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

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

—_ at ae

—

——

2D SEP - 8 mw

No. 99-1426 ,

In the Supreme Court of the United States

-— — — oa <

AMERICAN TRUCKING ASSOCIATIONS, INC.,

ET AL., CROSS-PETITIONERS

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

Gary S. Guzy General

General Counsel CHRISTOPHER S. VADEN

GERALD K. GLEASON DAVID J. KAPLAN

MICHAEL L. Goo Mary F. EDGAR

Attorneys Attorneys

Agency Washington, D.C. 20530-0001 5

Washington, D.C. 20460 (202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly reaffirmed the

longstanding principle that the Environmental Protection

Agency is to set and revise National Ambient Air Quality

Standards (NAAQS) based on consideration of the effects on

public health and public welfare posed by a pollutant’s

presence in the ambient air, and not on consideration of the

technological feasibility, cost, or other alleged effects of

implementing measures to attain NAAQS.

(I)

TABLE OF CONTENTS

SII ercierecenentresnsentecsstanceteeserenecenscemmmecsscenscnseeescssssecocemees

aetna reeermcememenannnenesnncsnsnnnseseninensens

Statutory and regulatory provisions involved ..............:0.0-0000«

I. The Clean Air Act’s NAAQS provisions ..................

II. The particulate matter and ozone rules ...............0.+«.

ID or cerrerrerreeerensemenncssenesnensescseenecssssoccens

Summary of argument ........... iiebiiapetidenipenmmeenedincsnscenscccnnes

Argument:

I. Congress has directed EPA to establish NAAQS

based solely on consideration of the effects on

public health and public welfare caused by the

presence of criteria pollutants in the ambient

A. The text and context of Sections 108 and 109

require EPA to set NAAQS based solely on

the health and welfare effects of the criteria

pollutants’ presence in the ambient air ...............

B. The evolution of the 1970 NAAQS provisions

confirms that Congress made a policy choice

not to base NAAQS on consideration of the

technological feasibility or cost-effectiveness

of pollution control MEASUTES .............000eeneeeees

C. Congress's direction that EPA set NAAQS

based solely on health and welfare effects

is consistent with the Clean Air Act’s

“technology-forcing” objectives ,

D. Congress’s actions since 1970 confirm that

EPA has correctly discerned congressional

intent

(IIT)

Table of Contents—Continued:

II. ATA is mistaken in insisting that the Clean

Air Act requires EPA to consider non-health

B. The Clean Air Act’s express language

refutes ATA’s view of EPA’s obligations in

promulgating NAAQS ..........csssssesssssesesessesneneensees

1. Section 109(b)(1): The term “public

3. Section 108(a)(2): The contents of air

quality criteria .............. ; 7

4. Section 108(b)(1): Dissemination of pollution

control information to States ..............000-00+

5. Section 109(d)\(2): CASAC’s advice to EPA

on effects of implementation .................0..+«

6. Section 109(b)(1): Allowance for an adequate

margin of safety

7. Section 110(a)(2): Consideration of costs in

the implementation program ............:..:-0+

8. Section 109%(d)(1): Revision of NAAQS .........

9. Section 101(b)(1): Goals of the CAA ..............

10. The UMRA and the RFA

C. The Administrator did not base her NAAQS

decisions on consideration of compliance

D. Congress has resolved the public policy

question of whether cost-benefit analysis

should be used in setting NAAQS

Bess &§ @ & SF BS KF &

Table of Contents—Continued:

II]. Expanding the range of factors that EPA may

consider in setting NAAQS would neither re-

solve nor avoid the constitutional issue perceived

TABLE OF AUTHORITIES

Cases:

American Lung Ass'n v. EPA, 134 F.3d 388

(D.C. Cir. 1998) '

American Petroleum Inst. v. Costle, 665 F.2d 1176

(D.C. Cir. 1981), cert denied, 455 U.S. 1034 (1982) ..........

10, 11-12, 34, 45

American Textile Mfrs. Inst. v. Donovan, 452 U.S.

490 (1981) 21, 43, 49

Babbitt v. Sweet Home Chapter of Communities,

515 U.S. 687 (1995) .. 37

Bates v. United States, 522 U.S. 23 (1997) 36

Bob Jones Univ. v. United States, 461 U.S. 574

(1983) 31

Botany Worsted Mills v. United States, 278 US.

282 (1929) 19

Brown v. Gardner, 513 U.S. 115 (1994) 21

CFTC v. Schor, 478 U.S. 833 (1986) 48

Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164 (1994) 47

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837

(1984) 13, 18, 31

FDA v. Brown & Williamson Tobacco Corp., 120

S. Ct. 1291 (2000) 31

Federal Energy Administration v. Algonquin SNG,

Inc., 426 U.S. 548 (1976)

Cases—Continued: Page

George E. Warren Corp. v. EPA, 159 F.3d 616

GS, Git. FED cccenesesnnesnennemmnmsnnen 41

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ...........000000 35

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961) ............ 37

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

Cir.), cert. denied, 449 U.S. 1042 (1980) .............0000+ 2, 12, 13,

19, 25, 27, 33, 34, 37, 40

Lorillard v. Pons, 434 U.S. 575 (1978) .........cccccecccecceeseeeeees 31

Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) ......... 35, 41

Miller v. French, 120 S. Ct. 2246 (2000) ..........c.cccccceceeseeee 48

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

i Ge, GED wniterientiesernctinimenene 34

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 31

NRDC vy. EPA:

824 F.2d 1146 (D.C. Cir. 1987) ............cccceceneees 3, 25, 30, 40, 41

902 F 2d 962 (D.C. Cir. 1290), cert. denied, 498 |

TIT cscs eatin teinitcinataiaitinabnnaetieinats 2, 10, 13, 34

I ———————————— | 41

National R.R. Passenger Corp. v. National Ass'n of

R.R. Passengers, 414 U.S. 453 (1974) ....cccccccesceeseseneneneess 19

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ........... 31

Russello v. United States, 464 U.S. 16 (1983) .................. 21

Textron Lycoming Reciprocating Engine Div. v.

Automobile Workers, 523 U.S. 653 (1998) ...........c0c0000 35-36

Train v. NRDC, 421 U.S. GO (1975) ...........ccccccccseeeees 17, 23, 24

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ...... 4, 7, 15, 17,

20, 25, 27

United States v. Noland, 517 U.S. 535 (1996) ............00000+ 47

United States v. Shabani, 513 U.S. 10 (1994) ..........c000000 21

Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) ............. 20

Walters v. Metropolitan Educ. Enters., Inc., 519

Te 36

Statutes:

Air Pollution Control Act of 1955, ch. 360, 69 Stat.

322 5

Vil

Statutes—Continued: Page

Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat.

GEE —cxsnsnccanssnsnszssumnssemnsneasennesnesssssansenssnsssusnsenensesnemnnensnassnensgsnaensest 22

OO OL 22

SD GN SII cccnesenieniereremnesenestecmmeinionteiiens 22

ee en 5, 22, 23

Clean Air Act, 42 U.S.C. 7401 et 80g. ......ccccccccsseeseseessseneeeneees 2

§ 1010), 42 U.S.C. T4200D) ...........ccececcccessecnssesseseesseesesnees 42

§ 101(b)(1), 42 U.S.C. T4010 (DL)... eccccccseeeceeneneee 42-43, la

§ 108, 42 U.S.C. 7408 .........c.c0000 2,5, 17, 18, 19, 42, 43, la

§ 108(a)(1), 42 U.S.C. 7408 (a1) .....sccccssecceesseeesesnneserensees 5, la

§ 108(a)(2), 42 U.S.C. T408(a)(2) ........cccccccecseeeeeeeees passim

§ 108(a)(2)(A)-(C), 42 U.S.C. 7408(a(2(A)-(C)... 6,22, 2a

§ DOB), 4B U.S.C. TORRID) 2a aancceccecncscsserccscoscessvseee 23, 3a

§$ 108(b)(1), 42 U.S.C. T4OB(D)(1) ......csccccseseeresneneeneneees 38, 3a

8 passim

§$ 109(a)(1), 422 U.S.C. T409(a)(1) .......ccecceseereneeneseeneenenees 5, da

§ 109(b), 42 U.S.C. T409(D) .........cccsescereeseees 2,17, 19, 32, 5a

§ 109(b)(1), 42 U.S.C. T409(D)(1) oncccccccccccccceceeeeee passim

§ 109(b)(2), 42 U.S.C. T4O9(D)(2) ......ccceecesseseeees 5, 14, 15, 18,

23, 36, 37, 5a

§$ 109(d)(1), 42 U.S.C. T409(A)(1) ...-..csecsesseereevenees 5, 9, 42, 5a

§$ 109(d)(2), 42 U.S.C. TAOQ(A)(2) 20... ccceceecereeseseenceeeees 39, 6a

§ 109(d)(2)(B), 42 U.S.C. T409(d)(2)(B) ........ccccceeseeees 39, 6a

§ 10%d)(2)(C), 42 U.S.C. T409(d)(2)(C) ........eeeee 39, 40, 6a

§ 109%d)(2)(C)\iv), 42 U.S.C. 7409(d(2)(C iv) ........ 14, 39

§ 110(a)(2), 422 U.S.C. T410(a)(2) .......ccccceseseseneseseeeeees 41, 7a

§ 110(aX(2D), 42 U.S.C. 7410(a(2)(D) ........ccccceeseeees 41, 7a

§ 110(k), 42 U.S.C. 7410(k) senseustosonsssascase 20

§§ 181-192, 42 U.S.C. 7511-7514a (1994 & Supp.

IV 1998) ..... - seeenesanesrntmeneen 29

§ 183(a), 42 U.S.C. 7511b(a) , , 7

§ 183(e)(1 (A), 42 U.S.C. T511D(e)I A) .....ccccceccceesees 7

Vill

Statutes—Continued:

ON ee

§ 202(i 2) Ai), 42 U.S.C. T5211 (2A) «0.0... eee

§ 211(W)(1), 42 U.S.C. T5451) ......ccccccersesssesssserenenseers

§ 211(k)(1), 42 U.S.C. TE45(K)(1) 20... eeceeseseeeseeeseneeeesnees

§ 213(aX3), 42 U.S.C. 754 7(aNB) ...........ccececserscssresereersees

ON ( Ol

§ 307(d)(4)(B)(ii), 42 U.S.C. 7607(d)(4)( Bi) ...............

§ 307(d)(7)(A), 42 U.S.C. T6OT(A)( TVA) .....cccesceeseeenennees

Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat.

SEED «scesecssssesnsesevenesevssesnsseusnsennsnvenesvevsnnenenevseuatenessuvenieussesousoneusstes

OY ee

Clean Air Act Amendments of 1977, Pub. L. No.

NL ee

DS I eccenmeentereeenemeeeesnen

> De Es CUD coccensccstssessenmenennsneneeneemuneen

8 eee

Oe II TIE sincccehenstereriniarhieenementanieneteignneeceniates

Clean Air Act Amendments of 1990, Pub. L. No.

SPS Ua EEE enema

Sia SPIE, SITIITD ‘cxncecenscnensennpennstiecennmnmempmestemnten

Clean Air Amendments of 1970, Pub. L. No. 91-604,

END, TID cicnssiiitiiassestestentsignnemenemenen

QO ee

RO en

§ 110(f), 84 Stat. 1682-1683 ...............ccreresessssesereeeseereneees

QO 8 ee

QO (9 OU

§ 112(c)(2), 84 Stat. 1685-1686 00.0... .cccccsesesseseseeseneeeenes

ON GE ee

§ 202(b)(5)(A), 84 Stat. 1691 ..........

