Respondents Brief — American Trucking Assns., Inc. v. Browner
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IN THE
Supreme Court of the United States
AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER OF
COMMERCE OF THE UNITED STATES, et al.,
Petitioners,
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, et ail.,
Respondents.
On a Writ of Certiorari to the
United States Court of Appeals
For the District of Columbia Circuit
BRIEF FOR RESPONDENTS
APPALACHIAN POWER COMPANY, et al.,
IN SUPPORT OF PETITIONERS
DAVID E. MENOTTI HENRY V. NICKEL
WILLIAM F. PEDERSEN F. WILLIAM BROWNELL
JEFFREY A. KNIGHT (Counsel of Record)
SHAWPITTMAN JAMES N. CHRISTMAN
2300 N Street, N.W. LUCINDA MINTON LANGWORTHY
Washington, D.C. 20037 HUNTON & WILLIAMS
(202) 663-8675 1900 K Street, N.W.
Counsel for American Washington, D.C. 20006
Forest & Paper (202) 955-1500
Association and American — Counsel for Appalachian Power
lron & Steel Institute Co., et al., American Public
Power Association, and
National Association of
July 20, 2000 Home Builders
[Additional Counsel Listed Inside]
WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001
G. WILLIAM FRICK
M. ELIZABETH COX
AMERICAN PETROLEUM
INSTITUTE
1220 L Street, N.W.
Washington, D.C. 20005
(202) 682-8250
Counsel for American
Petroleum Institute
RUSSEL S. FRYE
COLLIER, SHANNON, RILL &
ScoTT, PLLC
3050 K Street, N.W., Suite 400
Washington, D.C. 20007
(202) 342-8878
and
RICHARD WASSERSTROM
AMERICAN FOREST & PAPER
ASSOCIATION, INC.
1111 19th Street, N.W.
8th Floor
Washington, D.C. 20036
(202) 463-2582
Counsel for American Forest
& Paper Association, Inc.
GRANT CRANDALL
General Counsel
UNITED MINE WORKERS OF
AMERICA, AFL-CIO
8315 Lee Highway
Fairfax, VA 22031
(703) 208-7200
and
EUGENE M. TRISKO
P.O. Box 596
Berkeley Springs, WV 25411
(304) 258-1977 ;
Counsel for United Mine
Workers of America, AFL-CIO
NEWMAN R. PORTER
LEWIS AND ROCA
40 N. Central Avenue
Phoenix, AZ 85004
(602) 262-5786
Counsel for Nevada Mining
Association, Newmont Gold
Company, and Meridian Gold
Company
HAROLD P. QUINN, JR.
NATIONAL MINING
ASSOCIATION
1130 17th Street, N.W.
Washington, D.C. 20036
(202) 463-2652
Counsel for National Mining
Association
MARCELLE SHOOP
Associate General Counsel
KENNECOTT CORPORATION
8315 West 3595 South
P.O. Box 6001
Magna, Utah 84044-6001
(801) 252-3000
Counsel for Kennecott Holdings
Corporation, Kennecott
Energy and Coal Company
and Kennecott Services
Company
PETER S. GLASER
SHOOK, HARDY & BACON
600 14th Street, N.W.
Suite 800
Washington, D.C. 20005
(202) 639-5627
Counsel for Western Fuels
Association, Inc.
DAVID F. ZOLL
ALEXANDRA DAPOLITO DUNN
AMERICAN CHEMISTRY COUNCIL
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5165
Counsel for American Chemistry
Council
DAVID M. FLANNERY
JACKSON & KELLY
P.O. Box 553
1600 Laidley Tower
Charleston, WV 25322
(304) 340-1017
Counsel for Midwest Ozone
Group and West Virginia
Chamber of Commerce
KURT E. BLASE
O’CONNOR & HANNAN
Suite 500
1666 K Street, N.W.
Washington, D.C. 20006-2803
(202) 887-1400
Counsel for Kennecott Holdings
Corporation, Kennecott Energy
and Coal Company, Kennecott
Services Company, and
National Stone Association
DUANE J. DESIDERIO
NATIONAL ASSOCIATION OF
HOME BUILDERS
1201 15th Street, N.W.
Washington, D.C. 20005
(202) 861-2146
Counsel for National Association
of Home Luilders
MAURICE H. MCBRIDE
NATIONAL PETROCHEMICAL
REFINERS ASSOCIATION
1899 L Street, N.W.
Washington, D.C. 20036
(202) 457-0480
Counsel for National
Petrochemical & Refiners
Association
TIMOTHY L. HARKER
THE HARKER LAW FIRM
9500 Accord Drive
Potomac, MD 20854
(301) 983-0964
and
THOMAS J. GRAVES
NATIONAL PAINT AND
COATINGS ASSOCIATION, INC.
1500 Rhode Island Ave., N.W.
Washington, D.C. 20005
(202) 462-6272
Counsel for National Paint and
Coatings Association
DAVID M. FRIEDLAND
BEVERIDGE & DIAMOND
1350 I Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 789-6000
Counsel for Phoenix Cement
Company.
QUESTION PRESENTED
Whether Sections 101, 108, and 109 of the Clean Air Act
require that the Environmental Protection Agency, in
evaluating the adequacy of nationwide ambient air quality
standards that address predicted “risks” to health, consider
the overall societal consequences of managing such risks in
determining whether and how to revise such standards?
l.
ii
PARTIES TO THE PROCEEDINGS
The parties joining in this brief were petitioners in
American Trucking Ass'ns, Inc. v. United States
Environmental Protection Agency, D.C. Cir. No. 97-1440
(and consolidated cases), and American Trucking Ass ‘ns,
Inc. v. United States Environmental Protection Agency,
D.C. Cir. No. 97-1441 (and consolidated cases), and are
listed below.
Appalachian Power Co.
Baltimore Gas and Electric Company
Carolina Power & Light Company
Central and South West Services, Inc.
Central Power and Light Company
Public Service Company of Oklahoma
Southwestern Electric Power Company
West Texas Utilities Company
Central Illinois Public Service Company
CINergy Corp.
Columbus Southern Power Company
Conectiv (petitioned as Delmarva Power & Light Co.
and intervened as Atlantic City Electric Co. in the
cases below)
Consumers Energy Company
Dayton Power and Light Company, The
Detroit Edison Company, The
Duke Energy Co.
FirstEnergy (petitioned as Ohio Edison Co. and
Centerior Energy Co., (with Centerior Energy
Co. subsidiaries Cleveland Electric
Illuminating Co. & Toledo Edison Co.) in the
cases below)
Florida Power Corporation
iii
Illinois Power Company
Indiana Michigan Power Company
Indianapolis Power & Light Company
Jacksonville Electric Authority
Kansas City Power & Light Company
Kentucky Power Company
LGE Energy Corp. (petitioned as Kentucky
Utilities Company and Louisville Gas &
Electric Co. in the cases below)
Madison Gas and Electric Company
Minnesota Power Company
| Monongahela Power Company,
dba Allegheny Power System, Inc.
Northern Indiana Public Service Company
Oglethorpe Power Corporation
Ohio Power Company
Ohio Valley Electric Corporation
Otter Tail Power Company
PacifiCorp
PPL Electric Utilities Corporation
dba PPL Utilities (petitioned as
Pennsylvania Power & Light Corp.)
Plains Electric Generation & Transmission
Cooperative, Inc.
Potomac Edison Company, The
dba Allegheny Power System, Inc.
Potomac Electric Power Company
Public Service Company of New Mexico
Salt River Project
South Carolina Electric & Gas Company
Southern Company
Alabama Power Company
Georgia Power Company
iv
Gulf Power Company
Mississippi Power Company
Savannah Electric & Power Company
Tampa Electric Company
Union Electric Company
Virginia Power
West Penn Power Company
dba Allegheny Power System, Inc.
Wisconsin Electric Power Company
Edison Electric Institute
National Rural Electric Cooperative Association
American Chemistry Council (petitioned as Chemical
Manufacturers Association in cases below and for
a writ of certiorari)
American Forest & Paper Association
American Iron & Steel Institute
American Petroleum Institute
American Public Power Association
Kennecott Energy and Coal Company
Kennecott Holdings Corporation
Kennecott Services Company
Meridian Gold Company
Midwest Ozone Group
National Association of Home Builders
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners Association
(petitioned as National Petroleum Refiners
Association in the case below)
National Stone Association
Nevada Mining Association
Newmont Gold Co.
Phoenix Cement Company
v
United Mine Workers of America, AFL-CIO
West Virginia Chamber of Commerce
Western Fuels Association, Inc.
2. The following parties were petitioners in the cases whose
judgment is under review, but have not joined in filing
this brief.
Alliance of Automobile Manufacturers (petitioned as
American Automobile Manufacturers Association
in the cases below)
American Farm Bureau Federation
American Portland Cement Alliance
American Trucking Associations, Inc.
James Bassage
Burns Motor Freight, Inc.
Central Illinois Light Co.
Chamber of Commerce of the United States of
America
Citizens for Balanced Transportation
Commonwealth Edison
Duquesne Light Co.
Equipment Manufacturers Institute
Garner Trucking, Inc.
Genie Trucking Line, Inc.
Gloucester Company, Inc.
Michael Gregory
Idaho Mining Association
Judy’s Bakery, Inc.
David Matusow
Brian McCarthy
National Association of Manufacturers
National Automobile Dealers Association
National Coalition of Petroleum Retailers
vi
National Indian Business Association
vii
National Small Business United DISCLOSURE STATEMENT
Non-Ferrous Founders’ Society 1. Pursuant to Supreme Court Rules 24.1(b) and 29.6, the
Oklahoma Gas & Electric following list discloses the parent companies, and any
Richard Romero publicly held company that owns 10% or more, of any
Small Business Survival Association party joining in this brief.
State of Michigan
State of Ohio Alabama Power Company
State of West Virginia (a subsidiary of Southern Company)
Appalachian Power Company
3. Respondents Carol M. Browner, Administrator of the (a subsidiary of American Electric Power
United States Environmental Protection Agency, and the Company, Inc.) .
United States Environmental Protection Agency were the Baltimore Gas and Electric Company
respondents in all of the proceedings below. (a subsidiary of Constellation Energy Group, Inc.)
Carolina Power & Light Co.
4. The following parties were intervenors in the cases whose (10% or greater owner: State Street Bank &
judgment is under review. Trust Co. Boston)
American Lung Association Central and South West Services, Inc.
American Road and Transportation Builders
Association
Atlantic City Electric Company
Commonwealth of Massachusetts
State of New Jersey
. The following parties appeared as amici curiae in the
cases whose judgment is under review.
Representative Tom Bliley
Senator Orrin G. Hatch
State of Connecticut
State of New Hampshire
State of New York
State of Vermont
(a subsidiary of Central and South West
Corporation)
Central Illinois Public Service Company
(a subsidiary of Ameren Corporation)
Central Power and Light Company
(a subsidiary of Central and Southwest
Corporation)
Columbus Southern Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Consumers Energy Company
(a subsidiary of CMS Energy Corporation)
Dayton Power & Light Company, The
(a subsidiary of DPL Inc.)
Detroit Edison Co., The
viii
(a subsidiary of DTE Energy Co.)
Florida Power Corporation
(a subsidiary of Florida Progress
Corporation)
Georgia Power Company
(a subsidiary of Southern Company)
Gulf Power Company
(a subsidiary of Southern Company)
Illinois Power
(a subsidiary of Dynergy, Inc.)
Indiana Michigan Power Company
(a subsidiary of American Electric Power
Company, Inc.)
Indianapolis Power & Light Company
(a subsidiary of IPALCO Enterprises, Inc.)
Kennecott Energy and Coal Co.
(an indirect subsidiary of Rio Tinto PLC)
Kennecott Holdings Corporation
(an indirect subsidiary of Rio Tinto PLC)
Kennecott Services Company
(an indirect subsidiary of Rio Tinto PLC)
Kentucky Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Meridian Gold Co.
(a wholly-owned subsidiary of Meridian Gold, Inc.)
Mississippi Power Company
(a subsidiary of Southern Company)
Monongahela Power Company
(a subsidiary of Allegheny Energy, Inc.)
Newmont Gold Co.
(10% or greater owner: Newmont Mining
Corporation)
ix
Northern Indiana Public Service Company
(a subsidiary of NiSource Inc.)
Ohio Power Company
(a subsidiary of American Electric Power
Company, Inc.)
Otter Tail Power Co.
(10% or greater owner: Otter Tail Power Co.
ESOP)
Potomac Edison Company, The
(a subsidiary of Allegheny Energy, Inc.)
Public Service Company of Oklahoma
(a subsidiary of Central and Southwest
Corporation)
Savannah Electric & Power Company
(a subsidiary of Southern Company)
South Carolina Electric & Gas Company
(a subsidiary of SCANA Corporation)
Southwestern Electric Power Company
(a subsidiary of Central and Southwest
Corporation)
Tampa Electric Company
(a subsidiary of TECO Energy, Inc.)
Union Electric Co.
(a subsidiary of Ameren Corp.)
Virginia Power
(a subsidiary of Dominion Resources, Inc.)
West Penn Power Company
(a subsidiary of Allegheny Energy, Inc.)
West Texas Utilities Company
(a subsidiary of Central and South West
Corporation)
Wisconsin Electric Power Company
(a subsidiary of Wisconsin Energy Corporation)
x
xi
2. The following parties joining this brief have no parent
Association (formerly National Petroleum Refiners
Association)
National Rural Electric Cooperative Association
National Stone Association
Nevada Mining Association
Oglethorpe Power Corp.
Ohio Valley Electric Corp.
PacifiCorp
corporations, and no publicly-held companies have a 10% eee ao Corporation
or greater ownership interest in these parties. Phoenix Cement Company
American Chemistry Council (formerly Chemical — Electric Generation & Transmission
Pes ooperative, Inc.
Manufactwers Association) Potomac Electric Power C
American Forest & Paper Association Pubs Garvin Ca ened on salad
American Iron & Steel Institute a
American Petroleum Institute Southern C J
American Public Power Association : we
CINergy Corp. United Mine Workers of America, AFL-CIO
Conextiv West Virginia Chamber of Commerce
Duke Energy Corp. Western Fuels Association, Inc.
Edison Electric Institute
FirstEnergy Corp.
Jacksonville Electric Authority
Kansas City Power & Light Co.
LGE Energy Corp.
Madison Gas and Electric Co.
