Appendix — American Trucking Assns., Inc. v. Browner
Supreme Court brief2000
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a r worewriron
No. 99-1426 i , ge
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| JUL 20 2000
IN THE ;
Supreme Court of the United States
AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER OF
COMMERCE OF THE UNITED STATES, ef al..,
Petitioners,
Vv.
CAROL. M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ef al.,
Respondents.
On a Writ of Certiorari to the
United States Court of Appeals
For the District of Columbia Circuit
APPENDIX TO
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
Iron & 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, a. *
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 Builders
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.
APPENDIX TABLE OF CONTENTS
Court of Appeals’ Opinion, dated May 14,
Court of Appeals’ Opinion on Rehearing,
dated October 29, 1999, and Court of
Appeals’ Dissenting Statements on Suggestion
for Rehearing En Banc, dated October 29,
. Relevant Regulatory Provisions (excerpts) ..........
Relevant Statutory Provisions (excerpts) .............
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ee =r
No. 97-1440
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
ore er
v.
| UNITED STATES ENVIRONMENTAL PROTECTION
| AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
-_INTERVENORS
Consolidated with
Nos. 97-1546, 97-1548, 97-1551, 97-1552, 97-1553,
97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,
97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,
97-1582, 97-1585, 97-1586, 97-1587, 97-1588, 97-1592,
97-1594, 97-1596, 97-1597, 97-1598
2a
No. 97-1441
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
INTER VENORS
Consolidated with
Nos. 97-1502, 97-1505, 97-1508, 97-1509, 97-1510,
97-1512, 97-1513, 97-1514, 97-1518, 97-1519, 97-1526,
97-1531, 97-1539, 97-1566, 97-1568, 97-1570, 97-1572,
97-1575, 97-1584, 97-1589, 97-1591, 97-1595, 97-1619
[Decided May 14, 1999]
[Argued December 17, 1998]
3a
On Petitions for Review of an Order of the
Environmental Protection Agency
BEFORE: WILLIAMS, GINSBURG and TATEL, Circuit
Judges.
Opinion for the Court filed PER CURIAM.”
Separate opinion dissenting from Part I filed by Circuit
Judge Tatel.
PER CURIAM:
Introduction
The Clean Air Act requires EPA to promulgate and
periodically revise national ambient air quality standards
(“NAAQS”) for each air pollutant identified by the agency as
meeting certain statutory criteria. See Clean Air Act §§ 108-
09, 42 U.S.C. §§ 7408-09. For each pollutant, EPA sets a
“primary standard”—a concentration level “requisite to
protect the public health” with an “adequate margin of
safety”"—and a “secondary standard”—a level “requisite to
protect the public welfare.” Id. § 7409(b).
In July 1997 EPA issued final rules revising the primary
and secondary NAAQS for particulate matter (“PM”) and
ozone. See National Ambient Air Quality Standards for
Particulate Matter, 62 Fed. Reg. 38,652 (1997) (“PM Final
Rule”); National Ambient Air Quality Standards for Ozone,
* Judge Williams wrote Parts I and III.B; Judge Ginsburg wrote Parts
II, I11.A, and IV.D; Judge Tatel wrote Parts IV.A-C.
4a
62 Fed. Reg. 38,856 (1997) (“Ozone Final Rule”). Numerous
petitions for review have been filed for each rule.
In Part I we find that the construction of the Clean Air
Act on which EPA relied in promulgating the NAAQS at
issue here effects an unconstitutional delegation of legislative
power. See U.S. Const. art. I, § 1 (“All legislative powers
herein granted shall be vested in a Congress of the United
States.”). We remand the cases for EPA to develop a
construction of the act that satisfies this constitutional
requirement.
In Part II we reject the following claims: that § 109(d) of
the Act allows EPA to consider costs; that EPA should have
considered the environmental damage likely to result from
the NAAQS’ financial impact on the Abandoned Mine
Reclamation Fund; that the NAAQS revisions violated the
National Environmental Policy Act (“NEPA”), Unfunded
Mandates Reform Act (“UMRA”), and Regulatory Flexibility
Act (“RFA”).
In Part II] we decide two ozone-specific statutory issues,
holding that the 1990 revisions to the Clean Air Act limit
EPA’s ability to enforce new ozone NAAQS and that EPA
cannot ignore the possible health benefits of ozone.
Finally, in Part IV we resolve various challenges to the
PM NAAQS. We agree with petitioners that EPA’s choice of
PMio as the indicator for coarse particulate matter was
arbitrary and capricious; we reject petitioners’ claims that
EPA must treat PM25 as a “new pollutant,” that EPA must
identify a biological mechanism explaining PM’s harmful
effects, and that the Clean Air Act requires secondary
Sa
NAAQS to be set at levels that eliminate all adverse visibility
effects.
The remaining issues cannot be resolved until such time
as EPA may develop a constitutional construction of the act
(and, if appropriate, modify the disputed NAAQS in
accordance with that construction).
I. Delegation
Certain “Small Business Petitioners” argue in each case
that EPA has construed §§ 108 & 109 of the Clean Air Act so
loosely as to render them unconstitutional delegations of
legislative power. We agree. Although the factors EPA uses
in determining the degree of public health concern associated
with different levels of ozone and PM are reasonable, EPA
appears to have articulated no “intelligible principle” to
channel its application of these factors; nor is one apparent
from the statute. The nondelegation doctrine requires such a
principle. See J. W. Hampton, Jr. & Co. v. United States, 276
U.S. 394, 409 (1928). Here it is as though Congress
commanded EPA to select “big guys,” and EPA announced
that it would evaluate candidates based on height and weight,
but revealed no cut-off point. The announcement, though
sensible in what it does say, is fatally incomplete. The
reasonable person responds, “How tall? How heavy?”
EPA regards ozone definitely, and PM likely, as non-
threshold pollutants, i.e., ones that have some possibility of
some adverse health impact (however slight) at any exposure
level above zero. See Ozone Final Rule, 62 Fed. Reg. at
38,863/3 (“Nor does it seem possible, in the Administrator’s
judgment, to identify [an ozone concentration] level at which
it can be concluded with confidence that no ‘adverse’ effects
6a
are likely to occur.”); National Ambient Air Quality
Standards for Ozone and Particulate Matter, 61 Fed. Reg.
65,637, 65,651/3 (1996) (proposed rule) (“[T]he single most
important factor influencing the uncertainty associated with
the risk estimates is whether or not a threshold concentration
exists below which PM-associated health risks are not likely
to occur.”). For convenience, we refer to both as non-
threshold pollutants; the indeterminacy of PM’s status does
not affect EPA’s analysis, or ours.
Thus the only concentration for ozone and PM that is
utterly risk-free, in the sense of direct health impacts, is zero.
Section 109(b)(1) says that EPA must set each standard at the
level “requisite to protect the public health” with an
“adequate margin of safety.” 42 U.S.C. § 7409(b)(1). These
are also the criteria by which EPA must determine whether a
revision to existing NAAQS is appropriate. See 42 U.S.C.
§ 7409(d)(1) (EPA shall “promulgate such new standards as
_ may be appropriate in accordance with . . . [§ 7409(b)]”); see
also infra Part IIl.A. For EPA to pick any non-zero level it
must explain the degree of imperfection permitted. The
factors that EPA has elected to examine for this purpose in
themselves pose no inherent nondelegation problem. But
what EPA lacks is any determinate criterion for drawing
lines. It has failed to state intelligibly how much is too much.
We begin with the criteria EPA has announced for
assessing health effects in setting the NAAQS for non-
threshold pollutants.’ They are “the nature and severity of the
' Technically, EPA describes the criteria as used only for setting the
“adequate margin of safety.” There might be thought to be a separate step
in which EPA determines what standard would protect public health
without any margin of safety, and that step might be governed by different
7a
health effects involved, the size of the sensitive population(s)
at risk, the types of health information available, and the kind
and degree of uncertainties that must be addressed.” Ozone
Final Rule, 62 Fed. Reg. at 38,883/2; EPA, “Review of the
National Ambient Air Quality Standards for Particulate
Matter: Policy Assessment of Scientific and Technical
Information: OAQPS Staff Paper,” at IIl-2 (July 1996) (“PM
Staff Paper”) (listing same factors). Although these criteria,
so stated, are a bit vague, they do focus the inquiry on
pollution’s effects on public health. And most of the
vagueness in the abstract formulation melts away as EPA
applies the criteria: EPA basically considers severity of
effect, certainty of effect, and size of population affected.
These criteria, long ago approved by the judiciary, see Lead
Industries Ass'n v. EPA, 647 F.2d 1130, 1161 (D.C. Cir.
1980) (“Lead Industries”), do not themselves speak to the
issue of degree.
Read in light of these factors, EPA’s explanations for its
decisions amount to assertions that a less stringent standard
would allow the relevant pollutant to inflict a greater
quantum of harm on public health, and that a more stringent
standard would result in less harm. Such arguments only
support the intuitive proposition that more pollution will not
benefit public health, not that keeping pollution at or below
any particular level is “requisite” or not requisite to “protect
the public health” with an “adequate margin of safety,” the
formula set out by § 109(b)(1).
criteria. But EPA did not use such a process, and it need not. See NRDC
v. EPA, 902 F.2d 963, 973 (D.C. Cir. 1990). Thus, the criteria mentioned
in the text govern the whole standard-setting process.
Consider EPA’s defense of the 0.08 ppm level of the
ozone NAAQS. EPA explains that its choice is superior to
retaining the existing level, 0.09 ppm, because more people
are exposed to more serious effects at 0.09 than at 0.08. See
Ozone Final Rule, 62 Fed. Reg. at 38,868/1. In defending the
decision not to go down to 0.07, EPA never contradicts the
intuitive proposition, confirmed by data in its Staff Paper,
that reducing the standard to that level would bring about
comparable changes. See EPA, “Review of National
Ambient Air Quality Standards for Ozone: Assessment of
Scientific and Technical Information: OAQPS Staff Paper,”
at 156 (June 1996) (“Ozone Staff Paper’). Instead, it gives
three other reasons. The principal substantive one is based on
the criteria just discussed:
The most certain O3-related effects, while judged to be
adverse, are transient and reversible (particularly at O;
exposures below 0.08 ppm), and the more serious effects
with greater immediate and potential long-term impacts
on health are less certain, both as to the percentage of
individuals exposed to various concentrations who are
likely to experience such effects and as to the long-term
medical significance of these effects.
Ozone Final Rule, 62 Fed. Reg. at 38,868/2.
In other words, effects are less certain and less severe at
lower levels of exposure. This seems to be nothing more than
a statement that lower exposure levels are associated with
lower risk to public health. The dissent argues that in setting
the standard at 0.08, EPA relied on evidence that health
effects occurring below that level are “transient and
reversible,” Dissent at 5, evidently assuming that those at
higher levels are not. But the EPA language quoted above
0 IR
5a ie
9a
does not make the categorical distinction the dissent says it
does, and it is far from apparent that any health effects
existing above the level are permanent or irreversible.
In addition to the assertion quoted above, EPA cited the
consensus of the Clean Air Scientific Advisory Committee
(“CASAC”) that the standard should not be set below 0.08.
That body gave no specific reasons for its recommendations,
so the appeal to its authority, also made in defense of other
standards in the PM Final Rule, see PM Final Rule, 62 Fed.
Reg. at 38,677/2 (daily fine PM standard); id. at 38,678/3
(annual coarse PM standard); id. at 38,679/1 (daily coarse
PM standard), adds no enlightenment. The dissent stresses
the undisputed eminence of CASAC’s members, Dissent at 4,
but the question whether EPA acted pursuant to lawfully
delegated authority is not a scientific one. Nothing in what
CASAC says helps us discern an intelligible principle derived
by EPA from the Clean Air Act.
Finally, EPA argued that a 0.07 standard would be “closer
to peak background levels that infrequently occur in some
areas due to nonanthropogenic sources of O; precursors, and
thus more likely to be inappropriately targeted in some areas
on such sources.” Ozone Final Rule, 62 Fed. Reg. at
38,868/3. But a 0.08 level, of course, is also closer to these
peak levels than 0.09. The dissent notes that a single
background observation fell between 0.07 and 0.08, and says
that EPA’s decision “ensured that if a region surpasses the
ozone standard, it will do so because of controllable human
activity, not uncontrollable natural levels of ozone.” Dissent
at 6. EPA’s language, coupled with the data on background
ozone levels, may add up to a backhanded way of saying that,
given the national character of the NAAQS, it is
10a
inappropriate to set a standard below a level that can be
achieved throughout the country without action affirmatively
extracting chemicals from nature. That may well be a sound
reading of the statute, but EPA has not explicitly adopted it.
EPA frequently defends a decision not to set a standard at
a lower level on the basis that there is greater uncertainty that
health effects exist at lower levels than the level of the
standard. See Ozone Final Rule, 62 Fed. Reg. at 38,868/2;
PM Final Rule, 62 Fed. Reg. at 38,676/3 (annual fine PM
standard); id. at 38,677/2 (daily fine PM standard). And such
an argument is likely implicit in its defense of the coarse PM
standards. See PM Final Rule, 62 Fed. Reg. at 38,678/3-79/1.
The dissent’s defense of the fine particulate matter standard
cites exactly such a justification. See Dissent at 6 (“The
Agency explained that ‘there is generally greatest statistical
confidence in observed associations . . . for levels at and
above the mean concentration [in certain studies]’”)
(emphasis added in dissent). But the increasing-uncertainty
argument is helpful only if some principle reveals how much
uncertainty is too much. None does.
The arguments EPA offers here show only that EPA is
applying the stated factors and that larger public health harms
(including increased probability of such harms) are, as
expected, associated with higher pollutant concentrations.
The principle EPA invokes for each increment in stringency
(such as for adopting the annual coarse particulate matter
standard that it chose here)}—that it is “possible, but not
certain” that health effects exist at that level, see PM Final
Rule, 62 Fed. Reg. at 38,678/37—could as easily, for any
? EPA did cite qualitative evidence for further support for its annual
standard, and argued that the evidence “does not provide evidence of
non-threshold pollutant, justify a standard of zero. The same
indeterminacy prevails in EPA’s decisions not to pick a still
more stringent level. For example, EPA’s reasons for not
lowering the ozone standard from 0.08 to 0.07 ppm—that
“the more serious effects . . . are less certain” at the lower
levels and that the lower levels are “closer to peak
background levels,” see Ozone Final Rule, 62 Fed. Reg. at
38,868/2—could also be employed to justify a refusal to
reduce levels below those associated with London’s “Killer
Fog” of 1952. In that calamity, very high PM levels (up to
2,500 g/m’) are believed to have led to 4,000 excess deaths
in a week.’ Thus, the agency rightly recognizes that the
question is one of degree, but offers no intelligible principle
by which to identify a stopping point.
The latitude EPA claims here seems even broader than
that OSHA asserted in /nternational Union, UAW v. OSHA
(“Lockout/Tagout I’), 938 F.2d 1310, 1317 (D.C. Cir. 1991),
which was to set a standard that would reduce a substantial
risk and that was not infeasible. In that case, OSHA thought
itself free either to “do nothing at all” or to “require
precautions that take the industry to the brink of ruin,” with
“all positions in between . . . evidently equally valid.” /d.
Here, EPA’s freedom of movement between the poles is
equally unconstrained, but the poles are even farther apart—
effects below the range of 40-50 yg/m’,” the standard level. PM Final
Rule, 62 Fed. Reg. at 38,678/3. The referenced document, however, bears
no indication that the qualitative evidence demonstrates effects af the
level of the standard, either. See EPA, “Air Quality Criteria for
Particulate Matter,” at 13-79 (April 1996).
* See W.P.D. Logan, “Mortality in the London Fog Incident, 1952,”
The Lancet, Feb. 4, 1953, at 336-38.
12a
the maximum stringency would send industry not just to the
brink of ruin but hurtling over it, while the minimum
stringency may be close to doing nothing at all.
In Lockout/Tagout | certain special conditions that have
justified an exceptionally relaxed application of the
nondelegation doctrine were absent, id. at 1317-18, and they
are equally absent here. The standards in question affect the
whole economy, requiring a “more precise” delegation than
would otherwise be the case, see A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 553 (1935). No
“special theories” justifying vague delegation such as the war
powers of the President or the sovereign attributes of the
delegatee have been or could be asserted. Nor is there some
inherent characteristic of the field that bars development of a
far more determinate basis for decision. (This is not to deny
that there are difficulties; we consider some below.)
EPA cites prior decisions of this Court holding that when
there is uncertainty about the health effects of concentrations
of a particular pollutant within a particular range, EPA may
use its discretion to make the “policy judgment” to set the
standards at one point within the relevant range rather than
another. NRDC v. EPA, 902 F.2d 962, 969 (D.C. Cir. 1990);
American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185
(D.C. Cir. 1981); Lead Industries, 647 F.2d at 1161 (D.C.
Cir. 1980). We agree. But none of those panels addressed the
claim of undue delegation that we face here, and accordingly
had no occasion to ask EPA for coherence (for a “principle,”
to use the classic term) in making its “policy judgment.” The
latter phrase is not, after all, a self-sufficient justification for
every refusal to define limits.