§ 231(b), 84 Stat. 1704 .........cccscssscsserserees -

Department of Housing and Urban Development-

Independent Agencies Appropriation Act, 1983,

Pub. L. No. 98-45, 97 Stat. 219 .............. aapanmnsasieaittesitats

—

SESSa

SSSSSsSSSaan

Statutes—Continued: Page

Regulatory Flexibility Act, 5 U.S.C. 601 et seg. ............. 43, 44

5 U.S.C. 604(a)(5) (1994 & Supp. TV 1998) 00.0... 43

5 U.S.C. 611 (1994 & Supp. TV 1998) .......cccccceeseseeeeeenes 44

Steel Industry Compliance Extension Act of 1981,

Pub. L. No. 97-23, 96 Stat. 139 ........c.ccsscscvssssssessssssesseseees 29

Unfunded Mandates Reform Act, 2 U.S.C. 1501

I 43

2 U.S.C. 1535(b)(2) (Supp. IV 1998) ................ omen 43

Miscellaneous:

Black's Law Dictionary (7th e€d. 1999) ......cccecerereserenenees 36

Casarett & Doull’s Toxicology: The Basic Science of

ee 12, 33

116 Cong. Rec. (1970):

TERING ccscesesecscvcscsesesees semmememnnnneemenemee 24, 43

0, GRIND censsesesasensesessssenemseseseesessenssnsnssnenesvnmsmenencnsasen 26, 27

SD, GERI canvsescssesenssusesscsnsessssssssenssepsasssnnsusesrenesssnssasententstets 28

GERI cccunsssiczsssesvssrsecsnsevsussesvevesessescunentesensnesssssnensenneses 27

GEE cecnscrsnsenpnrsssnsssrcsmneessusnsmensengesepnetesnesneepemenennnins 27

p. 33,099 svcansnsenncavecnsenconcenconcenconcancnscescencescssssesasoseceeseceeces 26, 40

GERRI cecsssscesssessssesesesscenesscsspnnspuesnsoenenssssssenssensscounevesneses 43

EPA, The Benefits and Costs of the Clean Air Act,

Ca Bs Ge enemies 49

SD FR, Be See crenesensnennenannnnnn 17-18

61 Fed. Reg. (1996):

GGG cccseensssssesssssssececzcscsesesesesccnensnsezsscsnssesnenesess ~

i, GED censtnnnsemensssemessesmmemsmemeememes 8

GED crsnesencessssseseesessnsscnseseresecsseemnesmecusescenasasesn 33

A (an puepeneune . 82-33

62 Fed. Reg. (1997):

PP. 38,427-38,428 ........0000 ‘ spemnapespemamenensente 12

p. 38,676 ve » 2

TI ccsczesasesesscscccesessvsecnssssnssnsnsnsscsnsnsenenssesssnsnsenosoncesese 28, 29

BE, GEG cxcssssessccsssssrsessnssnssnsseraqsenenensnesesenesesnenveusnen 18

pp. 38,683-38,689 44

Miscellaneous—Continued: Page

p RIESE SERRE Eee ere rn ne ON NLD Ra OURAN IDEN 44

Oh, GARR cxnnsenssensnssensnpsnnssenseenssssnmemmnenetaiemmnsgesiemnsasesennesennsante 44

Wii; i eriieaeahtesichicideaineneeidecin tka ita 11-12

WII ceneesesssecssescensnescssosenensonscssanenecsenatstecaneaneensesescessnessnens 12

BD, GARI cesesscecescssvesacecsscscssnensosecsneqnescsvescsneseseesonmnente 9

WD, ERATE, ccesesscncescvscncscsvensussnsssenssosseesnsnssesenescsnssesenesssnanssnsenasen 10

i, GGUS cccenctnccssncssserssecsenccsteniotantessscssumenpeatscsssen 18, 44

Be RD cesetsesesnessescenssscenisnnenesesvsnsinnsncsensesmneteeeeneennenen 44

KE. Goodstein & H. Hodges, Polluted Data, The

American Prospect, No. 35 (Nov.-Dec. 1997) «0... 25

W. Harrington, P. Morgenstern & R. Nelson, On the

Accuracy of Regulatory Cost Estimates, Resources for

the Future Discussion Paper 99-18 (1999) «0... 46

Hearings on Air Pollution Before the Subcomm. on

Air and Water Pollution of the Senate Comm. on

Pub. Works, 91st Cong., 2d Sess. Pt. 4 (1970) 0.0... 24, 28

Hearings on the Clean Air Act: Ozone and Particu-

lute Matter Standards Before the Subcomm. on

Clean Air, Wetlands, Private Property and Nuclear

Safety and the Senate Comm. on Env’t and Pub.

Works, 105th Cong., Ist Sess. (1997) ......ccsseseeeeeeeens 18, 47

Hearings on the Clean Air Amendments of 1977

Before the Subcomm. on Envtl. Pollution of the

Senate Comm. on Env't and Pub. Works, 95th

i, Sn FO TED Wet 28

Hearings on Clean Air Act Oversight Before the

Senate Comm. on Env’t and Pub. Works, 97th

Seg BES is FG. GED centnteierernenitcticteniimeninmen 31

Hearings on Health Standards for Air Polluntants

Before the Subcomm. on Health and the Env't of

the House Comm. on Energy and Commerce,

Seen Se, BUR GD ceteneencenteneeeineninmen 31

Hearings on Implementation of the Clean Air Amend-

ments of 1970 Before the Subcomm. on Air and

Water Pollution of the Senate Comm. on Pub.

Works, 92d Cong., 2d Sess., Pt. 1 (1972) .......ccccccccseseseseeeee 28

Miscellaneous—Continued: Page

L. Heinzerling, Regulatory Costs of Mythic Pro-

portions, 107 Yale LJ. 1981 (1998) ........ccecccsesesesneneseereneeees 46

H.R.J. Res. 395, 100th Cong., Ist Sess. (1987) «0... 29

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) .......... 28, 39-40

H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1

GERRI cecccensencecensecscnsensnnencnsssenenensasmessnanesesesesenteteonsentennessseseses 30-31

H.R. Rep. No. 728, 90th Cong., Ist Sess. (1967) ..........:+. 22, 23

Joint Hearings on Reports of the Nat'l Commission on

Air Quality and the Nat'l Academy of Sciences Before

the Senate Comm. on Env’t and Pub. Works and the

Subcomm. on Health and the Env't of the House

Comm. on Energy and Commerce, 97th Cong., Ist

and, GED ccnnenenenstssnnanmeniiienenmnmene 30

M. Landy, M.J. Roberts & S. Thomas, The Environ-

mental Protection Agency: Asking the Wrong

Questions from Nixon to Clinton (Oxford Univ.

PUIG BEE) ccccacscsersssescsrevssenssessovesnennsnensesemmmneeneesnesnenenmmeneanesseses 45

H. Latin, Good Science, Bad Regulation and Toxic

Risk Assessment, 5 Yale J. on Reg. 89 (1988) ........00:000e0 46

Letter from M. Akher, M.D., M.P.H., Executive

Director, APHA, to C. Browner, Administrator, EPA,

Docket [V-G-1826 (Jume 27, 1997) .......ccccccccsseceeseeeeeeeeeneeees 36

T. McGarity, A Cost-Benefit State, 50 Admin. L.

EEE PSRE RT Ser ore a eee ERO ET 46

National Comm’n on Air Quality Report (Mar. 1981) a 30, 49

S. Rep. No. 638, 88th Cong., Ist Sess. (1963) .........ssevesee 22

S. Rep. No. 403, 90th Cong., Ist Sess. (1967) .........cscssevee 22, 23

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ..........00000 26, 27,

33, 40

S. Rep. No. 228, 101st Cong., Ist Sess. (1989) ..........sessss00 31

A. Scalia, Responsibilities of Regulatory Agencies

Under Environmental Laws, 24 Hous. L. Rev. 97

(1987) .....000+ 34, 36, 48

S. Shapiro & T. McGarity, Not So Paradoxical: The

Rationale for Technology-Based Regulation, 1991

Dane GF. Ta ccccnccssrnseenenenesinninnnanetitnnmmmatonnes 46

XII

Miscellaneous—Continued: . Page

Staff of Senate Comm. on Pub. Works, 93d Cong.,

2d Sess., A Legislative History of the Clean Air

Amendments of 1970 (Comm. Print):

WUE B cccasascscssrusesensncnssansascsnssntomanines 24, 26, 27, 28, 33, 40, 43

WO, © .ncsceccscsconsscsssncosesnssnnsnqusassengensassssenememssnenenmpnensenaeanneees 24, 28

~W. Wagner, The Science Charade in Toxic Regulation,

95 Colum. L. Rev. 1613 (1995) ...........c.c.cscscssssessscsseesesensersees 45

Webster's Third New International Dictionary

GPS cneccsessseessevsecensnensnansassennsnsnssemsnnseesnnenismsemnsmmenmsnmanssnenies 36

In the Supreme Court of the Gnited States

No. 99-1426

AMERICAN TRUCKING ASSOCIATIONS, INC.,

ET AL., CROSS-PETITIONERS

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

_ OPINIONS BELOW

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

reported at 175 F.3d 1027.' The opinion on petitions for

rehearing and dissenting statements on denial of rehearing

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

JURISDICTION

The decision of the court of appeals was entered on May

14, 1999. Petitions for rehearing were granted in part and

denied in part on October 29, 1999. The federal govern-

ment’s petition for a writ of certiorari in No. 99-1257 was

filed on January 27, 2000, and was granted on May 22, 2000.

The conditional cross-petition of American Trucking Asso-

ciation, et al., was filed on February 28, 2000, and was

granted on May 30, 2000. The jurisdiction of this Court rests

on 28 U.S.C. 1254(1).

| “Pet. App.” refers to the petition appendix in Browner v. American

Trucking Ass'ns, No. 99-1257.

(1)

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Relevant portions of Sections 101, 108, 109, and 110 of the

Clean Air Act, 42 U.S.C. 7491, 7408, 7409, 7410, are set forth

at App., infra, la-8a. Other sections of the Clean Air Act are

set forth at Pet. App. 105a-126a.

The EPA rules at issue in this case are set forth at Pet.

App. 102a-104a.

STATEMENT

Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409,

requires EPA to establish and periodically revise primary

National Ambient Air Quality Standards (NAAQS) “requi-

site to protect” public health with “an adequate margin of

safety,” and secondary NAAQS “requisite to protect” public

welfare. EPA is to set NAAQS “based on” the “air quality

criteria” that EPA must prepare under Section 108. 42

U.S.C. 7409(b). Section 108 of the Act further specifies that

the air quality criteria for each pollutant subject. to the

NAAQS requirement must “accurately” reflect “the latest

scientific knowledge” on the effects on public health and

public welfare posed by “the presence of such pollutant in

the ambient air, in varying quantities.” 42 U.S.C. 7408(a)(2).

In the thirty years since enactment of these provisions,

EPA has consistently recognized that the plain language of

Sections 108 and 109 requires the agency to set and revise

NAAQS based solely on consideration of the effects of

ambient air pollutants on public health and public welfare,

and not on the feasibility or effects of measures designed to

attain the NAAQS. In an unbroken line of cases beginning

with Lead Industries Ass’n v. EPA, 647 F.2d 1130, 1148,

cert. denied, 449 U.S. 1042 (1980), the District of Columbia

Circuit has repeatedly, and “emphatically,” affirmed this

principle. NRDC v. EPA, 902 F.2d 962, 973 (D.C. Cir. 1990),

cert. denied, 498 U.S. 1082 (1991); see Pet. App. 19a-21a;

American Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir.

1998); American Petroleum Inst. v. Costle, 665 F.2d 1176,

1185 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982); see

also NRDC v. EPA, 824 F.2d 1146, 1158-1159 (D.C. Cir.

1987) (en banc) (Vinyl Chloride) (Section 109 “on its face

does not allow consideration of technological or economic

feasibility”).

In their cross-petition seeking review of this longstanding

interpretation, American Trucking Associations, et al. (ATA)

have asked this Court to overturn a principle on which three

decades of federal and state air quality regulation have

rested. ATA would have EPA expand the range of factors

that it considers in setting the NAAQS. Under ATA’s

approach, EPA would not only consider the health and

welfare effects associated with the presence of a criteria

pollutant in the ambient air, but would be required addition-

ally to consider the feasibility, costs, and other effects of

measures to remove the pollutant from the air.