Midwest Ozone Group
Minnesota Power Company
National Association of Home Builders
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners
Page
crt tcrersncensnsenencnsscenensesenest i
PARTIES TO THE PROCEEDINGS ..............:ccccccccceseeseeeeeees ii
DISCLOSURE STATEMENT ............:c-ccccsscccssccssscesscesesersees vii
ee XV
cia aciiicerinae crctncensaeentnsnnessennsentensest XXV
ee l
iliac teren ce nensnemennesamesenesceemmeceseess l
RELEVANT CONSTITUTIONAL, STATUTORY
AND REGULATORY PROVISIONS .............:cccccccceeeeeeneeees I
eae 2
TTT cercneniersenanenetenpensensesecnesnescscnescosseceees 5
ae 5
Il. EPA’S POLICY DECISION TO REVISE THE
OZONE AND PM NAAQS. ....0:ccsscccssssccccsscorsssecescssscesees 8
Ill. THE D.C. CIRCUIT’S DECISION ...000.......cccccceeeeeeeees 20
SUMMARY OF ARGUMENT................::cccccceseesseeeeseeeeeenees 21
i Serra tereasnenenetncsnnnnnsenssencesecssscesees 25
xiv
|. THE STATUTORY PURPOSES MUST INFORM
AN AGENCY’S IMPLEMENTATION OF A
BROAD CONGRESSIONAL DELEGATION................. 27
Il. CONGRESS IN § 109 CONTEMPLATED THAT
EPA WOULD CONSIDER THE BROAD
IMPACTS ON SOCIETY OF ITS PUBLIC
HEALTH RISK MANAGEMENT DECISIONS
CONSISTENT WITH THE aces OF THE
| 32
A. Sections 108 and 10%b) Do Not Mandate
Uninformed Public Health Risk Management
EE a 33
B. Section 109(d) Confirms The Need For
Consideration of the Impacts on Society of
Decisions on Whether to Revise NAAQS. ...... 39
C. The Legislative History Confirms the Need For
Balancing to Promote the Purposes of the Act. ..43
Ill. LEAD INDUSTRIES, WHICH THE LOWER
COURT CITES AS THE BASIS FOR ITS
DECISION, SHOULD BE OVERRULED.................-. 45
CONCLUSION ....cccecccsscscccseossovsssccssersonsscnsensssssesssssssssosssssees 49
XV
TABLE OF AUTHORITIES
CASES Page
Asgrow Seed Co. v. Winterboer, 513 U.S. 179
SEI EETITTnteiuietiichnichapeiinieinininamnattattaeinataaaliadbaciaaaiiatiatatimias 27
American Trucking Ass'ns v. EPA, 175 F.3d 1027
(D.C. Cir 1999), modified, 195 F.3d 4 (D.C.
er a ee passim
AT&T Corp. v. lowa Utilities Board, 525 U.S. 366
eae ensiasbiisinasniitensnnnipcnsiciiineiiaiinaiinhinbiaibiguusttitusian 28, 31
American Petroleum Institute v. Costle, 665 F.2d
Ee 34, 46
Central Bank, N.A. v. First Interstate Bank, N.A.,
ee BITTE ccciccnsitasistnctiadintiaaeninstatiticaaiaiaees 48, 49
Chevron, USA, Inc. v. NRDC, 467 U.S. 837
Salt serissetianenpeeenenandtuntianiedesnesamenitaaiians 24, 32, 35, 49
Chrysler Corp. v. EPA, 631 F.2d 865 (D.C. Cir.
Saat hetsercersienneinneninnteneineencaeniattantaianiiniatabiaisiaemsansees 29
Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976).......3, 37
FDA v. Brown & Williamson Tobacco Corp., 120
ee Ce I cilicadiathtictasitiitesihiiiiaicatimartaciinclncactiatas 45
General Motors Corp. v. Ruckelshaus, 742 F.2d
KS 29
George E. Warren Corp. v. EPA, 159 F.3d 616
SND GUI UIEcniicteieectiineaitiesistediitadeceaeinenl penittnie 47
Grand Canyon Tour Coalition v. FAA, 154 F.3d
ENED SIDE cereieienscinieneneheetiniaiotnisnatiteamniegs 47
Immigration and Naturalization Service v.
Chadha, 462 U.S. 919 (1983)........ccccccccccscseseeeeseeeeees 49
Industrial Union Department, AFL-CIO vy.
American Petroleum Institute, 448 U.S. 607
AP ial 31, 36
xvi
International Harvester Co. v. Ruckelshaus, 478
Pf (ff 7. 41, 42
International Union, UAW vy. OSHA, 938 F.2d
N(R , 31
Johnson v. United States, 120 S.Ct. 1795 (2000).....28, 32
Jones v. United States, 120 S.Ct. 1904 (2000)............... 28
Lead Industries Association v. EPA, 647 F.2d
Oy passim
Michigan v. EPA, No. 98-1497, 2000 WL 180650
I 47
Mississippi Band of Choctaw Indians v. Holyfield,
a s ccitecerecirtiemnrnmenne 28
Mistretta v. United States, 488 U.S. 361 (1989) ............ 28
Motor Vehicle Manufacturers Association v. State
Farm Mutual Automobile Insurance Co., 463
Rls Sa cnctcncepencrnescemmemmnsmennneaiaveniinanmeste 35, 42
Natural Resources Defense Council v. EPA,
(“Vinyl Chloride”), 824 F.2d 1146 (D.C. Cir.
Fe crecesesensensesnrinensennesemmneienenalenmten 36, 47, 48
Natural Resources Defense Council, 902 F.2d 962
ek > ee 34, 38, 46
Phelps Dodge Corp. v. NLRB, 313 U.S. 177
ETT ncrecsssesininentintnnsntdenzecateiiammnenaittdianmmemieepnaenniancil 45
Public Lands Council v. Babbitt, 120 S.Ct. 1815
GET IE sccnssccntineneniunesaseineniintnnaemmemminneneencne 42
SEC v. Chenery Corp., 332 U.S. 194 (1947)........c.cc0000 34
Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir.
1976) , vacated sub nom. Montana Power Co.
v. EPA, 434 U.S. 809 (1977) .......ccccccccceseeeereeeeeeeenes 30
xvii
Sierra Club v. Ruckelshaus, 344 F.Supp. 253
(D.D.C.), aff'd per curiam, 4 E.R.C. 1815
(D.C. Cir. 1972), aff'd by an equally divided
Court, sub nom. Fri v. Sierra Club, 412 U.S.
i atitiaiehhcetitainnien icteric tinea iatiatsees 30
Smiley v. Citibank (South Dakota), N.A., 517 U.S.
a eee ae aan 35, 46
South Dakota v. Yankton Sioux Tribe, 522 U.S.
ERR se a en 48
Union Electric Co. v. EPA, 427 U.S. 246 (1976)........... 31
West v. Gibson, 527 U.S. 212 (1998) ........cccccccccccceeeseeee 40
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)........... 28
CONSTITUTION AND STATUTES
8 8 | Re en eer en eT Te 2
ne 49
SE l
Air Quality Act, Pub. L. No. 90-148, 81 Stat. 485
rear cerenniecresecnenenietTiiecsmuiinintiadiantecaatintineniaiinsaaieeni 28
The Clean Air Act, 42 U.S.C. §§ 7401 ef seq.
(1994 & Supp. III 1997)
CAA § 101, 42 U.S.C. § 7401 ...cccssssecsccssssessscssssessesssseesen 2
CAA § 101(b), 42 U.S.C. § 7401(b) -cccccsececccsssseesee passim
CAA § 101(b)(1), 42 U.S.C. § 7401(B)(1) cccccssseesce passim
CAA § 108, 42 U.S.C. § 7408 ..ccccccccccsssecsssssssesesssees passim
CAA § 108(a), 42 U.S.C. § 7408(a) ..ccccccccccccesscssseeoee 7,37
CAA § 108(a)(2), 42 U.S.C. § 7408(€)(2).cccccseeceecsve 6, 38
CAA § 108(a)(2)(A), 42 U.S.C. § 7408(a)2)(A) cosecssveeee. 6
CAA § 108(b), 42 U.S.C. § 7408(b) -..cccccccccsesecsssseeee 7, 40
CAA § 108(b)(1), 42 U.S.C. § 7408(B)(1) -ecccecccessssees 6, 39
CAA § 109, 42 U.S.C. § 7409 .....cccccccccsssssesessssseeeee passim
XViil
CAA § 109(b), 42 U.S.C. § 7409(b) ......ssscsseeessenen passim
CAA § 109(b)(1), 42 U.S.C. § 7409(D)(1) ..-....00 5, 23, 42
CAA § 109(b)(2), 42 U.S.C. § 7409(0)(2) ....sssssssseceseeeee .3
CAA § 109(d), 42 U.S.C. § 7409(d) ........ssccceessseeee passim
CAA § 109(d)(1), 42 U.S.C. § 109(d)(1) ........0000 6, 24, 39
CAA § 109(d)(2)(C), 42 U.S.C. § 7409(d)(2)(C)......e000 7
CAA § 109(d)(2)(C)(i), 42 U.S.C. § 7409(d)(C){i).. 41, 42
CAA § 109(d\(2)(C\iv), 42 U.S.C. § 7409
(9) (6) () eens 41
CAA § 112, 42 U.S.C. § 7412 ...ccccccceceeeeeereeneeeneenenennnens 35
CAA § 160(1), 42 U.S.C. § 747001) ......ccccccceeeeeeeeeeeneens 44
CAA §§ 160-169, 42 U.S.C. §§ 7470-7479 .........ccceeee 43
CAA §§ 171-179B 42 U.S.C. §§ 7501-7509 ..........0000 15
CAA §§ 181-185B, 42 U.S.C. §§ 7511-7511f............... 15
CAA § 302(h), 42 U.S.C. § 7602(f) ........ccceceereereennnes 38
Transportation Equity Act for the 21st Century
Pub. L. No. 105-178, 112 Stat. 463 § 6101
(en 2, 13, 17, 33
Transportation Equity Act for the 21st Century
Pub. L. No. 105-178, 112 Stat. 463 § 6102
OS TEES ADA ICE 2
FEDERAL REGULATIONS
40 CFR. § 50.7 (1999) csscccccccccccsnvsssscvccssseesceersnssssssssesess 2
40 CLF.R. § 50.9 (1999)....cccccccsssssssssssesseseeseeeeesssssnnnvesssees 2
40 C.F.R. § 50.10 (1999)....ccccccsssssssssssssesessssssnseessseeceessnee 2
1-Hour Ozone Standard: Reinstatement: Final
Rule (visited July 19, 2000)
<http://www.epa.gov/ttn/oarpg/t1/fr_notices/re
in8ss8.pdf> (reached through
<http://www.epa.gov/ttn/oarpg/t! pfpr.html>)......2, 15
xix
FEDERAL REGISTER
39 Fed. Reg. 31000 (1974) .........ccccccccceseseeseseeees 23, 29, 30
44 Fed. Reg. 8212 (1979) .0.........cccccesessessssesescessseesencneenees 9
GE FUG. Tae, GEES CIDTI) 2.xececcesccccscscsesecssesovsesescecesesceesie 10
58 Fed. Reg. 13011 (1993) .........ccccccscesesseseeseseeeevees 10, 26
58 Fed. Reg. 13015 (1993) ..........ccccccccsseseseeseseeneseeee 10, 26
61 Fed. Reg. 65641-42 (1996)...........cccccccscscsseseseeseeeseeees 25
62 Fed. Reg. 38421 (1997) ..........cccccccsessseseseeseeeseseens 13,17
62 Fed. Reg. 38653 (1997) ..........ccccccccsssseseseeseeeeeenes passim
62 Fed. Reg. 38666 (1997) ..........cccccscsessseseseseseseeeeseseneees 16
62 Fed. Reg. 38667 (1997) ..........ccccccssesesesescseseeseeeeescerees 17
62 Fed. Reg. 38668 (1997) ..0.........ccccccesessscsseeeseseseeeseeeees 14
62 Fed. Reg. 38669 (1997) ..0.........ccccccsseseseseseseeseseeeseseens 14
62 Fed. Reg. 38671 (1997)...........ccccccesssssseseseseesesssceeeeens 14
G2 Fed. Reg. 38672 (1997)............sscsressssesesscsesessecesererees 14
G2 Fed. Reg. 38675 (1997)...........cccrssscssscsesssssserereerererers 17
62 Fed. Reg. 38677 (1997) ..........ccccccssssssseseeseseeseneeees 8, 26
62 Fed. Reg. 38679 (1997) ..........cccccccessssssescesesesseneseeseneees 8
62 Fed. Reg. 38683-88 (1997)...0........ccccccccsssesseseeseeeseeees 20
62 Fed. Reg. 38688 (1997) ...........cccccccsecseseeeeseseeenees 14, 22
62 Fed. Reg. 38857 (1997) ...........ccccccssseseseseesesrssenseens 3,14
62 Fed. Reg. 38859 (1997) ...........cccccssessesesessessssessseeeeees 14
62 Fed. Reg. 38861 (1997) ..0........cccccccssesesescessseseeeesenenees 14
62 Fed. Reg. 38862 (1997) .........cccccccesssseseesessseeseeeeseneees 14
62 Fed. Reg. 38863 (1997) ...........ccccccecssseseeceseseesseeeseneees 14
62 Fed. Reg. 38867 (1997) ............cccccccseseseseeseseseseeeeecnees 14
62 Fed. Reg. 38869 (1997) ...........ccccccccsssesssseseseseseesenenees 14
62 Fed. Reg. 38873 (1997) ..........cccccccssesseseseeseseeeeees passim
62 Fed. Reg. 38878-80 (1997)...........cccccccsssessseeseseeeeeseees 15
62 Fed. Reg. 38878-85 (1997).........cccccccscsssseseseseseesesenees 20
62 Fed. Reg. 38882 (1997) ...........ccscsssesssseseseseessseseseseeseees 3
XX
62 Fed. Reg. 38883 (1997) .....ccccscvssssssssseeeeeesssee 14, 15, 22
62 Fed. Reg. 38894 (1997) .....ccccccsssssssssssssssesseseceeessssssseee .
LEGISLATIVE HISTORY
S. Rep. No. 90-403 (1967) ....ccccccscccsssssssssssssssseeseseeseensee 29
S. Rep. No. 91-1196 (1970), reprinted in | Sen.
Comm. on Pub. Works, 93d Cong., 2d Sess.,
A Legislative History of the Clean Air
Amendments of 1970 (Comm. Print 1974).....7, 34, 43
Hearings on S. 251, S. 252 and S. 253, Before the
Subcomm. on Environmental Pollution of the
Sen. Comm. on Env't and Public Works, 95"
Came, tat Bane. (IGT 7) ncccecccecesecccscrssesccssvscssccesesssesees 43
123 Cong. Rec. 18458 (June 10, 1977), reprinted
in 3 Sen. Comm. on Env't and Pub. Works,
95th Cong., 2d Sess., A Legislative History of
the Clean Air Act Amendments of 1977
8 8 ee 7, 25, 34, 44
H.R. Rep. No. 95-294 (1977), reprinted in 4 Sen.
Comm. on Env't and Pub. Works, 95th Cong.,
2d Sess., A Legislative History of the Clean
Air Act Amendments of 1977 (Comm. Print
136 Cong. Rec. H12867 (daily ed. Oct. 26, 1990),
reprinted in 1 Sen. Comm. on Env’t & Pub.