13a
It was suggested at oral argument that EPA’s vision of its
discretion in application of § 109(b)(1) is no broader than
that asserted by OSHA after a remand by this court and
upheld by this court in International Union, UAW v. OSHA
(“Lockout/Tagout IT’), 37 F.3d 665 (D.C. Cir. 1994). But
there, in fact, OSHA allowed itself to set only standards
falling somewhere between maximum feasible stringency and
some “moderate” departure from that jevel. /d at 669. As
our prior discussion should have indicated, here EPA’s
formulation of its policy judgment leaves it free to pick any
point between zero and a hair below the concentrations
yielding London’s Killer Fog.
The dissent argues that a nondelegation challenge similar
to this one was rejected in South Terminal Corp. v. EPA, 504
F.2d 646 (Ist Cir. 1974), and cites that case’s language that
“the rationality of the means can be tested against goals
capable of fairly precise definition in the language of
science,” id. at 677. See Dissent at 2. But the action
challenged in South Terminal was EPA’s adoption of a plan
for ending or preventing violations in Boston of already-
established NAAQS, not its promulgation of the NAAQS
themselves. Thus, it seems likely that the “means” were the
plan’s provi:ions—e.g., a prohibition on most new parking in
the city, see 504 F.2d at 671, and the “fairly precise[ly]
defin[ed]” goals were the NAAQS themselves.
Where (as here) statutory language and an existing
agency interpretation involve an unconstitutional delegation
of power, but an interpretation without the constitutional
weakness is or may be available, our response is not to strike
down the statute but to give the agency an opportunity to
extract a determinate standard on its own. Lockout/Tagout I,
l4a
938 F.2d at 1313. Doing so serves at least two of three basic
rationales for the nondelegation doctrine. If the agency
develops determinate, binding standards for itself, it is less
likely to exercise the delegated authority arbitrarily. See
Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737,
758-59 (D.D.C. 1971) (Leventhal, J., for three-judge panel).
And such standards enhance the likelihood that meaningful
judicial review will prove feasible. See id. at 759. A remand
of this sort of course does not serve the third key function of
non-delegation doctrine, to “ensure[ ] to the extent consistent
with orderly governmental administration that important
choices of social policy are made by Congress, the branch of
our Government most responsive to the popular will,”
Industrial Union Dep't, AFL-CIO v. American Petroleum
Inst., 448 U.S. 607, 685 (1980) (“Benzene”) (Rehnquist, J.,
concurring). The agency will make the fundamental policy
choices. But the remand does ensure that the courts not hold
unconstitutional a statute that an agency, with the application
of its special expertise, could salvage. In any event, we do not
read current Supreme Court cases as applying the strong form
of the nondelegation doctrine voiced in Justice Rehnquist’s
concurrence. See Mistretta v. United States, 488 U.S. 361,
377-79 (1989).
What sorts of “intelligible principles” might EPA adopt?
Cost-benefit analysis, mentioned as a possibility in
Lockout/Tagout I, 938 F.2d at 1319-21, is not available under
decisions of this court. Our cases read § 109(b)(1) as barring
EPA from considering any factor other than “health effects
relating to pollutants in the air.” NRDC, 902 F.2d at 973; see
also Lead Industries, 647 F.2d at 1148; American Lung Ass'n
v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998); American
Petroleum Inst., 665 F.2d at 1185 (echoing the same themes).
15a
In theory, EPA could make its criterion the eradication of
any hint of direct health risk. This approach is certainly
determinate enough, but it appears that it would require the
agency to set the permissible levels of both pollutants here at
zero. No party here appears to advocate this solution, and
EPA appears to show no inclination to adopt it.‘
EPA’s past behavior suggests some readiness to adopt
standards that leave non-zero residual risk. For example, it
has employed commonly used clinical criteria to determine
what qualifies as an adverse health effect. See Ozone Staff
Paper at 59-60 (using American Thoracic Society standards
to determine threshold for “adverse health effect” from
ozone). On the issue of likelihood, for some purposes it
might be appropriate to use standards drawn from other areas
of the law, such as the familiar “more probable than not”
criterion.
Of course a one-size-fits-all criterion of probability would
make little sense. There is no reason why the same
‘ A zero-risk policy might seem to imply de-industrialization, but in
fact even that seems inadequate to the task (and even if the calculus is
confined to direct risks from pollutants, as opposed to risks from the
concomitant poverty). First, PM (at least) results from almost all
combustion, so only total prohibition of fire or universal application of
some heretofore unknown control technology would reduce manmade
emissions to zero. See PM Staff Paper at IV-1. Second, the combustion
associated with pastoral life appears to be rather deadly. See World Bank,
World Development Report 1992: Development and the Environment 52
(1992) (noting that “biomass” fuels (i.e., wood, straw, or dung) are often
the only fuels that “poor households, mostly in rural areas” can obtain or
afford, and that indoor smoke from biomass burning “contributes to acute
respiratory infections that cause an estimated 4 million deaths annually
among infants and children.”).
16a
probability should govern assessments of a risk of thousands
of deaths as against risks of a handful of people suffering
moméntary shortness of breath. More generally, all the
relevant variables seem to range continuously from high to
low: the possible effects of pollutants vary from death to
trivialities, and the size of the affected population, the
probability of an effect, and the associated uncertainty range
from “large” numbers of persons with point estimates of high
probability, to small numbers and vague ranges of
probability. This does not seem insurmountable. Everyday
life compels us all to make decisions balancing remote but
severe harms against a probability distribution of benefits;
people decide whether to proceed with an operation that
carries a 1/1000 possibility of death, and (simplifying) a 90%
chance of cure and a 10% chance of no effect, and a certainty
of some short-term pain and nuisance. To be sure, all that
requires is a go/no-go decision, while a serious effort at
coherence under § 109(b)(1) would need to be more
comprehensive. For example, a range of ailments short of
death might need to be assigned weights. Nonetheless, an
agency wielding the power over American life possessed by
EPA should be capable of developing the rough equivalent of
a generic unit of harm that takes into account population
affected, severity and probability. Possible building blocks
for such a principled structure might be found in the approach
Oregon used in devising its health plan for the poor. In
determining what conditions would be eligible for treatment
under its version of Medicaid, Oregon ranked treatments by
the amount of improvement in “Quality-Adjusted Life Years”
provided by each treatment, divided by the cost of the
treatment. Here, of course, EPA may not consider cost, and
* The “quality” of various health states was determined by poll, and
17a
medical professionals determined the probabilities and durations of
various health states with and without the treatment in question.
Oregon was twice forced to revise its system because the United
States Department of Health & Human Services determined that the
original proposal and a revision violated the Americans with Disabilities
Act, 42 U.S.C. §§ 12101-12213. The reason given for this determination
was that both versions undervalued the lives of persons with disabilities:
The original plan measured quality of life according to the attitudes of the
general population rather than the attitudes of persons with disabilities.
See HHS, “Analysis Under the Americans with Disabilities Act (‘ADA’)
of the Oregon Reform Demonstration” (Aug. 3, 1992), reprinted in 9
Issues in L. & Med. 397, 410, 410 (1994). The revised plan ranked
treatments leaving the patient in a “symptomatic” state lower than those
leaving the patient asymptomatic, and certain disabling conditions were
considered “symptoms.” See Letter from Timothy B. Flanagan, Assistant
Attorney General, to Susan K. Zagame, Acting General Counsel, HHS
(Jan. 19, 1993), reprinted in 9 Issues in L. & Med. 397, 418, 421 (1994).
The Department's determination was extensively criticized when issued.
See Maxwell J. Mehiman et al., “When Do Health Care Decisions
Discriminate Against Persons with Disabilities?” 22 J. Of Health
Politics, Policy & L. 1385, 1390 (1997) (HHS’s “decision provoked a
storm of disbelief and denunciation”).
We take no position on whether HHS’s view was correct, or if the
underlying norm also governs EPA’s decisions under § 109(b)(1). An
affirmative answer, however, would not seem to preclude use of some of
Oregon’s approach. The first step would be giving appropriate weight to
the views of persons with disabilities. The second might be measuring the
seriousness of a pollution-induced health effect by the absolute level of
well-being that the effect brings about, not by the decrease in level that
the effect causes. In other words, if the maximum well-being level is 100
and the average asthmatic whose asthma constitutes a disability has a
well-being of 80 in the absence of air pollution (according to a measure
that appropriately considers asthmatics’ own assessments of their
condition), then a response to air pollution that reduces the asthmatics’
well-being to 70 could be counted as an effect of magnitude 30 (the
difference from full health), rather than 10 (the difference from the level
without the pollution). That approach would ensure that effects on
18a
indeed may well find a completely different method for
securing reasonable coherence. Alternatively, if EPA
concludes that there is no principle available, it can so report
to the Congress, along with such rationales as it has for the
levels it chose, and seek legislation ratifying its choice.
We have discussed only the primary standards. Because
the secondary standards are at least in part based on those,
see Ozone Final Rule, 62 Fed. Reg. at 38,875/3-76/1; PM
Final Rule, 62 Fed. Reg. at 38,680/3, we also remand the
cases to the agency with regard to the secondary standards as
well, for further consideration in light of this opinion.
Il. Other General Claims
The petitioners and amici contend that the EPA
erroneously failed to consider a host of factors in revising the
PM and ozone NAAQS. We reject each of these claims in
turn.
A. Consideration of Cost in Revising Standards
As this court long ago made clear, in setting NAAQS
under § 109(b) of the Clean Air Act, the EPA is not permitted
to consider the cost of implementing those standards. See
Lead Industries, 647 F.2d at 1148 (D.C. Cir. 1980); see also
NRDC, 902 F.2d at 973 (following Lead Industries in
reviewing particulate matter NAAQS); American Petroleum
Inst., 665 F.2d at 1185 (same, in reviewing ozone NAAQS).
The petitioners make four unsuccessful attempts to
distinguish Lead Industries and its progeny.
persons with disabilities were not underestimated, even in the broad sense
of that term apparently adopted by HHS.
19a
First, the petitioners claim that in Lead Industries we
held only that the Clean Air Act does not compel the EPA to
consider the costs of implementation in setting a NAAQS; on
the contrary, we held that the Act precludes the EPA from
doing so. See Lead Industries, 647 F.2d at 1148 (“the statute
and its legislative history make clear that economic
considerations play no part in the promulgation of
[NAAQS]”).
Second, that we decided Lead Industries prior to the
Supreme Court’s decision in Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837 (1984) does not, as the petitioners suggest,
require us to revisit the earlier case. The Lead Industries
decision was made in Chevron step one terms, see id., as the
post-Chevron progeny of Lead Industries have made clear.
See NRDC, 902 F.2d at 973 (“Consideration of costs .. .
would be flatly inconsistent with the statute, legislative
history and case law on this point”); NRDC v. EPA, 824 F.2d
1146, 1158-59 (D.C. Cir. 1987) (in banc) (“Vinyl Chloride’’)
(“[S]tatute on its face does not allow consideration of
technological or economic feasibility. . . . Congress
considered the alternatives and chose to close down sources
or even industries rather than to allow risks to health’’).
Third, though the petitioners are correct that in Lead
Industries we interpreted § 109(b), which governs the setting
of NAAQS, and not § 109(d), which governs the revising of
NAAQS, we can discern no legally relevant difference in the
two sections that would make Lead Industries inapplicable to
§ 109(d). Section 109(d)(1) directs the EPA to:
complete a thorough review of the criteria published
under section 7408 of this title and the [NAAQS]
promulgated under this section and [to] make such
20a
revisions in such criteria and standards and promulgate
such new standards as may be appropriate in accordance
with section 7408 of this title and subsection (b) of this
section.
42 U.S.C. § 7409(d)(1). The petitioners contend that
consideration of costs is one pertinent factor in determining
whether revision of a NAAQS is “appropriate,” but this
argument ignores the clause immediately following
“appropriate,” which incorporates § 109(b) and thereby
affirmatively precludes consideration of costs in revising
NAAQS. Section 108(b), 42 U.S.C. § 7408(b), does require
the EPA to provide the States with information on the cost of
implementing NAAQS, but the reference to § 108 does not
permit consideration of costs in setting NAAQS because it
clearly relates back to the requirement that the EPA “make. . .
revisions in [“the criteria published under section 7408”] . . .
as may be appropriate.” And insofar as the air quality criteria
do apply to the setting of NAAQS, they do so through
§ 109(b), which (again) precludes the consideration of costs
and which is explicitly incorporated into § 109(d)(1). See id.
§ 7409(b)(1) (primary NAAQS to be “based on [the air
quality] criteria” issued under § 108).
Fourth, the petitioners point to § 109(d)(2), which creates
the CASAC and requires it to advise the EPA about, among
other things, “any adverse public health, welfare, social,
economic, or energy effects which may result from various
strategies for attainment and maintenance of such
[NAAQS].” Id. § 7409(d)(2)(C)(iv). Why, ask the
petitioners, would the CASAC be required to advise the EPA
about these matters if the EPA were not then supposed to
consider its advice in the course of revising the NAAQS? As
2la
above, however, the petitioners overlook that § 109(d)(1)
directs the EPA to review and to revise, as appropriate, the
air quality standards issued under § 108 as well as the
NAAQS promulgated under § 109(b). The advice required in
§ 109(d)(2)(C)(iv) is pertinent only to the EPA’s duty under
§ 108 to provide the States with control strategy information.
B. Environmental Consequences of Implementing
NAAQS
The State Petitioners argue that the EPA erred in failing
“to consider the environmental consequences resulting from
the financial impact of the [revised PM 2; and ozone
NAAQS] on the federal Abandoned Mine Reclamation Fund
Act.” This argument is squarely foreclosed by our decision
in NRDC. In reviewing the EPA’s previous revision of the
PM NAAQS, we rejected the argument that the EPA “erred
in refusing to consider the health consequences of
unemployment in determining the primary [NAAQS] for
particulate matter” and held that “{ijt is only health effects
relating to pollutants in the air that EPA may consider.” 902
F.2d at 972-73 (emphasis in original). Unlike the positive
health benefits of ozone that we hold (in Part III.B, below)
the EPA must consider, any detrimental health effects
resulting from the financial impact upon the mine fund, like
the health consequences of unemployment, are traceable to
the cost of complying with the revised PM25 and ozone
NAAQS and not to the presence of those pollutants in the air.
C. The National Environmental Policy Act
In challenging both the revised PM2 5 and ozone NAAQS,
the State Petitioners also argue that the EPA failed to comply
with certain requirements of the NEPA. The petitioners
22a
recognize that the Congress has exempted all actions under
the Clean Air Act, including the setting of NAAQS, from the
central requirement of the NEPA, namely, the preparation of
an Environmental Impact Statement. Compare 42 U.S.C.
§ 4332(2)(C)-(D) (agency must prepare EIS in ail “major
Federal actions significantly affecting the quality of the
human environment”), with 15 U.S.C. § 793(c)(1) (“No
action taken under the Clean Air Act shall be deemed a major
Federal action significantly affecting the quality of the human
environment within the meaning of the [NEPA]”).
Nonetheless, they suggest that the EPA is required to
complete the functional equivalent of an EIS and also to
comply with other requirements in the NEPA, see 42 U.S.C.
§ 4332(2)(B), (E), (G). State Petitioners’ PM Brief at 20;
State Petitioners’ Ozone Brief at 19. We reject each of these
suggestions.
First, the State Petitioners contend that this court has
“recognized that the ‘[CAA], properly construed, requires
the functional equivalent of a NEPA impact statement,’” id.
(quoting Portland Cement Ass'n v. Ruckelshaus, 486 F.2d
375, 384 (1973)). Our decision in Portland Cement,
however, actually construed only “section 111 of the Clean
Air Act.” By replacing these words with “[CAA]” in their
briefs, the petitioners misrepresent our interpretation of a
single section of the Clean Air Act, dealing with emission
standards for stationary sources, as an interpretation of the
entire Act. Even if the petitioners were correct, however,
Portland Cement predated, and is now superseded by, the
statutory exemption in 15 U.S.C. § 793(c)(1), which the
Congress added in 1974.
23a
Second, the State Petitioners contend that a provision of
the NEPA “requires that EPA weigh ‘economic
considerations.” The section to which the petitioners refer
reads as follows: “all agencies of the Federal Government
shall . . . identify and develop methods and procedures .. .
which will insure that presently unquantified environmental
amenities and values may be given appropriate consideration
in decisionmaking along with economic and _ technical
considerations.” 42 U.S.C. § 4332(2)(B). Even if this
section is properly read generally to require an agency to
consider implementation costs, § 109(d)(1) specifically
prohibits the EPA from doing so. And the NEPA provides
that it shall not “in any way affect the specific statutory
obligations of any Federal agency . . . to comply with criteria
or standards of environmental quality.” 42 U.S.C. § 4334(1).
Therefore, § 4332(2)(B) cannot require the EPA to disregard
the prohibition in § 109(d)(1) upon the consideration of costs
in setting NAAQS.
The State Petitioners’ remaining arguments—that the
EPA failed to comply with two other sections of the NEPA—
fare little better. Section 4332(2)(E) requires federal agencies
to “study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of
available resources.” As with § 4332(2)(B), insofar as
§ 4332(2)(E) can be read to require the EPA to consider the
costs of implementing NAAQS when revising those
standards, contrary to the prohibition in § 109(d)(1),
§ 4334(1) prevents it from having any effect.