As we explain in the Argument section of this brief,

ATA’s construction of the Act is inconsistent with the statu-

tory text, with the overall scheme of the NAAQS program,

and with ocher indicia of congressional intent. But it is

important to emphasize at the outset a point that ATA, other

industry groups, and their amici largely ignore: The CAA

provides for consideration of economic and technological

feasibility, but at later stages of the regulatory process. One

might suppose from their submissions that setting the

NAAQS is the sole component of the CAA’s detailed process

for improving air quality or that economic and technological

feasibility are never considered in any other step of the

CAA’s elaborate process. That is simply not so.

The NAAQS serve as air quality targets for certain

“criteria” pollutants based on the aggregate concentration of

each in the ambient air; but the NAAQS are not, themselves,

directly enforceable against regulated entities that emit

those pollutants. See Pet. App. 26a-3la. Rather, the States

seek to achieve the NAAQS through state implementation

plans (SIPs), which impose enforceable emission limitations

and other pollution controls. See CAA § 110, 42 U.S.C. 7410.

Economic and technological feasibility are taken into account

at that stage of the regulatory program, when the States

determine, in concrete form, what pollution controls are

appropriate. See Union Elec. Co. v. EPA, 427 U.S. 246, 266-

269 (1976).

As this Court has recognized, Congress provided “ample

opportunity” for consideration of economic and technological

feasibility at the implementation stage of the regulatory

process. Union Elec., 427 U.S. at 268. Moreover, if EPA or

the States conclude at that later stage, when control alter-

natives receive detailed consideration, that they cannot

accommodate the regulated community’s concerns consistent

with their statutory obligations, then the regulated commu-

nity can—and regularly does—present its concerns to Con-

gress. Congress has reserved to itself the responsibility for

adjusting the CAA as necessary to accommodate concerns

regarding societal costs, and Congress has taken legislative

action when it has concluded that such action is warranted.

See, e.g., Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399 (imposing new requirements for

nonattainment areas).

In our opening brief in No. 99-1257, we have provided the

Court with a description of the CAA provisions governing

the initial promulgation, revision, and implementation of

NAAQS, Pet. Br. 2-8, as well as a summary of the extensive

explanations for the Administrator’s 1997 decisions to revise

the NAAQS for particulate matter (PM) and ozone, id. at 8-

15. We accordingly will provide here only a brief discussion

of the statutory provisions put at issue by ATA’s cross-

petition. We will also clarify a few additional key points

regarding the record basis for EPA’s decisions to revise the

PM and ozone NAAQS.

I. The Clean Air Act’s NAAQS Provisions

Sections 108 and 109 of the CAA, which govern EPA's

development of air quality criteria and NAAQS, were

enacted in 1970. 84 Stat. 1678-1679." Since then, the CAA

has required EPA to set and periodically revise “primary”

and “secondary” NAAQS for certain ubiquitous air pollut-

ants, known as criteria pollutants. 42 U.S.C. 7409(a)(1) and

(d)(1). EPA must set “primary” standards at levels that, “in

the judgment of the Administrator,” are “requisite to protect

the public health” with “an adequate margin of safety.” 42

U.S.C. 7409(b)(1). EPA must set “secondary” standards at

levels that are “requisite to protect the public welfare” from

any “known or anticipated adverse effects.” 42 U.S.C.

7409(b)(2).

Section 109 requires both primary and secondary NAAQS

to be “based on * * * criteria” that EPA develops under

Section 108. Under that Section, EPA must identify, and

develop “air quality criteria” for, pollutants that are emitted

from “numerous or diverse” sources and that “may reason-

ably be anticipated to endanger public health or welfare.” 42

U.S.C. 7408(a)(1). Section 108 specifies that the “air quality

2 Congress first addressed the problem of air pollution through the

Air Pollution Control Act of 1955, ch. 360, 69 Stat. 322, which authorized

the Secretary of Health, Education, and Welfare (HEW) to conduct

research activities. Congress later expanded HEW'’s authority to include,

among other things, compiling and publishing air quality criteria based on

scientific studies, Clean Air Act of 1963, Pub. L. No. 88-206,

§ 3(c), 77 Stat. 395. Congress later directed States to develop regionally

based ambient air quality standards and provided mechanisms for

enforcement, Air Quality Act of 1967, Pub. L. No. 90-148, § 108(c), 81 Stat.

492-494. Congress substantially revised that program through the Clean

Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676, which pro-

vided for national ambient air quality standards and for state implementa-

tion. See 84 Stat. 1679. Congress continued to build on that program

through the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91

Stat. 685, and the Clean Air Act Amendments of 1990, Pub: L. No. 101-

549, 104 Stat. 2399. See text at pp. 21-25, infra.

criteria” shall reflect the effects on public health and public

welfare associated with the “presence” of a criteria pollutant

“in the ambient air”:

Air quality criteria for an air pollutant shall accurately

reflect the latest scientific knowledge useful in indicating

the kind and extent of all identifiable effects on public

health or welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

quantities.

42 U.S.C. 7408(a)(2). The CAA then specifies three types of

information—each of which falls within the general definition

set forth above—that, “to the extent practicable,” the

criteria shall “include”:

(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

42 U.S.C. 7408(a)(2) A)-(C).

As we have previously explained in more detail (see 99-

1257 Pet. Br. 5-8), the CAA sets out an elaborate process,

resting on principles of federal-state cooperation, to ensure

that the air throughout the Nation “attains” the NAAQS.

Under the CAA, the primary mechanisms for implementing

the NAAQS are the SIPs, which set forth the pollution con-

trol measures necessary to attain all NAAQS by statutorily

required dates. The States are expressly authorized under

Section 110 to consider the economic and technological fea-

sibility of the pollution control measures they include in their

SIPs. Union Elec., 427 U.S. at 256-269. As this Court has

explained (id. at 266):

Perhaps the most important forum for consideration of

claims of economic and technological infeasibility is

before the state agency formulating the implementation

plan. So long as the national standards are met, the

State may select whatever mix of control devices it

desires * * * and industries with particular economic or

technological problems may seek special treatment in the

plan itself.

In addition, EPA itself has responsibility under the Act

for taking various actions to implement the NAAQS. Just as

the States may consider economic and technological feasibil-

ity in developing their SIPs, the Act generally grants EPA

discretion to consider those factors when it acts to imple-

ment the NAAQS it has promulgated. For example, under

Section 183 (“Federal ozone measures”), EPA is to issue

control techniques guidelines, taking cost into account. 42

U.S.C. 751lb(a) and (e)(1)(A). Similarly, under Section

202(i2) Ai), EPA is to determine whether additional

regulations for light-duty trucks are required to attain or

maintain the NAAQS and, if so, to promulgate cost-effective

regulations. 42 U.S.C. 7521(i(2)A\(i).”

3 See also, e.g., CAA § 211(k)(1), 42 U.S.C. 7545(k)(1) (requiring EPA

to promulgate standards for reformulated gas to be used in nonattainment

areas, taking cost into account); CAA § 211(h)(1), 42 U.S.C. 7545(h)(1)

(requiring EPA to set standards for gasoline volatility in nonattainment

areas, taking cost into account); CAA § 213(a)(3), 42 U.S.C. 7547(a)X(3)

(requiring EPA to determine whether emissions from nonroad engines

contribute significantly to ozone concentrations in more than one

nonattainment area and to promulgate appropriate nonroad regulations,

considering costs); CAA § 202(a), 42 U.S.C. 7521(a) (authorizing EPA to

set engine standards for pollutants that may “reasonably be anticipated to

endanger public health or welfare,” taking the cost of compliance into

account).

II. The Particulate Matter and Ozone Rules

ATA’s cross-petition presents a straightforward issue of

statutory construction that may be resolved without

consideration of the records in the underlying rulemaking

proceedings. Nevertheless, we must briefly respond to the

characterization of those rulemaking records by ATA and its

supporters. Contrary to that portrayal, those records show

an extensive body of newly available scientific information,

in both the PM and ozone rulemakings, that called for

revision of the existing standards to address a wide range of

adverse health effects.

1. EPA’s revised PM and ozone NAAQS address real

and significant effects, not merely hypothetical risks. EPA

was confronted with consistent and persuasive evidence,

from study after study, that as PM levels rise the number of

people who actually die or enter hospitals—especially due to

cardiovascular and respiratory disease—rises correspond-

ingly. 61 Fed. Reg. 65,641-65,643 (1996); 97-1440 CA App.

(PM App.) 1375-1778, 1801-1845.’ In addition to similar

epidemiological evidence linking ozone to increased hospital

admissions in real populations, the ozone record contains

numerous clinical studies that demonstrate ozone’s deleteri-

ous effects on the human respiratory system. 61 Fed. Reg.

at 65,719-65,720. In those studies, researchers measured

respiratory effects in human volunteers exposed to ozone

under controlled laboratory conditions. 97-1441 CA App.

(Ozone App.) 1461-1462.

* Indeed, the court of appeals considered and rejected ATA’s assertion

(see ATA Br. 13) that EPA should not have revised the PM standard

because of uncertainty as to the biological mechanism by which PM may

cause the health effects shown in more than 60 epidemiological studies.

Pet. App. 55a-56a. The court found that the record “amply justifie(d]

establishment of new fine particle standards.” /d. at 56a. No party sought

review of this portion of the court of appeals’ decision.

In providing a thorough and objective explanation of its

decisions, EPA did identify areas of scientific uncertainty, on

which ATA and Respondent Appalachian Power Company,

et al. (APC) have focused so singularly in their statements of

the case. E.g., ATA Br. 15; APC Br. 13. As EPA explained

in response to comments on the PM rule, “uncertainty and

controversy on scientific issues are inherent in the statutory

scheme, which in effect requires decisions ‘at the very “fron-

tiers of scientific knowledge’” where ‘disagreement among

the experts is inevitable.” PM App. 266 (quoting Lead

Indus., 647 F.2d at 1160); see also 62 Fed. Reg. 38,880-38,881

(1997). Those inherent uncertainties do not transform the

observed adverse health effects addressed by the revised

standards into merely theoretical or hypothetical risks.

2. EPA did not revise the PM and ozone NAAQS simply

to change its method for “management of predicted risks

addressed by the then-current standards” (APC Br. 14).

EPA acted because new scientific evidence revealed that

adverse health effects are associated with lower concentra-

tions of PM and ozone than had been indicated by the

evidence available in prior NAAQS reviews. Congress has

required that EPA periodically review the air quality

criteria and NAAQS in light of new scientific knowledge and

revise them as appropriate. 42 U.S.C. 7409(d)(1). When

the Administrator reviewed and revised the PM and ozone

NAAQS, she did so based on “the latest scientific knowl-

edge” of the effects associated with the presence of these

two pollutants in the ambient air. 42 U.S.C. 7408(a)(2).

The evidence available in 1997 differed significantly from

that available earlier, reflecting refinements in analytical

techniques, substantial new research, and new information

on the kind and severity of health effects associated with the

two pollutants.” For example, when EPA promulgated the

5 The Administrator noted that the science underlying the 1997

decisions was more extensive and of higher quality than that underlying

PM,, standards in 1987, only “a small number” of epidemi-

ological studies were available for determining the concen-

trations at which PM is likely to affect public health. 52 Fed.

Reg. 24,641 (1987). EPA set the 1987 PM, standards at

levels that reasonably appeared to provide an adequate

margin of safety against the health effects identified in the

studies then available. See NRDC, 902 F.2d at 971-972

(summarizing basis for 1987 PM standards).

By the time of the most recent review, however, a large

body of new evidence on the health effects of the two pollut-

ants was available. More than 60 epidemiological studies

showed that PM concentrations below the level of the 1987

standards are the likely cause of premature death and other

serious adverse health effects. See 99-1257 Pet. Br. 9-10."

Similarly, new research demonstrated that adverse health

effects are caused by exposure to ozone at lower concentra-

tions, over longer periods, and at more moderate levels of

exertion than had been shown by studies available during

previous ozone reviews. See id. at 11-12. Accordingly, the

Administrator’s decision to revise the standards did not

reflect merely a different judgment about how to manage the

same risks her predecessors had considered.

