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

FILED

Y APR 2 5 2000

No. 99-1426

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

AMERICAN TRUCKING ASSOCIATIONS, INC ., ETAL.,

Cross-Petitioners,

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, £7 AL.,

Cross-Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF OF CROSS-PETITIONERS

AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER

OF COMMERCE OF THE UNITED STATES, ET AL.*

ROBIN S. CONRAD EDWARD W. WARREN

NATIONAL CHAMBE? 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 Cross-Petitioner 655 Fifteenth Street, N.W.

Chamber of Commerce of the Washington, D.C. 20005

United States (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

BETH L. LAw

ROBERT S. DIGGES

ATA LITIGATION CENTER

2200 Mill Road

Alexandria, 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

Trwotny 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

pee REA RaM ire ay or

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SOREN MA Re

TABLE OF CONTENTS

Page

Te a ii

cr ssenmnnenenbadnnnnon ]

I. LEADINDUSTRIES\IS BOTH CLOSELY TIED TO THE

DECISION BELOW AND WORTHY OF CERTIORARI

LL a 3

Il. NONDELEGATION CONCERNS SHOULD

CONTINUE TO INFLUENCE CONSTRUCTION OF

THE ACT IF CERTIORARI IS GRANTED.................. 9

ret etacennentnatenenteneesnens 10

(ii)

TABLE OF AUTHORITIES

Cases:

American Textile Mfrs., Inc. v. Donovan,

Se ED. -no0e cxnchceconueeéacses 5,6

AT&T Corp. v. Iowa Urtils.,

EE. “nusnccavund<aseeceaes 1,2,9

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

Council, Inc..,

GED on b.0006060i000000006i passim

Corrosion Proof Fittings v. EPA,

See ee Ee EG HED occ ccccccnccecescs 5

Department of Commerce v. House of Representatives,

SPEED. on 04 éceecencecenseéuéecess 9

FDA v. Brown & Williamson Tobacco Corp.,

ED ce ecu eheeeeenet 1, 8,9

Industrial Union Dep't, AFL-CIO

v. American Petroleum Inst.,

GPT ED wecdccaneccescscseves passim

International Union, United Auto., Aerospace & Agric.

Implement Workers of Am., UAW v. OSHA,

938 F.2d 1310 (D.C. Cir. 1991) ............... 3,4

Lead Indus. Ass'n v. EPA,

647 F.2d 1130 (D.C. Cir. 1980) ............. passim

MCI Telecommunications Corp. v. AT&T Corp.,

PPD knoe éc ccecceccncendstuace 9

Michigan v. EPA,

No. 98-1497, 2000 WL 180650

SERED bevcuncdcccsesssess passim

NRDC v. EPA,

824 F.2d 1146 (D.C. Cir. 1987) ............... 5-8

(iti)

NRDC v. EPA,

ee ee Gis GE DOU occ ccccccccccccecs 7

Union Elec. Co. v. EPA,

RSE IRE EE ORR ee ne Serge 7

Statutes:

Clean Air Act § 108(a)(2),

ER a ees ee 7

Clean Air Act § 109(b)(1),

I ie ln 2,3

Clean Air Act § 110(a)(2),

Ee one eee 7

Clean Air Act § 110(aX(2\(D Xi),

42 U.S.C.§ 7410(aX2VK DXi)... ee eee 6

Miscellaneous:

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

Ee a ee ge ae ee ee ea 5

Lisa Schultz Bressman, Schechter Poultry at the

Millennium: A Delegation Doctrine for the

Administrative State,

SP EE cecvacweediéesetaens 9

INTRODUCTION

ATA has defended, and will continue to defend, the decision

below “on its own terms.” Compare U.S. Reply 3 with ATA

Resp. 11-15, ATA Cross-Pet. 7-14. But ATA’s cross-petition

also shows that the court below invalidated EPA’s statutory

interpretation on nondelegation grounds primarily because Lead

Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980),

precluded any consideration of the non-health factors that

would allow EPA to “‘speak to the issue of degree” in

standard-setting. See ATA Cross-Pet. 4, 7-12. Logically then,

this Court might uphold the D.C. Circuit judgment overruling

EPA without considering Lead /ndustries. Yet, it cannot

sustain EPA’s interpretation of the Clean Air Act (“CAA” or

“Act”), or the regulations based on it, without considering Lead

Industries and holding that it was correctly decided. See id. at

1, 14-26.