If, on the other hand, § 4332(2)(E) is understood in the
context of the Clean Air Act to require the EPA merely to
24a
discuss implementation alternatives, then it, like the similar
§ 4332(2)(G) with which the petitioners also claim the EPA
failed to comply, is the functional equivalent of § 108(b)(1).
That section requires the EPA to provide the States with,
among other things, “such data as are available on available
technology and alternative methods of prevention and control
of air pollution.” As we recognize with regard to the
requirement that the agency prepare an EIS, “[c]ompliance
with NEPA’s . . . requirement[s] has not been considered
necessary when the agency’s organic legislation mandates
procedures for considering the environment that are
‘functional equivalents’ of the [NEPA’s] process.” Jzaak
Walton League of Am. v. Marsh, 655 F.2d 346, 367 n.51
(1981). The rationale for the functional equivalence doctrine
is the well-established principle that a “general statutory rule
usually does not govern unless there is no more specific
rule.” Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524
(1989); see also Alabama ex rel. Siegelman v. EPA, 911 F.2d
499, 504-05 (11th Cir. 1990) (citing cases). The NEPA is the
general statute requiring agencies to consider environmental
harms, whereas the Clean Air Act is the more specific and its
equivalent provisions apply in place of those in the NEPA.
See Portland Cement, 486 F.2d at 386 (finding functional
equivalence when more specific statute strikes “workable
balance between some of the advantages and disadvantages
of full application of NEPA”).
Our analysis of the petitioners’ contentions leads us to
conclude that nothing in the NEPA requires the EPA in
setting NAAQS to consider or to discuss matters that the
Clean Air Act does not already permit or require.
25a
D. The Unfunded Mandates Reform Act
The State Petitioners in the particulate matter case and
Congressman Bliley in the ozone case both contend that the
EPA is required by the Unfunded Mandates Reform Act, 2
U.S.C. § 1501 ef seg., to prepare a Regulatory Impact
Statement (RIS) when setting a NAAQS, see id. § 1532, and
to choose the least burdensome from a range of alternative
permissible NAAQS, see id. § 1535. Even if the petitioners
and the amicus are correct regarding the interaction of the
UMRA and the CAA—a point the EPA strongly contests—
we can provide them with no relief. See id. § 1571(a)(3)
(“[T]Jhe inadequacy or failure to prepare [a RIS] . . . shall not
be used as a basis for staying, enjoining, invalidating or
otherwise affecting [an] agency rule”); id. § 1571(b) (“Except
as provided in [§ 1571(a), which does not mention § 1535,]. .
. any compliance or noncompliance with the provisions of
this chapter . . . shall not be subject to judicial review; and no
provision of this chapter shall be construed to [be]...
enforceable by any person in any . . . judicial action”).
The State Petitioners, recognizing the limitations upon
judicial review in § 1571, contend that the EPA’s failure to
prepare a RIS can nonetheless render the NAAQS arbitrary
and capricious, see 42 U.S.C. § 7607(d)(9), relying upon
Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984). In that
case, we interpreted a statute that, like the UMRA, both
specified that the RIS be included in the record for judicial
review and precluded judicial review of an agency’s
compliance with the RIS requirement. We held that a
“reviewing court will consider the contents of the [RIS],
along with the rest of the record, in assessing not the
agency’s compliance with the [requirement to prepare the
26a
RIS], but the validity of the rule under other provisions of
law.” Id. at 405. No information in a RIS, however, could
lead us to conclude that the EPA improperly set the PM and
ozone NAAQS; the only information such a statement would
add to the rulemaking record for a NAAQS would pertain to
the costs of implementation, see 2 U.S.C. § 1532(a), and the
EPA is precluded from considering those costs in setting a
NAAQS. Accordingly, the failure to prepare a RIS does not
render the NAAQS arbitrary and capricious.
E. The Regulatory Flexibility Act
In both the ozone and particulate matter cases, the Small
Business Petitioners argue that the EPA improperly certified
that the revised NAAQS would not have a significant impact
upon a substantial number of small entities. The Regulatory
Flexibility Act, 5 U.S.C. § 601 ef seg., as amended in 1996
by the Small Business Regulatory Enforcement Fairness Act,
Pub. L. No. 104-121, tit. II, 110 Stat. 857-74 (““SBREFA”),
requires an agency, when engaging in notice and comment
rulemaking, to “prepare and make available for public
comment an initial regulatory flexibility analysis. . . . [that]
describe[s] the impact of the proposed rule on small entities,”
5 U.S.C. §603(a), including small businesses, small
organizations, and small governmental jurisdictions, see id.
§ 601(6). When promulgating a final rule, an agency must
describe “the steps . . . taken to minimize the significant
economic impact on small entities.” /d. § 604(a)(5).
According to the petitioners, if the EPA had complied with
the RFA, it would likely have promulgated less stringent PM
and ozone NAAQS than those actually chosen, which would
have reduced the burden upon small entities.
27a
A regulatory flexibility analysis is not required, however,
if the agency “certifies that the rule will not, if promulgated,
have a significant economic impact on a substantial number
of small entities.” Jd. § 605(b). Further, the SBREFA made
no change in the requirement that a regulatory flexibility
analysis conducted pursuant to the RFA include estimates of
“the number of small entities to which the proposed rule will
apply” and of “the classes of small entities which will be
subject to the requirement.” 5 U.S.C. § 603(b)(3)-(4). We
have consistently interpreted the RFA, based upon these
sections, to impose no obligation upon an agency “to conduct
a small entity impact analysis of effects on entities which it
does not regulate.” Motor & Equip. Mfrs. Ass'n v. Nichols,
142 F.3d 449, 467 & n.18 (1998).
The EPA certified that its revised NAAQS will “not have
a significant economic impact on small entities within the
meaning of the RFA.” PM Final Rule, 62 Fed. Reg. at
38,702/2; Ozone Final Rule, 62 Fed. Reg. at 38,887/2-3.
According to the EPA, the NAAQS themselves impose no
regulations upon small entities. Instead, the several States
regulate small entities through the state implementation plans
(SIPs) that they are required by the Clean Air Act to develop.
See 42 U.S.C. § 7410. Because the NAAQS therefore
regulate small entities only indirectly—that is, insofar as they
affect the planning decisions of the States—the EPA
concluded that small entities are not “subject to the proposed
regulation.” See Mid-Tex Elec. Coop., Inc. v. FERC, 773
F.2d 327, 342 (D.C. Cir. 1985); see also id. at 343
(“Congress did not intend to require that every agency
consider every indirect effect that any regulation might have
on small businesses in any stratum of the national
economy.”).
28a
The EPA’s description of the relationship between
NAAQS, SIPs, and small entities strikes us as incontestable.
The States have broad discretion in determining the manner
in which they will achieve compliance with the NAAQS.
The EPA “is required to approve a state plan which provides
for the timely attainment and subsequent maintenance of
ambient air standards” and cannot reject a SIP based upon its
view of “the wisdom of a State’s choices of emission
limitations,” Train v. NRDC, 421 U.S. 60, 79 (1975)
(emphasis in original), or of the technological infeasibility of
the plan. See Union Elec. Co. v. EPA, 427 U.S. 246, 265
(1976). Therefore, a State may, if it chooses, avoid imposing
upon small entities any of the burdens of complying with a
revised NAAQS. Only if a State does not submit a SIP that
complies with § 110, 42 U.S.C. § 7410, must the EPA adopt
an implementation plan of its own, which would require the
EPA to decide what burdens small entities should bear. The
agency has stated, however, that it will do a regulatory
flexibility analysis before adopting an implementation plan of
its own, as it did in 1994 when proposing such a plan for Los
Angeles. See Ozone Final Rule, 62 Fed. Reg. at 38,891/1;
PM Final Rule, 62 Fed. Reg. at 38,705/3.
The responses of the Small Business Petitioners do not
persuade us to reject the EPA’s argument or to deviate from
our holdings in Mid-Tex and its progeny. First, the Small
Business Petitioners contend that we must defer to the Small
Business Administration’s interpretation of the Act, as
expressed in a letter to the EPA from the SBA’s Chief
Counsel for Advocacy, that the NAAQS do impose
requirements upon small entities. The SBA, however, neither
administers nor has any policymaking role under the RFA; at
most its role is advisory. See, e.g., 5 U.S.C. §§ 601(3),
29a
602(b), 603(a), 605(b), 609(b)(1), 612. Therefore, we do not
defer to the SBA’s interpretation of the RFA. See Scheduled
Airlines Traffic Offices, Inc. v. Department of Defense, 87
F.3d 1356, 1361 (D.C. Cir. 1996) (no Chevron deference
owed to agency interpretation of statute it does not
administer). Nor do we defer to the EPA’s interpretation of
the RFA, for it does not administer the Act either. We do,
however, find the EPA’s interpretation of the statute
persuasive.
Second, the Small Business Petitioners argue that the
EPA cannot claim both that the NAAQS will have no effect
upon small entities and that it will have positive health
effects. Clearly, however, the EPA can maintain that the
NAAQS will have health effects because the Clean Air Act
empowers the agency to ensure that such benefits accrue; and
it can maintain that the NAAQS will not directly affect small
entities because it has no authority (short of imposing its own
implementation plan upon a non-complying state) to impose
any burdens upon such entities.
Third, the Small Business Petitioners attempt to
distinguish the possible effects upon small entities in this
case from the indirect effects that, as we found in Mid-Tex,
are not within the contemplation of the RFA. But Mid-Tex is
not so easily distinguished. The petitioners in that case
argued that the RFA required the FERC to consider economic
effects not only upon regulated industries but also upon the
small entities that are their wholesale customers, even though
the customers were not directly regulated by the FERC. We
rejected that argument, finding a “clear indication” in the
language of § 603 that the RFA is “limited to small entities
subject to the proposed regulation.” Mid-Tex, 773 F.2d at
30a
342; see also Motor & Equip. Mfrs. Ass'n, 142 F.3d at 467
n.18 (“The RFA itself distinguishes between small entities
subject to an agency rule, to which its requirements apply,
and those not subject to the rule, to which the requirements
do not apply.”); United Distribution Cos. v. FERC, 88 F.3d
1105, 1170 (1996) (regulatory flexibility analysis provision
applies only to “small entities that are subject to the
requirements of the rule”) (emphasis in original). That the
Clean Air Act requires the States to submit SIPs that will
achieve compliance with the NAAQS does not, in view of the
States’ nearly complete discretion to determine which entities
will bear the burdens of a revised NAAQS, make such small
entities as the SIPs may regulate any more subject to the
EPA’s regulation than were the wholesalers in Mid-Tex
subject to regulation by the FERC.
Finally, the Small Business Petitioners suggest that the
Congress in enacting the SBREFA overruled our prior
interpretation of the RFA in Mid-Tex and its progeny. The
SBREFA made a number of changes in the RFA, but it did
not change anything in § 603 upon which we relied in Mid-
Tex. And although the Congress made a slight modification
in § 605(b), we do not understand it to alter our analysis in
Mid-Tex. Prior to 1996, § 605(b) required an agency to
provide “a succinct statement explaining the reasons” for its
certification that the promulgated rule. would not have a
significant economic impact upon small entities. That
section now requires “a statement providing the factual basis
for such certification.” Our decision in Mid-Tex
contemplates that an agency may justify its certification
under the RFA upon the “factual basis” that the rule does not
directly regulate any small entities. Nothing in the change to
§ 605(b) suggests that basis for certification is no longer
a
3la
permissible. (Indeed, the section of the statute amending
§605(b) is labeicd “Technical and Conforming
Amendments,” see SBREFA § 243, 110 Stat. at 866.) We
therefore conclude that the EPA properly certified that its
NAAQS would not have a significant impact upon a
substantial number of small entities.
III. Ozone
A. Subpart 2 and the Revised Ozone Standard
In 1990 the Congress substantially revised the Clean Air
Act by, among other things, adding specific enforcement
provisions for carbon monoxide, particulate matter, sulfur
oxides, nitrogen dioxide, lead, and as pertinent here, ozone.
Previously, the Act required that all areas of the country not
attaining the primary ozone standard, no matter how far from
attainment, come into compliance “as expeditiously as
practicable but not later than December 31, 1987.” 42 U.S.C.
§ 7502 (1988). Many areas had not attained the primary
ozone NAAQS by that date; some were still a long way from
doing so. The Congress responded to the continued ozone
problem by enacting a new enforcement scheme, which it
codified as Subpart 2 of Part D of the Clean Air Act, 42
U.S.C. §§ 7511-7511f, redesignating the original provisions
as Subpart 1.
Subpart 2 requires the EPA to classify nonattainment
areas based upon their design value, which is a rough
measure of whether an area complies with the 0.12 ppm, 1-
hour primary ozone standard.° A table in Subpart 2, set out
* More specifically, the design value is the fourth-highest daily
maximum ozone concentration in an area over three consecutive years for
32a
here in the margin,’ establishes classifications ranging from
marginal to extreme, and provides an attainment date for each
which there are sufficient data. If that value is less than or equal to 0.12
ppm, then an area will have only three expected values above that level
and it will be in attainment with the ozone NAAQS. See EPA, The Clean
Air Act Ozone Design Value Study: Final Report 1-1 to 1-22 (1994)
(filed pursuant to 42 U.S.C. § 7511b(g), which required the EPA to
conduct “a study of whether the [existing design value] methodology .. .
provides a reasonable indicator of the ozone air quality of ozone
nonattainment areas”; the EPA concluded it did).
’ This table appears in Clean Air Act § 181(a)(1), 42 U.S.C.
§ 7511(a\(1):
TABLE |
Area Class Design value [ppm] Primary standard
attainment date
Marginal.............. 0.121 up to 0.138 ...... 3 years after
November 15, 1990
Moderate............. 0.138 up to 0.160...... 6 years after
November 15, 1990
ee 0.160 up to 0.180... 9 years after
November 15, 1990
en 0.180 up to 0.280 ...... 15 years after
November 15, 1990
ee 0.280 and above ....... 20 years after
November 15, 1990
The Severe Area category is later subdivided, creating a sixth
classification for ozone nonattainment areas. See id. § 7511(a)(2)
(“Notwithstanding table 1, [for] a severe area with a 1988 ozone design
value between 0.190 and 0.280 ppm, the attainment date shall be 17 years
... after November 15, 1990”).
33a
class. See id. § 7511(a)(1)-(2). Subpart 2 also specifies, for
each class of nonattainment areas, both measures that the
States must take to reduce emissions of the chemicals that are
precursors of ozone and information that the States must
report to the EPA. See id. § 7511a. In short, Subpart 2 is the
Congress’s comprehensive plan for reducing ozone levels
throughout the country.
The State and Non-State Petitioners, along with
Congressman Bliley appearing as an amicus curiae, argue
that Subpart 2 precludes the EPA from revising the primary
and secondary ozone NAAQS. We reject this argument (in
Part III.A.1) insofar as it pertains to the EPA’s continued
ability to promulgate a revised ozone NAAQS or to designate
areas as not in attainment with a revised NAAQS. We agree
(in Part III.A.2) with those petitioners, however, insofar as
they maintain, based upon the text and structure of Subparts 1
and 2, that the EPA is precluded from enforcing a revised
primary ozone NAAQS other than in accordance with the
classifications, attainment dates, and control measures set out
in Subpart 2. Further, we conclude (in Part III.A.3) that the
EPA may not require a State to comply with a revised
secondary ozone NAAQS in any area that has yet to attain the
0.12 ppm primary standard.
1. The EPA’s Power to Revise the Ozone NAAQS
and Designate Areas as Nonattainment
The 1990 amendments did not alter the section of the
Clean Air Act that provides for setting and revising primary
and secondary NAAQS. See 42 U.S.C. § 7409. The
Administrator, therefore, still must “at five-year intervals
[from December 31, 1980] ... complete a thorough review
of... the [NAAQS] promulgated under this section and.. .
34a
make such revisions in such ... standards ...as may be
appropriate.” Id. § 7409(d)(1). The Second Circuit held that
this section continues to “set[ ] forth a bright-line rule for
agency action,” American Lung Ass'n v. Reilly, 962 F.2d 258,
263 (1992), and we agree. Nothing in the Act modifies this
“bright-line rule” or otherwise makes it inapplicable to
revision of the ozone NAAQS.
To the extent that the 1990 amendments shed any light
upon this question, they suggest that the EPA retains its
authority to revise the ozone NAAQS. For example, if the
EPA relaxes a NAAQS after enactment of the 1990
amendments, then “the Administrator shall ... promulgate
requirements applicable to all areas which have not attained
that [relaxed] standard as of the date of such relaxation. . . .
[which] shall provide for controls . . . not less stringent than
the controls applicable to areas designated nonattainment
before such relaxation.” 42 U.S.C. § 7502(e). Although two
other subsections of § 172 are expressly made inapplicable to
the ozone regulations in Subpart 2, see id. § 7502(a)(1)(C),
(a)(2)(D), this so-called anti-backsliding provision contains
no such exemption. Accordingly, as the EPA notes, this
section specifically contemplates that the agency may relax
its ozone NAAQS and, therefore, necessarily implies that it
retains the authority to revise that NAAQS. Tellingly, neither
the petitioners nor the amicus reply to this point.