3. CASAC unambiguously advised the Administrator

that the PM and ozone NAAQS should be revised, unani-

mously recommending that EPA replace the one-hour ozone

the previous PM and ozone standards, which had been upheld on ‘udicial

review. 62 Fed. Reg. at 38,881 n. 53; see NRDC, 902 F.2d 962 (1987

PM NAAQS); American Petroleum Inst., 665 F.2d 1176 (1979 ozone

NAAQS).

6 The final chapter of the PM Criteria Document, which the Clean Air

Scientific Advisory Committee (CASAC) characterized as the “best ever

example of a true integrative summary of the state of knowledge about

the health effects of airborne PM” (PM App. 3150), concluded that the

available evidence “provide|s} ample reason to be concerned that there are

detectable human health effects attributable to PM at levels below the

current NAAQS.” /d. at 1870 (emphasis added). See 99-1257 Pet. Br. 4

(describing CASAC’s role).

NAAQS with an eight-hour standard (Ozone App. 236-238),

and almost unanimously (19 of 21 panel members) recom-

mending that EPA establish PM,, standards (PM App.

3162). Cf. ATA Br. 6-7, 14-15; APC Br. 12-13. Moreover,

CASAC concluded that EPA’s Criteria Documents and Staff

Papers, which recommended a range of NAAQS levels that

encompassed the levels actually chosen, provided “an ade-

quate scientific basis for regulatory decisions.” PM App.

3151, 3162; Ozone App. 235, 236. CASAC followed its tradi-

tional practice of declining to provide a consensus recom-

mendation on specific levels for the revised NAAQS, but

that did nov relieve the Administrator of her duty to reach

decisions on specific NAAQS levels. Once the Administrator

had concluded that the NAAQS required revision, she—

unlike CASAC—had to resolve the uncertainties associated

with those decisions. See PM App. 265-269.”

Similarly, CASAC’s observation that no “bright line” dis-

tinguished the alternative levels EPA considered for the re-

vised ozone NAAQS did not mean that CASAC disagreed

with EPA’s decision to revise the ozone NAAQS. CASAC’s

observation reflects the unexceptional fact that, like other

common air pollutants, ozone lacks a demonstrated “thresh-

old,” 62 Fed. Reg. at 38,863; i.e., there is no “bright line” be-

low which scientists have observed a cessation of physiologi-

cal or biological effects. See American Petroleum Inst., 665

7 CASAC has typically acknowledged, as it did in thuce reviews, that

final NAAQS decisions require the Administrator to make public health

policy judgments as well as determinations of a strictly scientific nature.

E.g., PM App. 3164. Since CASAC began advising EPA in the late 1970s,

it has generally stopped short of offering consensus recommendations on

specific NAAQS levels and has instead advised on the ranges of levels that

the science supports. /d. at 266. Nevertheless, CASAC panel members

may express individual views. For example, the level of protection

afforded by the revised PM NAAQS falls toward the mid-portion of the

range of protection afforded by the PM standards recommended by those

CASAC panel members who chose to express individual views. See id. at

265-269.

F.2d at 1185; Lead Indus., 647 F.2d at 1152-1153 & n.43;

NRDC, 902 F.2d at 969; see Casarett & Doull’s Toxicology:

The Basic Science of Poisons 19, 79-80 (5th ed. 1996). The

evidence showed a continuum of risk within the range con-

sidered, with statistically significant decreases in risk and

corresponding increases in public health protection for suc-

cessively more stringent eight-hour ozone standards, 62 Fed.

Reg. at 38,864. CASAC clearly understood that observed

phenomenon. Ozone App. 297-298; 62 Fed. Reg. at 38,863."

4. EPA and CASAC agreed that additional research into

the health effects of PM pollution is warranted, but that

conclusion did not affect the timetable for implementation of

the revised PM standards. Cf. APC Br. 13. Instead, EPA

recognized that, for practical reasons, it would take at least

five years to begin implementation. 62 Fed. Reg. at 38,427-

38,428. Prior to implementation, a nationwide network of

PM.,, monitors has to be installed. Jd. at 38,427. In addition,

because the PM,,; NAAQS are based on an average of con-

centrations over three years, a prolonged monitoring effort

is necessary before the States can begin to propose designa-

tions of areas as attainmert or nonattainment for the PM,,

NAAQS. Id. at 38,427-38,428.°

8 The scientific community’s inability to detect an effects threshold for

a pollutant does not mean that medically significant effects are actually

known or thought to occur at very low levels. Indeed, there may be little

or no evidence supporting that possibility. See, e.g., 62 Fed. Reg. at

38,676; Casarett & Doull’s Toxicology, supra, at 20 (it is “difficult to estab-

lish a true ‘no effects’ threshold for any chemical” and “impossible to

scientifically prove the absence of a threshold, as one can never prove a

negative”).

° Implementation of the revised ozone standard has been delayed due

to uncertainty arising from the court of appeals’ ruling on EPA's authority

to implement the standard, which is under review by this Court in No. 99-

1257. EPA is also in the process of responding to the court of appeals’

remand of the ozone standard for consideration of alleged potential

“beneficial” effects associated with the presence of ground-level ozone in

the ambient air. Pet. App. 44a-49a. That aspect of the remand, which

III. Proceedings Below

The court of appeals’ decision reaffirms the long-settled

principle that, “in setting NAAQS under § 109(b) of the

Clean Air Act, the EPA is not permitted to consider the cost

of implementing those standards.” Pet. App. 19a. The court

of appeals has consistently held that EPA must set NAAQS

based on the “health effects relating to pollutants in the air”

and not on alleged costs or any other effects that may result

from implementation of the NAAQS. E.g., NRDC, 902 F.2d

at 973 (EPA may not consider alleged health effects of

unemployment petitioners predicted would flow from imple-

mentation of 1987 PM NAAQS); see Lead Indus., 647 F.2d at

1148; see also pp. 2-3, supra.

The court of appeals expressly rejected ATA’s argument

that it should reconsider its decision in Lead Industries

because that case was decided prior to Chevron U.S.A. Inc.

v. NRDC, 467 U.S. 837 (1984). The court explained (Pet.

App. 19a-20a): ,

The Lead Industries decision was made in Chevron step

one terms, * * * as the post-Chevron progeny of Lead

Industries have made clear. See NRDC, 902 F.2d at 973

(“Consideration of costs . . . would be flatly incon-

sistent 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 bane) (“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.”).

The court of appeals also rejected the argument that, even

if, in initially setting NAAQS, EPA cannot consider costs

EPA has not challenged, has nothing to do with the question posed by

ATA’s cross-petition, despite ATA’s suggestions to the contrary. See

ATA Br. 8-9. .

and other effects of implementation, it may do so when

revising NAAQS. Pet. App. 20a. Finally, the court rejected

the argument that Congress’s direction that CASAC advise

EPA on, among other things, “any adverse public health,

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

from various strategies for attainment and maintenance” of

NAAQS, CAA § 109(d)(2)(C\(iv), 42 U.S.C. 7409(d)(2)(C iv),

signals that EPA should consider those factors in revising

NAAQS. Pet. App. 2la. Instead, the court of appeals held

that the Act directs CASAC to provide that advice in light of

EPA’s separate duty to inform the States on control

strategies. /bid.

SUMMARY OF ARGUMENT

When Congress enacted Section 109 as part of the Clean

Air Amendments of 1970, it made a policy choice that EPA

should set NAAQS at levels requisite to protect public

health and public welfare. The text, structure, and context

of Section 109 establish that Congress intended EPA to set

and revise NAAQS based on the health and welfare effects

posed by the presence of criteria pollutants in the ambient

air, and not on the feasibility, costs, or other effects of imple-

menting the NAAQS. Congress decided that consideration

of the latter should instead await the process of implementa-

tion, where those factors will be manifested in concrete

terms. The Clean Air Act makes clear that the States and

EPA may give appropriate consideration to such factors at

various stages of the implementation process.

Section 109(b)(1) directs EPA to set primary NAAQS at

levels “requisite” to protect “public health” with “an ade-

quate margin of safety.” 42 U.S.C. 7409(b)(1). There is no

ambiguity in that command. EPA must set primary NAAQS

at levels necessary to ensure that the general population is

protected, with a reasonable degree of certainty, against the

risk of adverse health effects. Similarly, Section 109(b)(2)

directs EPA to set secondary NAAQS at levels “requisite to

protect the public welfare.” 42 U.S.C. 7409(b)(2). Congress

spoke directly to the issue of what factors EPA may consider

when it sets and revises NAAQS. Section 109 states that

both primary and secondary NAAQS are to be based on the

air quality criteria that EPA develops under Section 108.

Section 108, in turn, directs that air quality criteria are to

“accurately reflect” the “latest scientific knowledge” on the

effects on public health and public welfare that may be

associated with “the presence of” a criteria pollutant “in the

ambient air.” 42 U.S.C. 7408(a)(2).

The evolution of the 1970 Act confirms that Congress did

not intend EPA to base NAAQS on consideration of any

effects except those posed by the presence of the pollutant in

the ambient air. Under the Air Quality Act of 1967, the

States were to set regional ambient air quality standards

consistent with two pieces of information prepared by the

Department of Health, Education, and Welfare: air quality

criteria (defined in the same manner as in the 1970 Act) and

information regarding pollution control techniques (including

information on the technological feasibility and cost-effec-

tiveness of those techniques). When Congress determined in

1970 that uniform national standards were necessary, it

retained the requirement that EPA prepare and provide the

States with information on pollution control techniques, but

specified that NAAQS should be based on the air quality

criteria alone.

The court of appeals’ and EPA’s shared understanding of

Congress’s intent is consistent with what this Court has

described as the “technology-forcing” character of the Clean

Air Act. See Union Elec. Co. v. EPA, 427 U.S. 246, 257

(1976). Congress understood that setting NAAQS on the

basis of health and welfare considerations would give indus-

try an incentive, at the implementation stage, to develop

innovative and cost-effective control strategies. Congress’s

actions since 1970 confirm that Congress reserved to itself

the responsibility for determining whether to adjust the

NAAQS process in response to industry complaints about

the costs, technological challenges, or other burdens of

compliance. Since 1970, Congress has repeatedly been con-

fronted with evidence of widespread failure to attain

NAAQS by applicable statutory deadlines. Each time,

Congress has heard complaints regarding the economic and

technological feasibility of attaining the standards. Yet, each

time, Congress has addressed the problem by amending the

timetable or manner of implementing the NAAQS and not

by amending the legal standard that governs EPA’s deci-

sions to set and revise them.

ATA and its amici offer no persuasive arguments that

Congress intended NAAQS to be based on feasibility or

costs of implementation. They are unable to identify any

statutory provision directing EPA to consider such factors.

To the contrary, ATA relies on statutory provisions that

confirm Congress’s intent that EPA and the States consider

such factors in the NAAQS-implementation process, but not

in the NAAQS-setting process. The amici supporting ATA

urge this Court to apply cost-benefit principles in setting

NAAQS, because, in their view, it would represent a better

policy choice. But the wisdom and utility of basing measures

to protect public health on cost-benefit analysis are a subject

of robust public debate. Congress has chosen not to apply

that regulatory approach in setting NAAQS, and any deci-

sion to depart from Congress’s 30-year course should come

from Congress itself and not from the courts.

As we explain in our opening brief in the related case, No.

99-1257, Section 109 of the Clean Air Act does not violate the

nondelegation doctrine. Moreover, because the meaning of

Section 109 is clear, the canon that the Court should construe

ambiguous terms of legislation to avoid reaching constitu-

tional issues has no place in this case. But even if the court

of appeals’ analysis of the constitutional issue were correct,

allowing EPA to consider factors such as economic and

technological feasibility when it sets and revises NAAQS

would not resolve or avoid the constitutional issue. ATA’s

proposed approach would expand, rather than narrow, the

range of factors EPA must consider. Injecting those factors

into EPA’s NAAQS decision-making process would not

provide the “determinate criterion” that the court of appeals

believed was necessary under the nondelegation doctrine.