Works, A Legislative History of the Clean Air
Act Amendments of 1990 (Comm. Print 1993)......... 16
H.R. Rep. No. 101-490, pt. 1, 101st Cong., 2d
Sess. (1990), reprinted in 2 Sen. Comm. on
Env’t & Pub. Works, A Legislative History of
xxi
the Clean Air Act Amendments of 1990
hs Ni 33
Clean Air Act: Ozone Particulate and Matter
Standards: Hearings Before the Subcomm. on
Clean Air, Wetlands, Private Property, and
Nuclear Safety and the Sen. Comm. on Env't
and Pub. Works, S. Hrg. No. 105-50, pt. 2
rea asia cieilddeiiiariaactainareniciaataidetatitiicieiiaaaliataeniaes 18
Hearings on Conformity Under the Clean Air Act
Before Sen. Comm. on Env’t and Pub. Works,
a 18
MISCELLANEOUS
eS a ae l
American Farm Bureau Federation, Comments
REE eee ae a ITE 19
American Petroleum Institute, Comments on
Proposed NAAQS for Ozone,
SUI aliiiesschdiesibcieecmcpsieiblcitaeie eich 19
Anne E. Smith, et al., Costs, Economic Impacts,
and Benefits of EPA's Ozone & Particulate
ERS a eee eee ey 4,17
Ben Miller & Claire Brackman Keane,
Encyclopedia and Dictionary of Medicine and
ae 26
Black's Medical Dictionary (Gordon Macpherson,
tS TIE NE 25, 26
Clean Air Scientific Advisory Committee
Transcript (March 22, 1995)....0....cccccccccccscecseseeeeseees 16
Dorland’s Illustrated Medical Dictionary (L.R.C.
Agnew ef all, 24 ed. 1965) ............ccccccccscccceccsccsesseses 26
xxii
EPA, Regulatory Analyses for the Particulate
Matter and Ozone National Ambient Air
Impact Quality Standards and Proposed
Regional Haze Rulle ..............cccssceeeseeeees 16, 17, 19, 32
EPA, Responses to Significant Comments on the
1996 Proposed Rule on the National Ambient
Air Quality Standards for Ozone (1997).............. 9,15
EPA, Review of the National Ambient Air Quality
Standards for Ozone (1996) ............:0-+++ 9,11, 12, 16
EPA, Review of the National Ambient Air Quality
Standards for Particulate Matter (1996)........ 8, 13, 25
Institute of Medicine, The Future of Public Health
ITI tenputnrnsuticitesindsteienditadteasdiiitinienidanincoupiaiaiiiiniataaiaabinnai 27
K. Arrow, et al., Is There a Role for Benefit-Cost
Analysis in Environmental Health and Safety
Regulation?, 272 Science 221 (1996) .............::.0000 37
Lawerence O. Gostin, et al., The Law and The
Public's Health: A Study of Infectious Disease
Law in the United States, 99 Colum. L. Rev.
TE cintceshansieitierciiiniaiiniuntaesitiailiial aria itiidaicaiaas 26, 27
Letter from Dr. George T. Wolff, Chair, CASAC,
to Hon. Carol M. Browner (Nov. 30, 1995)........ 8,13
Letter from Dr. George T. Wolff, Chair, CASAC,
to Hon. Carol M. Browner (Jun. 13, 1996) .............. 13
Mark Shere, The Myth of Meaningful
Environmental Risk Assessment, 19 Harv.
Envtl. L. Rev. 409 (Winter 1995)..................00008 30-31
Memorandum from Harvey M. Richmond to
Karen Martin (Feb. 11, 1997) ..............ccccccceesseeeeeeeeee 12
R.G. Whitfield, et al., A Probabilistic Assessment
of Health Risks Associated With Short-Term
Exposure To Tropospheric Ozone (1996) .............++. 12
RNa Ae STE RN RTI
xxiii
R.G. Whitfield, A Probabilistic Assessment of
Health Risks Associated with Short-term
Exposure to Tropospheric Ozone: A
ee ritrcentensnienesicniniteiniancctcementenaien 11
R. Morgenstern, ed., Economic Analyses at EPA
(Resources for the Future, Washington, D.C.)
Sara isicsitieciecientniintntenanitintiiminaeniantideminbiipnineetedene 37
Ralph L. Keeney, Mortality Risks Induced By
Economic Expenditures, 10 Risk Analysis
(EEE alEcnsscsiscprneniieenionentanepnnamentauapiensiiaiibentapeneiiniiendenn 18
Ralph L. Keeney & Kenneth Green, Estimating
Fatalities Induced By Economic Impacts of
EPA's Ozone and Particulate Standards
[EEPar art sicniuhinnenicesbinianinbdeshieddideainemiianadaapmamnintiieiatinineti 18
Randall Lutter & Christopher Wolz, UV-B
Screening by Tropospheric Ozone:
Implications for the National Ambient Air
Quality Standards, 31 Env. Sci. & Tech. 141
TTI eivicnstinninsinastnbeninsienenannuemnmiemeatiinnninbsietesiinen 19
Roger Detels & Lester Breslow, Current Scope
and Concerns In Public Health in 1 Oxford
Textbook of Public Health 3 (R. Detels et al.,
ins ee See iciiaieiidehieiaiciaiihiencaitiaptareiaatiaiiatchiccianic 26
Stephen Breyer, Breaking the Vicious Circle
Sarai dartitnntshinncinetipiecieniinemmtenineninnnintel 8, 10, 18, 31, 36
Stephen Breyer & Richard Stewart,
Administrative Law & Reg. Policy (3d ed.
Si teictesssettiietibnieipaeirientaesiiiniatestialiciatabiastiatiatiiincianinmiitiies 37
Tennessee Valley Authority, Detailed Comments
SEITE Sia, HET iasontedbitinieintiniiiabmsincntiiaiintatndahbddeeiesiiniy 19
U.S. Dept. of Commerce, Statistical Abstract of
the United States (119th ed. 1999) .............ccccccceeeeeeees 4
XXIV
W. Kip Viscusi, The Value of Life in Legal
Contexts: Survey and Critique, 2 Am. L. &
Bs Ss SP tcicctecisenibameesinesensitntsiunienii 18, 31
Webster's Third New International Dictionary of
the English Language (1993) .............:ssssseeseeeeeee 34
XXV
GLOSSARY
The following is a glossary of acronyms and abbreviations
used in this brief.
Act Clean Air Act
Administrator Administrator of the United
States Environmental
Protection Agency
Agency United States Environmental
Protection Agency
CAA Clean Air Act
CASAC Clean Air Scientific
Advisory Committee
EPA United States Environmental
Protection Agency
JA Joint Appendix
NAAQS National Ambient Air
Quality Standards
OJA Joint Appendix in D.C. Cir.
Case No. 97-1441
ORTC Response to Comments on
the Proposed Ozone Rule
OSP
PM
PMio
PM? 5
PMJA
PPM
PMSP
RIA
Subpart |
Subpart 2
UVB
XXVi
Ozone Staff Paper (1996)
Particulate Matter
Particulate Matter with an
aerodynamic diameter less
than or equal to 10 microns
Particulate Matter with an
aerodynamic diameter less
than or equal to 2.5 microns
Joint Appendix in D.C. Cir.
Case No. 97-1440
Parts Per Million
Particulate Matter Staff Paper
Regulatory Impact Analyses
Subpart | of Part D of Title I
of the Clean Air Act
Subpart 2 of Part D of Title I
of the Clean Air Act
Solar Ultraviolet “B”
Radiation
BRIEF OF RESPONDENTS APPALACHIAN POWER
COMPANY, ET AL.
This brief of Respondents Appalachian Power Company,
et al., is being filed in support of Petitioners American
Trucking Associations, Inc., ef al.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
District of Columbia Circuit is reported at 175 F.3d 1027,
App. la. The opinions on the petitions for panel rehearing
and suggestions for en banc rehearing are reported at 195
F.3d 4, App. 68a.
JURISDICTION
The court of appeals entered its judgment on May 14, 1999.
Petitions for panel rehearing were granted in part and denied
in part, and suggestions for en banc rehearing were denied on
October 29, 1999. The petitions for certiorari were docketed
on January 27 and 28, 2000. Conditional cross-petitions for
certiorari were docketed on February 28, 2000, in accordance
with S. Ct. R. 12.5. On May 22, 2000, the Supreme Court
granted a writ of certiorari in Case No. 99-1257, and on May
30, 2000, the Supreme Court granted a writ of certiorari in
Case No. 99-1426, ordering that these cases be argued “in
tandem.” This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
RELEVANT CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS
Listed below are citations to the constitutional, statutory
and regulatory provisions involved in this case. Their text is
either set forth below, or in an Appendix (App. ___ ) to this
Brief. On June 26, 2000, the Court granted the Solicitor
2
General’s motion to dispense with printing a joint appendix
in Case No. 99-1426.'
Article I, Section 1 of the United States Constitution
provides in pertinent part that “All legislative Powers herein
granted shall be vested in a Congress of the United States....”
The statutory provisions are: the Clean Air Act §§ 101, 42
U.S.C. 7401, App. 105a; 108, 42 U.S.C. 7408, App. 105a-
108a; and 109, 42 U.S.C. 7409, App. 108a-11la; and the
Transportation Equity Act for the 21st Century, Pub. L. No.
105-178, 112 Stat. 463, §§ 6101, 6102, App. 11 1a-115a.
The regulatory provisions are: 40 C.F.R. §§ 50.7, 50.9 and
50.10 (1999), App. 100a-103a.
INTRODUCTION
Respondents Appalachian Power Company, ef a/., do not
question the importance of the Clean Air Act or the public
health and environmental goals of that Act. As the
Environmental Protection Agency (“EPA” or “Agency”)
continues to regulate air pollution to ever more stringent
levels in response to uncertain predictions of health risk,
however, the incremental health benefits of these regulations
become harder to ascertain and the costs of erroneous or
unnecessary regulations — including the risk of indirect health
effects and excessive compliance costs — increase. We are
concerned that, in such situations, failure to consider all of
' Copies of the Joint Appendix filed with the D.C. Circuit are available to
the Court, and are referred to in this brief as “PMJA” (D.C. Cir. Case No.
97-1440) and “OJA” (D.C. Cir. Case No. 97-1441).
* On July 5, 2000, the Environmental Protection Agency promulgated a
revision to 40 C.F.R. § 50.9%(b). The revised language is found in the
Appendix to this Brief at App. 104a.
ee ee
3
the impacts of a regulatory decision on society may result in
standards that do more harm than good for the public health.
This case concerns one such situation: the EPA
Administrator’s revision of National Ambient Air Quality
Standards (“NAAQS”) for ozone and particulate matter
(“PM”) under § 109 of the Clean Air Act (“CAA” or “Act”).
In this case, EPA revised the existing NAAQS for ozone and
PM, standards that EPA previously issued as “requisite to
protect the public health” with an “adequate margin of
safety” against the same health risks for which the Agency
now believes more stringent standards are needed. CAA §
109(b). In both rulemakings, the Administrator was faced
not with “demonstrated adverse effects” on the public, but
rather with a range of uncertain predictions of “health risk.”
Based on this record, the Administrator made a public health
“policy” judgment that “uncertainties associated with
inconclusive scientific and technical information” and
“hazards that research has not yet identified” justified revised
standards reflecting greater margins of safety. See, e.g., 62
Fed. Reg. 38857, OJA 2; id 38653, PMJA 3.
In making this decision, the Administrator concluded that
the Act forbade her from considering factors that would
allow her to make a reasoned public health policy judgment
when confronted with the “uncertainties” and “inconclusive”
information concededly at issue here. These prohibited
factors include the indirect health, environmental and
economic impacts of her decision. See 62 Fed. Reg. 38882,
> Cf Ethyl Corp. v. EPA, 541 F.2d 1, 13-15 (D.C. Cir. 1976) (en banc)
(comparing the “adverse effects” language of pre-1977 § 108(a), which
“require[d] proof of demonstrable harm,” with a “will endanger” standard
comparable to that added to § 108(a) in 1977, which authorizes regulation
in response to “significant risk of harm’”’).
4
OJA 27; Brief For Respondent EPA, at 49-51 (D.C. Cir. No.
97-1441).
The Administrator’s policy judgment, made with blinders
to the overall consequences of those decisions, resulted in
some of the most costly regulatory decisions ever made by a
federal agency. The record indicates monetary costs to meet
the new standards may be up to $150 billion each year,"
almost an order of magnitude greater than the $18 billion
total spent on medical research in the United States the year
these standards were promulgated.’ Equally important,
efforts to attain these standards have potentially adverse
public health and environmental effects, including an
increased risk of premature mortality.
These tradeoffs are part of any sound risk management
decision that promotes the public health. Based on a flawed
interpretation of the CAA grounded in D.C. Circuit
precedent, however, the lower court concluded that the
Administrator must ignore these impacts on society when
managing public health risk under § 109 of the Act. See
American Trucking Ass'ns v. EPA, 175 F.3d at 1040, App.
18a (citing Lead Industries Ass'n v. EPA, 647 F.2d 1130,
1148 (D.C. Cir. 1980)).
For the following reasons, this Court should reverse the
D.C. Circuit’s interpretation of the CAA in this case. The
lower court’s decision improperly prohibits EPA from
exercising sound risk management judgment under CAA
§ 109 that will promote the public health. Furthermore, the
Court should instruct EPA that it must consider the broad
* Anne E. Smith, et al., Costs, Economic Impacts, and Benefits of EPA's
Ozone & Particulate Standards 9 (1997), OJA 3323.
* See U.S. Dept. of Commerce, Statistical Abstract of the United States
118, Table 163 (119th ed. 1999).
5
impacts on society of its regulatory decisions managi
health “risks” through the NAAQS program, so that the
Agency’s NAAQS decisions will maximize the public good.
We do not advocate that consideration of costs be substituted
for te paper of health effects, but rather that EPA be
required to consider all factors relevant to managing public
health risk, in order that NAAQS decisions aaa. the
public health consistent with the statutory purposes of the
Clean Air Act.
STATEMENT
I. THE NAAQS PROGRAM
The purpose of the Act, as set forth in § 101(b)(1), is “to
protect and enhance the quality of the Nation’s air resources
so as to promote the public health and welfare and productive
capacity of its population.” This statutory language reflects
congressional intent that Clean Air Act programs achieve a
balance of social, economic and _ environmental
considerations.
In CAA §§ 108 and 109, the operative regulatory
provisions at issue here, Congress called for the
establishment of NAAQS for air pollutants that may
reasonably be anticipated to “endanger” public health or
welfare. Under § 109(b)(1), primary NAAQS are to reflect a
level of air quality “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.”
* Secondary NAAQS are to be set at a level that, in the Administrator’s
judgment, protects the public welfare from “known or anticipated adverse
effects.” CAA § 109(b)(2). In this case, EPA set secondary NAAQS at
the same level as the primary NAAQS. Judicial review of both the
6
The “criteria” to which § 109(b) refers is an informational
document that must “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.” CAA § 108(a)(2) (emphasis
added). While the effects on “public health or welfare”
addressed by the air quality criteria document must be related
to the “presence of such pollutant in the ambient air,” there
are otherwise no other limits on the nature of the effects
addressed by the criteria document. Rather, this document is
to cover “all identifiable effects” on the “public health or
welfare.” Jd. (emphasis added).