EPA’s Opposition is dismissive of this logically undeniable

point, saying that the decision below and Lead Industries are

intertwined “only in the haphazard sense that a fishing line might

become intertwined with a tree limb.” U.S. Opp. 18. According

to EPA, this Court need only “correct” the D.C. Circuit’s “basic

conceptual error” of invoking the nondelegation doctrine as the

basis for its decision. /d. at 19. EPA leaves the impression that

it is mainly this doctrinal issue that is of importance — and that

the decision below would have been more acceptable had the

D.C. Circuit only ruled against EPA on Chevron I grounds (as

this Court did against the FDA in FDA v. Brown & Williamson

Tobacco Corp., 120 §. Ct. 1291, 1305 (2000), or held EPA’s

interpretation “unreasonable” under Chevron I] (as in AT&T

Corp. v. Iowa Utilities, 525 U.S. 366, 397-98 (1999)).

But this Court’s job is to review holdings, not to provide

advisory opinions on what EPA terms “conceptual errors.” As

this Reply demonstrates, the court of appeals reversed on the

grounds that it did only because the most obvious options

available for use as “intelligible principles” — “cost-benefit

analysis,” as well the “significant risk” test embraced by this

Court in /Jndustrial Union Department, AFL-CIO v. American

2

Petroleum Institute, 448 U.S. 607 (1980) (“Benzene”) — were

ruled out by Lead Industries. It is therefore entirely artificial to

suggest, as EPA does, that the nondelegation issue can

somehow be divorced from the enterprise of statutory

interpretation and considered in isolation. See U.S. App. 14a.

Moreover, as demonstrated below, the Lead Industries issue

~— whether the Act absolutely precludes any consideration of

non-health factors in standard-setting — is plainly worthy of

certiorari in its own right. Not even EPA can deny that

decision’s importance, nor seriously defend its reasoning. In

particular, Lead Industries cannot survive the first step of

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

Inc., 467 U.S. 837 (1984) (under which EPA acknowledges it

must be defended), given the non-exclusionary statutory text

and the interpretative norm recently reiterated by the D.C.

Circuit, that “only where there is ‘clear congressional intent to

preclude consideration of cost” will courts find agencies

“barred from considering costs.” See Michigan v. EPA, No.

98-1497, 2000 WL 180650, at *12 (D.C. Cir. Mar. 3, 2000)

(“State of Michigan”) (emphasis added), pet 'ns for reh’g filed

(4/20/2000). See Part I below.

Just as Lead Industries is inevitably bound up in the D.C.

Circuit’s nondelegation holding, so too any statutory

interpretation of the Act’s standard-setting provisions by this

Court must be keenly sensitive to nondelegation concerns. The

nature and extent of Congress’ delegation of authority to an

agency has always figured prominently in statutory

construction, whether that consideration is invoked expressly,

as in this Court’s Benzene decision, or implicitly, as in Jowa

Utilities and other recent decisions. The importance of

nondelegation concerns, expressed both as construction canons

and as part of the construction of the Act itself, will therefore

continue should this Court accept review of any form of the

Government’s first question presented. In that event, this

Court’s essential task would be to decide whether, contrary to

3

Lead Industries, consideration of non-health factors in EPA

standard-setting is warranted. See Part II below.

I. LEAD INDUSTRIES IS BOTH CLOSELY TIED TO

THE DECISION BELOW AND WORTHY OF

CERTIORARI IN ITS OWN RIGHT.

EPA’s Opposition claims that this cross-petition raises

“unrelated issues involving particular details of the underlying

rulemakings.” U.S. Opp. 2. It describes as sheer “fantasy” any

notion that “‘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.” Jd. at 20 (quoting ATA Cross-Pet. 5). But

one need look no farther than the court of appeals’ opinion itself

to confirm the central role Lead /ndustries played in producing

the nondelegation holding below.