ARGUMENT

I. CONGRESS HAS DIRECTED EPA TO ESTABLISH

NAAQS BASED SOLELY ON CONSIDERATION OF

THE EFFECTS ON PUBLIC HEALTH AND PUBLIC

WELFARE CAUSED BY THE PRESENCE OF

CRITERIA POLLUTANTS IN THE AMBIENT AIR

Congress introduced the NAAQS concept through the

Clean Air Amendments of 1970. See Train v. NRDC, 421

U.S. 60, 63-65 (1975); note 2, supra; see also Union Elec., 427

U.S. at 256-257. Since then, EPA has consistently applied

Section 109 according to its terms, which require NAAQS to

be set at levels “requisite to protect” public health and public

welfare. 42 U.S.C. 7409(b). Congress prescribed that

NAAQS are to be “based on” the air quality criteria EPA

develops under Section 108 and that those criteria are to

provide an accurate scientific assessment of the effects on

public health and public welfare posed by “the presence of

[the] pollutant in the ambient air, in varying quantities.” 42

U.S.C. 7408(a)(2). Accordingly, for the last three decades,

EPA has understood that, when promulgating NAAQS, it

may not consider technological feasibility, costs, or other

alleged effects flowing from implementation of the stan-

dards. Instead, Congress intended those factors to be con-

sidered when the States and EPA decide how NAAQS

should be implemented.’

10 When promulgating the first NAAQS, Administrator Ruckelshaus

responded to comments questioning their feasibility by stating that the

CAA “does not permit any factors other than health to be taken into

ATA asks this Court to overturn, not only 30 years of

agency practice, but 20 years of court of appeals precedent

decided in the course of reviewing prior NAAQS. See Pet.

App 19a; pp. 2-3, supra. That extraordinary action is unwar-

ranted. Congress has unambiguously indicated its intent

that NAAQS should be based on scientific evidence

regarding the health and welfare effects of ambient

pollution, and not on the technological feasibility, costs, or

other effects of measures to reduce pollution levels.

A. The Text And Context Of Sections 108 And 109 Re-

| quire EPA To Set NAAQS Based Solely On The Health

And Welfare Effects Of The Criteria Pollutants’ Pre-

sence In The Ambient Air

The court of appeals and EPA have correctly concluded

that Congress “has directly spoken to the precise question at

issue” by specifying precisely what factors EPA is to con-

sider when it sets and revises NAAQS. Chevron, 467 U.S. at

842. Section 109(b)(1) of the Act directs EPA to set primary

NAAQS at a level “requisite to protect the public health”

and to set secondary NAAQS at a level “requisite to protect

the public welfare.” See 42 U.S.C. 7409(b)(1) and (2). The

language of the 1970 Act demonstrates that Congress con-

ceived of NAAQS as the means to identify, as the first step

of the CAA regulatory program, the ambient air quality

standards that are necessary to protect public health and

public welfare. Neither Section 108, which specifies the

kinds of factual information upon which NAAQS must be

based, nor Section 109, which contains the legal test NAAQS

account in setting the primary standards.” 36 Fed. Reg. 8186 (1971). See

also, e.g., 62 Fed. Reg. at 38,683-38,688, 38,878-38,883 (detailed response to

comments on this issue in the PM and ozone rulemakings); Hearings on

Clean Air Act: Ozone and Particulate Matter Standards Before the Sub-

comm. on Clean Air, Wetlands, Private Property and Nuclear Safety and

the Senate Comm. on Env't and Pub. Works, 105th Cong., Ist Sess. 276,

282 (1997) (1997 Hearings) (testimony of Administrator Browner).

must meet, directs EPA to consider economic or technologi-

cal feasibility, or similar factors, when promulgating

NAAQS. See Lead Indus., 647 F.2d at 1149; NRDC, 824

F.2d at 1158.

Section 109’s command that NAAQS be set at levels

“requisite” to protect health and welfare unambiguously

directs that the levels to be set achieve that objective, re-

gardless of cost or other considerations. 42 U.S.C. 7409(b).

The plain language of the Act also specifies the factors that

EPA may consider. Section 109(b)(1) expressly requires

NAAQS to be “based on” the air quality “criteria” that EPA

issues under Section 108. 42 U.S.C. 7409(b)(1). Section

108(a)(2), in turn, limits the kind of information to be

included in the “criteria” to “the latest scientific knowledge”

about effects on public health and public welfare “which may

be expected from the presence of such pollutant in the

ambient air.” 42 U.S.C. 7408(a)(2); see pp. 5-6, supra.

Section 108(a)(2) makes no mention whatsoever of effects

from, or the feasibility of, achieving the NAAQS. Congress

expressly directed the focus on health and welfare effects

from the presence of a criteria pollutant in the air and not on

economic or other effects of measures to remove that pollut-

ant from the air."

The context in which Sections 108 and 109 appear also

confirms that reading. Congress has indicated expressly

when and to wha’ extent costs and implementation effects

shall be considered in the NAAQS regulatory process. See

Union Elec., supra. Those factors can play a role in the

States’ and EPA’s decisions on how to attain the NAAQS.

For example, the States are charged with developing SIPs

!! This Court has recognized that, “{wJhen a statute limits a thing to be

done in a particular mode, it includes the negative of any other mode.”

National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414

U.S. 453, 458 (1974) (quoting Botany Worsted Mills v. United States, 278

U.S. 282, 289 (1929)).

governing how NAAQS will be implemented within their

borders. See CAA § 110, 42 U.S.C. 7410. States may prop-

erly consider the technological feasibility and costs of

implementation when formulating the SIPs, and EPA may

not override those judgments so long as the SIPs will

achieve attainment of the NAAQS. Ss Union Elec., 427

U.S. at 256-269. Union Electric recogr.zes that the CAA

does not allow a State to rely on cost and feasibility con-

siderations to excuse failure to meet the CAA’s deadlines for

attaining the national health-based standards. /d. at 266-269.

Nevertheless, the Court concluded that “the [Clean Air

Amendments of 1970] offer ample opportunity for considera-

tion of claims of technological and economic infeasibility.” Jd.

at 268."

In telling contrast to the provisions governing NAAQS

promulgation, Congress included provisions in the 1970 Act

expressly directing EPA to consider costs and similar fac-

tors when making other decisions. See Union Elec., 427 U.S.

at 257 n.5 (noting latter sections of 1970 Act). This Court

“generally presume(s]” that, “[wJhere Congress includes

12 Section 110 of the 1970 Act, which was construed in Union Electric,

has since been revised, but the principles discussed in that case remain

fully applicable. See Virginia v. EPA, 108 F.3d 1397, 1407-1409 (D.C. Cir.

1997); 42 U.S.C. 7410(k).

3 In Sections 111(a)(1), 202(a)(2) and 231(b) of the 1970 Act, for

example, Congress directed that EPA consider economic and technological

feasibility in establishing, respectively, standards of performance for new

stationary sources of air pollution, standards for new motor vehicles

(except those subject to statutory standards under Section 202 (b)), and

aircraft emission standards. See 84 Stat. 1683, 1690, 1704. In Section

202(b)(5) A), it provided for one-year suspensions, on feasibility grounds,

of the statutory motor vehicle standards and for interim standards based

on the availability and cost of control technology. See id. at 1691. Simi-

larly, in Sections 110(e)(1), 110(f), and 112(c)(1) and (2) of the 1970 Act,

Congress authorized EPA to grant temporary postponements, on feasibil-

ity grounds, of NAAQS attainment dates and applicable control require-

ments. See id. at 1682-1683, 1685-1686.

particular language in one section of a statute but omits it in

another section of the same Act, * * * Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Brown v. Gardner, 513 U.S. 115, 120 (1994)

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).

See also United States v. Shabani, 513 U.S. 10, 14 (1994).

In sum, the plain language of the CAA shows that Con-

gress itself considered the costs and other effects that might

flow from implementing the NAAQS and chose to have EPA

set standards at levels that will protect public health and

public welfare. As in American Textile Manufacturers In-

stitute v. Donovan, 452 U.S. 490 (1981), “Congress itself de-

fined the basic relationship between costs and benefits, by

placing the ‘benefit’ of [public] health above all other consid-

erations.” Jd. at 509. Neither EPA nor the courts are free to

overrule that choice.

B. The Evolution Of The 1970 NAAQS Provisions Con-

firms That Congress Made A Policy Choice Not To

Base NAAQS On Consideration Of The Technological

Feasibility Or Cost-Effectiveness Of Pollution Control

Measures

The CAA provisions at issue here are an outgrowth of

congressional action that began in 1963. See note 2, supra.

The legislative evolution of those provisions leaves no doubt

that Congress meant what the plain language says.

Congress introduced the concept of air quality criteria in

the Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392,

which expanded a federally funded program of air pollution

research. Section 3(c)(2) of that Act required the Secretary

of HEW to “compile and publish criteria” when he

determined that any particular “air pollution agent” was

“producing effects harmful to the health or welfare of

persons.” 77 Stat. 395. The 1963 Act defined air quality

criteria much as the term is defined today: the criteria were

to “reflec[t] accurately the latest scientific knowledge useful

in indicating the kind and extent of such effects which may

be expected from the presence of such air pollution agent (or

combination of agents) in the air in varying quantities.” /bid.

Accord, S. Rep. No. 638, 88th Cong., Ist Sess. 7 (1963).

The Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat.

485, retained the requirement that the Secretary of HEW

develop air quality criteria. § 107, 81 Stat. 490-491. But the

Act also introduced into federal law the concept of air quality

standards. Those standards, however, differed from

NAAQS in two respects. First, Congress envisioned that

the States would develop those standards, with federal assis-

tance, and apply them on a regional basis within each State’s

borders. Second, Congress encouraged the States to adopt

regional ambient air quality standards “consistent with”

both (a) the air quality criteria and (b) information on pollu-

tion control techniques. § 108(c), 81 Stat. 492-494.

The 1967 Act preserved the 1963 Act’s conception of air

quality criteria, providing that they should “accurately

reflect the latest scientific knowledge” on the health and

welfare effects “which may be expected from the presence of

an air pollution agent, or combination of agents in the

ambient air, in varying quantities.” § 107(b)(2), 81 Stat.

491." The 1967 Act went beyond the 1963 Act, however, by

4 The 1967 Act's definition of air quality criteria was thus virtually

identical to the definition carried forward into the 1970 Act. Section

107(b)(3) of the 1967 Act provided that the criteria “shall include” the

same information that is required today under Section 108(a)(2)(A) to (C).

See 42 U.S.C. 7408(a)(2)(A)-(C). See pp. 5-6, supra. The criteria were to

set forth “an honest appraisal of the available knowledge relating to the

health and welfare hazards of air pollution,” not influenced by economic

and technical considerations:

[Air quality criteria] define the health and welfare considerations that

must be taken into account in the development of standards and

regulations. Economic and technical considerations have a place in

the pattern of control activity but not in the development of criteria.

H.R. Rep. No. 728, 90th Cong., Ist Sess. 16 (1967) (emphasis added);

accord S. Rep. No. 403, 90th Cong., Ist Sess. 26-27 (1967).

directing the Secretary of HEW to provide the States with a

separate body of information on recommended pollution con-

trol techniques, including information on the “economic fea-

sibility” and “cost-effectiveness” of the control techniques.

§ 107(c), 81 Stat. 491; see H.R. Rep. No. 728, 90th Cong., Ist

Sess. 9-13 (1967).

The 1967 Act directed the Secretary to provide informa-

tion on both air quality criteria and control techniques in

order to create incentives for States to develop their own air

quality standards that were “at a minimum adequate for the

protection of public health and which can be achieved

through the application of feasible control techniques.” H.R.

Rep. No. 728, supra, at 18; see also S. Rep. No. 403, 90th

Cong., Ist Sess. 26, 28 (1967) (standards would be “influenced

not only by a concern for the protection of health or welfare,

but also by economic, social, and technological

considerations”). Congress accordingly provided that those

standards would “be the air quality standards applicable to

such State” if the Secretary of HEW determined that the

State standards were “consistent with the air quality criteria

and recommended control techniques issued pursuant to

section 107.” § 108(c), 81 Stat. 492 (emphasis added).