The petitioners and amicus raise two other arguments to
support their position that the EPA cannot alter the ozone
NAAQS without the approval of the Congress. We reject
both in short order.
First, the Non-State Petitioners contend that Subpart 2
renders revision of the ozone NAAQS “inappropriate” within
~ I?
ae
“4
ght RNA! Ss em”
35a
the meaning of § 109(d)(1), which provides the EPA shall
“make such revisions in such ... standards ... as may be
appropriate.” 42 U.S.C. § 7409(d)(1). This argument,
however, pointedly ignores the text immediately following
the word “appropriate,” which specifies that appropriateness
is to be determined “in accordance with section 7408 . . . and
[§ 7409(b)]” (and which, as we read it, means exclusively in
accord with those sections). See, e.g., American Methyl
Corp. v. EPA, 749 F.2d 826, 835-36 (D.C. Cir. 1984).
Because Subpart 2 is neither listed in § 109(d)(1) nor
incorporated by reference in either § 108, id § 7408, or
§ 109(b), it cannot render revision of the ozone NAAQS
inappropriate.
Second, the State Petitioners and Congressman Bliley
argue, based upon the classification table in § 181(a)(1), id.
§ 7511(a)(1), that Subpart 2 codified the 0.12 ppm ozone
NAAQS and, therefore, only the Congress can promulgate a
revised NAAQS. Yet not all areas designated nonattainment
for ozone will have design values of 0.121 ppm or higher. In
fact, this was true of areas designated nonattainment for
ozone as a result of the 1990 amendments, see Ozone Final
Rule, 62 Fed. Reg. at 38,884/3, at least in part because of the
stringent criteria in the Clean Air Act for changing the
designation of an area to attainment from nonattainment. See
42 U.S.C. § 7407(d)(3)(E)(iii) (redesignation permissible
only if area’s attainment of NAAQS “is due to permanent and
enforceable reductions in emissions”). In short, although the
numbers in the classification table are based upon the 0.12
ppm ozone NAAQS, they are neither equivalent to nor a
codification of the NAAQS.
36a
Not only does the EPA, as we conclude above, retain
authority to promulgate a revised ozone NAAQS; the agency
is still required, “in no case later than 2 years from the date of
promulgation” of a revised NAAQS, to designate areas as
attainment, nonattainment, or unclassifiable under that
NAAQS. /d. §7407(d)(1)(B). Although the 1990
amendments extended by roughly 18 months the maximum
time between promulgation of a revised NAAQS and
designation of nonattainment areas under that NAAQS, see
42 U.S.C. § 7407(d)(1)-(2) (1988), they made no substantive
change in the EPA’s authority to designate areas as
nonattainment under a revised NAAQS. Therefore, we hold
that the EPA retains the power to designate areas as
nonattainment under a revised ozone NAAQS.
2. The EPA’s Power to Enforce the Revised Ozone
Standard
That the enactment of Subpart 2 does not alter the EPA’s
authority to revise the ozone NAAQS or to designate areas as
nonattainment for ozone does not, however, compel the
conclusion that Subpart 2 has no effect upon the EPA’s
authority to enforce a revised primary ozone NAAQS. (We
consider the enforcement of secondary ozone NAAQS in Part
IIl.A.3, below.) In fact, the text and structure of Subparts |
and 2 suggest precisely the opposite conclusion. After
designating an area as nonattainment under a NAAQS, the
EPA normally looks to Subpart 1 for authority to “classify
the area for the purpose of applying an attainment date.” 42
U.S.C. § 7502(a)(1)-(2). The cited provisions, however, do
not apply “with respect to nonattainment areas for which
classifications [and attainment dates] are specifically
37a
provided under other provisions of [Part D of Subchapter | of
the Clean Air Act].” Jd. § 7502(a)(1)(C), (a)(2)(D).
The EPA argues that Subpart 2 specifically provides
classifications and‘attainment dates only for nonattainment
designations under the 0.12 ppm ozone NAAQS. The State
and Non-State Petitioners counter that Subpart 2 specifically
provides classifications and dates for all areas designated
nonattainment under any ozone NAAQS. We agree with the
petitioners.
The pertinent provision of Subpart 2 reads as follows:
(a) Classification and attainment dates for
1989 nonattainment areas. — (1) Each area designated
nonattainment for ozone pursuant to section 7407(d) of
this title shall be classified at the time of such
designation, under table 1, by operation of law, as a
Marginal Area, a Moderate Area, a Serious Area, a
Severe Area, or an Extreme Area. .. .
Id. § 7511(a)(1). As the petitioners note, § 107(d), 42 U.S.C.
§ 7407(d), specifies three different times at which an area can
be designated “nonattainment for ozone”: immediately
following enactment of the 1990 amendments, id.
§ 7407(d)(4); after the EPA revises the ozone NAAQS, id.
§ 7407(d)(1); and when an area that was in attainment, either
when the Congress enacted the 1990 amendments or when
the EPA promulgated a revised ozone NAAQS, later ceases
to comply, id. § 7407(d)(3). The petitioners conclude from
the general reference to § 107(d) that the classifications and
attainment dates in Subpart 2 apply to areas designated under
§§ 107(d)(1), (3), and (4). The EPA gamely responds that the
reference to § 107(d) includes only subsection (4), but we do
38a
not defer to the agency’s interpretation because we find that
the Congress has spoken on the “precise question at issue”
and we “must give effect to the unambiguously expressed
intent of Congress.” Chevron U.S.A. Inc., 467 U.S. 837, 842-
43 & n.9 (1984). We canvass the two reasons that lead us to
this conclusion before returning to the EPA’s argument.
First, the reference to § 107(d) in § 181(a)(1) appears to
have been purposeful and not the drafting error that the
EPA’s interpretation implies. The Congress considered but
did not adopt bills that clearly would have limited the reach
of Subpart 2 to nonattainment designations made
immediately following enactment of the 1990 amendments.
The Senate bill contained a version of Subpart 2 that
classified only those areas designated nonattainment for
ozone under its equivalent of § 107(d)(4). See S. 1630, 101st
Cong. §§ 101, 107, reprinted in III Legislative History of the
Clean Air Act Amendments of 1990, at 4124-25, 4195
{hereinafter 1990 Legislative History]. The version of
Subpart 2 in the House bill, as originally introduced,
similarly referred only to designations made under its
equivalent of § 107(d)(4). See H.R. 3030, 101st Cong.
§§ 101(a), 103, reprinted in II 1990 Legislative History, at
3748-49, 3795-96. The House committee, however, replaced
the specific reference to what is now § 107(d)(4) with a
general reference to § 107(d). See H.R. Rep. No. 101-490, at
3-6, 17 (1990), reprinted in II 1990 Legislative History, at
3027-30, 3041. The Conference committee then reported the
text of the House bill rather than that of the Senate. See H.R.
Rep. No. 101-952, at 335 (1990), reprinted in I 1990
Legislative History, at 1785.
39a
Second, our conclusion that the Congress intentionally
referred to § 107(d) as a whole is supported by a comparison
of Subparts | and 2. The Congress enacted Subpart 2
because of the failure of the controls in Subpart | to bring
areas into attainment with the 0.12 ppm standard in the
allotted time. See H.R. Rep. No. 101-490, at 145-50,
reprinted in II 1990 Legislative History, at 3169-74. Rather
than continue treating all ozone nonattainment areas alike,
the Congress allowed the various areas between 3 and 20
years to attain the ozone NAAQS, depending upon the extent
of the area’s ozone problem. See id. at 146-47 (“In 1977,
Congress tried to waive [sic] a ‘magic wand’ and command
that all nonattainment areas [for ozone] will meet the
applicable [NAAQS]. .. . by December 31, 1987. .. .
[That] date[{ ] ha[s] come and gone and it is clear that... we
had no ‘magic’ solutions.”), reprinted in II 1990 Legislative
History, at 3170-71. As the petitioners argue, because the
1990 amendments extended the time for nonattainment areas
to comply with the 0.12 ppm ozone NAAQS, they must
preclude the EPA from requiring areas to comply either more
quickly or with a more stringent ozone NAAQS.
Subpart | requires compliance with a primary NAAQS
“as expeditiously as practicable, but no later than 5 years
from the date such area was designated nonattainment.” 42
U.S.C. § 7502(a)(2)(A). All nonattainment areas would have
until 2012 to comply with the revised ozone NAAQS if the
EPA and the States were to take the full time authorized in
Subpart | for making attainment designations and the EPA
were to approve every possible extension for each area. See
id. §§ 7407(d)(1)(A)-(B), 7502(a)(2)(A), (C). Such wide
discretion is inconsistent, however, with Subpart 2, in which
the Congress stripped the EPA of discretion to decide which
40a
ozone nonattainment areas should receive more time to reach
attainment (with two limited exceptions not relevant here, see
id. § 7511(a)(4), (5)). Moreover, under § 181(a) of Subpart
2, Los Angeles, the nation’s only Extreme Area, has until
2010 to attain the 0.12 ppm ozone NAAQS, and the
possibility of extending that deadline until 2012. That Los
Angeles should also have to attain a more stringent ozone
standard by that same year, if not earlier, clearly runs counter
to the comprehensive enforcement scheme enacted in Subpart
2.
The EPA offers two arguments against this interpretation
of Subparts | and 2. First, the EPA contends that a recent
statute confirms its power to designate nonattainment areas
under the revised ozone standard. See Pub. L. No. 105-178,
§ 6103(a), 112 Stat. 465 (1998) (extending time to two years
from one year for governor to submit proposed designation
under 0.08 ppm ozone NAAQS). That statute also
specifically states, however, that “[nJothing in section [ ] ...
6103 shall be construed by the Administrator of
Environmental Protection Agency or any court... to affect
any pending litigation or to be a ratification of the ozone .. .
standard[ ].” /d. § 6104. Further, even if the EPA were
correct that § 6103 confirms the agency’s power to designate
areas under a revised ozone NAAQS, that power was never
in doubt, as we concluded above. Indeed, § 6104 simply
does not bear upon the question we address here: whether
Subpart | or Subpart 2 provides the applicable enforcement
mechanisms for an area designated nonattainment under a
revised ozone NAAQS.
Second, the EPA argues that read in context the reference
to § 107(d) in § 181(a)(1) relates only to designations made
4la
‘under § 107(d)(4). Because the table in § 181(a)(1) classifies
areas based upon a design value that roughly measures
attainment of the 0.12 ppm ozone NAAQS, the EPA
contends that the nonattainment designations referenced in
§ 181(a)(1) are only those designations made under the 0.12
ppm ozone NAAQS. This explanation, however, does not
square with either the Congress’s decision not to refer to
§ 107(d)(4) specifically or the long-term nature of the
attainment scheme enacted in Subpart 2; on the EPA’s
interpretation, that scheme would have been stillborn had the
EPA revised the ozone NAAQS immediately after the
Congress enacted the 1990 amendments.
The EPA points next to § 181(b)(1), which specifies the
attainment dates for areas that met the 0.12 ppm standard
when the Congress enacted the 1990 amendments but that
later cease to comply. That section, however, applies only to
areas designated under § 107(d)(3) that previously were
“designated attainment or unclassifiable for ozone under
section [107(d)(4) ].” That § 181(b)(1) provides special rules
for such areas, but not for areas designated under § 107(d)(3)
that had previously been designated attainment for ozone or
unclassifiable under § 107(d)(1), does not support the EPA’s
argument that the phrase in §18l(a)(l1) “designated
nonattainment for ozone pursuant to section 107(d)” denotes
only those designations made under § 107(d)(4). If anything,
the specification of § 107(d)(4) in § 181(b)(1) makes its
absence from § 181(a)(1) all the more striking.
The final bit of context to which the EPA points is the
title of § 181(a): “Classification and attainment dates for
1989 nonattainment areas.” Because the title specifies “1989
nonattainment areas,” we are told, § 181(a) must refer only to
42a
nonattainment designations made immediately after
enactment of the 1990 amendments, that is, designations
made under § 107(d)(4). Although “the title of a statute or
section can aid in resolving an ambiguity in the legislation’s
text,” JNS v. National Ctr. for Immigrants’ Rights, Inc., 502
U.S. 183, 189 (1991), a title cannot be allowed to create an
ambiguity in the first place. See Maguire v. Commissioner of
Internal Revenue, 313 U.S. 1, 9 (1941) (“[T]he title of an act
will not limit the plain meaning of the text.”). The text of
§ 181(a) clearly encompasses nonattainment designations
made under all subsections of § 107(d). There simply is no
ambiguity in need of resolution by reference to the title of the
section.
In sum, §181(a) “specifically provide[s]” for
classifications and attainment dates for areas designated
nonattainment for ozone pursuant to § 107(d)(1).
Accordingly, Subpart 2, not Subpart 1, provides the
classifications and attainment dates for any areas designated
nonattainment under a revised primary ozone NAAQS, see
42 U.S.C. § 7502(a)(1(C), (aX(2)(D), and the EPA must
enforce any revised primary ozone NAAQS under Subpart 2.
3. The Secondary Ozone NAAQS
The Non-State Petitioners briefly contend that our
conclusion that Subpart 2 provides the classifications and
attainment dates for areas designated nonattainment under a
revised primary ozone NAAQS is equally applicable to the
enforcement of a revised secondary ozone NAAQS. We find
it impossible to conclude, however, that Subpart 2
“specifically provide[s]” for classifications and attainment
dates for areas designated nonattainment with a revised
secondary ozone NAAQS; § 181(a)(1) expressly refers only
43a
to primary NAAQS and Subpart 2 not once mentions
secondary NAAQS. Further, attainment dates in Subpart 1
for secondary standards are less stringent than for primary
standards, making comparison with the more lenient dates in
Subpart 2 less troubling. Compare id. § 7502(a)(2)(B)
(attainment of secondary NAAQS “shall be ... achieved as
expeditiously as practicable after the date such area was
designated nonattainment”), with id. § 7502(a)(2)(A)
(attainment of primary NAAQS “shall be ... achieved as
expeditiously as practicable, but no later than 5 years from
the date such area was designated nonattainment”).
Nonetheless, we understand Subpart 2 to codify the
Congress’s judgment as to what is “as expeditiously as
practicable” in reducing an area’s level of ozone.
Consequently, the EPA is precluded from requiring any steps
toward compliance with a revised secondary ozone NAAQS
prior to an area’s attainment of the 0.12 ppm standard. In
areas that meet the 0.12 ppm standard, however, Subpart 2
erects no bar to the EPA’s requiring compliance with a
revised secondary ozone NAAQS “as expeditiously as
practicable.”
B. Ozone’s Health Benefits
Petitioners presented evidence that according to them
shows the health benefits of tropospheric ozone as a shield
from the harmful effects of the sun’s ultraviolet rays—
including cataracts and both melanoma and nonmelanoma
skin cancers. In estimating the effects of ozone
concentrations, EPA explicitly disregarded these alleged
benefits.
EPA explained its decision first as a matter of statutory
interpretation. Under the Clean Air Act, EPA’s ambient
44a
standards for any pollutant are to be “based on [the] criteria”
that EPA has published for that pollutant. 42 U.S.C.
§ 7409(b)(1) & (2). The “criteria,” in turn, are to “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.” /d. § 7408(a)(2).
The reference to “all identifiable effects” would seem on its
face to include beneficent effects.
EPA attempts to avoid this straightforward reading in
several ways. First, it points to the term “such pollutant,”
arguing that the statute requires it to focus exclusively on the
characteristics that make the substance a “pollutant.” But the
phrase “pollutant” is simply a label used to identify a
substance to be listed and controlled by the statute. While it
is perfectly true that a substance known to be utterly without
adverse effects could not make it onto the list, this fact of
nomenclature does not visibly manifest a congressional intent
to banish consideration of whole classes of “identifiable
effects.”
EPA also relies on the fact that two of the three specified
considerations under § 108(a)(2)’s general mandate refer to
“adverse effect[s]”:
The criteria for an air pollutant, to the extent practicable,
shall include information on—
(A)those variable factors (including atmospheric
conditions) which of themselves or in combination with other
factors may alter the effects on public health or welfare of
such air pollutant;
—. wae ee .
45a
(B) the types of air pollutants which, when present in the
atmosphere, may interact with such pollutant to produce an
adverse effect on public health or welfare; and
(C) any known or anticipated adverse effects on welfare.
Id. § 7408(a)(2) (emphasis added). EPA’s argument would
be of uncertain force even if all three types of effects
specifically required to be considered were spoken of as
“adverse effects”; there is no reason to read “adverse” back
into the “all identifiable effects” of § 108(a)(2). But as one
of the three specified classes refers to “effects” unmodified,
id. § 7408(a)(2)(A), we can reject EPA’s argument without
even reaching that issue. That Congress qualified “effects” in
clauses (B) and (C) with “adverse” seems only to strengthen
the supposition that in (A)}—and in the general mandate—it
intended to cover all health or welfare effects. Therefore if
petitioners’ contentions are right, clause (A) applies to ozone:
the presence of ultraviolet radiation at various levels “alter[s]
the effects [of ozone] on public health or welfare” by making
them on the whole less malign—perhaps even beneficial.
EPA next argues that Title VI of the Clean Air Act, id.