The D.C. Circuit faulted EPA’s interpretation of the Act’s

standard-setting provisions because of that interpretation’s

failure to “speak to the issue of degree,” or provide a “cut-off

point.” U.S. App. Sa, 7a. As the means to correct that flaw,

the court then asked: “What sorts of ‘intelligible principles’

might EPA adopt? Cost-benefit analysis, mentioned as a

possibility in [/nternational Union, United Automobile,

Aerospace & Agricultural Implement Workers of America,

UAW v. OSHA, 938 F.2d 1310, 1319-21 (D.C. Cir. 1991)

(“Lockout/Tagout I’)}, is not available under decisions of this

court. Our cases read [CAA § 10%(b\(1), 42 U.S.C.

§ 7409(b)(1)] as barring EPA from considering any factor other

than ‘health effects relating to pollutants ia the air.”” U.S. App.

14a-15a (citing Lead Industries and progeny).

The court went on to suggest that EPA might develop “the

rough equivalent of a generic unit of harm that takes into

account population affected, severity, and probability” -

somewhat akin to the “significant risk” test adopted by this

Court in Benzene. Id. at 16a. But even so, the court

acknowledged that similar approaches devised under the

4

Medicaid program employed an indirect cost analysis in order

to allocate health resources over a range of different medical

conditions. /d at 17a-18a. If this indirect consideration of

costs could not be avoided, the court suggested, the Lead

Industries straightjacket might force EPA to “report to the

Congress . . . and seek legislation ratifying its choice.” /d. at

18a. In short, the D.C. Circuit hoped that EPA could develop

an “intelligible principle,” but admitted that, because of Lead

Industries, the success of that venture was not entirely assured.

That Lead Industries effectively led to the nondelegation

holding in this case is further underscored by the D.C. Circuit's

discussion of the very similar problem in Lockout/Tagout I.

There, the court rejected the Department of Labor's

interpretation of the OSH Act based on a nondelegation analysis

nearly identical to the one below. As Lockout/Tagout |

explains, cost-benefit analysis is merely a shorthand for rational

decisionmaking in everyday life — or “what Benjamin Franklin

referred to as a ‘moral or prudential algebra.” 938 F.2d at

1321. As so defined, “cost-benefit analysis entails only a

systematic weighing of pros and cons,” id. — a traditional form

of reasoned decisionmaking, the absence of which ATA

maintains would raise nondelegation and other concerns,

especially unless expressly ruled out by Congress. While this

was “a permissible interpretation” in Lockout/Tagout, id., Lead

Industries interprets Section 109(b) to preclude it here, thus

requiring resort to alternative intelligible principles along the

lines suggested by the decision below. See U.S. App. 14a-18a

Rather than grapple with the obvious barrier that Lead

Industries poses for resolving the appellate court’s very real

nondelegation concerns, EPA and the other cross-respondents

pretend that this Court might somehow grant certiorari but still

avoid any inquiry into statutory construction, supposedly

because ATA concedes that the Act is “undisputably”

constitutional. See ALA Opp. 3; U.S. Opp. 18-19. To be sure,

ATA, like the court below, accepts that the Act is

constitutional, provided it is construed in a manner that imposes

5

real limits on agency discretion, promotes rational

decisionmaking, and permits meaningful judicial review.

Needless to say, this so-called concession hardly amounts to

“recharacteriz[ing] the court of appeals’ decision in ways that

obfuscate the issues.” U.S. Opp. 5. The court of appeals could

not have been clearer that it was invalidating “the construction

of the Clean Air Act on which EPA relied in promulgating the

NAAQS at issue.” U.S. App. 4a (emphasis added). In this

regard, it expressly relied on Benzene as an example of how the

need to defuse nondelegation concerns could give rise to a

Statutory construction providing the missing “intelligible

principie” — a principle that, under Chevron, it is the agency’s

job to develop in the first instance. See, e.g., id. at Sa; 75a-76a.