Three years later, Congress determined that the “re-

sponse of the States * * * was disappointing,” and it en-

acted the 1970 Clean Air Amendments to “sharply increase[]}

federal authority.” Train, 421 U.S. at 64-65. Congress di-

rected EPA to develop nationally uniform federal stan-

dards—the NAAQS—and it deliberately narrowed the basis

for setting the standards. Congress retained the distinction

between air quality criteria and information on pollution

control techniques that it had made in the 1967 Act. See 42

U.S.C. 7408(a)(2) (defining air quality criteria); 42 U.S.C.

7408(b) (requiring issuance of information on air pollution

control techniques). Congress specified, however, that the

NAAQS would be “based on” the “criteria” alone. 42 U.S.C.

7409(b)(1) and (2). Congress consciously provided for consid-

eration of the feasibility and effects of implementing the

standards during later stages in the regulatory process. See

pp. 20-21, supra. Those changes clearly reflected a

deliberate legislative decision to narrow the basis on which

EPA, as HEW’s successor, would establish the national am-

bient air quality standards.”

Viewed in historical context, Congress’s intent is thus

clear. Since 1963, Congress has conceived of air quality

criteria as scientific information on the effects on public

health and public welfare posed by the presence of a

pollutant in the ambient air. In 1967, Congress experi-

mented with a federal program in which States would set

regional air quality standards based on air quality criteria

and information regarding the economic and technological

feasibility of measures to reduce pollution. In 1970, Con-

gress concluded that the experiment was a failure and

replaced it with a program in which EPA would set national

air quality standards based on air quality criteria alone, see

Train, 421 U.S. at 63-65, while preserving the ability of EPA

15 In hearings that preceded the 1970 Act, the HEW official responsible

for implementation of the 1967 Act testified that the intent of the 1967 Act

was to achieve regional air quality standards that were sufficient to

protect health, but that the regional standards that had been adopted in

fact “reflect{ed] the desired socio-economic status of those particular

regions.” Hearings on Air Pollution Before the Subcomm. on Air and

Water Pollution of the Senate Comm. on Pub. Works, 91st Cong., 2d Sess.

Pt. 4, at 1488, 1489 (1970), (Air Pollution Hearings) reprinted in 2 Staff of

Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A Legislative History

of the Clean Air Amendments of T970 at 1183-1184 (Comm. Print 1974)

(hereinafter 1970 Leg. Hist.). He therefore advocated national standards

“to be sure * * * throughout the Nation, that no area can be any worse

than a level of air quality that will be protective of health.” Jd. at 1184.

Congress adopted that approach. Senator Muskie, the primary architect

of the Clean Air Amendments of 1970, explained that changes in the law

were necessary precisely because experience under the 1967 Act had

revealed that economic and technological considerations had been used “to

compromise the public health.” See 116 Cong. Rec. 32,901 (1970) (1 1970

Leg. Hist. 226-227).

and the States to consider costs and feasibility in the imple-

mentation stage of the regulatory process, where specific

emission limitations and control requirements are imposed,

see Union Elec., 427 U.S. at 266-269.

C. Congress’s Direction That EPA Set NAAQS Based

Solely On Health And Welfare Effects Is Consistent

With The Clean Air Act’s “Technology-Forcing”

Objectives

As this Court has recognized, Congress’s decision to set

NAAQS at levels “requisite” to protect public health and

public welfare—and to postpone questions of feasibility to

the implementation stage—rests on a deliberate policy judg-

ment that the NAAQS would have a “technology-forcing

character.” Union Elec., 427 U.S. at 257; Train, 421 U.S. at

91. Congress knew that setting the NAAQS based on health

and welfare considerations could, at the implementation

stage, “force regulated sources to develop pollution control

devices that might at the time appear to be economically or

technologically infeasible.” Union Elec., 427 U.S. at 257. It

also knew that technology forcing “necessarily entails cer-

tain risks.” Jd. at 269. “Congress considered those risks in

passing the 1970 Amendments and decided that the dangers

posed by uncontrolled air pollution made them worth

taking.” [bid."®

The Court’s understanding of the CAA’s “technology-

forcing character” is well founded. See NRDC, 824 F.2d at

1158; Lead Indus., 647 F.2d at 1149. For example, the

Senate Report accompanying the 1970 Amendments recog-

16 Since 1970, industry has largely met the challenge of technological

innovation with the result that, historically, EPA has overestimated, at

the time of promulgation, the cost of attaining NAAQS. PM App. 3471-

3473; see also E. Goodstein & H. Hodges, Polluted Data, The American

Prospect, No. 35, at 64-69 (Nov.-Dec. 1997) (“In every case we have found

where researchers have calculated actual regulatory costs and then

compared them to ex ante estimates, the estimate exceeded the actual cost

by at least 30 percent and generally by more than 100 percent.”).

nized that attaining the new standards would “require major

investments in new technology and new processes” and that

some facilities might even close. S. Rep. No. 1196, 91st

Cong., 2d Sess. 2-3 (1970) (1 1970 Leg. Hist. 402-403).

Nevertheless, the Report emphasized (ibid.):

In the Committee discussions, considerable concern was

expressed regarding the use of the concept of technical

feasibility as the basis of ambient air standards. The

Committee determined that 1) the health of people is

more important than the question of whether the early

achievement of ambient air quality standards protective

of health is technically feasible; and, 2) the growth of

pollution load in many areas, even with application of

available technology, would still be deleterious to public

health.

Therefore, the Committee determined that existing

sources of pollutants either should meet the standard of

the law or be closed down * * *.

Senator Muskie, the Act’s principal sponsor, while ac-

knowledging the need to provide States with information on

the economics and feasibility of pollution control technolo-

gies, “reemphasize[d] that the concept of this bill as it relates

to national ambient air quality standards * * * is not keyed

to any condition that the Secretary finds technically and

economically feasible.” 116 Cong. Rec. 33,099 (1970) (1 1970

Leg. Hist. 342). Instead, “the concept is of public health, and

the standards are uncompromiseble in that connection.”

Ibid. See also id. at 32,902 (1 1970 Leg. Hist. 227)."”

'7 Senator Muskie’s understanding was shared by others. For example,

Senator Cooper stated:

[T}he philosophy of the bill abandons the old assumption of requiring

the use of only whatever technology is already proven and at hand

and of permitting pollution to continue when it is not economically

feasible to control it. The bill proceeds instead to set out what is to be

The CAA is “technology forcing” precisely because it dic-

tates that NAAQS shall be based on public health and public

welfare considerations and not on supposed “feasibility”

constraints. The CAA was designed to stimulate the regu-

lated community to find innovative ways, at the implementa-

tion stage, to meet the NAAQS. See 116 Cong. Rec. 32,902

(1970) (1 1970 Leg. Hist. 227) (Sen. Muskie) (“Our responsi-

bility in Congress is to say that the requirements of this bill

are what the health of the Nation requires, and to challenge

polluters to meet them.”). Congress clearly understood that

the feasibility, costs, and other effects of implementing

measures to attain the NAAQS would be considered only

following promulgation of NAAQS, when the States and

EPA could consider those factors in deciding how to attain

the standards. See 116 Cong. Rec. at 32,918 (1 1970 Leg.

Hist. 259-260) (Sen. Cooper).

D. Congress’s Actions Since 1970 Confirm That EPA Has

Correctly Discerned Congressional Intent

As this Court recognized in Union Electric, Congress

ensured that considerations of economic and technological

feasibility could be factored into the implementation process.

427 U.S. at 266-269. Congress also retained the prerogative

of deciding—after the States and affected parties had

explored both conventional and innovative control measures

under the technology-forcing pressure of the Act—whether

and how to alter the statutory scheme if the NAAQS could

not realistically be attained within the prescribed time

frames. See Lead Indus., 647 F.2d at 1150; Pet. App. 68a-69a

achieved, and places its reliance on a great effort to develop technol-

ogy, to train and put to work the manpower to accomplish that

purpose, and it assumes a readiness by industry and the people or the

country to pay the costs of pollution control.

116 Cong. Rec. at 32,919 (1 1970 Leg. Hist. 262); see also S. Rep. No. 1196,

supra, at 9 (1 1970 Leg. Hist. 409) (providing control techniques

information to the States should not “lock in existing technology”).

(Tatel, J., dissenting). Congress has since exercised that

prerogative a number of times. In doing so, it has confirmed

that EPA is to set and revise NAAQS based on health and

welfare considerations, and not on the effects of implement-

ing the standards.” !

For example, when Congress amended the Act in 1977, it

addressed the difficulty that many areas had experienced

with attaining the NAAQS. But Congress did so by chang-

ing how the NAAQS are implemented rather than changing

how NAAQS are set. See 62 Fed. Reg. at 38,685. Congress

was well aware that some areas of the country had been

unable to attain some of the NAAQS. See, e.g., H.R. Rep.

No. 294, 95th Cong., Ist Sess. 207-217 (1977). Congress was

also aware that significant scientific uncertainties are inher-

ent in setting health-based standards. See id. at 43-51, 110-

112. Furthermore, EPA had emphasized, in a memorandum

responding to criticism in oversight hearings, that the origi-

nal NAAQS were set without considering costs or feasibil-

ity,” and industrial groups had urged Congress specifically

to revise Section 109 to allow consideration of “social and

economic factors” in setting NAAQS.” In response, Con-

gress made significant changes in the CAA’s provisions for

18 Indeed, Congress had anticipated that it would conduct continuing

oversight over disputes respecting economic and technological feasibility.

See, e.g., Air Pollution Hearings 1491 (2 1970 Leg. Hist. 1186) (Sen.

Baker); 116 Cong. Rec. at 32,905 (1 1970 Leg. Hist. 236) (Sen. Muskie).

Congress has been vitally involved in both “setting up the machinery on

the one hand and making it work on the other.” Air Pollution Hearings

1491 (2 1970 Leg. Hist. 1186) (Sen. Baker).

19 Hearings on Implementation of the Clean Air Amendments of 1970

Before the Subcomm. on Air and Water Pollution of the Senate Comm. on

Pub. Works, 92d Cong., 2d Sess., Pt. 1, at 311, 312 (1972) (memorandum

from Robert L. Baum, Assistant General Counsel, to the Administrator).

” See, e.g., Hearings on the Clean Air Amendments of 1977 Before the

Subcomm. on Envtl. Pollution of the Senate Comm. on Env't and Pub.

Works, 95th Cong., Ist Sess., Pt. 2, at 1077, 1085 (1977) (Manufacturing

Chemists Ass’n and Dow Chemical Company).

implementing NAAQS, including, for example, an extension

of the deadline for attaining the ozone NAAQS. See 91 Stat.

746-747. It also amended Section 109 of the Act to require

periodic review and revision of NAAQS and to establish

CASAC. See 91 Stat. 691. Congress made no change,

however, in the substantive criteria for setting and revising

NAAQS. See 62 Fed. Reg. at 38,685 & n.66 (describing the

1977 Amendments).

Congress also exercised its prerogative, several times

during the 1980s, to adjust the NAAQS implementation

scheme based on considerations of economic and technologi-

cal feasibility. In 1981, it enacted legislation that gave the

steel industry three additional years to meet the NAAQS

attainment date of 1982 established by the 1977 Act. See

Steel Industry Compliance Extension Act of 1981, Pub. L.

No. 97-23, 95 Stat. 139. In 1983, when 218 areas had failed to

meet the 1982 attainment date and could thus be sanctioned,

Congress enacted a one-year moratorium on sanctions. See

Department of Housing and Urban Development-Indepen-

dent Agencies Appropriation Act, 1983, Pub. L. No. 98-45, 97

Stat. 219. In addition, Congress extended the time for

compliance with the carbon monoxide and ozone NAAQS

from December 31, 1987, to August 31, 1988. See H.R. J.

Res. 395, 100th Cong., Ist Sess. (1987).