§§ 7671-7671q, which mandates certain measures to preserve
stratospheric ozone, represents a complete consideration of
ozone’s beneficial role as a UV shield. Petitioners’ claim,
however, is that ground-level (tropospheric) ozone-—the
subject of this rule—has a UV-screening function
independent of the ozone higher in the atmosphere. EPA
points to nothing in the statute that purports to address
tropospheric ozone.
Finally, EPA directs us towards legislative history from
the 1970 and 1990 Clean Air Act Amendments. The “all
46a
identifiable effects” language, however, dates to the 1967
Amendments. Legislative history from the 1970 and 1990
Congresses cannot be “an authoritative interpretation of what
the [1967] statute meant,” because it is “the function of the
courts and not the Legislature, much less a Committee of one
House of the Legislature, to say what an enacted statute
means.” Pierce v. Underwood, 487 U.S. 552, 566 (1988).
Under Chevron, we defer to an agency’s interpretation of
a Statute if “the statute is silent or ambiguous with respect to
the specific issue” and “the agency’s answer is based on a
permissible construction of the statute.” 467 U.S. at 843.
We find no such ambiguity in this case. Further, EPA’s
interpretation fails even the reasonableness standard of
Chevron’s second part: it seems bizarre that a statute
intended to improve human health would, as EPA claimed at
argument, lock the agency into looking at only one half of a
substance’s health effects in determining the maximum level
for that substance. At oral argument even EPA counsel
seemed reluctant to claim that the statute justified disregard
of the beneficent effects of a pollutant bearing directly on the
health symptoms that accounted for its being thought a
pollutant at all (suppose, for example, a chemical that both
impedes and enhances breathing, depending on the person or
circumstances); he also seemed unable to distinguish that
case from the one here—where the chemical evidently
impedes breathing but provides defense against various
cancers.
Legally, then, EPA must consider positive identifiable
effects of a pollutant’s presence in the ambient air in
formulating air quality criteria under § 108 and NAAQS
under § 109. EPA’s other arguments are technical, and are of
47a
two sorts: those that allegedly show petitioners’ studies to be
fatally flawed and those that allegedly show specific inflation
of results in these studies. We need only consider the first
sort, for EPA chose to give the studies no weight at all.
Petitioners rely primarily on studies by Lutter and Cupitt.
EPA found that these could be ignored because the marginal
benefits are difficult, if not impossible, to quantify reliably
and because there is “no convincing basis for concluding that
any such effects . . . would be significant.” But these are not
the criteria by which EPA assesses adverse health effects. It
does not rigorously or uniformly demand either
quantifiability, see, e.g., Ozone Final Rule, 62 Fed. Reg. at
38,860/3 (admitting that “quantitative risk estimates could
not be developed” for certain adverse effects of ozone on
which EPA regulated); EPA Ozone Brief at 48 (defending
consideration of various effects that “played an important
role in the Administrator’s final decision” despite absence of
quantification: “EPA did not estimate the risk for such
effects because ‘information [was] too limited to develop
quantitative estymates,—not because there is doubt the
effects oceur.”) (alteration and emphasis in original) (citation
omitted), or any specific level of significance. As we can see
no reason for imposing a higher information threshold for
beneficent effects than for maleficent ones, we have no basis
for affirming EPA’s decision to disregard the studies.
As we said above. we are remanding to EPA to formulate
adequate decision criteria for its ordinary object of analysis—
ill effects. We leave it to the agency on remand to determine
whether, wsing the same approach as it does for those,
tropospheric ozone has a beneficent effect, and if so, then to
48a
assess ozone’s net adverse health effect by whatever criteria
it adopts.
IV. Particulate Matter
A. PMy as Coarse Particle Indicator
We now turn to petitioners’ challenges to the Agency’s
regulation of coarse particulate pollution. Both the 1987
NAAQS and the proposed standards regulate all particles
with diameters under 10 micrometers, signified by the
indicator PMjo. The PM; spectrum includes both coarse and
fine particles. While the main distinction between coarse and
fine particles is the process by which they are produced, EPA
and epidemiologists who study the health effects of
particulate pollution identify coarse and fine particles through
rough approximations of those particles’ diameters. Coarse
particles, which become airborne usually from the crushing
and grinding of solids, generally have diameters between 2.5
and 10 micrometers and can thus be identified by the
indicator PMjo.2s. Fine particles, indicated in these new
NAAQS by PM2>s, come mainly from combustion or gases
and generally have diameters of 2.5 micrometers or less.
Despite EPA’s conclusion that coarse and fine particles
pose independent and distinct threats to public health, the
Agency chose not to adopt an indicator, such as PMjo. 5, that
would measure only the coarse fraction of PMjo. Petitioners
make two arguments: that there is no scientific basis for
regulating coarse particles at all, and that even if there were,
retention of the PMyjo indicator simultaneously with the
establishment of the new fine particle indicator is
unsupported by evidence in the record and arbitrary and
capricious. We agree with this latter argument.
49a
Beginning with petitioners’ first challenge, we think the
record contains sufficient evidence to justify the Agency’s
decision to regulate coarse particulate pollution. While the
relationship between PMyjo pollution and adverse health
effects justifying the 1987 NAAQS was well-established, see
NRDC v. EPA, 902 F.2d 962, 967-68 (D.C. Cir. 1990), two
studies contained in the record of these proceedings
concentrated specifically on the health effects caused by the
coarse fraction of PMjo pollution. See Mary Ellen Gordian et
al., “Particulate Air Pollution and Respiratory Disease in
Anchorage, Alaska,” 104 Envtl. Health Persp. 290 (1996)
(studying volcanic ash); Brockton J. Hefflin et al.,
“Surveillance for Dust Storms and Respiratory Diseases in
Washington State, 1991,” 49 Archives of Envtl. Health 170
(1994) (studying fugitive dust). In addition, the record
contains at least nine multivariate analyses finding
statistically significant relationships with health effects for
both PM2s5 and PMjo, suggesting that the portion of PMio
pollution unaccounted for by PM2s (i.e., coarse particles)
explains some of the observed adverse health effects. In
other words, because regression analysis holds the PM?;
component constant, the PMio effect recognized in these
equations actually evidences results from coarse particulate
pollution. To be sure, petitioners have pointed to some
evidence to the contrary. But given that our review is limited
to “ascertaining that the choices made by the Administrator
were reasonable and supported by the record,” and does not
include “judg{ing] the merits of competing expert views,”
Lead Industries, 647 F.2d at 1160, we find ample support for
EPA’s decision to regulate coarse particulate pollution above
the 1987 levels.
50a
Having found independent health consequences from
coarse particulate pollution, EPA nevertheless decided to
regulate the coarse fraction of PMjo indirectly, using PMjo
(which includes both coarse and fine PM) as a “surrogate for
coarse fraction particles.” PM Final Rule, 62 Fed. Reg. at
38,668/2. While recognizing that PMjo.2; would have served
as a Satisfactory coarse particle indicator, EPA offers three
justifications for its decision to use PMjo instead: (1) Both
the Gordian and Hefflin studies used PMjo9, not PMjo.2s, as
the variable in their models, (2) the PMjo standards will work
in conjunction with the PM)2;5 standards by regulating the
portion of particulate pollution not regulated by the PM2s
standards, and (3) a nationwide monitoring program for PMj¢
already exists. We find none of these explanations
persuasive.
As to the first argument, while acknowledging that the
indicator used in the studies captures both coarse and fine
particles, EPA nevertheless maintains that PMyjo is an
effective indicator for the regulation of coarse particulate
pollution. “Adopting the indicator used in the studies,” the
Agency says, “increases the likelihood that the level selected
will result in the health protections predicted.” But as EPA’s
own staff paper suggests, PMjo is “inherently confounded” by
the presence of PM? particles, meaning that any regulation
of PMjo pollution will include both coarse and fine particles.
See PM Staff Paper at V-59. Using PMjo as the coarse
particle indicator, instead of PMjo.25, will thus regulate more
than just the coarse fraction of PMjo, and the amount of
coarse particulate pollution permitted will depend (quite
arbitrarily) on the amount of PM2; pollution in the air. For
example, assuming the 50 microgram annual PMjpo level
adopted by the Agency and a region with an annual PM);
ee
Sla
pollution level of 15 micrograms, the PMjo indicator would
prohibit coarse particulate (PMyjo.25) pollution from
exceeding 35 micrograms. But in an area with only 5
micrograms of PM2; pollution, the NAAQS would permit
coarse particulate pollution to reach as high as 45
micrograms.
EPA’s second argument—that the PMyjo standard will
work in conjunction with the PM2<5 standard—suffers from
the same deficiency. Accepting EPA’s finding of “profound
physicochemical differences” between coarse and fine PM,
PM Staff Paper at V-59, such that each requires independent
regulation, we cannot discern exactly how a PMjo standard,
instead of a PMjo.25 standard, will work alongside a PM2>;
standard to regulate only the coarse fraction of PMio. EPA
provides no explanation to aid us in understanding its
decision. In fact, as the example above indicates, it is the
very presence of a separate PM); standard that makes
retention of the PMjo indicator arbitrary and capricious. Far
from working in conjunction to regulate coarse particles,
PMjo and PM2s indicators, when used together, lead to
“double regulation” of the PM2; component of PMyjo and
potential underregulation of the PMjo.2 5 component since the
amount of PMjo.25 permitted will always depend on the
amount of PM); in the air.
EPA’s final argument is pragmatic. It maintains that
PMyio is a better indicator than PMjo.25 for coarse particulate
pollution because a nationwide monitoring program for PMio
already exists. But as EPA acknowledges elsewhere in its
brief, NRDC bars EPA from considering factors unrelated to
public health in setting air quality standards. Echoing our
decision in Vinyl Chloride, NRDC held that “the
52a
Administrator may not consider cost and technological
feasibility in determining what is ‘safe’; such a determination
‘must be based solely upon the risk to health.”” NRDC, 902
F.2d at 973 (quoting Vinyl Chloride, 824 F.2d 1146, 1166
(D.C. Cir. 1987) (in banc)); see also American Petroleum
Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981); Lead
Industries, 647 F.2d at 1148-55. The administrative
convenience of using PMyjo cannot justify choosing an
indicator poorly matched to the relevant pollution agent.
In view of our conclusion that PMj9 amounts to an
arbitrary indicator for coarse particle pollution, we need not
address petitioners’ separate challenge to the PMjo levels or
secondary standards. We note, however, that whatever levels
the Agency ultimately selects for coarse particle pollution
will need to comply with the requirements set forth in Part |
of this opinion.
B. Fine Particles as “New Pollutant”
The Attorneys General of Ohio, Michigan, and West
Virginia (“state petitioners”) argue that EPA is regulating
PM2s for the first time. Because they consider PM2 5 to be a
“new pollutant,” they argue that § 108 of the Clean Air Act
requires EPA to conduct further research on PM) >’s health
effects before listing it as a pollutant, to issue an air quality
criteria document reflecting the latest science on the health
effects of the pollutant, and to assist states by developing
“data relating to the cost of installation and operation, energy
requirements, emission reduction benefits, and environmental
impact of the emission control technology.” 42 U.S.C.
§ 7408(b)(1).
53a
Although EPA never responds to this argument, five
northeastern states (as respondent intervenors and amici) do.
Pointing out that previous NAAQS have always included
PM}2s, these attorneys general support the EPA’s decision not
to list PM2 5 separately as a new pollutant. We agree.
The state petitioners cannot escape the fact that the
original standards for particulate pollution using Total
Suspended Particulates (TSP) as indicator, as well as the
1987 NAAQS that used PMjo, included by definition every
particle 2.5 micrometers and smaller. Moreover, in some
areas fine particles often dominate PM; pollution. See PM
Staff Paper at V-63. By refining the NAAQS to focus on
smaller particles that EPA found posed distinct threats to
public health, EPA has done with these regulations exactly
what we held it could do in 1987 when it made the change
from Total Suspended Particulates to PMjo. See NRDC, 902
F.2d at 965-66. EPA's decision to update the NAAQS to
focus on PMs merely continues a trend based on evolving
science. It does not violate the provisions of § 108 of the
Clean Air Act.
C. Failure to Identify a Biological Mechanism for
Particulate Pollution’s Relationship to Adverse
Health Effects
Also challenging the establishment of a fine particle
standard, non-state petitioners argue that EPA failed to
explain the biological mechanism through which particulate
pollution causes adverse health effects. Even if
epidemiological studies show robust statistical relationships
between pollution and health effects, they say, the absence of
proof of causation—i.e., how particles actually interact with
54a
cells and organs to cause sickness and death—is fatal to the
standard. We disagree.
To begin with, the statute itself requires no such proof.
The Administrator may regulate air pollutants “emissions of
which, in his judgment, cause or contribute to air pollution
which may reasonably be anticipated to endanger public
health or welfare.” 42 U.S.C. § 7408(a)(1)(A) (1994)
(emphasis added). Moreover, this court has never required
the type of explanation petitioners seek f m EPA. In fact,
we have expressly held that EPA’s decison to adopt and set
air quality standards need only be based on “reasonable
extrapolations from some reliable evidence.” NRDC vy.
Thomas, 805 F.2d 410, 432 (D.C. Cir. 1986). Indeed, were
we to accept petitioners’ view, EPA (or any agency for that
matter) would be powerless to at whenever it first
recognizes clear trends of mortality »r morbidity in areas
dominated by a particular pathogen.
The numerous epidemiological studies appearing in this
record, some of which EPA also used to support the 1987
NAAQS, easily satisfy the standard articulated in the statute
and emphasized repeatedly in decisioms of this court.
Covering diverse geographic locations with widely varying
mixes of air pollution, the studies fownd statistically
significant relationships between air-borne particulates
signified by a variety of indicators and adverse health effects.
Given EPA’s statutory mandate to establish standards based
on “the latest scientific knowledge,” 42 U.S.C. §§ 7408(a)(2),
7409(d), the growing empirical evidence demonstrating a
relationship between fine particle pollution and adverse
health effects amply justifies establishment of new fine
particle standards.
5Sa
D. Visibility Effects
The Environmental Petitioners challenge the EPA’s
decision to set the secondary PM2; NAAQS at levels
equivalent to the primary NAAQS. According to the
petitioners, the EPA’s failure to set the secondary NAAQS at
more stringent levels will result in “adverse visibility
impacts” in parts of the country. In view of our conclusion in
Part I, above, that the EPA has not adequately explained the
principles upon which it relied in setting the levels in the
NAAQS for PM, we need not reach the main thrust of the
petitioners’ challenge to the secondary NAAQS. On the
other hand, the Environmental Petitioners have also raised a
question of statutory interpretation, the resolution of which
should assist the EPA if it revisits its decision to set the
secondary PM2<s NAAQS.
In the PM Final Rule, the EPA decided “to address the
welfare effects of PM on visibility by setting secondary
standards identical to the suite of PM25 primary standards, in
conjunction with the establishment of a regional haze
program under § 169A of the Act.” PM Final Rule, 62 Fed.
Reg. at 38,679/3. Section 169A “declares as a national goal
the prevention .. . and the remedying of any . . . impairment
of visibility in mandatory class I Federal areas . . . result[ing]
from manmade air pollution.” 42 U.S.C. § 7491. Mandatory
class I areas include all international parks, and national
parks and wilderness areas of a certain size. See 42 U.S.C.
§ 7472(a). The EPA concluded that reduction of PM? ; levels
in class I areas would benefit the surrounding areas as well
because “the same haze that degrades visibility within or
looking out from a national park also degrades visibility
outside it.” PM Final Rule, 62 Fed. Reg. at 38,682/1.
56a
The Environmental Petitioners argue that § 109(b)(2), 42
U.S.C. § 7409(b)(2), requires the EPA to set secondary
NAAQS at a level sufficient to eliminate all adverse visibility
effects and that it leaves the EPA no discretion to decide that
some visibility impairment is better remedied through
another program. This argument must be wrong. For, as the
EPA argues, the Congress required the EPA to implement a
regional haze program specifically in order to address adverse
visibility effects that persist in class I areas after attainment
of the secondary NAAQS. See 42 U.S.C. § 7470(1) (purpose
of this part of Clean Air Act is “to protect public . . . welfare
from any actual or potential adverse effect which ... may
reasonably be anticipate[d] to occur ... notwithstanding
attainment and maintenance of all [NAAQS]”). Accordingly,
we conclude that the Congress did not intend the secondary
NAAQS to eliminate all adverse visibility effects and,
therefore, that the EPA acted within the scope of its authority
in deciding to rely upon the regional haze program to
mitigate some of the adverse visibility effects caused by
PM?s.
Conclusion
We remand the cases to EPA for further consideration of
all standards at issue. We do not vacate the new ozone
standards because the standard is unlikely to engender costly
compliance activities in light of our determination that it
cannot be enforced by virtue of Clean Air Act § 181(a), 42
U.S.C. §7511(a). We vacate the challenged coarse
particulate matter standards because EPA will have to
develop different standards when it corrects the arbitrarily
chosen PMyjo indicator. As to the fine particulate matter
standards, we invite briefing on the question of remedy:
57a
possibilities include but are not limited to vacatur,
non-vacatur subject to application to vacate, and
non-vacatur.* An order giving the briefing particulars will
follow.