Viewed from this perspective, Lead Industries might well

preclude the very sort of bounded and rational decisionmaking

necessary for EPA to solve the appellate court’s nondelegation

concerns — surely the best possible reason for granting ATA’s

cross-petition. But EPA is equally wrong to suggest that Lead

Industries “raise[s] no issue that would independently warrant

review.” U.S. Opp. 5. Lead Industries on its own terms

squarely poses the question whether EPA may (or even must)

impose countless billions of dollars in economic costs without

regard to whether those costs, in total or at the margin: (1)

address “significant” health risks as that test has been applied by

agencies since Benzene, (2) are necessary to provide an

“adequate” “margin of safety,” cf NRDC v. EPA, 824 F.2d

1146, 1158 (D.C. Cir. 1987) (en banc) (“Vinyl Chloride’’), or

(3) are even roughly Commensurate with the predicted health

benefits, see generally Corrosion Proof Fittings v. EPA, 947

F 2d 1201 (Sth Cir. 1991). See ATA Cross-Pet. i, 22-26.

These interrelated issues are of manifest importance in their

own night and are therefore independently worthy of certiorari

Cf Sup. Ct. R. 10. Indeed, this Court granted certiorari on

analogous questions in the much less economically significant

context of the OSH Act. See American Textile Mfrs. Inst., Inc.

v. Donovan, 482 U.S. 490 (1981); Bemzene. As the Court,

6

speaking through Justice Brennan, explained, certiorari was

granted in American Textile expressly “to resolve thfe]

important question” of whether an agency must “enact the most

protective standard possible to eliminate a significant risk of

material health impairment,” or must instead choose a standard

that “reflects a reasonable relationship between the costs and

benefits associated with the Standard.” 452 U.S. at 494-95.

EPA’s only response to this obvious, albeit alternative, ground

for granting ATA’s cross-petition boils down to the claim that

Lead Industries was correctly decided. See U.S. Opp. 9-16.

But even EPA must concede that Lead Industries, although

decided before Chevron, speaks in mandatory terms that can

only be defended under Chevron step one. /d. at 9, U.S. App.

19a (“[T]he Lead /ndustries decision was made in Chevron step

one terms”). Under a Chevron step-one test, however, it is

barely plausible to argue that Congress “has directly spoken to

the precise question at issue.” Chevron, 467 U.S. at 842. To

the contrary, the non-exclusionary Clean Air Act text — “protect

the public health” with “an adequate margin of safety” — permits

various readings, including many allowing consideration of the

non-health factors that are now precluded from consideration by

Lead Industries and its progeny.

Significantly, EPA’s Opposition omits any mention of State of

Michigan, which strongly suggests how the D.C. Circuit might

construe CAA § 109(b)’s open-ended text if it — like this Court

— were free to interpret the Act afresh. State of Michigan

involved a pollution-transport provision that prohibits emission

of “any air pollutant in amounts which will . . . contribute

significantly” to nonattainment of the national standards. CAA

§ 110(aX2)(DXi), 42 U.S.C.§ 7410(aX2D\i). Confronted

with this statute, the court ruled: “It is only where there is ‘clear

congressional intent to preclude consideration of cost’ that we

find agencies barred from considering costs.” /d at *12

(quoting Vinyl Chloride, 824 F.2d at 1163; citing additional

cases). From this, the court went on to express the “general

view that preclusion of cost consideration requires a rather

express congressional direction.” /d. (citing authorities).

7

Applying that canon, State of Michigan explained that the

provision before it, like other provisions interpreted in previous

cases, involves “[a] mandate directed to some environmental

benefit . .. phrased in general quantitative terms (‘ample margin

of safety,’ ‘substantial restoration,’ and ‘major’), and contains

not a word alluding to non-health tradeoffs.” 2000 WL

180650, at *12 (discussing, inter alia, NRDC v. EPA, 937 F.2d

641, 643-46 (D.C. Cir. 1991); Vinyl Chloride, 824 F.2d at

1163). “[I}n each case we found that in making its judgments

of degree the agency was free to consider the costs of

demanding higher levels of environmental benefit. So too here.”