In 1990, Congress again made adjustments in the scheme

for implementing NAAQS. The Clean Air Act Amendments

of 1990 were an ambitious undertaking that almost doubled

the size of the CAA in the United States Code. Congress

responded, through detailed amendments, to problems that

areas of the country continued to encounter in attaining the

NAAQS. But Congress once again did so by adjusting the

implementation scheme rather than by changing the way

that NAAQS are set. See, eg., CAA §§ 181-192, 42 U.S.C.

7511-7514a (1994 & Supp. IV 1998). The 1990 Amendments

are particularly instructive because Congress acted with full

knowledge of how NAAQS had been promulgated over the

previous 20 years.

First, Congress had before it the final report of the

National Commission on Air Quality (NCAQ), prepared

pursuant to Section 323 of the 1977 Act, which charged the

NCAQ with examining, among other things, “the economic,

technology, and environmental consequences of achieving or

not achieving” the Act’s goals. Pub. L. No. 95-95, § 323(a), .

91 Stat. 785. The NCAQ report discussed the long-standing

principle that NAAQS are set based solely on health and

welfare considerations and recommended that this principle

remain unchanged.”’ Second, Congress indicated its aware-

ness of the court of appeals’ decision in Vinyl Chloride,

which had expressly reaffirmed that EPA may not take into

account economic or technological feasibility when setting

NAAQS (824 F.2d at 1158-1159), by enacting amendments

addressing other aspects of the en banc court’s decision. See

104 Stat. 2531 (extensively amending Section 112 of the

CAA, 42 U.S.C. 7412, governing the regulation of especially

hazardous pollutants). Third, the House and Senate Reports

accompanying the 1990 Amendments expressly reflected the

understanding that primary NAAQS are to be “set at a level

that ‘protects the public health with an adequate margin of

safety,’ without regard to the economic or technical

feasibility of attainment.” H.R. Rep. No. 490, 101st Cong.,

21 National Comm'n on Air Quality Report 7, 55, 70 (Mar. 1981). The

NCAQ report was the subject of joint hearings in 1981 and an important

source for Congress’s 1990 deliberations. See, e.g., Joint Hearing on

Reports of the Nat'l Comm'n on Air Quality and the Nat'l Academy of

Sciences Before the Senate Comm. on Env't and Pub. Works and the

Subcomm. on Health and the Env't of the House Comm. on Energy and

Commerce, 97th Cong., Ist Sess. 2-3 (1981) (remarks of Senators Stafford

and Chafee); H.R. Rep. No. 490, 101st Cong., 2d Sess., Pt. 1, at 213 (1990).

2d Sess., Pt. 1, at 145 (1990) (emphasis added); accord S. Rep.

No. 228, 101st Cong., Ist Sess. 5 (1989).™

This Court recently recognized that, when Congress en-

acts legislation “against the backdrop” of an agency’s “con-

sistent and repeated statements” of the agency’s authority,

the legislation may effectively ratify the agency’s position.

See FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct.

1291, 1313 (2000). This case, however, does not depend on

an inference that Congress ratified EPA’s interpretation of

its authority. Congress has revisited the CAA numerous

times over the past 30 years, and it has consistently adhered

to its plainly stated original intention—long followed by

EPA and the court of appeals—that NAAQS are to be set at

levels requisite to protect public health and public welfare,

without regard to the economic or technological feasibility of

implementing those standards. Congress has itself thus

directly and repeatedly reaffirmed that it meant what it

originally said. See Chevron, 467 U.S. at 842-843 (“[i]f the

intent of Congress is clear, that is the end of the matter”).”

= After enactment of the 1977 Clean Air Act Amendments, various

parties had continued to urge Congress to amend Section 109 to allow con-

sideration of compliance costs. See, eg., Hearings on Clean Air Act

Oversight Before the Senate Comm. on Env't and Pub. Works, 97th Cong.,

Ist Sess., Pt. 3, at 199, 238 (1981); Hearings on Health Standards for Air

Pollutants Before the Subcomm. on Health and the Env't of the House

Comm. on Energy and Commerce, 97th Cong., 1st Sess. 86-87, 214 (1981).

Congress again declined to do so.

3 See also Bob Jones Univ. v. United States, 461 U.S. 574, 600-602

(1983); Lorillard v. Pons, 434 U.S. 575, 581 (1978); NLRB v. Bell Aero-

space Co., 416 U.S. 267, 274 (1974) (according “great weight” to long-

standing interpretation “where Congress has re-enacted the statute

without pertinent change”); Red Lion Broad. Co. v. FCC, 395 U.S. 367,

381 (1969).

*4 Even if there were any ambiguity in Congress’s pronouncements,

EPA's interpretation of the Act would be a reasonable one entitled to

deference. See Chevron, 467 U.S. at 843-845.

Il. ATA IS MISTAKEN IN INSISTING THAT THE

CLEAN AIR ACT REQUIRES EPA TO CONSIDER

NON-HEALTH FACTORS IN SETTING PRIMARY

NAAQS

Notwithstanding the foregoing, ATA and its supporters

mistakenly argue that the CAA’s “text, structure, and pur-

pose show that EPA must consider non-health factors in

setting NAAQS.” ATA Br. 32-47. They also argue that

EPA should, as a matter of policy, employ cost-benefit

analysis in setting NAAQS. See, eg., ATA Br. 35-36; APC

Br. 30-31; AEI-Brookings Inst. Amici Br. This Court’s

responsibility, however, is to determine Congress’s intent.

Congress has deliberately rejected the cost-benefit approach

that ATA and its supporters espouse, and Congress’s deter-

mination is dispositive.

A. ATA’s Supposed “Trilemma” Does Not Exist

ATA argues at the outset that setting primary NAAQS

for non-threshold pollutants based on health considerations

creates a “trilemma” in which EPA has only three regula-

tory options: (1) to set NAAQS at zero; (2) to set NAAQS at

a non-zero level that cannot survive review under the

arbitrary or capricious standard; or (3) to reject the court of

appeals’ ruling and employ cost-benefit analysis to set and

revise NAAQS. ATA Br. 25, 29-30. ATA’s supposed

trilemma rests on a false trichotomy.

ATA’s first prong presents no real difficulty. EPA has

never encountered (and does not expect ever to encounter)

the theoretical situation in which complete elimination of a

criteria pollutant—including a so-called non-threshold

pollutant—would be “requisite” to protect public health or

public welfare. 42 U.S.C. 7409(b). ATA overlooks that

scientists characterize a pollutant as “non-threshold” if they

have not been able to identify a level below which there is no

risk that exposure will cause a physiological or biological

effect, however small or fleeting. See, e.g., 61 Fed. Reg. at

65,727; Casarett & Doull’s Toxicology, supra, at 19 (describ-

ing a “threshold” as “{a] dose below which the probability of

an individual responding is zero”). Characterizing a pollut-

ant as “non-threshold” does not mean that any group of

persons, including sensitive persons, will actually suffer

adverse health effects if exposed to a non-zero concentration

of that pollutant. See, e.g., 61 Fed. Reg. at 65,721-65,723; see

also Casarett’s & Doull’s Toxicology, supra, at 80 (distin-

guishing between, e.g., the “no observed effect level” and the

“no observed adverse effect level”). Accordingly, EPA’s

characterization of a pollutant as “non-threshold” does not

require EPA to set the NAAQS for that pollutant at zero.

ATA’s second prong also presents no real problem. The

CAA requires EPA to set primary NAAQS at levels that

protect against “adverse” health effects—not every physio-

logical effect that can be detected—and it requires EPA to

protect the health of sensitive population groups rather than

that of every sensitive individual. 42 U.S.C. 7409(b)(1); S.

Rep. No. 1196, supra, at 10 (1 1970 Leg. Hist. 410). More-

over, EPA has consistently adhered to the principle that

NAAQS must provide “a reasonable degree of protection

* * * against hazards which research has not yet

identified.” Ibid. (emphasis added). See Lead Indus., 647

F.2d at 1150. EPA therefore sets primary NAAQS at levels

that provide protection from medically significant risks and

not at levels that protect against any and all risks, or any and

all effects. See, eg., id. at 1144, 1155 n.51™ ATA is

accordingly mistaken in suggesting (ATA Br. 25, 29-30) that

setting a non-zero NAAQS for a non-threshold pollutant is

necessarily arbitrary and capricious. Indeed, EPA has

25 ATA is wrong in contending (ATA Br. 30) that the court of appeals’

decision in Lead Industries bars EPA from engaging in a “systematic

weighing of pros and cons” when promulgating primary NAAQS. That

decision recognized that EPA must weigh factors that are relevant in

deciding what level of protection is “requisite” to protect public health and

public welfare. See 647 F.2d at 1146-1147.

properly established non-zero NAAQS for pollutants that

are or may be non-threshold pollutants, and the court of

appeals, applying the familiar arbitrary or capricious

standard, has repeatedly rejected judicial challenges to those

NAAQS.”

The only truly problematic option is the third prong of

ATA’s supposed trilemma. ATA’s suggestion that EPA

should ignore Lead Industries and set NAAQS on the basis

of cost-benefit analysis (ATA Br. 30, 32) would require EPA

to ignore 30 years of agency practice, 20 years of court of

appeals precedent, and—most importantly—Congress’s

clearly stated contrary intent. See A. Scalia, Responsibili-

ties of Regulatory Agencies Under Environmental Laws, 24

Hous. L. Rev. 97, 102 (1987) (noting that “primary [NAAQS]

are to be established not in light of what is ‘feasible’ or

‘reasonable’ (a formulation that would enable counter-

balancing costs to be offset against the benefit of clean air)

but rather on the sole basis of what is ‘requisite to protect

the public health’”).

26 NRDC, 902 F.2d 962 (1987 PM NAAQS); American Petroleum Inst.,

665 F.2d 1176 (1979 ozone NAAQS); Lead Indus., 647 F.2d 1130 (lead

NAAQS). ATA’s assertion that a non-zero NAAQS must be arbitrary

(ATA Br. 31) also misconceives the arbitrary or capricious standard of

judicial review. Under that standard, “a reviewing court may not set

aside an agency rule that is rational, based on consideration of the relevant

factors, and within the scope of the authority delegated to the agency by

the statute.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.

463 U.S. 29, 42 (1983). When a court reviews a NAAQS, it accordingly

examines whether EPA has set an air quality standard that is reasonable

in light of the pertinent record evidence. See NRDC, 902 F.2d at 972;

American Petroleum Inst., 665 F.2d at 1187; see also 99-1257 Pet. Br. 26-

31. The court of appeals below did not reach the question whether EPA's

revised PM and ozone rules satisfy that standard. Pet. App. 4a-5a. But as

we have explained in the companion case, EPA's revisions are plainly

rational and rest on comprehensive analyses of the evidence respecting

the public health and public welfare effects of PM and ozone. See 99-1257

Pet. Br. 8-15, 31-34 (describing EPA's PM and ozone rulemakings.

B. The Clean Air Act’s Express Language Refutes ATA's

View Of EPA's Obligations In Promulgating NAAQS

ATA and its supporters argue that the CAA requires

EPA to consider “non-health factors,” including “compliance

costs,” in promulgating NAAQS. See, e.g., ATA Br. 33, 34;

APC Br. 32. The statutory language on which they rely,

however, does not support their contentions. Indeed, as we

show below, their arguments depend heavily on extrapolat-

ing from isolated phrases, giving words unnatural defini-

tions, and overlooking context. That approach is fundamen-

tally unsound: statutes should not “be read as a series of un-

related and isolated provisions.” Gustafson v. Alloyd Co.,

513 U.S. 561, 570 (1995). “Statutory construction is not an

exercise in picking apart a complex statute and piecing the

parts back together in a manner to effect a particular end.”

Michigan v. EPA, 213 F.3d 663, 673 (D.C. Cir. 2000).

1. Section 109(b)(1): The term “public health.” ATA

contends that EPA must take compliance costs into account

when setting primary NAAQS at a level “requisite to pro-

tect the public health” (CAA § 109(b)(1), 42 U.S.C.