Because of the substantial investment of time this matter
has required and the many unresolved issues bearing on
application of whatever standards may emerge, this panel will
in the interest of judicial economy retain jurisdiction over the
cases following remand. See Sierra Club v. Gorsuch, 715
F.2d 653, 661 (D.C. Cir. 1983).
TATEL, Circuit Judge, dissenting from Part I:
The Clean Air Act has been on the books for decades, has
been amended by Congress numerous times, and has been the
subject of regular congressional oversight hearings. The Act
has been parsed by this circuit no fewer than ten times in
published opinions delineating EPA authority in the
NAAQS-setting process. Yet this court now threatens to
strike down section 109 of the Act as an unconstitutional
delegation of congressional authority unless EPA can
articulate an intelligible principle cabining its discretion. In
doing so, the court ignores the last half-century of Supreme
Court nondelegation jurisprudence, apparently viewing these
permissive precedents as mere exceptions to the rule laid
down 64 years ago in A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935). Because section 109’s
delegation of authority is narrower and more principled than
delegations the Supreme Court and this court have upheld
* Briefing should address the possibility that the previous particulate
matter standard will spring back to life in response to our decision to
vacate the new coarse particulate matter standard.
58a
since Schechter Poultry, and because the record in this case
demonstrates that EPA’s discretion was in fact cabined by
section 109, I respectfully dissent.
Section 109 requires EPA to publish air quality standards
“the attainment and maintenance of which in the judgment of
the Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the public
health.” 42 U.S.C. § 7409(b)(1) (1994). Compare section
109 to the language of section 303 of the Communications
Act of 1934, which gave the FCC authority to regulate
broadcast licensing in the “public interest,” and which the
Supreme Court sustained in National Broadcasting Co. v.
United States, 319 U.S. 190, 225-26 (1943). The FCC’s
general authority to issue regulations “as public convenience,
interest, or necessity requires” was sustained in United States
v. Southwestern Cable Co., 392 U.S. 157, 178 (1968). The
Supreme Court has sustained equally broad delegations to
other agencies, including the Price Administrator’s authority
to fix “fair and equitable” commodities prices, Yakus v.
United States, 321 U.S. 414, 426-27 (1944), the Federal
Power Commission’s authority to determine “just and
reasonable” rates, FPC v. Hope Natural Gas Co., 320 U.S.
591, 600 (1944), the War Department’s authority to recover
“excessive profits” earned on military contracts, Lichter v.
United States, 334 U.S. 742, 778-786 (1948), and the
Attorney General’s authority to regulate new drugs that pose
an “imminent hazard to public safety,” Touby v. United
States, 500 U.S. 160, 165 (1991). See also Milk Indus.
Found. v. Glickman, 132 F.3d 1467, 1475 (D.C. Cir. 1998)
(upholding delegation to Secretary of Agriculture to approve
interstate compacts upon a finding of “compelling public
interest”’).
59a
Given this extensive Supreme Court precedent sustaining
general congressional delegations, no wonder the First
Circuit rejected a similar nondelegation challenge to the
Clean Air Act’s “requisite to protect the public health”
language:
The power granted to EPA is not “unconfined and
vagrant”. [Schechter Poultry, 295 U.S. at 551 (Cardozo,
J., concurring).] The Agency has been given a well
defined task by Congress—to reduce pollution to levels
“requisite to protect the public health”, in the case of
primary standards. The Clean Air Act outlines the
approach to be followed by the Agency and describes in
detail many of its powers. ... Yet there are many
benchmarks to guide the Agency and the courts in
determining whether or not EPA is exceeding its powers,
not the least of which is that the rationality of the means
can be tested against goals capable of fairly precise
definition in the language of science.
Administrative agencies are created by Congress
because it is impossible for the Legislature to acquire
sufficient information to manage each detail in the long
process of extirpating the abuses identified by the
legislation; the Agency must have flexibility to
implement the congressional mandate. Therefore,
although the delegation to EPA was a broad one, . . . we
have little difficulty concluding that the delegation was
not excessive.
South Terminal Corp. v. EPA, 504 F.2d 646, 677 (Ist Cir.
1974).
60a
I do not agree with my colleagues that /nternational
Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991)
(“Lockout/Tagout I”), requires a different result. That case
remanded to OSHA for a more precise definition of section
3(8) of the Occupational Safety and Health Act, which
granted the Agency authority to enact workplace safety
standards “reasonably necessary or appropriate to provide
safe or healthful employment or places of employment.” /d.
at 1316. The Clean Air Act does not delegate to EPA
authority to do whatever is “reasonably necessary or
appropriate” to protect public health. Instead, the statute
directs the Agency to fashion standards that are “requisite” to
protect the public health. In other words, EPA must set
pollution standards at levels necessary to protect the public
health, whether “reasonable” or not, whether “appropriate” or
not.
Moreover, in setting standards “requisite to protect the
public health,” EPA discretion is not unlimited. The Clean
Air Act directs EPA to base standards on “air quality criteria”
that “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.” 42 U.S.C. § 7408(a)(2); see id. § 7409(b)(1); see
also id. § 7408(a)(2) (requiring air quality criteria, “to the
extent practicable,” to “include information on — (A) those
variable factors (including atmospheric conditions) which of
themselves or in combination with other factors may alter the
effects on public health or welfare of such air pollutant; (B)
the types of air pollutants which, when present in the
atmosphere, may interact with such pollutant to produce an
adverse effect on public health or welfare; and (C) any
6la
known or anticipated adverse effects on welfare”). Indeed,
the principles constraining EPA discretion are at least as
specific as those this court sustained in Lockout/Tagout I],
i.e., that OSHA must identify a “‘significant’ safety risk, to
enact a safety standard that provides ‘a high degree of worker
protection’.” International Union, UAW v. OSHA, 37 F.3d
665, 669 (D.C. Cir. 1994) (“Lockout/Tagout II"). By
directing EPA to set NAAQS at levels “requisite’—not
reasonably requisite—to protect the public health with “an
adequate margin of safety,” the Clean Air Act tells EPA
exactly the same thing, i.e., ensure a high degree of
protection.
Although this court’s opinion might lead one to think that
section 109’s language permitted EPA to exercise unfettered
discretion in choosing NAAQS, the record shows that EPA
actually adhered to a disciplined decisionmaking process
constrained by the statute’s directive to set standards
“requisite to protect the public health” based on criteria
reflecting the “latest scientific knowledge.” To identify
which health effects were “significant enough” to warrant
protection, EPA followed guidelines published by the
American Thoracic Society. See National Ambient Air
Quality Standards for Ozone: Proposed Decision, 61 Fed.
Reg. 65,716, 65,722/1 (1996). It then set the ozone and fine
particle standards within ranges recommended by CASAC,
the independent scientific advisory committee created
pursuant to section 109 of the Act. See 42 U.S.C.
§ 7409(d)(2).
CASAC must consist of at least one member of the
National Academy of Sciences, one physician, and one
person representing state air pollution control agencies. See
62a
id. § 7409(d)(2)(A). In this case, CASAC also included
medical doctors, epidemiologists, toxicologists and
environmental scientists from leading research universities
and institutions throughout the country. EPA must explain
any departures from CASAC’s recommendations. See id.
§ 7607(d)(3). Bringing scientific methods to their evaluation
of the Agency’s Criteria Document and Staff Paper, CASAC
provides an objective justification for the pollution standards
the Agency selects. Cf Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993) (“Scientific
methodology today is based on generating hypotheses and
testing them to see if they can be falsified; indeed, this
methodology today is what distinguishes science from other
fields of human inquiry.’”’) (citation omitted). Other federal
agencies with rulemaking responsibilities in technical fields
also rely heavily on the recommendations, policy advice, and
critical review that scientific advisory committees provide.
See, e.g., 21 U.S.C. § 355(n) (describing scientific advisory
panels for the Food and Drug Administration); 49 U.S.C.
§ 44912(c) (creating a scientific advisory panel for the
Federal Aviation Administration).
Beginning with CASAC’s ozone recommendations—not
one member recommended going below .08 ppm—EPA gave
two perfectly rational explanations for the level it selected.
First, it set the annual level based on the different types of
health effects observed above and below .08 ppm.
Particularly below .08, the Agency determined, “(t]he most
certain [ozone-]related effects, while judged to be adverse,
are transient and reversible.” National Ambient Air Quality
Standards for Ozone, 62 Fed. Reg. 38,856, 38,868/2 (1997)
(emphasis added). Characterizing this explanation as saying
nothing more than that “lower exposure levels are associated
- 5 Pee. ~ or
Sa”
63a
with lower risk to public health,” Maj. Op. at 10, my
colleagues find the Agency’s reasoning unintelligible. But
EPA did not find simply that public health risks decrease at
lower levels. Instead, it found that public health effects differ
below .08 ppm, i.e., that they are “transient and reversible.”
Second, EPA explained that the level should not be set
below naturally occurring background ozone concentrations.
The Agency selected .08 ppm because it found that “a 0.07
ppm level would be closer to peak background levels that
infrequently occur in some areas due to nonanthropogenic
sources of [ozone] precursors, and thus more likely to be
inappropriately targeted in some areas on such sources.” 62
Fed. Reg. at 38,868/3. Of course, any level of ozone
pollution above background concentrations is closer to
background levels than one just above it. See Maj. Op. at 11.
But as | read EPA’s explanation, the Agency found that peak
background levels sometimes occur at .07 ppm, not at .08
ppm. Indeed, the data EPA provided in its “Responses to
Significant Comments” show a range of background
concentrations from a low of .042 ppm in Olympic National
Park in Washington to a high of .075 ppm in Quachita
National Forest in Arizona. No region registered background
levels above .075 ppm. See U.S. ENVIRONMENTAL
PROTECTION AGENCY, RESPONSES TO SIGNIFICANT
COMMENTS ON THE 1996 PROPOSED RULE ON THE NATIONAL
AMBIENT AIR QUALITY STANDARDS FOR OZONE 94-96 (July
1997). In other words, by setting the annual standard at .08
rather than .07 ppm, EPA ensured that if a region surpasses
the ozone standard, it will do so because of controllable
human activity, not because of uncontrollable natural levels
of ozone.
64a
EPA offered an equally reasonable explanation for the
fine particle pollution standard. Again limiting itself to the
range approved by CASAC, EPA set the annual standard for
PM2s pollution at the lowest level where it had confidence
that the epidemiological evidence (filtered through
peer-reviewed, published studies) displayed a statistically
significant relationship between air pollution and adverse
public health effects.
Recognizing that its decision must “accurately reflect the
latest scientific knowledge useful in indicating the kind and
extent of all identifiable effects on public health,” 42 U.S.C.
§ 7408(a)(2), EPA focused on three studies in the record that
displayed a statistically significant relationship between fine
particle pollution and adverse health effects: Joel Schwartz
et al., Js Daily Mortality Associated Specifically with Fine
Particles?, 46 J. AiR & WASTE MGMT. ASS’N 927 (1996);
Joel Schwartz et al., Acute Effects of Summer Air Pollution
on Respiratory Symptom Reporting in Children, 150 Am. J.
RESPIRATORY & CRITICAL CARE MED. 1234 (1994); and
Douglas W. Dockery et al., An Association between Air
Pollution and Mortality in Six U.S. Cities, 329 NEw ENG. J.
MED. 1753 (1993). The Agency explained that “there is
generally greatest statistical confidence in_ observed
associations [between fine particie pollution and adverse
health effects] for levels at and above the mean concentration
[of pollution observed in the studies that showed a
statistically significant relationship].” National Ambient Air
Quality Standards for Particulate Matter, 62 Fed. Reg.
38,652, 38,676/1 n.42 (1997) (emphasis added). Allowing
“an adequate margin of safety,” EPA then set the annual fine
particle standard just below the lowest mean pollution levels
observed in those studies, at 15 g/m’. See id. at 38,676/1
65a
(“An examination of the long-term means from the combined
six city analyses of daily mortality [Schwartz et al. (1996)]
and morbidity [Schwartz et al. (1994)], together with those
from studies in individual cities for which statistically
significant PM-effects associations are reported ... finds
mean concentrations ranging from about 16 to about 21
ug/m*. . . .”); id. at 38,676/2 (“[The EPA] Staff Paper
assessment of the concentration-response results [from
Dockery et al. (1993)], concluded that the evidence for
increased risk was more apparent at annual concentrations at
or above 15 jig/m?. .. .”).
In a passage directly answering this court’s concerns, see
Maj. Op. at 11-12, the Staff Paper explained why the ©
long-term mean served as a reasonable level for setting the
fine particle NAAQS:
The mean (or median) concentration may serve as a
reasonable cutpoint of increased PM health risk since
at this point there is generally the greatest confidence
(i.e., the smallest confidence intervals) in the .
association and the reported [relative risk] estimates.
The mean concentration considered by staff as most
informative to test implications of potential
alternative concentration-response functions is the
minimum mean concentration associated with a study
or studies reporting statistically significant increases
in risk across a number of study locations. . . .
OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S.
ENVIRONMENTAL PROTECTION AGENCY, REVIEW OF
NATIONAL AMBIENT AIR QUALITY STANDARDS FOR
PARTICULATE MATTER: POLICY ASSESSMENT OF SCIENTIFIC
66a
AND TECHNICAL INFORMATION, at E-4 (1996) (emphasis
added).
EPA thus did not, as my colleagues charge, arbitrarily
pick points on the ozone and particulate pollution continua
indistinguishable from any other. Instead, acting pursuant to
section 109’s direction that it establish standards that, based
on the “latest scientific knowledge” are “requisite” to protect
the public health with “an adequate margin of safety,” and
operating within ranges approved by CASAC, the Agency set
the ozone level just above peak background concentrations
where the most certain health effects are not transient and
reversible, and the fine particle level at the lowest long-term
mean concentration observed in studies that showed a
Statistically significant relationship between fine particle
pollution and adverse health effects. Whether EPA arbitrarily
selected the studies it relied upon or drew mistaken
conclusions from those studies (as petitioners argue), or
whether EPA failed to live up to the principles it established
for itself (as my colleagues believe, see Maj. Op. at 9-12), has
nothing to do with our inquiry under the nondelegation
doctrine. Those issues relate to whether the NAAQS are
arbitrary and capricious. See NRDC v. EPA, 902 F.2d 962,
969, 971 (D.C. Cir. 1990). The Constitution requires that
Congress articulate intelligible principles; Congress has done
so here.
A final point. Unlike OSHA, which Lockout/Tagout 1
recognized has authority to reach into every workplace to
dictate what is safe, to impose extensive civil and criminal
penalties, and “to decide which firms will live and which will
die,” Lockout/Tagout J, 938 F.2d at 1318, EPA regulates
primarily by setting standards for states to develop their own
67a
plans. See 42 U.S.C. § 7401(a)(3) (Congress finds “that air
pollution prevention . . . and air pollution control at its source
is the primary responsibility of States and _ local
governments.”). Indeed, because states have three years to
submit implementation plans, which are themselves subject
to notice, comment, public hearing, and frequent
renegotiation, we will not know for years precisely how the
ozone and particle NAAQS will actually affect individual
businesses. Only if a state fails to produce an acceptable plan
can EPA terminate federal highway funds or impose its own
implementation plan. Because the Clean Air Act gives
politically accountable state governments primary
responsibility for determining how to distribute the burdens
of pollution reduction and therefore how the NAAQS will
affect specific industries and individual businesses, courts
have less reason to second-guess the specificity of the
congressional delegation. Moreover, if the states disagree
with the standards EPA has set, they have 535 representatives
in Congress to turn to for help. In fact, legislation to overturn
the very NAAQS at issue in this case was introduced in the
last Congress. See H.R. 1984, 105th Cong. (1997) (“A bill to
provide for a four-year moratorium on the establishment of
new standards for ozone and fine particulate matter under the
Clean Air Act, pending further implementation of the Clean
Air Act Amendments of 1990, additional review and air
quality monitoring under that Act.”); S. 1084, 105th Cong.
(1997) (“A bill to establish a research and monitoring
program for the national ambient air quality standards for
ozone and particulate matter and to reinstate the original
standards under the Clean Air Act, and for other purposes.”’).
68a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1440
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
INTER VENORS
Consolidated with
Nos. 97-1546, 97-1548, 97-1551 to 97-1553,
97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,
97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,
97-1582, 97-1585 to 97-1588, 97-1592,
97-1594, 97-1596 to 97-1598
69a
No. 97-1441
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
INTERVENORS
Consolidated with
Nos. 97-1502, 97-1505, 97-1508 to 97-1510,
97-1512 to 97-1514, 97-1518, 97-1519, 97-1526, 97-1531,
97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,
97-1584, 97-1589, 97-1591, 97-1595, 97-1619
(Filed October 29, 1999]
BEFORE: WILLIAMS, GINSBURG, AND TATEL, Circuit
Judges.
Opinion per curiam on petitions for rehearing.
Opinion concurring in partial grant of rehearing and
dissenting in part from the panel’s denial of rehearing filed
by Circuit Judge TATEL.