Id. State of Michigan thus confirms in the strongest possible

terms that, notwithstanding what EPA says, see U.S. Opp. 8,

the D.C. Circuit does indeed “lack confidence” in the reasoning

of Lead Industries.

Equally telling, however, is the complete absence of any EPA

response to ATA’s extended textual and structural

deconstruction of the Lead Industries holding. See AT A Cross-

Pet. 18-22. EPA thus makes no mention at all of statutory text

except for mistakenly arguing that “Section 108(a)(2) . . . /imits

the kind of information to be included in the ‘criteria’ to ‘the

latest scientific knowledge’ about effects on health and welfare

‘which may be expected from the presence of such pollutant in

the ambient air.’”” U.S. Opp. 10 (emphasis added). In fact, as

ATA’s cross-petition demonstrates, there is no such limitation.

Rather, the statute merely specifies certain items that are to be

included in an analytical criteria document without in any way

limiting the analysis to those items. See ATA Cross-Pet. 19-20.

EPA’s heavy reliance on Union Electric Co. v. EPA, 427 U.S.

246 (1976), only confirms this latter point. See, e.g., U.S. Opp.

11-12. The statutory provision at issue there, in marked

contrast to Section 108, specifically states that EPA “shall”

approve a State Implementation Plan so long as eight specific

requirements are satisfied. See CAA § 110(a)(2), 42 U.S.C.

§ 7410(a)(2). That list of decisional criteria, combined with the

mandatory “shall,” makes clear that the statutory list is intended

as exclusive. But as the D.C. Circuit has ruled, Union Electric

8

has no relevance where, as here, Congress has not “limit[ed]

specifically the factors the Administrator may consider.” Vinyl

Chloride, 824 F.2d at 1158.

EPA’s final claim, that Congress somehow ratified the Lead

Industries interpretation in the 1977 and 1990 amendments to

the Act, is even more unpersuasive than EPA’s other weak

arguments, since EPA itself concedes that Congress did not

amend the relevant statutory provisions in any respect. See

U.S. Opp. 14 (“Congress did not change the substantive criteria

for setting and revising NAAQS” in 1977); id. at 15 (“Congress

.. . did not change the legal standard on which NAAQS are

based” in 1990). As the D.C. Circuit has already held

respecting the 1977 amendments, “we certainly cannot construe

Congress’ failure to act in these circumstances as amounting to

ratification,” since Congressional inaction can result from any

number of causes. Vinyl Chloride, 824 F.2d at 1162 & n.10.

Compare Brown & Williamson, 120 S. Ct. at 1305 (ratification

argument made where, unlike here, Congress affirmatively took

“incompatible” action).

In the end, the most that EPA could (but does not) say is that

State of Michigan fails to mention Lead Industries at all,

confirming that, whatever its merits, the D.C. Circuit “has long

viewed the matter as settled.” U.S. Opp. 8-9. The D.C. Circuit

may indeed be willing to treat Lead Jndustries as a precedential

leper — diseased but untouchable - especially given the

resources it has devoted to the issue over the years. See, e.g,

Vinyl Chloride, 824 F.2d at 1158-59. But the fact remains that

leaving Lead Industries uncorrected makes vastly more difficult

EPA’s task of solving the nondelegation problem that drove the

decision below. For that reason, as well as because Lead

Industries is surpassingly important and wrongly decided, this

Court should grant ATA’s cross-petition.

Brute ee ee +

9

Il. NONDELEGATION CONCERNS SHOULD

CONTINUE TO INFLUENCE CONSTRUCTION OF

THE ACT IF CERTIORARI IS GRANTED.

EPA is plainly wrong to argue that Lead Industries bears no

relationship to the appellate court’s nondelegation holding. But

it would be equally wrong to assume that this Court, although

not constrained by Lead Industries, could construe Section

109(b) without regard to nondelegation concerns.