The criteria document is also to “include information on
... those variable factors (including atmospheric conditions)
which ... may alter the effects on public health or welfare of
such air pollutant.” /d § 108(a)(2)(A). Furthermore,
§ 108(b)(1) provides that “/s]imultaneously with the issuance
of [the] criteria” document, EPA must issue information on
the “cost of installation and operation, energy requirements,
emission reduction benefits, and environmental impact” of
methods for pollution control or prevention. CAA
§ 108(b)(1) (emphasis added). All of this information is to
be made available before EPA undertakes a NAAQS
rulemaking.
Once NAAQS are set, the Administrator must review
them and the underlying criteria document every five years
and revise them “as may be appropriate” in accordance with
§§ 108 and 109(b). CAA § 109(d)(1). To help with standard
primary and secondary NAAQS was sought. The lower court remanded
the secondary NAAQS to EPA along with the primary NAAQS. 175 F.3d
at 1040, App. 18a.
—
7
revision, the Administrator appoints “an independent
scientific review committee” to provide advice on the
scientific basis for setting and revising NAAQS. This
committee is to advise the Administrator on, among other
things, additional knowledge required to determine the
“adequacy” of existing standards and the “basis” for any
revisions to them, and on “any adverse public health,
welfare, social, economic, or energy effects which may result
from various strategies for attainment and maintenance” of
revised NAAQS. CAA § 109(d)(2)(C) (emphasis added).
When the air quality standards program was initially
enacted in 1970, the Senate Report described the NAAQS as
reflecting a “reasonable degree of protection” in the face of
uncertain science, rather than reflecting absolute protection
from any and all predicted risks.’ When it amended the Act
in 1977, Congress emphasized the importance of protecting
public health, but made clear that “public health” protection
does not embrace a “no-risk philosophy” because that
“ignores all economic and social consequences and is
impractical.”* In 1990, Congress extensively amended the
Act, but did not amend § 109, § 108(a) or § 108(b).
” S. Rep. No. 91-1196, at 10 (1970), reprinted in 1 Sen. Comm. on Pub.
Works, 93d Cong., 2d Sess., A Legislative History of The Clean Air
Amendments of 1970, at 410 (Comm. Print 1974) [hereinafter /970 Legis.
Hist.}, OJA 3687.
* H.R. Rep. No. 95-294, at 127 (1977), reprinted in 4 Sen. Comm. on
Env’t and Pub. Works, 95th Cong., 2d Sess., A Legislative History of the
Clean Air Act Amendments of 1977, at 2594 (Comm. Print 1978)
[hereinafter 1/977 Legis. Hist.], OJA 3678; cf 123 Cong. Rec. 18458,
18463 (June 10, 1977), reprinted in 3 1977 Legis. Hist., at 1038, OJA
3671 (Sen. Muskie) (When there is “no threshold on health effects ... it
[is] very difficult then to apply absolute health protection.”).
Il. EPA’S POLICY DECISION TO REVISE THE
OZONE AND PM NAAQS
In the rulemakings at issue in this case, EPA replaced the
existing 1-hour ozone NAAQS with a more stringent 8-hour
standard.” EPA also replaced the existing particulate matter
NAAQS based on a PMjo size indicator with standards for
both fine particles (PM2 5) and for coarse particles (PMjo)."°
As the lower court explained, “EPA regards ozone
definitely, and PM likely, as non-threshold pollutants, i.e.,
[pollutants] ... that have some possibility of some adverse
health impact (however slight) at any exposure level above
zero.”'' For each of these asserted non-threshold pollutants,
EPA was presented with a choice among alternative standard
levels characterized by uncertain estimates of health risk, a
choice calling for the exercise of judgment regarding how to
manage these predicted risks.'* This is dramatically
* 62 Fed. Reg. 38873, 38894, OJA 18, 39.
'° 62 Fed. Reg. 38677, 38679, PMJA 27, 29. The previous PMjo standard
controlled both coarse and fine PM. The court of appeals vacated the
coarse particle standard as arbitrary and capricious, see 175 F.3d at 1054-
55, App. 52a, because the PMyo indicator included a variable amount of
fine particulate matter. EPA has sought no further review of this ruling.
'' 175 F.3d at 1034, App. 5a; see also Letter from Dr. George T. Wolff,
Chair, CASAC, to Hon. Carol M. Browner 2 (Nov. 30, 1995) [hereinafter
CASAC Ozone Letter], OJA 237 (“[{T]here is no threshold concentration
for the onset of biological responses due to exposure to ozone above
background concentrations.”); EPA, Review of the National Ambient Air
Quality Standards for Particulate Matter V\-16 (1996) [hereinafter
PMSP), PMJA 2068.
'? Risk management requires a regulator to consider predictions of risk
and other information to decide on the need for and extent of risk
reduction. See Stephen Breyer, Breaking the Vicious Circle 10 (1993).
9
illustrated by EPA’s rulemaking addressing revision of the
ozone NAAQS.
Ozone is a constituent of smog produced by complex
chemical reactions in the atmosphere between volatile
organic compounds (“VOCs”) and nitrogen oxides (“NO,”)
emitted by numerous sources over broad areas. The reactions
that produce ozone take place over periods of days or longer,
through a process influenced by sunlight and other changing
atmospheric and meteorological conditions.
Further complicating ozone regulation, NO, and VOCs
that contribute to ozone formation are produced by natural as
well as human sources. As a result, short-term (e.g., 1-to-8
hour) ambient ozone concentrations average about 0.03 to
0.05 ppm even at remote and rural sites, such as Denali,
Glacier and Yellowstone National Parks, which are relatively
uninfluenced by mobile and stationary sources. The upper
range of short-term readings can exceed 0.07 ppm in such
remote areas.’
Promulgation of the 1-Hour Ozone NAAQS — The ozone
NAAQS that EPA revised in this rulemaking specified an
ozone concentration level of 0.12 ppm, based on a 1-hour
average, and allowed an average of one exceedance per year
over a three-year period. When EPA set this standard in
1979, it did so based on its judgment that “there is no clear
threshold... of adverse health effects,” and __ that
'° See EPA, Review of National Ambient Air Quality Standards for Ozone
20-21 (1996) [hereinafter OSP], OJA 1830-31; EPA, Responses to
Significant Comments on the 1996 Proposed Rule on the National Ambient
Air Quality Standards for Ozone 94, 96 (1997) [hereinafter ORTC], OJA
176, 178. See also 44 Fed. Reg. 8212, OJA 3490 (“Field measurements at
some remote sites, where man-caused ozone is likely to be negligible, have
shown low — but not insignificant — rates of exceedances of the 0.08 ppm
level.”).
10
“physiological responses probably occur in extremely
sensitive persons at very low levels.”'*
In 1993, EPA affirmed the appropriateness of this 1-hour
NAAQS to address a broad range of predicted and theoretical
health risks. In this 1993 decision, EPA was called upon to
exercise risk management judgment in making a decision that
promotes the “public health.”
For example, the Administrator found that revision of the
primary 1-hour NAAQS was not appropriate because changes
in performance on lung function tests after ozone exposures
at a 0.12 to 0.15 ppm level (e.g., temporary decreases in lung
capacity of 9-16% accompanied by respiratory symptoms)
“did not constitute adverse effects for purposes of section
109” even for “sensitive individuals,” and health studies
suggesting “aggravation of asthma and pre-existing
respiratory disease” at 0.12 ppm were limited by
“uncertainties about individual exposure levels and the role
of other pollutants.”'* In other words, the Administrator
found that not every predicted health risk or possible
physiological effect associated with exposure to ozone was a
potential adverse public health effect.
The Record for Revision of the Existing NAAQS -—-
Following this 1993 decision to reaffirm the existing 1-hour
NAAQS as “requisite to protect the public health” with an
“adequate margin of safety,” EPA in 1995 issued a revised
ozone criteria document. In evaluating the new criteria
document, the EPA staff explained that the public health
'* 44 Fed. Reg. 8215, OJA 3493.
'S 58 Fed. Reg. 13011, 13015, OJA 3452, 3456. These types of
“uncertainties embedded in the regulatory process,” of course, are a
common feature of rulemaking and can lead to overly conservative or
“random” regulation. Breyer, supra note 12, at 42, 48.
11
consequences of ozone exposures at levels consistent with
the present 1-hour NAAQS remained highly ambiguous for
both “chronic” and “episodic” effects.’ Based on the revised
criteria document, the EPA staff concluded that there was an
“absence of discernible health effects thresholds and ... that
population risk [for respiratory symptoms, lung function
changes, and hospital admissions] varies little with small
changes in air quality.”’’ On this basis, the staff concluded
that a 0.09 ppm 8-hour standard (i.e., the 8-hour standard
level that EPA concluded was roughly equivalent to the 0.12
ppm 1|-hour NAAQS) “would reduce estimated exposures of
the at-risk population sufficiently to provide some margin of
safety.”"*
The staff concluded that the ranges of estimated risk were
little different for the existing 1-hour and alternative 8-hour
standards,’ and that these risk estimates did not even reflect
all of the uncertainties associated with the numerous
assumptions made to develop the estimates.” For example,
'® See, e.g., OSP, supra note 13, at 35, 39, 55, 61, 153, OJA 1845, 1849,
1865, 1871, 1963 (As the EPA staff observed, the database on ozone-
induced bronchial responsiveness is “limited and uncertain”; ozone’s
impact on urban asthmatic morbidity is “not well understood”; no
evidence was found that children exposed to low levels of ozone
experience respiratory symptoms; the evidence of permanent structural
changes in human lungs is “largely hypothetical”; and no association
between 6 to 8 hour ozone exposure and hospital admissions could be
assessed).
'" Id 141, OJA 1951.
'§ Id 167, OJA 1977.
' See id. 125, 130, OJA 1935, 1940.
° See id. 116, 129-33, OJA 1926, 1939-43. See also R.G. Whitfield, A
Probabilistic Assessment of Health Risks Associated with Short-term
Exposure to Tropospheric Ozone: A Supplement 32-33 (1997), OJA 2363-
12
EPA’s January 1997 revised risk assessment showed that the
median risk of “large lung function decrements” would be
higher under an 8-hour standard than under the existing 1-
hour NAAQS in 2 of the 9 cities modeled, containing about
one-third of the sensitive population,”’ and that risks of
coughs and moderate lung function decrements (health
“endpoints” considered by EPA) for the l-hour NAAQS
would be /ower than the risks EPA found acceptable in
December 1996, when it proposed a 0.08 ppm 8-hour
NAAQS.” This EPA risk assessment also reported that risks
“are not dramatically different ... among the alternative 1-
hour and 8-hour standards” (including the existing 1-hour
NAAQS).”
EPA’s independent Clean Air Scientific Advisory
Committee (“CASAC”) reviewed the 1995 criteria document
and related staff analyses. These independent science
advisers concluded (1) that “our understanding of the health
effects of ozone is far from complete”; (2) that there are
“many gaps” in the science and “large uncertainties” in
EPA’s risk estimates; and (3) that “there is no ‘bright line’
which distinguishes any of the proposed standards (either the
64 (discussing limitations of the modeling); R.G. Whitfield, ef al, A
Probabilistic Assessment of Health Risks Associated With Short-Term
Exposure To Tropospheric Ozone 73 (1996), OJA2312 (discussing
“assumptions that could have systematically biased the results”’).
2! See Memorandum from Harvey M. Richmond to Karen Martin 11 (Feb.
11, 1997) [hereinafter Richmond], OJA 2324; OSP, supra note 13, at 80,
OJA 1891 (about | million out of 3 million “outdoor children” in the risk
assessment live in Los Angeles or Houston).
” Richmond, supra note 21, at 10, OJA 2323.
Id. 5, OJA 2318 (“{C]onsidering the uncertainties ... [any] differences [in
risk estimates] are not large.”’).
13
level or the number of allowable exceedances) as being
significantly more protective of public health.””*
Like the record for the ozone rulemaking, the record for
review of the PM NAAQS was characterized by uncertainty
about the magnitude and cause of any health risks. For
example, the EPA staff “emphasize{d] the unusually large
uncertainties associated with establishing standards for PM
relative to other single component pollutants for which
NAAQS have been set.””> CASAC members could form no
consensus regarding the level, averaging time, or form of a
revised standard because of the many unceriainties regarding
both the existence and nature of any causal relationship
between public health and the PM2; indicator.’ Reflecting
concerns with the lack of air quality data and uncertainty
regarding the constituents of PM25 that should be regulated,
the President directed EPA to postpone implementation of the
revised PM); NAAQS until adequate air quality data were
collected and a further review of the standards was
completed.”’ Congress subsequently ratified that directive.”*
** CASAC Ozone Letter, supra note 11, at 1, 3, 4, OJA 236, 238, 239
(emphasis added).
?° PMSP, supra note 11, at VII-41, PMJA 2153 (emphasis added). For
further description of the uncertainties in the PM rulemaking record, see
generally, Brief of Petitioners American Trucking Associations, Inc., et al.,
11-19 (No. 99-1426), and see also Brief in Response for Respondents
National Stone Association, ef al, at 2-4 (Nos. 99-1257, 99-1263, 99-
1265).
© Letter from George T. Wolff, Chair, CASAC, to Hon. Carol M.
Browner 2-3 (June 13, 1996), PMJA 3162-63. Moreover, only 2 of the
21 members of the CASAC panel, specifically supported the stringent
annual PM; ; standard adopted by EPA. See id, Table 1, PMJA 3165.
”” 62 Fed. Reg. 38421, PMJA 195.
*® Transportation Equity Act for the 21st Century § 6101, Pub. L. No.
105-178, 112 Stat. 463 (1998), App. 11 1a-113a.
14
EPA's Decisions to Revise the NAAQS — EPA’s decisions
here were not driven by demonstrated health effects caused
by small exposures to the pollutants in question, but rather by
uncertain estimates of health risk. Reflecting these uncertain
risk estimates, the Administrator explained that her decisions
on revised NAAQS were the product of “policy” judgment.”’
According to the Administrator, these “policy” judgments
represented the degree of protection she declared was
“sufficient{]” in light of “[uJncertainties associated with
inconclusive scientific and technical information” and
“hazards that research has not yet identified.”*”
The Administrator explained that the level of public health
protection that she deemed sufficient for the revised NAAQS
was “largely judgmental in nature, particularly with respect to
non-threshold pollutants, and may not be amenable to
quantification in terms of what risk is ‘acceptable’ or any
other metric.”' In exercising this “judgment,” the
Administrator considered “the nature and severity” of
predicted health effects, “the size of the sensitive populations
at risk,” and the “kind and degree of uncertainties.”** Having
said this, the Administrator never explained how
consideration of these factors justified a change in the
management of predicted risks addressed by the then-current
standards, or how the revised standards would fulfill the
? See 62 Fed. Reg. 38857, 38859, 38861, 38862, 38863, 38867, 38869
n.23, OJA 2, 4, 6, 7, 8, 12, 14; id. 38653, 38668, 38669, 38671, 38672,
PMJA 3, 18, 19, 21, 22.
*° 62 Fed. Reg. 38857, OJA 2; see id. 38863, 38867, OJA 8, 12; id.
38653, PMJA 3.
