS regulatory program confirms

this reading of the statute. NAAQS are set by the EPA and

implemented by the states. Union Electric, 427 U.S. at 249.

Before the states develop their plans to implement the NAAQS,

estimates of the overall costs of implementation and the

distribution of those costs will be most speculative. In addition,

the Clean Air Act was deliberately designed to be a

“technology-forcing™ statute. Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60, 91 (1975); Union Electric,

427 U.S. at 256-59. Given this purpose, it would make little

sense to shrink the centerpiece of the Act — the NAAQS

program — based on perceived technological infeasibility.

b. For their part, cross-petitioners assiduously avoid the

complete language of the Act, and instead offer snippets drawn

out of statutory context in order to support their construction of

the Act. For example, cross-petitionersargue that because EPA

may revise a NAAQS only as “appropriate,” EPA may consider

costs in the decision whether to revise a NAAQS (App. Pwr.

Cross-Pet. at 15) — omitting the fact that the words “in

accordance with section 7408 of this title and subsection (b) of

this section” follow the word “appropriate” in the statute. 42

U.S.C. § 7409(d)(1) (emphasis added). Cross-petitioners also

argue that section 108(b)(1) indicates that EPA may consider

costs and feasibility in setting NAAQS because this section

requires the agency to issue information regarding emission

control technologies(App. Pwr. Cross-Pet. at 23) — omitting the

fact that section 108(b)(1) by its plain terms distinguishes the

information just described from the “criteria” on which the

NAAQS are to be based. 42 U.S.C. § 7408(b)(1).

With nothing in the language to support them, cross-

petitioners resort to reliance on bits and pieces of irrelevant

legislative history. Cross-petitionersAppalachian Power, ef al.,

rely almost exclusively on statements in the 1967 and 1977

legislative record, largely bypassing the legislative history of

1970, the year in which Congress created the NAAQS program.

(App. Pwr. Cross-Pet. 5, 6, 19-20, 21,22.) Cross-petitioners

ATA, et al., likewise fix on the legislative history from 1977

rather than that from 1970. (ATA Cross-Pet. 23.) At best,

these particular offerings from the legislative history of the

1977 Amendments present a glimpse into the post hoc attitudes

of several members of Congress toward the statute that

Congress had passed in 1970.*

Ironically, perhaps the most telling evidence of the clarity of

sections 108 and 109 comes from cross-petitioners’ and

respondents’ briefs. Having deprived themselves of the one

interpretation that follows plainly from the language, structure,

and history of the Act, cross-petitioners and respondents are

quite at a loss to offer a consistent alternative interpretation.

They variously argue that the Clean Air Act permits EPA to

consider factors, such as cost and feasibility, beyond those the

agency now considers (ATA Cross-Pet. 22; App. Pwr. Cross-

Pet. 20); that the Act requires the agency to consider such

additional factors (ATA Cross-Pet. 23; App. Pwr. Cross-Pet.

18, 22, 23); that the Act requires EPA to quantify risks before

the agency may regulate them (Nat’! Stone Resp. 8-9); and that

the Act either requires or permits cost-benefit analysis (ATA

Cross-Pet. 26; Ohio Brief in Support 5). Cross-petitioners

Appalachian Power, ef a/., even offer an interpretation of the

Act specially designed for cases in which the health effects of

various pollution levels are purportedly “indistinguishable.””

*The legislative history from 1970 confirms the lower

court’s, and EPA’s, interpretation of the clear language of the

Act. See PM Final Rule, 62 Fed. Reg. at 38,684-85.

‘The question presented by Appalachian Power, et ai.,

rests on a factual premise unsupported by the ruling below —

namely, that the health effects caused by ozone at the varying

levels considered by EPA are “indistinguishable.” (App. Pwr.

Cross-Pet. I.) This fact-based argument constituted a major

portion of Appalachian Power’s arbitrary-and-capricious

challenge to the ozone rule in the court below. However, the

court did not reach the question whether the rule was arbitrary

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The disarray among cross-petitionersand respondents as to the

meaning of sections 108 and 109 shows the confusion that

results once one’s interpretation of a statute is cut loose from

the language, structure, and history of the statute.

c. This same confusion also undercuts cross-petitioners’

invocation of the canon counseling avoidance of constitutional

questions as a basis for reinterpreting the Clean Air Act. (ATA

Cross-Pet. I.) That canon plays no role where, as here, the

Statutory meaning is plain. In addition, the varied and

conflicting statutory interpretations proffered by cross-

petitioners do nothing to alleviate the constitutional question

they have identified. Precisely because cross-petitioners lack

any statutory basis for their competing interpretations, they do

not identify any discernible statutory criteria for EPA’s exercise

of discretion under their various interpretations. Nor do they

provide any such criteria for reviewing EPA's (permissible or

mandatory, it is not clear which one) consideration of the

additional factors they identify. Yet, absent such criteria, the

constitutional claim they purport to avoid is, in fact, not

redressed at all.

In short, cross-petitioners' reliance on a canon of

constitutional avoidance is, like the entire cross-petition, no

more than a thinly disguised effort to hitch an uncertworthy

Statutory question to a clearly certworthy constitutional

question. Having failed for three decades to persuade Congress,

and capricious. In the posture in which this case comes to this

Court, this Court has no basis for assuming that the factual

premise of cross-petitioners’ question presented is correct, and

thus the question as formulated is not properly presented at this

time. The same basic points appiy to cross-petitioners’

frequent assertions that the risks found by EPA were

“theoretical” or “hypothetical.” (App. Pwr. Cross-Pet. 16.)

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EPA, or the lower courts of the wisdom of their legal or policy

claims that the NAAQS should be based on economic costs and

feasibility, they now once again invite this Court to revisit this

settled matter. Because the lower court's sound rejection of

cross petitioners’ claim is wholly independent of the important

constitutional and statutory issues raised by the petitions, the

Court should deny review on the issues raised by the cross-

petitions, just as it has on numerous prior occasions. Nothing

has changed.

CONCLUSION

The cross petitions for a writ of certiorari should be denied.

Respectfully submitted,

JOHN J. FARMER

Attorney General

State of New Jersey

HOWARD L. GEDULDIG

JOHN R. RENELLA

Deputy Attys. General,

New Jersey

Richard J. Hughes Justice

Complex 7th Floor Center

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

LISA HEINZERLING

Counsel of Record

Special Assistant Atty.

General, Massachusetts

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9115

EDWARD G. BOHLEN

Assistant Atty. General,

Massachusetts

200 Portland Street

Boston, MA 02114

(617) 727-2200, ext. 3358

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