EPA unabashedly admitted below that it followed “no

generalized paradigm,” that its decision “may not be amenable

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

other metric,” and that it was “largely judgmental in nature.”

62 Fed. Reg. 38,856, 38,883 (July 18, 1997) (emphasis added).

Faced with similarly aggressive agency interpretations, this

Court has never hesitated to deploy the nondelegation canon

and like considerations in order to reject agency statutory

constructions that leave to agencies unbounded authority to

shape regulatory programs in ways that Congress would not

have reasonably expected. Cf Brown & Williamson, 120 S. Ct.

at 1314 (“In extraordinary cases, however, there may be reason

to hesitate before concluding that Congress has intended such

an implicit delegation.”); Department of Commerce v. House of

Representatives, 525 U.S. 316, 343 (1999) (rejecting argument

that Congress “would have decided to reverse course on

[sampling for census purposes] by enacting only a subtle change

in phraseology”); MCI Telecommunications Corp. v. AT&T

Corp., 512 U.S. 218, 221 (1994) (rejecting FCC interpretation

of the term “modify” as permitting the FCC effectively to

abolish all tariff-filing requirements). Along these very lines,

just last term in Jowa Utilities, this Court used statutory

interpretation doctrines to reject an agency construction that

would otherwise have resulted in unbounded agency discretion.

See 525 U.S. at 386-90; Lisa Schultz Bressman, Schechter

Poultry at the Millennium: A Delegation Doctrine for the

Administrative State, 109 YALE L.J. 1399, 1431-42 (2000)

(treating /owa Utilities and ATA as examples of the “new

delegation doctrine”).

10

Moreover, in Benzene, this Court rejected on nondelegation

grounds an OSHA interpretation of a standard-setting statute

that, as even EPA admits, contains an express “feasibility”

limitation. U.S. Opp. 16. Notwithstanding that feasibility

limitation, this Court used the nondelegation canon to reject

OSHA’ s interpretation on grounds that it would grant OSHA

“unprecedented power over American industry” to “impose

enormous costs that might produce little, if any, benefit.” 448

U.S. at 645. Here, the Act lacks any such limitation.

Deployment of the nondelegation canon is therefore all the more

necessary, lest EPA be granted even greater discretion to

impose costs that are orders of magnitude higher — or as the

court below put it, unbounded discretion to “send industry not

just to the brink of ruin but hurtling over it.” U.S. App. 12a.

As ATA will demonstrate should this Court accept review,

this boundless authority EPA claims would contradict not only

the statutory text, but also basic notions of the agency’s proper

role, as reflected in foundational constitutional and

administrative law principles. Under these principles, as

confirmed by the holding of the State of Michigan case,

consideration of non-health factors is the norm in interpreting

public health provisions, absent “clear congressional intent” to

the contrary. See 2000 WL 180650, at *12. Indeed, EPA itself

admitted as much in its State of Michigan brief: “[W)]here, as

here, the statute is silent regarding the factors EPA may or may

not consider, it is generally permissible for the Agency to

consider other relevant factors,” such as costs. EPA Br. at 53

in State of Michigan v. EPA, No. 98-1497 (D.C. Cir.). Unless

and until Congress amends the Act, consideration of non-health

factors is warranted, just as EPA argued it was in Siate of

Michigan.

CONCLUSION

EPA’s complete silence concerning whether this cross-petition

is necessary apparently signals its agreement that a cross-

petition is not needed to preserve the Lead Industries issue. See

ATA Cross-Pet. 27-30. Nevertheless, ATA urges that the

cross-petition be granted or held for the reasons stated above.

ROBIN S. CONRAD

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for Chamber of

Commerce of the

United States

Respectfully submitted,

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 American

Trucking Associations, Inc.

and Chamber of Commerce of

the United States

BETH L. Law

ROBERT S. DiGGEs

ATA LITIGATION CENTER

2200 Mill Road

Alexandna, 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 | 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

Timortny 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

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 |. GREENHAUS

NATIONAL AUTOMOBILE

DEALERS ASSOCIATION

8400 Westpark Dnve

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