*' 62 Fed. Reg. 38883, OJA 28; id. 38688, PMJA 38 (emphasis added).
*? See supra note 31.
15
purposes section of the Act. 175 F.3d at 1034-36, App. Sa-
9a; see also id. 1034-35, App. 6a-7a (citing 62 Fed. Reg.
38883, OJA 28). To the contrary, according to the
Administrator, “nothing in the statute requires her to make
any specific ‘findings,”” even a finding of “significant risk.”””
In contrast to the uncertain and inconclusive nature of the
Administrator’s predictions of health risk, the records for
these rulemakings made quite clear that EPA’s standards
would have profound impacts on society, and might be
impossible to attain. According to the Administrator,
however, her judgment regarding standard revision could not
be informed by consideration of any information related to
their collateral health, social or economic consequences.**
For example, as part of its decision adopting the revised 8-
hour NAAQS, EPA promulgated a rule requiring the
development of a new, more stringent ozone reduction
program under Subpart | of the Act, in place of the program
that Congress had adopted when it enacted Subpart 2 in
1990.°° Because the new Subpart | program based on the
* Brief of Respondent EPA, at 43 (D.C. Cir. No. 97-1441).
* 62 Fed. Reg. 38878-80, OJA 23-25; ORTC, supra note 13, at 123-24,
128-33, OJA 205-06, 210-15.
** 62 Fed. Reg. 38873, OJA 18, as revised in 1-Hour Ozone Standard:
Reinstatement: Final Rule (reinstating the |-hour ozone standard and
Subpart 2 requirements only until the legal status of the 8-hour standard is
resolved). App. 104a. Subpart | appears at CAA §§ 171-179B. The
Subpart 2 program that Congress added in 1990 spelled out a detailed and
comprehensive program addressing what could, and could not, be
required to reduce ozone to address the public health concerns associated
with the existing |-hour NAAQS. See CAA §§ 181-185B.
16
revised 8-hour NAAQS would “require significantly different
emission reduction targets” in some areas,”° it would disrupt
existing control programs and attainment deadlines
established in Subpart 2 of the Act — requirements that
Congress established to address the same _ uncertain
predictions of health risk that EPA would now address
through a Subpart | program based on the revised 8-hour
NAAQS.*’ Areas with severe nonattainment problems like
Los Angeles and Houston would be thrown back into the
failed pre-1990 paradigm where unrealistic planning
deadlines under Subpart | led to regulatory paralysis. ”*
Like the 1-hour ozone NAAQS, the existing PM NAAQS
was reducing particulate concentrations around the country.*”
*© See, e.g, EPA, Regulatory Analyses for the Particulate Matter and
Ozone National Ambient Air Impact Quality Standards and Proposed
Regional Haze Rule 7-2, 7-5, 9-3 [hereinafter RIA], OJA 2930-31, 2935.
”” Several of EPA’s science advisers recommended against having both |-
hour and 8-hour NAAQS because of the confusion it would cause for
achieving ozone reductions. See, e.g, CASAC Transcript of March 22,
1995, at 303, 308, OJA 280, 282 (remarks of James Price and George
Wolff). See also OSP, supra note 13, at 147, OJA 1957 (noting
“adequate reduction in risks” can be achieved with either a |-hour or 8-
hour standard).
** See, e.g, 136 Cong. Rec. H12867 (daily ed. Oct. 26, 1990) (Rep.
Fields) reprinted in | Sen. Comm. on Env’t & Pub. Works, A Legislative
History of the Clean Air Act Amendments of 1990, at 1236 (Comm. Print
1993) [hereinafter /990 Legis. Hist.], OJA 3543 (the Subpart 2 provisions
“address the failure of our nonattainment areas to achieve ambient air
quality deadlines in existing law.... We have not, however, simply
continued to tell the states to do a plan to clean the air. That did not
work.”).
*® See 62 Fed. Reg. 38666, PMJA 16 (noting the success of the earlier PM
NAAQS and “the continued improvement in air quality through the
current [PM, 9] standards”).
17
In contrast to this successful NAAQS program,
implementation of the revised PMzs; NAAQS would be
impeded by a lack of air quality data and uncertainty as to
what constituents of PM; should be regulated to reduce
predicted health risks.“° Reflecting these problems, the
President and Congress postponed implementation of the
revised NAAQS until after the next five-year review cycle,
and until after a decision was made on “whether to revise or
maintain the new standards.”*"
Besides threatening to disrupt ongoing pollution
reductions under the existing NAAQS, the record showed
that, by EPA’s own admission, the costs of full attainment of
the revised ozone NAAQS (estimated by EPA at an
additional $9.6 billion per year over the existing NAAQS)
would outweigh its benefits (estimated by EPA at $1.5 to 8.5
billion per year)” EPA’s own estimates showed the cost of
attaining the revised particulate standards was extraordinarily
high, as much as $37 billion each year.”
The record also showed that these costs would reduce
average real after tax incomes by 1-2% per person, with the
” See id. 38667, 38675 n.38, PMJA 17, 25 (noting the need for additional
research “to better identify which species are of concern for human health,
and the sources and relative magnitude of such species” and for additional
air quality monitoring).
*' 62 Fed. Reg. 38421, PMJA 195; Transportation Equity Act for the 21st
Century, § 6101, Pub. L. No. 105-178, 112 Stat. 463 (1998). App. I 1la-
113a.
” See RIA, supra note 36, at ES-11 to ES-12, ES-17, 9-1, OJA 2918-19,
2924, 2934.
® Id at 9-1, OJA 2934. Other estimates of the costs of the revised
NAAQS ranged up to $150 billion annually. Smith, et al., supra note 4,
at 9, OJA 3323.
18
impact falling disproportionately on lower income groups.
The increased costs and unemployment resulting from the
NAAQS therefore would themselves create public health
risk,“ with risk estimates ranging up to 27,000 premature
deaths.** The revised NAAQS would also prevent highway
improvements that were expected to save lives.“ Even at
these extraordinarily high costs, EPA was unable to identify
“ See Ralph L. Keeney, Mortality Risks Induced By Economic
Expenditures, 10 Risk Analysis 147, 157 (1990) (If the intent of an air
quality standard is avoiding adverse public health effects, it is “ridiculous
not to consider the potential mortality [and morbidity] implications of
implementing the regulation itself.”). See generally Breyer, supra note
12, at 20; W. Kip Viscusi, The Value of Life in Legal Contexts: Survey
and Critique, 2 Am. L. & Econ. Rev. 195, 200 (2000) (explaining that
regulations may create both direct and indirect health risks).
* Ralph L. Keeney & Kenneth Green, Estimating Fatalities Induced By
Economic Impacts of EPA's Ozone and Particulate Standards \3 (1997),
OJA 3328. This estimate is based on higher costs for attaining the
standards than EPA projects. Up to 1600 prelicted fatalities were
estimated even under EPA's artificially low cost estimates. /d; see also
Clean Air Act: Ozone and Particulate Matter Standards: Hearings
Before the Subcomm. on Clean Air, Wetlands, Private Property, and
Nuclear Safety and the Sen. Comm. on Env't and Pub. Works, S. Hrg. No.
105-50, pt. 2, at 162 (1997) (prepared statement of Susan E. Dudley, Vice
President and Director of Environmental Analysis, Economics, Inc.)
(attaining the proposed ozone NAAQS could increase deaths by 4250 to
5667 per year).
“ Cf Hearings on Conformity Under the Clean Air Act Before Sen.
Comm. on Env't and Pub. Works, 106th Cong. 29-30 (1999) (statement of
Jim L. Joyner, Chmn. Bd. of Commissioners, Henry County, Georgia)
(explaining that Clean Air Act transportation conformity requirements
related to implementation of NAAQS are impeding safety-related road
construction projects).
19
control techniques that would bring about nationwide
attainment.*’
Finally, the record showed that revising the existing ozone
NAAQS might also increase public health risk through
increased incidence of cataracts and cancers associated with
increased UVB radiation exposure.“* And more restrictive
NAAQS could increase unemployment, electricity rates, and
the costs of food and other consumer products.”
As a result, EPA’s decisions to revise the existing NAAQS
would (1) impose billions of dollars more in costs on society,
(2) increase indirect public health risk, (3) in the case of the
ozone NAAQS, be implemented in a manner rejected by
Congress, and (4) in the case of the PM NAAQS, not be
implemented at all until after the next 5 year review of that
NAAQS. The Administrator refused to consider any of these
consequences of her decision, however, on the grounds that
*” According to the Administrator, the expenditures assumed in EPA’s
regulatory analyses — up to $10,000 per ton for the removal of ozone
precursor pollutants and up to $1 billion/ug/m’ of ambient PM),
eliminated — were insufficient to provide attainment. R/A, supra note 36,
at ES-11 to ES-12, OJA 2918-19; see also American Petroleum Institute,
Comments on Proposed NAAQS for Ozone, Appendix B (1997), OJA
3293-3301.
“* Randall Lutter & Christopher Wolz, UV-B Screening by Tropospheric
Ozone: Implications for the National Ambient Air Quality Standards, 31
Env. Sci. & Tech. 141, 145 (1997), OJA 2764 (estimating an increase of
25-50 melanoma deaths, 2000 to 11000 skin cancers and 13000 to 28000
cataracts from a reduction in seasonal average ozone levels of 10 parts per
billion).
” See, e.g., American Farm Bureau Federation, Comments 1-3 (Mar. 12,
1997), OJA 3318-20 (impacts on agricultural sector and increased food
prices); Tennessee Valley Authority, Detailed Comments 10 (Mar. 11,
1997), OJA 3317 (11% increase in electric rates and job loss).
20
she had no statutory authority to consider them, even though
EPA purportedly was exercising “policy” judgment to protect
the “public health.” Indeed, according to the Administrator,
even information showing that implementation of a revised
NAAQS will be “difficult, counter-productive or confusin
dofes] not undermine EPA’s [NAAQS] revision authority.”
Ill. THE D.C. CIRCUIT’S DECISION
Because the Agency had interpreted the Act to authorize it
to exercise judgment with no guiding principle, the court
below remanded the revised standards to EPA for further
rulemaking. According to the court, the Agency is obligated
to interpret the Act to provide an “intelligible principle” for
her exercise of risk management judgment. 175 F.3d 1034,
App. 5a.
The lower court also held that EPA must consider all
effects of an air pollutant in the ambient air — whether
adverse or beneficent — when selecting an appropriate
NAAQS. /d. 1052-53, App. 47a-48a. At the same time,
however, the court briefly and emphatically rejected the
suggestion that, in developing an intelligible principle to
guide its risk management judgment, the Agency may
consider factors such as indirect public health and
environmental impacts and costs, factors that any rational
62 Fed. Reg. 38878-85, OJA 23-30; id. 38683-88, PMJA 33-38.
*' Brief of Respondent EPA, at 73 (D.C. Cir. No. 97-1441).
* Thus, the lower court directed EPA to consider the scientific evidence
that ozone in the ambient air protects against the effects of UVB
radiation. EPA did not petition this Court for review of that aspect of the
lower court’s decision.
21
person would consider relevant to determining the acceptable
level of public health risk.”
Quoting earlier decisions of the circuit, the court
concluded that this issue was resolved “in Chevron step one
terms,” because the CAA “on its face does not allow
consideration of technological or economic feasibility.” /d
1040, App. 19a. According to the court, this prohibition on
the factors the Administrator may consider in exercising
“public health” risk management judgment extends not only
to the costs and feasibility of control technologies, but to all
the indirect health, environmental and economic impacts that
might be caused by a decision to revise an existing NAAQS.
Although the court below made minor modifications to its
opinion on rehearing, 195 F.3d 10, App. 79a-80a, it did not
change its holding limiting the factors EPA can consider in
managing public health risk.
SUMMARY OF ARGUMENT
Section 109 of the Clean Air Act directs the EPA
Administrator to set NAAQS that are “requisite to protect the
public health” with an “adequate margin of safety,” and to
make such revisions to those standards as may be
“appropriate in accordance with [§§ 108 and 109(b)].” Such
standards must be supported by a sound scientific record. In
revising the NAAQS for ozone and PM, the Administrator
relied on uncertain predictions of health risk to adopt revised
standards that will set in motion two of the most costly and
* 175 F.3d at 1040, App. 18a-20a. The only example the court gave of
how EPA could develop a “principled structure” for setting NAAQS,
however, was Oregon’s Medicaid program, a program that relied on cost
considerations. /d. 1039, App. 15a-18a.
22
burdensome regulatory programs ever required by a federal
administrative agency.
Citing uncertain “risk” estimates and reflecting the
assumed lack of any level of exposure at which there is an
absence of health risk, the Administrator’s decisions to revise
the NAAQS were “largely judgmental in nature... and may
not be amenable to quantification in terms of what risk is
‘acceptable’ or any other metric.” 62 Fed. Reg. 38883, OJA
28 (emphasis added); id. 38688, PMJA 38 (emphasis added).
The costs of these standards, however, can be measured both
in the potential for adverse impacts on public health and the
environment, and in the dollars required to attain them (up to
$150 billion each year). EPA concedes that the revised
ozone NAAQS have costs that may exceed their benefits, and
that NAAQS will interfere with a separate congressional
program for reducing ozone to address the health risks at
issue here.
In revising these NAAQS, the Administrator concluded
that she was precluded from considering the indirect health,
environmental and economic effects of her policy decision to
provide additional margin of safety in response to uncertain
health risk — factors that would normally be relevant to sound
“public health” policy judgment. The United States Court of
Appeals for the District of Columbia Circuit agreed that the
Administrator had no authority to consider such factors,
relying on its own precedents with Lead IJndustries
Association v. EPA, 647 F.2d 1130 (D.C. Cir. 1980). This
decision should be reversed.
1. Broad delegations of regulatory authority must be
implemented to give effect to congressional purpose, absent
statutory language directing a different result. In the Clean
Air Act, Congress specified through explicit statutory
language that the goal of the Act is to promote the “public
23
health” which, by its very definition, includes consideration
of economic and social realities. The language of § 101(b)(1)
of the Act, according to EPA itself, calls for a “balancing of
the social and economic considerations with the
environmental implications” of a regulatory decision. 39
Fed. Reg. 31000. This Court’s precedents have long
recognized that the normal meaning of statutory terms as well
as the statutory purposes must be used to provide decisional
criteria where statutory terms are undefined, unless there is
clear statutory evidence requiring a different result. There is
no such evidence here.