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ORDER
PER CURIAM
This matter is before the court for consideration of
respondent Environmental Protection Agency’s (EPA)
petition for panel rehearing in Nos. 97-1440 and 97-1441, the
responses thereto, and the petitions for panel rehearing of
intervenors-respondents New Jersey and Massachusetts in
Nos. 97-1440 and 97-1441, Citizen for Balanced
Transportation, et al. in No. 97-1440, and the American Lung
Association in Nos. 97-1440 and 97-1441. Upon
consideration of the foregoing, it is
ORDERED that the petitions of EPA, New Jersey and
Massachusetts, and the American Lung Association be
granted in part. The court accordingly modifies Parts III.A.2
& .3 and the conclusion of the court’s original opinion as set
forth in the opinion of the court jiled herein this date. It is
FURTHER ORDERED that the remainder of EPA,
New Jersey and Massachusetts, and the American Lung
Association’s petitions be denied and that Citizen for
Balanced Transportation’s petition be denied.
Opinion for the Court filed PER CURIAM:
The Environmental Protection Agency petitions for
rehearing, challenging this court’s holdings that: (1) with
respect to the factors the agency uses to determine the degree
of public health concern associated with different levels of a
pollutant, it “appears to have articulated no ‘intelligible
principle’ to channel its application of these factors; nor is
one apparent from the statute,” American Trucking Ass'ns v.
~~
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United States Environmental Protection Agency, 175 F.3d
1027, 1034 (D.C. Cir. 1999); (2) “Subpart 2, not Subpart 1,
provides the classifications and attainment dates for any areas
designated nonattainment under a revised primary ozone
NAAQS, and the EPA must enforce any revised primary
ozone NAAQS under Subpart 2,” id. at 1050; and (3) “EPA
must consider positive identifiable effects of a pollutant’s
presence in the ambient air in formulating air quality criteria
under § 108 and NAAQS under § 109,” id. at 1052. For the
following reasons, we grant the petition for rehearing in part
and deny it in part.
I. Delegation
In the EPA’s petition for rehearing, counsel for the
agency argue that § 109 of the Clean Air Act contains the
following principle limiting the agency’s discretion: “The
levels [set in a NAAQS] must be necessary for public health
protection: neither more nor Jess stringent than necessary,
but ‘requisite.”” EPA Pet. at 8 (emphases in original).
Further, counsel claim that in setting the NAAQS at issue in
this case the agency applied corollaries of this principle, one
for particulate matter, one for ozone,' to derive determinate
standards.
' For particulate matter, counsel now state that the EPA’s decision
was determined by the norm of “the 95 percent confidence level to
separate results that could be the product of chance from more convincing
evidence of causation.” EPA Pet. at 15. For ozone, counsel now state
that EPA inferred the existence of effects below 0.08 ppm, but
nonetheless concluded that they were “less serious because they are
‘transient and reversible.” EPA Pet. at 16.
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In denying the EPA’s petition for rehearing on this issue,
we note that the agency previously put forward neither the
assertedly intelligible principle its counsel now claim to find
in the statute nor the corollaries its counsel now implicitly
derive therefrom. To be sure, in the rulemakings that set the
NAAQS, the EPA mentioned the corollary propositions its
counsel now claim served as intelligible limiting principles,
but the agency did not identify either as a limit upon its
discretion; the EPA never suggested that it could not (or in a
later rulemaking would not) base a NAAQS upon evidence
that did not meet the 95 percent confidence level or that
revealed adverse but transient effects.’ In its briefs defending
the NAAQS, the EPA merely asserted that the Clean Air Act
provides an intelligible principle; it failed both to state that
principle and to argue that its revised NAAQS were
promulgated in accordance with that principle EPA PM
Brief at 145-49; EPA Ozone Brief at 77-80. Indeed, the
EPA’s briefs in each of these two cases contained the same
four sentences assuring the court that the statute provides a
principle without explaining what the agency understands
that principle to be:
[Section] 109(b)(1) requires EPA to promulgate
NAAQS based on air quality criteria issued under § 108
that are “requisite to protect the public health” with “an
adequate margin of safety.” This language and related
legislative history provide directions for EPA to follow
in setting the NAAQS. Moreover, EPA has consistently
? The court's opinion mentioned EPA's observation in the record that
effects of ozone concentrations below the standard selected were
“transient and reversible,” 175 F.3d at 1035, but only in connection with
the dissent’s suggestion, see id at 1059, that this was the controlling
principle. Bins
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interpreted §109%(b)(1) to provide further
decisionmaking criteria to guide the standard setting
process. Thus, the CAA provides a more than
sufficient “intelligible principle” to guide EPA’s
discretion. EPA Ozone Brief at 78; see also EPA PM
Brief at 148. :
These sentences_ begged the key question about that
intelligible principle: “What is it?”
As we noted in our first opinion in this case, when
“statutory language and an existing agency interpretation
involve an unconstitutional delegation of power, but an
interpretation without the constitutional weakness is or may
be available, our response is not to strike down the statute but
to give the agency an opportunity to extract a determinate
standard on its own.” 175 F.3d at 1038. Counsel for the
EPA have now extracted from the statute what they contend
is an intelligible principle limiting the EPA’s discretion We
express no opinion upon the sufficiency of that principle;
only after the EPA itself has applied it in setting a NAAQS
can we say whether the principle, in practice, fulfills the
purposes of the nondelegation doctrine. See Yakus v. United
States, 321 U.S. 414, 424-26 (1944); Amalgamated Meat
Cutters v. Connally, 337 F. Supp. 737, 759 (D.D.C. 1971)
(Leventhal, J., for three-judge panel).
A final word about our nondelegation holding: The
Supreme Court has iong held that an ambiguous principle in
a statute delegating power to an agency can gain “meaningful
content from the purpose of the Act, its factual background
and the statutory context in which [it] appear[s].” American
Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946); see also
Federal Radio Comm'n v. Nelson Bros. Bond & Mort. Co.,
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289 U.S. 266, 285 (1933) (upholding delegation to Federal
Radio Commission to grant licenses “as public convenience,
interest or necessity requires” in light of “its context [and] the
nature of radio transmission and reception”); Fahey v.
Mallonee, 332 U.S. 245, 250 (1947) (upholding delegation to
the Federal Home Loan Bank Board to promulgate
regulations for the appointment of a conservator for savings
and loan associations in view of the banking industry’s
“well-defined practices for the appointment of
conservators”). This court has done the same. See, e.g.,
National Ass'n of Broadcasters v. Copyright Royalty
Tribunal, 675 F.2d 367, 376 n.12 (1982) (finding an
intelligible principle to guide the tribunal in disbursing cable
royalty fees in “specific statements in the legislative history
and in the general philosophy of the Act itself”);
Amalgamated Meat Cutters, 337 F. Supp. at 747-49
(interpreting the Economic Stabilization Act of 1970 in light
of “the historic context of government stabilization
measures” in order to “negative[ ] a conclusion that the
whole program was set adrift without a rudder”). To choose
among permissible interpretations of an ambiguous principle,
of course, is to make a policy decision, and since Chevron it
has been clear that “[t]he responsibilities for assessing the
wisdom of such policy choices ... are not judicial ones.”
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 866 (1984).
Accordingly, just as we must defer to an agency’s reasonable
interpretation of an ambiguous statutory term, we must defer
to an agency’s reasonable interpretation of a statute
containing only an ambiguous principle by which to guide its
exercise of delegated authority. But see Kenneth Culp Davis,
A New Approach to Delegation, 36 U. Cui. L. REV. 713, 713
(1969) (arguing that “judicial inquiries [under the
nondelegation doctrine} should shift from statutory standards
ae
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to administrative safeguards”). In sum, the approach of the
Benzene case, in which the Supreme Court itself identified an
intelligible principle in an ambiguous statute, has given way
to the approach of Chevron. See Industrial Union Dep't v.
American Petroleum Inst. (Benzene), 448 U.S. 607, 642, 646
(1980) (Stevens, J., plurality) (interpreting § 3(8) of the
Occupational Health and Safety Act to require “a threshold
finding . . . that significant risks are present,” thereby finding
in the statute an intelligible principle).°
Il. Subpart 2 and the Revised Ozone Standard
In its petition for rehearing, the EPA challenges the
holdings in Parts III.A.2 and III.A.3 of our original opinion,
see 175 F.3d at 1048-51, as well as our jurisdiction to reach
those issues. We address the jurisdictional point first.
A. Jurisdiction
The EPA argues that because 1¢ has taken no final action
implementing the revised NAAQS this court lacks
jurisdiction to reach the question whether Subpart 2 prevents
the agency from implementing a revised ozone NAAQS
under Subpart |. See 42 U.S.C. § 7607(b) (limiting this
court’s jurisdiction to review of “nationally applicable
regulations promulgated, or final agency action taken, by the
> We note that Judge Silberman’s dissent from the denial of rehearing
en banc turns largely on his dim view of the Court’s use of the
non-delegation doctrine in Benzene, which he characterizes as “only a
makeweight, tossed into the analysis ... to help justify the result.”
Whatever the merits of Judge Silberman’s critique of Benzene, we do not
see how a lower court can properly rest its jurisprudence on the rejection
of a Supreme Court decision.
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Administrator”); see also Sierra Club v. Thomas, 828 F.2d
783, 792 (D.C. Cir. 1987).* That this claim is raised for the
first time in a petition for rehearing does not, of course, alter
our obligation to “satisfy [our]self ... of [our] own
jurisdiction.” Steel Co. v. Citizens for a Better Environment,
118 S.Ct. 1003, 1012-13 (1998).
Whether agency action is final for purposes of § 7607(b)
entails a functional, not a formal, inquiry. See NRDC v. EPA,
22 F.3d 1125, 1132-33 (D.C. Cir. 1994); Ciba-Geigy Corp. v.
EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“Once the agency
publicly articulates an unequivocal position ... and expects
regulated entities to alter their primary conduct to conform to
that position, the agency has voluntarily relinquished the
benefit of postponed judicial review”). In this case, “there is
nothing tentative about the EPA’s interpretation of [Subpart
2]; it is unambiguous and devoid of any suggestion that it
might be subject to subsequent revision.” Her Majesty the
Queen ex rel. Ontario v. EPA, 912 F.2d 1525, 1532 (D.C.
Cir. 1990); see also Final Rule: National Ambient Air
Quality Standards for Ozone, 62 Fed. Reg. 38,856, 38,885/2
(1997) (“There is no language in sections 181 or 182 that
precludes the implementation of a different [ozone] standard
under other authority [i.e., Subpart 1]; those provisions [i.e.,
Subpart 2] simply govern the implementation of the 1-hour,
0.12 ppm QO; standard”). Moreover, by promulgating a
revised ozone NAAQS the EPA has triggered the provisions
of §§ 107(d)(1) and 172, which impose a number of
* The EPA has yet to designate an area nonattainment. Therefore,
although the agency does not so argue, if it were correct, then this court
would also lack jurisdiction to decide, as it did, that Subpart 2 does not
alter the agency’s power to designate areas as nonattainment under a
revised NAAQS. See 175 F.3d at 1047-48.
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requirements upon the states, the first being that the
Governor of each state must determine which areas do not
presently comply with the revised NAAQS; those areas that
do not comply will ultimately be required to do so. The EPA,
therefore, has reached a final decision regarding its power to
implement its revised ozone standard, which this court has
jurisdiction to review.°
The EPA also argues that the statements in its preamble
regarding implementation are not “ripe for review,” a point
which it raised in a single sentence in its original brief to this
court. EPA Pet. at 19; EPA Ozone Brief at 74. The question
whether Subpart 2 prevents the EPA from designating an area
as nonattainment under its revised ozone standard or from
implementing that designation except in conformity with
Subpart 2 is a pure question of law, the resolution of which
would not benefit from a more concrete setting. As the
agency’s action is undoubtedly final, the question is fit for
* The EPA attempts to buttress its jurisdictional argument by
reference to 42 U.S.C. § 7502(a)(1)(B), which it claims “defers
challenges to EPA’s implementation decisions classifying areas for setting
attainment dates until EPA takes final action on a SIP ... or triggers
sanctions . . . [after] a state fails to submit a SIP.” EPA Pet. at 19. The
section to which the EPA refers states as follows: “The Administrator
shall publish a notice in the Federal Register announcing each [attainment
or nonattainment] classification.... Such classification ... shall not be
subject to judicial review until the Administrator takes final action under
[the statutes the EPA cites in its petition].” That is, the EPA’s decision to
classify a particular area as attainment or nonattainment is not subject to
review merely because the EPA published that decision in the Federal
Register. Neither this section nor the analogous § 7511(a)(3), to which
the EPA also cites, prevents a court from deciding, prior to the
classification of a particular area, whether the agency has validly
promulgated a revised standard.
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review. See Rio Grande Pipeline Co. v. FERC, 178 F.3d 533,
540-41 (D.C. Cir. 1999).
B. Subpart 2 and the EPA’s Authority to Enforce
a Revised Ozone Standard
The EPA’s arguments in its petition for rehearing do not
convince us that we erred in rejecting the EPA’s contention
that “the reference to § 107(d) in § 181(a)(1) relates only to
designations made under § 107(d)(4),” 175 F.3d at 1050, and
in holding instead that Ҥ 181(a) clearly encompasses
nonattainment designations made under all subsections of
§ 107(d).” Jd. Indeed, we note that the EPA has abandoned
its original position, arguing now that the “most logical
reading” of § 181(a) is that the reference to § 107(d) includes
§§ 107(d)(1)(C) and 107(d)(4). EPA Pet. at 24. We find this
new reading no more persuasive than the old’ As the EPA
notes, all five Subparts of the Clean Air Act providing
requirements for nonattainment areas begin with a reference
to §107(d). See 42 U.S.C. §§ 7502(a)(1)(A), 7511(a)(1),
7512(a)(1), 7513(a), 7514(a). It is by no means clear,
however, that the references to § 107(d) in Subparts 1 and 3
through 5 include only designations made under
§§ 107(d)(1)(C) and (d)(4). Not only does the EPA never
argue that they are so limited, but on its theory the reference
to § 107(d) in Subpart | also encompasses designations made
under § 107(d)(1)(A). EPA Pet. at 25. Accordingly, we
reject the EPA’s new interpretation of § 181(a), for it is
contrary to “the normal rule of statutory construction that
identical words used in different parts of the same act are
intended to have the same meaning.” Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995).
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Still, the EPA does raise two points relating to Subpart 2
which lead us to grant the EPA’s petition for rehearing in part
and to make the following revisions to our opinion.
The EPA correctly points out that we erroneously treated
the attainment dates in the table in Subpart 2 as representing
the Congress’s judgment about what is “as expeditiously as
practicable” in reducing the level of ozone in an area; in fact,
those dates represent what the Congress set as outer limits.
See 42 U.S.C. § 7511(a)(1) (“For each area classified under
this subsection, the primary standard attainment date for
ozone shall be as expeditiously as practicable but not later
than the date provided in table 1”). EPA Pet. at 25 n.35.
Accordingly, we grant the EPA’s petition for rehearing to the
extent of deleting the final three sentences of Part III.A.3, see
175 F.3d at 1051, and substituting for them the following
sentence:
Therefore, we conclude that Subpart 2 erects no bar to the
EPA’s requiring compliance with a revised secondary
ozone NAAQS “as expeditiously as practicable.”
The EPA also contends that the conclusion to Part III.A.2,
see id. at 1050 (“the EPA must enforce any revised primary
ozone NAAQS under Subpart 2”), conflicts with our
description of that same conclusion at the end of the opinion,
see id. at 1057 (revised ozone NAAQS “cannot be enforced
by virtue of [Subpart 2]”). We agree that the two sentences
are in tension. To clarify the matter, we grant the EPA’s
petition for rehearing to the extent of making the following
two revisions to our original opinion. First, we replace the
final paragraph of Part III.A.2, see id at 1050, with the
following:
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In sum, because the reference to § 107(d) in § 181(a)(1)
includes the designation of an area as nonattainment for
ozone under a revised ozone NAAQS, that is, under
§ 107(d)(1), the EPA can enforce a revised primary ozone
NAAQS only in conformity with Subpart 2.
Second, we replace the second sentence of the Conclusion,
see id. at 1057, with the following:
We do not vacate the new ozone standards because the
parties have not shown that the standard is likely to
engender costly compliance activities in light of our
determination that it can be enforced only in conformity
with Subpart 2.
As with the PM); NAAQS, our decision not to vacate the
ozone NAAQS “is without prejudice to the ability of any
party to apply for vacatur in the future, should circumstances
develop in which the presence of this standard threatens a
more imminent harm.” American Trucking Ass'ns, Inc. v.
EPA, No. 97-1440 (D.C. Cir. Jun. 18, 1999).
Ill. Beneficent Health Effects
The arguments in the EPA’s petition for rehearing give us
no reason to doubt the correctness of our conclusion that “all
identifiable effects,” as used in CAA § 108(a)(2), “on its face
... include[s] beneficent effects.” 175 F.3d at 1051. Nor do
those arguments warrant consideration in a_ published
opinion. We express no opinion, of course, upon the effect,
if any, that studies showing the beneficial effects of
tropospheric ozone, see id. at 1052, might have upon any
ozone standard the EPA may promulgate on remand.
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IV. Conclusion
For the above reasons, the EPA’s petition for rehearing is
Granted in part and denied in part.