2. Section 109(b)(1) of the Clean Air Act, directs the
Administrator to establish standards at a level “requisite” to
protect the “public health” with an “adequate margin of
safety.” When confronted with predicted but uncertain health
risk, as opposed to a demonstrated “adverse effect” on public
health, these terms call for the exercise of risk management
judgment that involves balancing a broad range of factors
consistent with the statutory purposes section of the Act.
a. None of this statutory language directs the
Administrator, in exercising this risk management judgment,
to ignore factors such as the total health, environmental, and
economic @onsequences of actions that are critical to
protecting and promoting the public health. Indeed,
consideration of these factors is consistent with the common
understanding of “public health” regulation, which
contemplates a balancing of factors to improve the conditions
wm which people live. Consideration of these factors also is
essential to fulfilling the Clean Air Act’s overriding statutory
purpose of protecting the public’s health in a way that also
promotes the “public welfare” and the “productive capacity”
of the people of this country. Finally, the common approach
to establishing am “adequate margin of safety” requires
24
considering both the costs and the benefits of the margin in
question.
b. Furthermore, § 109(d)(1) of the Act directs
EPA to revise NAAQS “as may be appropriate in accordance
with” §§ 108 and 109(b). Those sections then tell the
Administrator, as part of this standard revision process, to
obtain from her science advisors information on the overall
impacts on society of standard revisions. This is consistent
with congressional intent that the Agency exercise its
judgment to manage public health risk in a manner that
promotes the statutory purposes.
c. The Act’s legislative history confirms that
Congress expected the Administrator to consider practical
impacts including societal costs to determine whether the risk
posed by a pollutant such as ozone or PM is unacceptable or
whether standard revisions were “appropriate.” Congress
understood that NAAQS were not intended to be standards
which eliminate any and all health risk. Rather, Congress
observed in 1970 when it enacted §§ 108 and 109, and again
in 1977 when it amended §§ 108 and 109, that these
provisions do not contemplate “zero risk” regulation, but
rather a “reasonable degree of protection.”
3. Finally, review of the language, structure and
purposes of the Act shows that the circuit precedent on which
the lower court relied — Lead Industries — was wrongly
decided. There is no statutory language providing, as the
Lead Industries court concluded, that costs and other impacts
may “play no part in the promulgation of [NAAQS].” 647
F.2d at 1148. Rather, applying this Court’s subsequent
decision in Chevron, this Court should conclude that,
consistent with the congressional purposes stated in § 101(b)
of the Act, the statute on its face contemplates consideration
25
by EPA of the broad impacts on society of its NAAQS
decisions when it manages health risks under § 109.
ARGUMENT
The standards before the court are standards that protect
against predicted “risk” from pollution, not against pollution
that has been shown to cause an adverse public health
“effect” like the London “killer fog.”** Under the Act,
NAAQS must be set below the level at which such
demonstrated adverse public health effects occur. This case,
by contrast, involves pollution levels far below those at
which adverse public health effects have been demonstrated.
What is at issue here is how EPA manages health “risks.”
In making decisions to manage risks (as opposed to
eliminating known, adverse public health effects), EPA must
act like any other agency with “public health” risk
management responsibilities. A mandate to protect the
“public health” does not contemplate elimination of all health
risk, or absolute protection of any particular individual.*°
** Historically, increased mortality and morbidity has been observed
during episodes of extremely high levels of air pollution PMSP, supra
note 11, at V-11, PMJA 1962. With fine particles, for example, such
effects have been observed with levels reaching 500-1000 yg/m’ or more
daily. 61 Fed. Reg. 65641-42 & n.7, PMJA 122-23. This is at least an
order of magnitude higher than daily fine PM levels observed today in
this country. See PMSP, supra note 11, at IV-17a, PMJA 1943. By
contrast, the studies on which the new standards are based used statistical
techniques to predict the possibility that health effects might occur at
ambient concentrations extending down to background levels.
*® See H.R. Rep. No. 95-294, at 127, reprinted in 4 1977 Legis. Hist.,
supra note 8, at 2594, OJA 3678 (a “no-risk philosophy ... ignores all
economic and social consequences and is impractical”); 123 Cong. Rec.
at 18463 (Sen. Muskie), reprinted in 3 1977 Legis. Hist., supra note 8, at
1038, OJA 3671; see also Black's Medical Dictionary 454 (Gordon
26
Indeed, EPA agrees that not every predicted “health risk” is a
“public health” risk.
Rather, as traditionally understood by public health
professionals, “many factors such as the social, economic and
physical environment in which the people live” can affect the
public’s health.°’ Regulation that addresses public health
risk therefore “operates in a world of choices in the allocation
of limited resources,” and contemplates a focus on
Macpherson, ed., 39th ed. 1999) (“Central to understanding public health
is recognition that public-health practitioners are concerned not just with
individuals, but with whole populations and that improving health care
plays only a part of public-health improvement.”).
*© See 62 Fed. Reg. 38677, PMJA 27 (noting that the level of the new
daily PM, ; standard “is not risk free”); see also supra note 15 (discussing
1993 decision to reaffirm the |-hour NAAQS).
*” See, e.g., Ben Miller & Claire Brackman Keane, Encyclopedia and
Dictionary of Medicine and Nursing 410 (1972) (public health is the
“field of medicine that is concerned with... the physical, mental and
social well-being of the community as a whole”); Dorland’s Illustrated
Medical Dictionary 647 (L.R.C. Agnew ef al. eds., 24th ed. 1965)
(Health is “[a] state of complete physical, mental and social well-being,
and not merely the absence of disease and infirmity.”); Black's Medical
Dictionary, supra note 54, at 454; see also id. 242 (“Environment,
including living and working conditions, plays an important part in
determining a person’s health.”) (emphasis added); Roger Detels & Lester
Breslow, Current Scope and Concerns In Public Health in | Oxford
Textbook of Public Health 3, 3 (Roger Detels et al. eds., 3d ed. 1997)
(public health concerns dating back to the early twentieth century include
crowding and undernutrition as well as disease).
** Lawrence O. Gostin, et al., The Law and The Public's Health: A Study
of Infectious Disease Law in the United States, 99 Colum. L. Rev. 59, 68
(1999).
27
“fulfill[ing] society’s interest in assuring conditions in which
people can be healthy.”*”
As such, “public health, as both a goal and a practice, is as
inherently political (i.e., concerned with the allocation of
resources in society) as it is technological (i.e., concerned
with deployment of professional knowledge of illness).”™
Developing public health policy necessarily involves
tradeoffs in order to choose the risk management option that
produces th greatest value for society.
In this case, citing a flawed interpretation of the CAA in
the lower court’s 1980 Lead Industries decision, the D.C.
Circuit held that Congress prohibited the EPA from
considering factors that are necessary to sound public health
risk management judgment in setting or revising NAAQS.
For the following reasons, this result is neither consistent
with the Act nor logical, and may result in decisions that do
not promote the public health.
I. THE STATUTORY PURPOSES MUST INFORM
AN AGENCY’S IMPLEMENTATION OF A
BROAD CONGRESSIONAL DELEGATION.
Broad delegations of congressional authority must be
implemented in a manner consistent with the ordinary
meaning of undefined statutory terms,°! and in a manner that
furthers Congress’ overall purposes in enacting the
legislation. As the Court only recently explained, “in the
absence of a statutory definition,” courts should look to “both
the generally accepted meaning of the term and to the
® See Institute of Medicine, The Future of Public Health 7, 40 (1988).
= Gostin, supra note 58, at 68.
*' Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).
28
purpose of the statute.” Furthermore, a court’s “obligation
is to give effect to congressional purpose so long as the
congressional language does not bar that result.”
Thus, where Congress has not provided detailed guidance
for implementation of a statutory provision, this Court has
analyzed the validity of an agency’s regulation by examining
its conformance with the “fundamental objective” of the
statute in question.” Only last term, in striking down a
regulatory program adopted by the FCC, this Court
emphasized that broad delegation of regulatory authority
requires the agency “to apply some limiting standard
rationally related to the goals of the Act.”** Indeed, the
failure to apply any limiting standard related to the goals of
the Act may raise concerns under the congressional
nondelegation doctrine.”
As early as 1967, in enacting the first Air Quality Act,
Pub. L. No. 90-148, 81 Stat. 485, Congress explained that the
development of air quality standards should “be influenced
* Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47-48
(1989).
*? Johnson v. United States, 120 S.Ct. 1795, 1805 n.10 (2000) citations
omitted).
* See Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-12 (1980).
** AT&T Corp. v. lowa Utils. Bd, 525 U.S. 366, 388 (1999) (emphasis
added).
Mistretta v. United States, 488 U.S. 361, 374 n.7 (1989) (“In recent
years, our application of the nondelegation doctrine principally has been
limited to the interpretation of statutory texts, and, more particularly, to
giving narrow constructions to statutory delegations that might otherwise
be thought to be unconstitutional.”); Jones v. United States, 120 S.Ct.
1904, 1911 (2000) (statute is to be construed to avoid constitutional
infirmity).
29
not only by a concern for the protection of health or welfare,
but also by economic, social and _ technological
considerations.””’ In amending the Act in 1977, Congress
again emphasized that the Act’s purpose was to “insure the
protection of the public health and the environment ... while
at the same time considering the energy and economic needs
of this Nation.”
Reflecting these principles, Congress has long recognized,
in explicit statutory language, that the fundamental objective
of the Act is to promote the “public health” consistent with
economic and social realities. Thus, Congress stated in
§ 101(b) of the Act that the purpose of the Act is “to protect
and enhance the quality of the Nation’s air resources so as to
promote the public health and welfare and the productive
capacity of its population.” CAA § 101(b)(1) (emphasis
added).
The Agency itself has explained the importance of
exercising its discretion in light of the Act’s stated goal “to
protect and enhance the quality of the nation’s air resources
so as to promote the public health and welfare and the
productive capacity of its population.” As EPA has
observed, this language contemplates “a balancing of the
social and economic considerations with the environmental
*’ S. Rep. No. 90-403, at 28 (1967).
“* H.R. Rep. No. 95-294, at 34-35 (1977), reprinted in 4 1977 Legis.
Hist., supra note 8, at 2501-02 (emphasis added).
* See 39 Fed. Reg. 31000; see also Lead Industries, 647 F.2d at 1152;
Chrysler Corp. v. EPA, 631 F.2d 865, 888 (D.C. Cir. 1980); General
Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1572 n.15 (D.C. Cir. 1984).
30
implications” of a decision in order “to fulfill the mandate”
of the Act.”°
Framing EPA’s responsibilities to accommodate these
statutory objectives does not call for the Administrator to
ignore the broad impacts on the public of alternative
approaches. Rather, it calls for balancing to ensure that the
Agency’s judgments reflect sound public health policy.
These statutory purposes have special relevance in the
context of a regulatory program calling on the Agency to
exercise “public health” risk management judgment, a term
which by its very definition contemplates sonsideration of the
social and economic realities of an age: -y's risk management
decision. Thus, for example, regulation that trades reduction
in some predicted health risks for increases in others may not
further the “public health.” Similarly, adopting a revised
NAAQS that makes implementation of an air quality standard
“difficult, counterproductive or confusing”’' may not
promote the “public health.” Anc imcreasing the costs of
regulation to society in an attempt to insure against
speculative risk may in fact impair, sot protect, the “public
health.”
” 39 Fed. Reg. 31000. Indeed, the court of a »eals itself illustrated the
overriding importance of the purposes section of the Clean Air Act by
ruling that section 101(b)(1) imposed upon the Administrator the
obligation to establish a regulatory program that was not mentioned in the
operative provisions of the Act. See Sierra Club y EPA, 540 F.2d 1114
(D.C. Cir. 1976), vacated sub nom. Montana Power Co. v. EPA, 434 U.S.
809 (1977); Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C.), aff'd
per curiam, 4 E.R.C. 1815 (D.C. Cir. 1972), aff'd hy an equailly divided
Court, sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973).
”' Brief of Respondent EPA, at 73 (D.C. Cir. No. 97-1441).
™ Some studies suggest that $3 million to $7 million spent on regulatory
costs may lead to one additional premature death. See Mark Shere, The
31
A profligate commitment of money and technology to
guard against one set of uncertain health risks may result in
inadequate means to cope with other more serious
problems.” Indeed, without consideration of the unavoidable
relationship between the costs of goods produced and the
capacity of the public to purchase such goods, stringent
margins of safety designed to protect against hypothetical
risks that by their nature are uncertain could have the effect
of increasing the cost of — and perhaps even denying to the
poor and those on fixed incomes — products such as
electricity for heating and cooling that are essential to the
public’s health. As Justice Powell recognized in his
concurrence in Union Electric Co. v. EPA, for example, the
“shutdown of an urban area’s electrical service could have an
even more serious impact on the health of the public than that
created by a decline in ambient air quality.” 427 U.S. 246,
272 (1976).
In this case, EPA must construe the Act to apply “some
limiting standard, rationally related to the goals of the Act””*
to govern its exercise of public health risk judgment, unless
Myth of Meaningful Environmental Risk Assessment, \9 Harv. Envil. L.
Rev. 409, 472 nn. 271-72 (Winter 1995) ((citing International Union,
UAW v. OSHA, 938 F.2d 1310, 1326 (D.C. Cir. 1991) (Williams, J.,
concurring) (explaining that recent studies predict that “each $7.5 million
of costs generated by regulation may ... induce one [premature] fatality”
in the public through reduced availability of resources for medical care
and safety)).
™ See, e.g., Industrial Union Dep't, AFL-CIO v. American Petroleum
Inst., 448 U.S. 607, 669-70 (1980) (Powell, J., concurring); Stephen
Breyer, supra note 12, at 18-19; see also W. Kip Viscusi, The Value of
Life in Legal Contexts: Survey and Critique, 2 Am. L. & Econ. Rev. 195,
200-01 (2000).
™ AT&T Corp., 525 US. at 388.
32
this Court finds that Congress explicitly directed EPA to
ignore the statutory language defining the purposes of the
Act. Because, as discussed below, there is no such explicit
constraint on the Agency’s regulatory authority in § 109 of
the Act, the Agency must look to the concept of “public
health” as commonly understood by health professionals and
to the purposes section of the Act in formulating decisional
criteria to govern management of uncertain health risks under
CAA § 109.
Il. CONGRESS IN §109 CONTEMPLATED THAT
EPA WOULD CONSIDER THE BROAD IMPACTS
ON SOCIETY OF ITS PUBLIC HEALTH RISK
MANAGEMENT DECISIONS CONSISTENT
WITH THE PURPOSES OF THE ACT.
No one disputes that the NAAQS program has truly
extraordinary impacts on the Nation’s economy and on
society generally. EPA’s own analyses show that the revised
standards at issue represent perhaps the most costly
regulatory decision ever made by that agency.”° In addition
to these very high implementation and control costs, the types
of impacts include adverse health impacts associated with
increased UVB radiation exposure; increased unemployment;
the higher cost of essential products; disruption in the
implementation of the congressional ozone reduction
program; and disruption of highway safety programs. See
supra pp. 15-18. Furthermore, EPA has explained that the
” See Johnson, 120 S.Ct. at 1805 n.10; Chevron, USA, Inc. v. NRDC, 467
U.S. 837, 842-43 (1984) (The first inquiry for a reviewing court is
whether “Congress has directly spoken to the precise question at issue.”).
%
See RIA, supra note 36, at ES-13, ES-19, 7-11, 9-1 (1997), OJA 29
2926, 2932, 2934. oe
anes ea |
33
revised NAAQS may simply be impossible to achieve in
some areas.
These, of course, are the types of concerns that led
Congress in 1990 to amend the Act to establish the Subpart 2
program for managing the uncertain public health risks
addressed by the 1l-hour ozone NAAQS.”’ And concerns
about implementation and efficacy of the revised standards
also caused Congress to delay implementation of the revised
PM25 NAAQS.
The lower court has held that EPA has no statutory
authority to consider any of these impacts when exercising
public health risk management judgment under § 109. But
there is nothing on the face of either §§ 108 and 109 that
prohibits the Administrator from balancing the broad range of
factors called for in § 101(b)(1) of the Act in exercising her
risk management judgment. To the contrary, the language of
§§ 108 and 109 supports the use of the statutory purposes to
derive decisional criteria for the Administrator’s exercise of
risk management judgment.
A. Sections 108 and 10%(b) Do Not Mandate
Uninformed Public Health Risk Management
Decisions.
Under § 109, NAAQS are to be set at a level that, in the
“judgment” of the Administrator, is “requisite to protect
public health” allowing an “adequate” margin of safety.
Nothing in this language tells the Administrator to exercise
”” H.R. Rep. No. 101-490, pt. 1, 101st Cong., 2d Sess., at 146-47 (1990),
reprinted in 2 1990 Legis. Hist., supra note 38, at 3170-71, OJA 3556-
$7.
™* See Transportation Equity Act for the 21st Century § 6101(b)(3), Pub.
L. No. 105-178, 112 Stat. 463 (1998). App. 113a.
34
her risk management judgment with blinders to the broad
consequences for society of her decisions.
The plain meaning of the word “requisite” is
“indispensable” or “necessary,” suggesting that the
Administrator must establish a need for the revised standard
to protect public health.” Furthermore, as discussed above,
the concept of “public health” calls on regulators to promote
the overall health of the population by reducing predicted
risks to acceptable levels. See supra pp. 24-27.
Whether a standard is “requisite” to protect the “public
health” in the face of uncertain predictions of health risk,
therefore, does not on its face limit the factors relevant to the
Agency’s exercise of risk management judgment. To the
contrary, a standard cannot be “requisite” to protect the
“public health” without some understanding of whether and
why predicted health risks are unacceptable under the
existing standard, and yet acceptable under the revised
standard.*'
”? Webster's Third New International Dictionary of the English Language
1929 (1993).
*° As the legislative history explains, this language means that standards
must be set at “the maximum permissible ambient air level” that will
protect sensitive subgroups in the population. S. Rep. No. 91-1196, at 10
(1970), reprinted in | 1970 Legis. Hist., supra note 7, at 410, OJA 3687;
see also H.R. Rep. No. 95-294, at 127, reprinted in 4 1977 Legis. Hist,
supra note 8, at 2594, OJA 3678; 123 Cong. Rec. 18460, reprinted in 3
1977 Legis. Hist., supra note 8, at 1030-31, OJA 3669-70 (NAAQS are
the “minimum necessary and the minimum reasonably attainable” for
achieving public health goals).
*' See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (“{iJt will not
do for a court to be compelled to guess at the theory underlying the
agency's action....”); see also NRDC v. EPA, 902 F.2d 962, 969 (D.C. Cir.
1990) (NAAQS needed to avoid “an unacceptable risk” of premature
mortality); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1187 (D.C.
35
As this Court has “frequently reiterated..., an agency must
cogently explain why it has exercised its discretion in a given
manner.” But, to use the ozone case as an example, where
there is no “bright line” distinguishing alternative standards
from a public health protection standpoint, see supra pp. 12-
13, how can the alternative that imposes the greatest overall
burdens on society be “requisite” to protect the public’s
health? How can a standard that imposes enormous costs on
society and that cannot be achieved in many areas, see supra
pp. 15-16, be “requisite” to protect the public’s health as
compared to a standard that imposes fewer burdens and is
being successfully implemented to reduce the same “public
health” risks? The Agency never answers these questions on
the grounds that Congress told it not to — an illogical and
implausible result under a statute whose purpose is to
promote the public health and welfare and the productive
capacity of the country’s population. CAA § 101(b)(1).
Similarly, the statutory direction that the Administrator
select a margin of safety that is “adequate” does not suggest
that she ignore the broad impacts of her decision on society
when exercising risk management judgment. To the
contrary, as the en banc D.C. Circuit observed in addressing
the similar language of CAA § 112, a finding that a level of
Cir. 1981) (Section 109 requires “a reasoned analysis and evidence of
risk.”’).
" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 US.
29, 48 (1983); Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735,
740-41 (1996) (explaining that deference accorded under Chevron is
based on “presumption that Congress, when it left ambiguity in a statute
meant for implementation by an agency, understood that the ambiguity
would be resolved, first and foremost, by the agency, and desired the
agency... t0 possess whatever degree of discretion the ambiguity
allows.” (emphasis added).
34
air quality is “safe” does not require that it be “risk free.”
Furthermore, even a requirement to provide an “ample”
margin of safety to protect public health does “nor ...
preclude consideration of any factor.”™*
The “adequaicy]” of a margin of safety cannot be
determined in the abstract. Like purchasing insurance to
protect against the possibility that a risk will become a
reality, how much margin is “adequate” will depend on a
broad range of factors including the certainty, size and nature
of the risk, and on the cost of providing that insurance (or
“margin” of safety) to protect against that predicted risk.*°
If insurance can be provided at little cost, it may be worth
the price. If insurance is so costly that it would impoverish
those to be protected, it should be rejected as doing “more
harm than good.””* Similarly, in the case of a non-threshold
pollutant where some health risk is assumed at any level
above “zero,” what margin of safety is “adequate” can be
informed only by striking the balance contemplated by the
purposes section of the Act.
Congress in 1977 also adopted a “significant risk”
standard as the threshold for regulation under the NAAQS
" NRDC v. EPA, (“Vinyl Chloride”), 824 F.2d 1146, 1164 (D.C. Cir.
1987) (en banc) (citing Industrial Union Dep't, 448 U.S. at 642).
“ Vinyl Chloride, 824 F.2d at 1155 (emphasis added).
** Cf id. at 1165 (in setting National Emission Standards for Hazardous
Air Pollutants, the Administrator “must ... decide what risks are
acceptable in the world in which we live.”) (citing Industrial Union
Dep't, 448 U.S. at 642 (“There are many activities that we engage in
every day ... that entail some risk of accident or material health
impairment [that] few people would consider ‘unsafe.’”’)).
* See Breyer, supra note 12, at 11; see also Vinyl Chloride, 824 F.2d at
1148.
37
87
program. A numer of commentators have explained that
the significance of risk cannot be determined in isolation
from the costs of eliminating that risk.™
In short, determining whether an existing NAAQS —
provides an “adequate” margin of safety, or whether a revised
NAAQS is “requisite” to protect the “public health,” are
quintessential risk management judgments that require a
baiancing of all factors relevant to promoting the public’s
health. This authorizing language does not call on the
Administrator fo ignore the consequences of her decisions;
rather, she can promote the public health only by considering
those consequences and striking the balance contemplated by
§ 101(b) of the Act.
This conclusion finds additional support in the language of
§ 108 describing the information that must be available for
NAAQS decisions. For example, § 108(a) provides that the
criteria document that is considered in making NAAQS
*” See H.R. Rep. No. 95-294, at 3, 48-49 (1977), reprinted in 4 1977
Legis. Hist., supra note 8, at 2470, 2515-16, OJA 3675, 3676-77
(adopting the endangerment standard as “the standard of proof which the
Administrator must meet before promulgating regulations controlling the
emissions of any air pollutant ... under this act.”) (emphasis added); Ethy/
Corp., 541 F.2d at 12, 16, 31-32 (The “will endanger” language has been
interpreted to require a finding of “significant risk of harm to the public
health.”).
** Stephen Breyer & Richard Stewart, Administrative Law & Reg. Policy
350 (3d ed. 1992); see also K. Arrow, et al., Is There a Role for Benefit-
Cost Analysis in Environmental, Health and Safety Regulation?, 272
Science 221 (1996) (advocating the use of cost benefit analyses in
regulatory decisions on environmental protection); R. Morgenstern, ed.,
Economic Analyses at EPA, ix-x (Resources for the Future, Washington,
D.C. 1997) (“[T}hough it should never be the only factor on which to base
a regulatory decision, economic analysis in its many forms should always
be one of the factors.”’).
38
decisions is to address “all identifiable effects on public
health or welfare expected from the presence of such
pollutant in the ambient air, in varying quantities,” as well as
“variable factors (including atmospheric conditions) which of
themselves or in combination with other factors may alter the
effects [of the pollutant] on public health or welfare.’ A
range of health risks might flow from the presence of a
pollutant in the ambient air, including both direct effects
associated with exposures to the pollutant (e.g., inhalation
health risks) and indirect health effects associated with how
programs for reducing the pollutant as it is present “in the
ambient air” are affected by NAAQS revision.
In other words, a standard that cannot be achieved, or that
will render pollutant reduction efforts more “difficult,
counter-productive, or confusing,” Brief of Respondent EPA,
at 73 (D.C. Cir. No. 97-1441), as compared to available
alternatives, has identifiable and adverse impacts on public
health. “[Ajll identifiable effects” of the pollutant as
influenced by such real world factors are appropriate topics
for consideration in the criteria document and by EPA during
the NAAQS rulemaking. Indeed, in a portion of its decision
not challenged by EPA, the lower court rejected EPA’s
refusal to construe the “all identifiable effects” language to
include the UVB radiation effects of ozone reduction. 175
F.3d at 1051-52, App. 43a-46a. Clearly, this language is not
limited to inhalation-related effects, as EPA has construed it.
Section 108 also directs EPA to address in its criteria “all
identifiable effects” on “public ... welfare,” CAA
§ 108(a)(2), a term that includes “economic values.” CAA
§ 302(h). EPA must also provide “simultaneously” with
issuance of the criteria document information on the “cost ...
® See NRDC, 902 F.2d at 973 (emphasis added) (citing CAA § 108(aX2)).
39
energy requirements, emission reduction benefit, and
environmental impact” of alternative control strategies. CAA
§ 108(b)(1). In view of this statutory language, EPA is
required to have available to it for any NAAQS rulemaking
all of the information it needs to exercise sound risk
management judgment. That Congress directed EPA to
develop this information under §108 in time for
consideration in NAAQS rulemakings does not mean that
EPA must ignore it, but rather supports the conclusion that
EPA should exercise its risk management judgment in light
of this information and consistent with the statutory purposes
of the Act.
In sum, Congress in §§ 108 and 109 did not tell EPA to
exercise public health risk management judgment by ignoring
the overall consequences of its action. Rather, Congress’
broad delegation of risk management authority must be
implemented by defining limiting standards that protect the
“public health” while promoting the statutory purposes of the
Act.
B. Section 109(d) Confirms The Need For
Consideration of the Impacts on Society of
Decisions on Whether to Revise NAAQS.
Once EPA has established a NAAQS for a pollutant, as it
has for both pollutants in this case, Congress directed that
EPA revise the standard periodically as “may be appropriate”
in accordance with §§ 108 and 109(b). CAA § 109(d)(1). In
the case of standard revision, there is by definition a standard
in place that the Agency previously determined was
“requisite to protect public health” with an “adequate margin
of safety.”
To establish that standard revision is “appropriate” in
accordance with §§ 108 and 109(b), the Agency must explain
40
why a change in the status quo is “requisite” to protect
“public health.” In other words, the agency must explain why
the existing standard is no longer “appropriate” in accordance
with §§ 108 and 109(b) and the revised standard is.
This analysis by definition recognizes the need to evaluate
a broad range of relevant factors. See West v. Gibson, 527
U.S. 212, 218 (1998) (“The meaning of the word
‘appropriate’ permits its scope to expand” as changes in the
law, or in the world, would require). In other words, the
“appropriate” language confirms the importance of the
ordinary meaning of “public health” and the statutory
purposes as a source of decisional criteria for the Agency’s
exercise of discretion regarding NAAQS revision.
Furthermore, as discussed above, the broad language of
§ 109(b) contemplates the exercise of risk management
judgment, and the information requirements of § 108 ensure
that the Administrator will have at her disposal all of the
information required for reasoned “public health” risk
management. In the context of standard revision, § 109(d)
specifically directs the Administrator to make any
“appropriate” revisions “in accordance with § 108” — a
provision that requires (under § 108(b)) development of
information on implementation impacts “simultaneously”
with public health information.
Whether standard revision is “appropriate in accordance
with” § 108 and § 109(b) therefore does not limit the factors
relevant to the exercise of risk management judgment.
Rather, it contemplates the balancing of a range of factors
consistent with the purposes of the Act.
In exercising her standard revision authority, Congress
also required the Administrator to obtain the advice of her
science advisers on a number of factors, including areas
where additional knowledge is needed to understand the
41
adequacy of existing and revised NAAQS, and on the “public
health, welfare, social, economic, or energy effects which
may result” from alternative implementation programs.”
CAA § 109(d)(2)(C){iv).
Some of this information goes to the evaluation of the
direct health risks of alternative air quality levels and
implementation approaches. Other information goes to the
risk management judgment on whether standard revision is
“requisite” to protect public health, on whether margins of
safety under existing and revised standards are “adequate,”
and on whether existing standards should be revised at all in
light of “areas in which additional knowledge is required to
appraise the adequacy” of existing standards. CAA
§ 109(d)(2)(C)(i).
The Administrator does not dispute that certain of the
information her science advisers must develop (e.g.,
information on the “adequacy” and “basis” of existing and
revised standards) is relevant to her decision on standard
revision. She has asserted, however, that other information
that must be developed (e.g., impacts resulting from
alternative attainment strategies) is irrelevant to revising the
standard.
The statute on its face does not direct the Administrator to
consider only some of these § 109(d) factors and not others in
determining what approach to managing uncertain health risk
is “appropriate” in accordance with the “adequate” margin of
safety and the “requisite” to protect “public health” language
of § 109(b). Indeed, it would be unreasonable to conclude
® See International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 648
(D.C. Cir. 1973) (heightened standard of explanation required to override
science advisor’s advice).
42
that Congress wanted EPA to have all of this information
before it, but to consider only some of it.”!
Congress, of course, commented in legislative history that
the type of information identified in § 109(d) may be “of
interest and assistance to the States and Congress.””
Nevertheless, Congress directed CASAC in the statute “to
advise the Administrator with respect to any harmful effects”
of standard revision in the context of her consideration of
standard revision. CAA § 109(d)(2)(C)(i) (emphasis added).
As this Court has recognized, an agency has a heightened
burden to explain its decision to change an existing
regulatory program.’ In this case, where existing air quality
standards were in place that EPA had previously determined
were “requisite to protect the public health” with an
“adequate margin of safety,” CAA § 109(b)(1), the Agency
cannot fulfill its obligation of reasoned decisionmaking by
ignoring information that Congress told it to develop.
*" Cf id. at 642 (where data are uncertain or ambiguous, EPA must
consider the “nature and consequences of the risk of error” in making
regulatory decisions).
2 HR. Rep. No. 95-294, at 183 (1977), reprinted in 4 1977 Legis. Hist.,
supra note 8, at 2650, OJA 3680.
* See MVMA, 463 U.S. at 42 (“[AJn agency changing its course ... is
obligated to supply a reasoned analysis for the change beyond that which
may be required when an agency does not act in the first instance.”)