TATEL, Circuit Judge, concurring in part and dissenting
in part:
I concur in the partial grant of rehearing with respect to
enforcement of the revised ozone standard because, as
modified, the opinion now leaves open the possibility that
EPA can enforce the new ozone NAAQS without conflicting
with Subpart 2’s classifications and attainment dates. While
I too think that we have jurisdiction to decide the
enforcement issue, I write separately because I do not entirely
agree with the rationale of the modified panel opinion.
The panel understood EPA’s original position to be that,
although Subpart 2 limited the Agency’s enforcement of the
pre-existing one-hour 0.12 ppm ozone NAAQS, it “has no
effect upon the EPA’s authority to enforce a revised primary
ozone NAAQS.” American Trucking Associations v. EPA,
175 F.3d 1027, 1048 (“ATA”). That interpretation, the panel
held, not only conflicted with section 7511(a)(1)’s text and
legislative history, see id, 175 F.3d at 1048-49, but by
leaving the Agency free to “requir[e] areas to comply either
more quickly or with a more stringent ozone NAAQS,” it
defied Congress’s clear intent to “extend[{ ] the time for
nonattainment areas to comply with the 0.12 ppm ozone
NAAQS.” /d. at 1049.
Having rejected the Agency’s interpretation, the panel
went on to agree with petitioners that Subpart 2 embodies “a
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comprehensive enforcement scheme” that “specifically
provides classifications and dates for al/ areas designated
nonattainment under any ozone NAAQS.” /d. at 1049, 1048
(emphasis added). This holding meant that areas not covered
by Table | in Subpart 2—i.e. those with one-hour ozone
design values below 0.121 ppm—were completely exempt
from any ozone regulation whatsoever. Although the panel
acknowledged that EPA must continue to revise the NAAQS,
see id. at 1047, it concluded that the revised standard “cannot
be enforced by virtue of [Subpart 2].” /d at 1057.
After reading EPA’s petition for rehearing and the
various responses, I no longer believe that it was “the
unambiguously expressed intent of Congress” to command
EPA to revise the ozone standards, while denying it the
power to enforce them. Chevron U.S.A., Inc. v. NRDC, 467
U.S. 837, 842. Table | specifically provides classifications
and attainment dates for some areas, but as EPA points out,
“it establishes no attainment dates or classifications for
nonattainment areas with ‘design values’ lower than 0.121
ppm.” EPA Pet. Reh’g at 22-23. As the Agency argues, it is
thus difficult to see how Subpart 2 can “specifically provide
[]” attainment dates for areas that are designated
nonattainment under the new standard but are not covered by
Table 1. See id at 22-24. This gap in Table | makes it at
least ambiguous whether Subpart 2 “specifically provide[s]”
classifications and attainment dates for a// areas exceeding
the revised 0.08 ppm ozone NAAQS.
EPA also points out that treating Subpart 2 as the
exclusive enforcement scheme for all areas leads to
“irrational and contradictory consequences.” /d at 23.
Subpart 2 provides that “{eJach area designated
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nonattainment for ozone pursuant to section 7407(d) of this
title shall be classified ... under table 1, by operation of
law....” 42 U.S.C. §7511(a)(1). Even if the panel is
correct that the reference to section 7407(d) includes
designations under a revised NAAQS pursuant to section
7407(d)(1 (A), see Slip Op. on Reh’g at 6-7, the fact remains
that the only “nonattainment areas for which classifications
[and attainment dates] are specifically provided under” Table
1 are those having one-hour ozone design values of 0.121
ppm or greater. ATA, 175 F.3d at 1048 (quoting 42 U.S.C.
§ 7502(a\1)(C), (a2)(D)). Classifying other areas “under
table 1, by operation of law” is thus impossible or, at the very
least, not “unambiguously” “specifically provided for.” And
although, as the panel noted, “a title [of a statute or section]
cannot be allowed to create an ambiguity in the first place,”
id. at 1050, the ambiguity in this statute—Can section
7511(a)(1) be applied literally to areas that have attained the
old standard but fail to meet the new one?—appears in the
text of Subpart 2 itself.
Moreover, EPA has offered a plausible interpretation of
the statute that reasonably reconciles the provisions of
Subparts | and 2. In its Petition for Rehearing, the Agency
states that “Subpart 2 addresses continued nonattainment for
the primary one-hour ozone standard,” EPA Pet. Reh’g at 20,
while Subpart 1 provides implementation authority for the
new ozone standard in areas that have already attained the old
one, see id. at 20-22. The Agency articulated this same
reading of the statute in its original brief, stating that
“consistent with Congress’ intent, EPA interpreted the
Subpart 2 provisions to remain in place for areas not attaining
the one-hour standard, and concluded the one-hour standard
should continue to apply until EPA determines that an area
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attains that standard, thus facilitating continued
implementation of the relevant Subpart 2 measures.” EPA
Ozone Brief at 72. The final rulemaking—the Agency action
we are reviewing here—is even clearer about the relationship
between Subparts | and 2:
[A]t the time of the proposal of the new O; standard, EPA
had proposed an interpretation of the Act in the proposed
Interim Implementation Policy (61 FR 65764, December
13, 1996) under which the provisions of subpart 2 of part
D of Title | of the Act would not apply to existing O;
nonattainment areas once a new QO; standard becomes
effective.
In light of comments received regarding the
interpretation proposed in the Interim Implementation
Policy, EPA has reconsidered that interpretation and now
believes that the Act should be interpreted such that the
provisions of subpart 2 continue to apply to O,;
nonattainment areas for purposes of achieving attainment
of the current |-hour standard. As a consequence, the
provisions of subpart 2, which govern implementation of
the 1-hour O; standard in O; nonattainment areas, will
continue to apply as a matter of law for so long as an area
is not attaining the l-hour standard. Once an area attains
that standard, however, the purpose of the provisions of
subpart 2 will have been achieved and those provisions
will no longer apply. However, the provisions of subpart
1 of part D of Title I of the Act would apply to the
implementation of the new 8-hour O; standards.
To facilitate the implementation of those provisions
and to ensure a smooth transition to the implementation
of the new 8-hour standard, the 1-hour standard should
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remain applicable to areas that are not attaining the
l-hour standard. Therefore, the 1l-hour standard will
remain applicable to an area until EPA determines that it
has attained the l-hour standard, at which point the
1-hour standard will no longer apply to that area.
62 Fed. Reg. 38,873 (1997), cited in EPA Ozone Brief at 72.
See also 40 C.F.R. § 50.9(b) (continuing to apply the one-
hour 0.12 ppm standard until it is attained).
To be sure, EPA’s original brief did seem to advance the
position the panel rejected—that in enforcing the new ozone
NAAQS, the Agency is free to disregard altogether Subpart
2’s timetable. See EPA Ozone Brief at 69-71. Given the
clarity of the final rule, however, I no longer believe that
EPA actually intended to argue that it could subvert Subpart
2’s schedule in enforcing the new ozone NAAQS. When
EPA’s lawyers said in the original brief that Subpart 2 is
inapplicable to nonattainment areas under the new ozone
standard, I assume they must have meant that even under the
new standard, Subpart 2 continues to apply to areas covered
by Table 1—not that Subpart 2 no longer applies at all.
Viewed this way, EPA’s original brief and its petition for
rehearing are perfectly consistent with the final rule: all three
interpret the Act to mean that Subpart 2 still applies to an
area until it attains the one-hour 0.12 ppm standard. This
interpretation puts to rest the panel’s concern that Subpart 2’s
attainment schedule “would have been stillborn had the EPA
revised the ozone NAAQS immediately after the Congress
enacted the 1990 amendments.” ATA, 175 F.3d at 1050.
The Agency’s petition also explains the practical
consequences of its interpretation of Subpart 2. Although
EPA may not enforce a stricter ozone standard in Los
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Angeles earlier than the year 2012, see id at 1049, the
Agency need not wait for Los Angeles to achieve the old
standard before requiring the rest of the country to move
toward cleaner air. Cf. EPA Pet. Reh’g at 25 (suggesting that
Los Angeles “is the only area of the nation” where
compliance with the 0.08 ppm NAAQS under Subpart |
could possibly be required at the same time as compliance
with the 0.12 ppm NAAQS under Subpart 2). In other
words, Table 1 functions as a safe harbor for areas like Los
Angeles whose ozone levels exceed 0.121 ppm.
To sum up, the panel rejected what it was led to believe
was EPA’s view that Subpart 2 applied only to nonattainment
areas under the old standard but no longer applies at all under
the new standard. The panel held instead that Subpart 2
applies to all nonattainment areas under any standard,
foreclosing implementation of a new standard in any area not
covered by Table 1. EPA has now clarified its interpretation
of the Act. A middle ground originally articulated in its final
rulemaking, the Agency’s position harmonizes its general
enforcement authority under Subpart | with the specific
provisions of Subpart 2. Subpart 2 continues to govern those
areas covered by Table 1, just as it did under the cid
NAAQS, but in areas that have attained the old standard,
nothing precludes enforcement of the new standard under
Subpart 1.
I would have granted rehearing and held that he
Agency’s position represents a reasonable interpretation of an
ambiguous statute. See Chevron, 467 U.S. at 844 (upholding
EPA’s construction of NAAQS attainment provisions of the
Clean Air Act, stating that “a court may not substitute its own
construction of a statutory provision for a reasonable
87a
interpretation made by the administrator of an agency.”). I
nonetheless concur in the judgment because the revised
opinion’s statement that “the EPA can enforce a revised
primary ozone NAAQS only in conformity with Subpart 2”
leaves open the possibility that the new ozone standard can
be implemented in areas that have attained the old standard.
For the reasons set forth in my statement dissenting from
the denial of rehearing en banc, | respectfully dissent from
the denial of rehearing as to Part I of the panel opinion
(“Delegation”).
88a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1440
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL..,
INTERVENORS
Consolidated with
Nos. 97-1546, 97-1548, 97-1551 to 97-1553,
97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,
97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,
97-1582, 97-1585 to 97-1588, 97-1592,
97-1594, 97-1596 to 97-1598
89a
No. 97-1441
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
INTER VENORS
Consolidated with
Nos. 97-1502, 97-1505, 97-1508 to 97-1510,
97-1512 to 97-1514, 97- 1518, 97-1519, 97-1526, 97-1531,
97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,
97-1584, 97-1589, 97-1591, 97-1595, 97-1619
[Filed October 29, 1999]
On Respondent EPA’s Suggestion for Rehearing En Banc
Before: EDWARDS, Chief Judge, WALD, SILBERMAN,
WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH,
ROGERS, TATEL, and GARLAND, Circuit Judges.
Circuit Judges WALD and HENDERSON did not participate
in this matter.
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Chief Judge EDWARDS and Circuit Judges SILBERMAN,
ROGERS, TATEL, and GARLAND would grant the suggestion.
A statement of Circuit Judge SILBERMAN dissenting from
the denial of rehearing en banc is attached.
A statement of Circuit Judge TATEL dissenting from the
denial of rehearing en banc, in which Chief Judge EDWARDS
and Circuit Judge GARLAND join, is attached.
PER CURIAM
Respondent EPA’s Suggestion for Rehearing En Banc
and the responses thereto have been circulated to the full
court The taking of a vote was requested. Thereafter, a
majority of the judges of the court in regular active service
did not vote in favor of the suggestion. Upon consideration
of the foregoing, it is
ORDERED that the suggestion be denied.
SILBERMAN, Circuit Judge, dissenting from the denial of
rehearing en banc:
The panel’s reliance on the nondelegation doctrine to
reject EPA’s interpretation of section 109 of the Clean Air
Act is rather ingenious, but I regret that it seems to me to be
fundamentally unsound. I do not think that doctrine can be
employed to force an agency to narrow a broad legislative
delegation from Congress.
The doctrine, as Judge Tatel in dissent pointed out,
American Trucking Associations v. EPA, 175 F.3d 1027,
1057-58 (D.C. Cir. 1999) (“ATA”) (Tatel, J., dissenting in
9la
part), is at this stage of constitutional “evolution” not in
particularly robust health Justice Rehnquist heroically
attempted to inject vitality into the doctrine in his powerful
concurrence in the Benzene case, see Industrial Union Dep't,
AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 671
(1980). But, sad to say, his view is not shared by a majority
of the Court which has acknowledged only a theoretical
limitation on the scope of congressional delegations to the
executive branch. See Mistretta v. United States, 488 U.S.
361, 416 (1989) (Scalia, J., dissenting) (“What legislated
standard, one must wonder, can possibly be too vague to
survive judicial scrutiny, when we have repeatedly upheld, in
various contexts, a ‘public interest’ standard?”).
To be sure, the plurality in the Benzene case ostensibly
relied on the doctrine to support its interpretation of the
Occupational Safety and Health Act. See Benzene, 448 U.S.
at 645-46. But a careful reading of the plurality opinion (not,
of course, an opinion of the Court, which would bind us)
reveals that the doctrine was only a makeweight, tossed into
the analysis, in light of Justice Rehnquist’s concurrence, to
help justify the result The plurality, disturbed at the
seemingly draconian impact of the Secretary of Labor’s
standard as applied to several industries, analytically
conflated the scope of the Secretary’s discretion—the
legitimate concern of the nondelegation doctrine—with the
regulatory consequences of his interpretation of the statute.
Id. at 645. The latter concern is not really germane to the
doctrine; indeed, the Secretary was actually claiming he had
less discretion than the plurality thought he had. Accordingly,
the Benzene plurality opinion gives only lip service to the
nondelegation doctrine; the boundaries limiting the scope of
congressional delegation to the executive branch remain only
92a
dimly perceivable. 1 agree with Judge Tatel that the
terminology of this section of the Clean Air Act does not
come so close to those boundaries to raise a serious
constitutional problem.
If it did, and we were faced with two conflicting
interpretations of the statute—both plausible—I have no
doubt that a constitutionally dubious agency interpretation
could be rejected even in a post-Chevron era’ The majority
questions that proposition—and confuses the issue—by
Stating that “the approach of the Benzene case . .. has given
way to the approach of Chevron.” Slip Op. on Reh’g at 4.
The Supreme Court’s opinion in Rust v. Sullivan, 500 U.S.
173, 191 (1991), is to the contrary. See also infra at | (Tatel,
J., dissenting from denial of rehearing en banc) (citing
Mistretta, 488 U.S. at 373 n.7). In other words, the
constitutional avoidance canon trumps Chevron deference.
But that principle is not relevant to this case. Even assuming
the statute was problematic, the panel was not faced with two
competing constructions, one of which might be thought to
avoid constitutional difficulty. Indeed, the panel concluded
that there are no intelligible principles “apparent from the
statute” that brought EPA’s discretion within constitutionally
acceptable limits. ATA, 175 F.3d at 1034. If the panel
believed that was so, it should have held the statute
unconstitutional. Instead the panel, purporting to rely on
Chevron, remanded to EPA directing that agency to come up
with an artificially narrow interpretation with various
suggestions offered by the panel to accomplish that end.' /d.
' Like the plurality opinion in Benzene, these suggestions seem more
directed to encouraging wiser policy choices than interpreting the statute
at issue.
93a
at 1038-40. By so doing, I believe the panel undermines the
purpose of the nondelegation doctrine.
That purpose is, of course, to ensure that Congress makes
the crucial policy choices that are carried into law. The
ability to make those policy choices (even if only at a broad
level of generality) is what is meant by legislative power. See
U.S. Const. art. I, § 1 (“All legislative Powers herein granted
shall be vested in a Congress of the United States.”). It
hardly serves—indeed, it contravenes—that purpose to
demand that EPA in effect draft a different, narrower version
of the Clean Air Act.? Under that view Congress would be
able to delegate almost limitless policymaking authority to an
agency, so long as the agency provides and consistently
applies an “intelligible principle.”
That is not to say that EPA is totally free to exercise its
authority at any point on the discretionary continuum that
Congress delegated to it in the Clean Air Act. The
Administrative Procedure Act’s arbitrary and capricious
? The panel acknowledges this purpose but, relying on an old district
court opinion as primary support, claims that its approach preserves two
other rationales of the doctrine, limiting the ability of agencies to exercise
delegated authority arbitrarily and providing meaningful standards for
judicial review. See ATA, 175 F.3d at 1038 (citing Amalgamated Meat
Cutters v. Connally, 337 F. Supp. 737, 758-59 (D.D.C. 1971)). But these
“purposes” are obviously derivative of the doctrine’s primary function of
ensuring that Congress makes key policy decisions. It is, after all, only
this so-called “third” purpose, see id, that has any connection to the
doctrine’s constitutional source.
* It is true that we used a similar approach in /ndustrial Union, UAW
v. OSHA (“Lockout-Tagout 1"), 938 F.2d 1310 (D.C. Cir. 1991).
Although one could distinguish that case, | think it rests on a similarly
flawed analysis of the doctrine.
94a
standard also limits the agency’s actions. As we have
observed, the broader the substantive statutory delegation the
more likely that the agency’s policy choices will be confined
by the APA, rather than the substantive statute. See National
Ass'n of Regulatory Utility Com’rs v. ICC, 41 F.3d 721, 727
(D.C. Cir. 1994) (“Whether an agency action is to be judged
as reasonable, in accordance with the APA’s general arbitrary
and capricious standard, or whether it is to be examined as a
permissibl
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