(emphasis added); see also Public Lands Council v. Babbitt, 120 S.Ct.
1815, 1828-29 (2000) (O’Connor, J., concurring) (“Under [MVMA vy.
State Farm), an agency that departs from its previous rules will be found
to have acted arbitrarily and capriciously, if it fails ‘to supply a reasoned
analysis for the change ....’”’).
43
C. The Legislative History Confirms the Need For
Balancing to Promote the Purposes of the Act.
The legislative history confirms the message of the
statutory language that Congress intended the Agency to
exercise sound public health risk management judgment in
light of the purposes of the Act and the commonly
understood meaning of “public health.”
In enacting the NAAQS program in 1970, the Senate
explained that the “primary” NAAQS were to set a “national
health minimum” standard which would provide a
“reasonable degree of protection.” See S. Rep. No. 91-1196,
at 10, reprinted in 1 1970 Legis. His:., supra note 7, at 410,
OJA 3687. With this understanding, Congress left States the
option to establish an ambient air quality standard “more
stringent” than the “national health minimum.” /d.
In 1977, when it amended the Act, Congress understood
that the NAAQS did not incorporate a “no risk philosophy”
and explained that NAAQS should reflect the principle that
“public [health] policy ... [be] wise policy.”* Further
reflecting Congress’ delegation of authority to EPA to
manage (not eliminate) health risk to achieve the Act’s
“public” health objective, Congress established in 1977 an
additional CAA prograin to prevent significant deterioration
(PSD) of air quality in areas where air quality is better than
the NAAQS.
™ See H.R. Rep. No. 95-294, at 127, reprinted in 4 1977 Legis. Hist.,
supra note 8, at 2594, OJA 3678; Hearings on S. 251, S. 252 and S. 253
Before the Subcomm. on Environmental Pollution of the Sen. Comm. on
Env't and Pub. Works, 95th Cong., Ist Sess., at 6-7 (1977) (Chmn.
Muskie); see also id. at 37.
* See CAA Title I, Part C, §§ 160-169.
44
In arguing for this “non-degradation” program, Senator
Muskie, the Clean Air Act’s chief sponsor, explained that
were set for dirty air areas as the minimum
necessary and the minimum reasonably
attainable in the dirty area areas.... Even at
the national primary standard level, which is
the health standard, there are health effects
that are not protected against.... At any level
between zero pollution and the pollution
permitted by national U primary standards,
there are health effects.
This PSD program is intended to address “any actual or
potential adverse effect,” CAA § 160(1) (emphasis added),
thereby addressing health risks not addressed by the “public
health” standards established under § 109. In other words,
Congress in 1977 recognized that not all predicted health
risks are public health risks, and Congress therefore
responded with a separate program to address those health
and welfare risks at levels of air pollution lower than
specified by the NAAQS. Given this statutory matrix,
Congress could not have intended that EPA ignore all of the
costs and practical impacts of the risk management
judgments required in setting the public health-based
NAAQS.
In 1990, Congress enacted extensive amendments to the
Clean Air Act, but did not amend the NAAQS program in
§§ 108 and 109. Thus, Congress left in place a program that
delegates to EPA authority to exercise public health risk
* See 123 Cong. Rec. 18460, reprinted in 3 1977 Legis. Hist., supra note
8, at 1030 (emphasis added), OJA 3669.
45
management judgment in setting and revising NAAQS.
Implicit in that delegation is the obligation for the Agency to
“give clear indication that it has exercised the discretion with
which Congress has empowered it.””’ Far from directing the
Agency to ignore factors that are relevant to the exercise of
reasoned risk management judgment, the legislative history
of the 1970 Act and the 1977 Amendments to § 109 confirms
that this discretion must be exercised in a manner that
furthers the statutory purposes of the Act.
* > * J
As the Court has said, judges “must be guided to a degree
by common sense as to the manner in which Congress is
likely to delegate a policy decision of such economic and
political magnitude to an administrative agency.” In this
case, there is nothing on the face of the Act that directs the
Administrator, in exercising her judgment to determine
whether a standard revision is appropriate, to ignore the
broad impacts of her decision on society. To the contrary, the
common understanding of “public health” regulation and the
explicit statutory language in § 101(b)(1) of the Act requires
the Agency to strike a balance considering all factors.
lll. LEAD INDUSTRIES, WHICH THE LOWER
COURT CITES AS THE BASIS FOR ITS
DECISION, SHOULD BE OVERRULED.
Without parsing the language of the statute or even
mentioning the purposes section of the Act, the lower court
has simply relied on Lead Industries, and subsequent cases
” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941).
” FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct. 1291, 1301
(2000).
46
citing Lead Industries,” for the proposition that the
Administrator is precluded from considering the broad
impacts of her decision on society in exercising her public
health risk management responsibilities. 175 F.3d at 1040-
41, App. 19a-2la. According to the court, this is a simple
matter of statutory construction that can be resolved under
“step one” of Chevron. See id. at 1040 (explaining that Lead
Industries was decided “in Chevron step one terms”’).
The Lead Industries case, however, was decided before
Chevron and found clarity of congressional expression in
§ 109 where none exists. Indeed, as discussed above, a
Chevron “step one” analysis of all of the relevant Clean Air
Act provisions, including the purposes section of the Act,
confirms that EPA has broad discretion to consider and to
balance all relevant factors in making “public health” risk
management decisions. Because Lead Industries as applied
by the lower court is at odds with the statute, it should be
overruled.
First, as discussed above, nothing on the face of the statute
directs EPA in exercising risk management judgment to
ignore the broad impacts of its decision on society. In fact, as
the D.C. Circuit observed in Lead Industries, “[s}ection
109(b) does not specify precisely what Congress had in mind
when it directed the Administrator to prescribe air quality
standards that are ‘requisite to protect the public health.””
647 F.2d at 1152.
Where Congress has delegated in broad terms, it is for the
agency to fill out the statutory provision “within the limits of
[the congressional] delegation.”'” Reflecting this
established principle, the D.C. Circuit has repeatedly held in
” American Petroleum Inst., 665 F.2d at 1148; NRDC, 902 F.2d at 973.
'° Chevron, 467 U.S. at 865; see also Smiley, 517 U.S. at 740-41.
47
the wake of this Court’s decision in Chevron that an agency
is free to consider costs when not expressly precluded from
doing so by statute.""' Indeed, as discussed above, a
determination that regulation is “requisite” to protect the
“public health” with an “adequate” margin of safety in
response to predicted and theoretical health risk cannot be
made without considering the overall impacts of the decision
on society, including the costs of that decision.
Second, while the Lead Industries court asserted that the
structure of the Act and legislative history supported its broad
statement that costs can play no role in the promulgation of
air quality standards, just the opposite conclusion is more
appropriate in cases where the Agency must exercise risk
management judgment to address uncertain and predicted
health risk. In this case, Congress explained that the NAAQS
program does not contemplate “zero risk” regulation.
Congress therefore called on EPA to exercise judgment as to
what risk is acceptable, in setting standards that are
“requisite” to protect the “public health” with an “adequate”
margin of safety. That judgment cannot be exercised without
an understanding of the overall consequences of the Agency’s
action.
Third, the Lead Industries court reasoned that the
“technology-forcing” nature of the CAA supports the
conclusion that Congress wanted EPA to ignore the costs and
feasibility of control technologies in setting NAAQS. 647
'*" See, e.g., Michigan v. EPA, No. 98-1497, 2000 WL 180650, at *12
(D.C. Cir. Mar. 3, 2000) (“{Ojnly where there is a ‘clear congressional
intent to preclude consideration of costs’ ... [do] we find agencies barred
from considering costs.”); see also, e.g, Vinyl Chloride, 824 F.2d at
1155; George E. Warren Corp. v. EPA, 159 F.3d 616, 622-23 (D.C. Cir.
1998); Grand Canyon Tour Coalition v. FAA, 154 F.3d 455, 475 (D.C.
Cir. 1998).
48
F.2d at 1149. However, this has little relevance to the
exercise of public health risk management judgment. In
other words, NAAQS that are set to reflect sound risk
management principles will still require industrial sources to
install whatever controls it takes to achieve those NAAQS.
Similarly, while the D.C. Circuit has pointed to congressional
statements that sources would have to shut down if they
could not meet the NAAQS as supporting its construction of
§ 109, see Vinyl Chloride, 824 F.2d at 1159, sources would
still have to shut down if they could not meet a NAAQS that
reflects the exercise of sound public health risk management
judgment.
Finally, Congress did not re-enact § 109 of the Clean Air
Act in 1990, nor did it amend § 109 to codify the lower
court’s interpretations of § 109. No changes were made to
§ 109 in 1990. As a result, isolated statements in the 1990
legislative history (which EPA has argued suggest
acquiescence to the D.C. Circuit’s earlier decisions'™) should
be treated with great skepticism. As this Court has
commented, “the views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.”'”
Indeed, where Congress has not been requested to act on a
statutory provision, and has taken no action, there is no basis
'? Brief for the Federal Cross-Respondents in Opposition, at 14-15 (Nos.
99-1426, 99-1431, 99-1442).
‘8 South Dakota v. Yankton Sioux Tribe, $22 U.S. 329, 355 (1998);
Central Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 185-87
(1994) (rejecting application of the “acquiescence doctrine” where
Congress had amended other statutory provisions within the Act).
49
for concluding that Congress as a legislative body had any
intent on the matter.'™
In sum, when EPA regulates pollutant concentrations that
are below any known “adverse effects” threshold, there will
always be ranges of theoretical and uncertain predictions of
health risk. The Agency must examine this range and decide
whether standard revision is “appropriate” and will promote
the overall goals of the Act.
Congress’ delegation to EPA of authority to choose a
result that is “appropriate” does not forbid consideration of
any factor relevant to managing public health risks in a way
that promotes the purposes of the Act. Therefore, a judicial
interpretation of § 109 that precludes consideration of
societal costs and related factors must be rejected under any
sound Chevron “step one” analysis It is now time to resolve
the confusion that has been created by Lead Industries by
overturning that decision as inconsistent with the Act and the
principles enunciated by this Court in Chevron.
CONCLUSION
For the reasons stated above, the decision of the lower
court that EPA is precluded from considering the broad
impacts of its decision on society in exercising risk
management judgment under § 109 should be reversed,
'* See Central Bank N.A., 511 U.S. at 185-87; id. at 186 (citing U.S.
CONST. art. I, § 7, cl. 2). See also Immigration and Naturalization Serv.
v. Chadha, 462 U.S. 919, 954 (1983) (“Amendment and repeal of
statutes, no less than enforcement, must conform with Article !.”).
50
and the standards should be vacated because they were not
based on consideration of all relevant factors.
Respectfully submitted,
HENRY V. NICKEL
F. WILLIAM BROWNELL
(Counsel of Record)
JAMES N. CHRISTMAN
LUCINDA M. LANGWORTHY
HUNTON & WILLIAMS
1900 K Street, N.W.
Washington, D.C. 20006
(202) 955-1500
DAVID E. MENOTTI
WILLIAM F. PEDERSEN
JEFFREY A. KNIGHT
SHAWPITTMAN
2300 N Street, N.W.
Washington, D.C. 20037
(202) 663-8675
Counsel for American Forest
& Paper Association, and
American Iron & Steel Counsel for Appalachian
Institute Power Co., et al., American
Public Power Association,
and National Association of
Home Builders
KURT BLASE
O’ CONNOR & HANNAN
Suite 500,
1666 K Street, N.W.
Washington, D.C. 20006-2803
(202) 887-1400
Counsel for Kennecott
Holdings Corporation,
Kennecott Energy and
Coal Company, Kennecott
Services Company, and
National Stone Association
RUSSELL S. FRYE
COLLIER, SHANNON, RILL &
Scott, PLLC
3050 K Street, N.W.
Suite 400
Washington, D.C. 20007
(202) 342-8878
and
RICHARD WASSERSTROM
AMERICAN FOREST & PAPER
ASSOCIATION, INC.
1111 19th Street, N.W.
8" Floor
Washington, D.C. 20036
(202) 463-2582
Counsel for American Forest
& Paper Association, Inc.
MARCELLE SHOOP
Associate General Counsel
KENNECOTT CORPORATION
8315 West 3595 South
P.O. Box 6001
Magna, Utah 84044-6001
(801) 252-3000
Counsel for Kennecott Holdings
Corporation, Kennecott
Energy and Coal Company,
and Kennecott Services Co.
TIMOTHY L. HARKER
THE HARKER LAW FIRM
9500 Accord Drive
Potomac, MD 20854
(301) 983-0964
and
THOMAS J. GRAVES
NATIONAL PAINT AND
COATINGS ASSOCIATION,
INC.
1500 Rhode Island Ave., N.W.
Washington, D.C. 20005
(202) 462-6272
Counsel for National Paint and
Coatings Association
G. WILLIAM FRICK
M. ELIZABETH COX
AMERICAN PETROLEUM
INSTITUTE
1220 L Street, N.W.
Washington, D.C. 20005
(202) 682-8250
Counsel for American
Petroleum Institute
MAURICE H. MCBRIDE
NATIONAL PETROCHEMICAL
REFINERS ASSOCIATION
1899 L Street, N.W.
Washington, D.C. 20036
(202) 457-0480
Counsel for National
Petrochemical & Refiners
Association
DAVID M. FLANNERY
JACKSON & KELLY
P.O. Box 553
1600 Laidley Tower
Charleston, WV 25322
(304) 340-1017
Counsel for Midwest Ozone
Group; and West Virginia
Chamber of Commerce
NEWMAN R. PORTER
LEWIS AND ROCA
40 N. Central Avenue
Phoenix, AZ 85004
(602) 262-5786
Counsel for Nevada Mining
Association, Newmont Gold
Company, and Meridian Gold
Company
DAVID F. ZOLL
ALEXANDRA DAPOLITO DUNN
AMERICAN CHEMISTRY
COUNCIL
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5165
Counsel for American
Chemistry Council
HAROLD P. QUINN, JR.
NATIONAL MINING
ASSOCIATION
1130 17" Street, N.W.
Washington, D.C. 20036
(202) 463-2652
Counsel for National Mining
Association
GRANT CRANDALL
General Counsel
UNITED MINE WORKERS OF
AMERICA, AFL-CIO
8315 Lee Highway
Fairfax, VA 22031
(703) 208-7200
and
EUGENE M. TRISKO
P.O. Box 596
Berkeley Springs, WV 25411
(304) 258-1977
Counsel for United Mine
Workers of America, AFL-CIO
DUANE J. DESIDERIO
NATIONAL ASSOCIATION OF
HOME BUILDERS
1201 15th Street, N.W.
Washington, D.C. 20005
(202) 861-2146
Counsel for National
Association of Home Builders
July 20, 2000
PETER S. GLASER
SHOOK, HARDY & BACON
600 14th Street, N.W.
Suite 800
Washington, D.C. 20005 z
(202) 639-5627
Counsel for Western Fuels
Association, Inc.
DAVID M. FRIEDLAND
BEVERIDGE & DIAMOND
1350 I Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 789-6000
Counsel for Phoenix Cement Co.
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.