7409(b)(1)) because the term “public health” “has long con-

noted a sensitivity to comparative costs and benefits.” ATA

Br. 36; see also APC Br. 26; Ohio Br. 12. ATA derives that

conclusion by extrapolating from a definition of the vocation

of “public health” that appeared in a 1951 book entitled “The

Cost of Sickness and the Price of Health.” ATA Br. 34. That

book defined “public health” as “the science and the art of

preventing disease, prolonging life, and promoting physical

health and efficiency” through various means. See id. at 34-

36; APC Br. 26 n.57. A definition of “public health” drawn

from the vocational context, however, is inapt in the context

presented here. Congress surely did not intend that

NAAQS would be set at a level “requisite to protect (the sci-

ence and art of preventing disease]}” (42 U.S.C. 7409(b)(1)).

See, e.g., Textron Lycoming Reciprocating Engine Div. v.

Automobile Workers, 523 U.S. 653, 657 (1998)(“the meaning

of a word cannot be determined in isolation, but must be

drawn from the context in which it is used”).”’

The phrase “public health” should be given its ordinary or

natural dictionary meaning in light of the context in which it

is used. See, e.g., Walters v. Metropolitan Educ. Enters.,

Inc., 519 U.S. 202, 207 (1997). Viewed in that light, Section

109%(b)(2) clearly directs that EPA must set NAAQS at levels

requisite to protect the general population, or identifiable

groups within communities, from medically significant

effects.* Nothing in the language of Section 109(b)(1)

directs—or even allows—EPA to set NAAQS at levels in-

adequate to protect the public from adverse medical effects

because of the costs of compliance or other effects of

implementation. See Scalia, supra, 24 Hous. L. Rev. at 102.

See, e.g., Bates v. United States, 522 U.S. 23, 29 (1997) (“{wle

*7 ATA's reference to the vocation of public health is pertinent in this

limited sense: Numerous public health professional associations com-

mented favorably on EPA’s proposed health-based PM and ozone NAAQS

revisions. For example, the American Public Health Association (APHA),

the oldest and largest such association, endorsed “the process by which

the standards were developed” as “public health practice at its best—

good science, good judgment, and active public participation.” Letter from

M. Akhter, M.D., M.P.H.., Executive Director, APHA, to C. Browner,

Administrator, EPA, Docket IV-G-1826, at 1 (June 27, 1997).

% The word “public,” in the context presented here, means “of, relating

to, or affecting the people as an organized community.” Webster's Third

New International Dictionary 1836 (1976). Congress used that word to

make clear that NAAQS protect the “health” of the general population, or

of population groups, rather than of any specific individual. The word

“health,” in the context presented here, means “the state of being sound in

body or mind.” /d at 1043. Congress used that term to denote the

absence of medically significant adverse reactions to pollution exposure, in

contrast to inconsequential physiological responses that would not impair

the “soundness” of body or mind. Consistent with those definitions, the

phrase “public health” means the “health of the community at large.”

Black's Law Dictionary 724 (7th ed. 1999).

ordinarily resist reading words or elements into a statute

that do not appear on its face”).

2. Section 109(b)(2): The term “public welfare.” ATA

also argues that the CAA’s references to protecting “public

welfare” must include protecting industry from “compliance

costs.” ATA Br. 37-39. Section 109(b)(2) expressly directs

EPA, however, to set secondary NAAQS for criteria pollut-

ants at a level “requisite to protect the public welfare from

any known or anticipated adverse effects associated with the

presence of such air pollutant in the ambient air.” 42 U.S.C.

7409(b)(2) (emphasis added). Congress plainly indicated that

the public welfare effects of concern are those posed by

exposure to air pollutants rather than the effects of mea-

sures to implement the NAAQS.”

3. Section 108(a)(2): The contents of air quality criteria.

Similarly, ATA and others contend that, in prescribing the

content of air quality criteria in Section 108(a)(2), Congress

did not preclude other types of information. E.g., ATA Br.

38-40; Ohio Br. 11. Section 108(a)(2) specifies, however, that

air quality criteria shall provide information on “all

identifiable effects on public health or welfare which may be

22 The CAA’s definition of “effects on welfare” further reinforces that

conclusion. Section 302(h) states that reference to “effects on welfare”

includes, but is not limited to, “effects on soils, water, crops, vegetation,

manmade materials, animals, wildlife, weather, visibility, and climate,

damage to and deterioration of property, and hazards to transportation, as

well as effects on economic values and on personal comfort and well-being,

whether caused by transformation, conversion, or combination with other

air pollution.” 42 U.S.C. 7602(h) (emphasis added). Although that defini-

tion includes “effects on economic values,” the context plainly shows that

the “effects” of concern are those caused by the pollution itself. See Lead

Indus., 647 F.2d at 1148 n.36 (definition of “welfare” does not include the

cost of compliance with NAAQS; it “only refers to the economic costs of

pollution”); see generally Babbitt v. Sweet Home Chapter of Communities,

515 U.S. 687, 702 (1995) (“a word ‘gathers meaning from the words around

it’”); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) (the canon of

noscitur a sociis is applied to avoid giving “unintended breadth to the

Acts of Congress”).

expected from the presence of such pollutant in the ambient

air.” 42 U.S.C. 7408(a)(2) (emphasis added). Congress

plainly indicated in Section 108(a)(2), that the effects of

concern are those posed by the presence of the pollutant in

the ambient air rather than compliance costs and other

effects that arise from implementing the NAAQS.”

4. Section 108(b)(1): Dissemination of pollution control

information to States. ATA and others contend that Section

108(b)(1)’s direction that EPA provide States with infor-

mation on air pollution control techniques, 42 U.S.C.

7408(b)(1), indicates that Congress intended EPA to con-

sider those matters in promulgating NAAQS. ATA Br. 40;

APC Br. 38-39. But, as we have explained, Congress had

directed HEW to provide the States with pollution control

information under the 1967 Act, which called on States to

develop regional air quality standards. See pp. 22-23, supra.

Congress directed EPA to continue to provide States with

that information under the 1970 Act, but expressly sepa-

rated it from the newly created NAAQS promulgation pro-

cess. Congress did so precisely because it decided that

NAAQS should be health-based standards. See pp. 23-24,

supra. Congress has nevertheless continued to ensure that

3° ATA and Ohio emphasize the last sentence of Section 108(a)(2),

which specifies air quality criteria shall include, “to the extent practica-

ble,” information on (A) variable factors (such as atmospheric conditions)

which may alter the effects of a pollutant; (B) pollutants that may interact

to produce adverse effects; and (C) any known or anticipated adverse

effects on welfare. 42 U.S.C. 7408(a)(2). Those three categories of

information, however, are all encompassed within, and limited by, Section

108(a)(2)'’s general directive that “air quality criteria” shall provide

information on the health and welfare effects posed by “the presence of

such pollutant in the ambient air.” 42 U.S.C. 7408(a)(2). Section

108(a)(2)’s additional directive to include the three specific types of

information “to the extent practicable” does not expand the content of the

criteria, but instead further refines it. 42 U.S.C. 7408(a)(2). See pp. 5-6,

21-22 and note 14, supra.

States have pollution control information so that the States

can be prepared to implement the NAAQS. See ibid.

5. Section 109(d)(2): CASAC’s advice to EPA on effects

of implementation. ATA and others also contend that Sec-

tion 109(d)(2)’s direction that CASAC provide EPA with

advice on implementation effects, 42 U.S.C. 7409(d(2\(C (iv),

indicates that Congress intended EPA to consider those

matters in promulgating NAAQS. ATA Br. 41; APC Br. 41;

Hatch Amicus Br. 22. The text of Section 109(d)(2), read as a

whole, indicates that this is not so. Section 109(d)(2)(B)

directs that CASAC periodically review the air quality

criteria and NAAQS and make recommendations to the

Administrator on new or revised standards or criteria. 42

U.S.C. 7409(d)(2)(B). Section 109(d)(2C) further provides

that CASAC “shall also” advise the Administrator on vari-

ous matters, including “any adverse public health, welfare,

social, economic, or energy effects which may result from

various strategies for attainment and maintenance of

[NAAQS].” 42 U.S.C. 7409(d)(2)(C) (emphasis added). As

the CAA’s text indicates, CASAC’s advice on imple-

mentation effects under Section 109(d)(2)(C) is in addition to,

and separate from, any recommendations on criteria and

NAAQS that CASAC provides under Section 109(d)(2)(B).

See Pet. App. 21a.”

31 Congress plainly drew a distinction between effects that are relevant

for purposes of promulgating a NAAQS—viz., effects associated with “the

presence of [a] pollutant in the ambient air” (42 U.S.C. 7408(aX(2))—and

effects that are the subject of CASAC’s advice-providing role under

Section 109(d)(2)(C)—viz., effects “which may result from various strate-

gies for attainment” (42 U.S.C. 7409(d)(2)(C)(iv)). If Congress had not

wished to draw that distinction, it would not have employed the distinc-

tively different language. Indeed, the House Report that described the

purpose of Section 109(d)(2)(C)iv) suggests that CASAC’s advice under

that provision plays a limited role, even in the implementation process. It

states that the information is not “to be used as a basis for the Administra-

tor to disapprove any [SIP},” but “may be of interest and assistance to the

6. Section 109(b)(1): Allowance for an adequate margin

of safety. ATA and its supporters also contend (ATA Br. 47;

APC Br. 35-36; Ohio Br. 12-13, 15) that EPA has discretion

to consider compliance costs because, when EPA sets pri-

mary NAAQS at a level “requisite to protect public health,”

it must “allow[] an adequate margin of safety.” CAA

§ 109(b)(1), 42 U.S.C. 7409(b)(1). The court of appeals has

twice rejected that argument. See Lead Indus., 647 F.2d at

1148-1150; Vinyl Chloride, 824 F.2d at 1158-1159. In con-

text, Section 109(b)(1) plainly directs EPA to set primary

NAAQS with an “adequate margin of safety” to ensure that

those health-based standards will be set at a sufficiently

stringent level to achieve Section 109(b)(1)’s objective of

protecting public health. See S. Rep. No. 1196, supra, at 10

(1 1970 Leg. Hist. 410); 116 Cong. Rec. at 33,099 (1 1970 Leg.

Hist. 342) (Sen. Muskie).”

7. Section 110(a)(2): Consideration of costs in the im-

plementation program. ATA also argues (Br. at 45-47) that

EPA’s longstanding interpretation of Section 109 is inconsis-

States and to Congress in fashioning future legislation.” H.R. Rep. No.

294, supra, at 183.

32 ATA mistakenly relies on the court of appeals’ decision in Vinyl

Chloride, which ruled that EPA may consider economic and technological

feasibility when setting emission standards for especially hazardous pollu-

tants under the 1970 version of Section 112. See pp. 3, 30-31, supra. The

court concluded that Section 112 permitted EPA first to determine a

“safe” level for a hazardous air pollutant—based solely on health

factors—and then to consider cost and technological feasibility for the

purpose of determining whether additional protection should be afforded

by, for example, setting a standard at “the lowest feasible level.” 824 F.2d

at 1165-1166. The court expressly distinguished, however, the standard

for promulgating NAAQS under Section 109. Writing for the en banc

court, Judge Bork explained that the language and structure of the CAA

showed that “Congress simply did not intend the economics of pollution

control to be considered in [Section 109’s] scheme of ambient air

regulations.” /d. at 1159. Congress has since amended Section 112,

essentially creating a new scheme for setting emission standards for

especially hazardous air pollutants. 42 U.S.C. 7412. See pp. 30-31, supra.

tent with its interpretation of other provisions of the CAA,

where EPA does consider compliance costs in making regu-

latory decisions. ATA overlooks, however, that those other

provisions involve different statutory language, subject

matter, and policy choices. The cases ATA cites simply

demonstrate that EPA may have discretion to consider costs

in situations—unlike the situation posed by NAAQS prom-

ulgation—where Congress has not expressly prescribed

what factors it should consider in making regulatory deter-

minations.

For example, in Michigan v. EPA, supra, various

States challenged EPA’s determination, under Section

110(a)(2)(D), that certain “upwind” States were making a

“significant contribution” to NAAQS-nonattainment prob-

lems in “downwind” States. 42 U.S.C. 7410(a)(2)(D). EPA

identified 23 States that were “significant” contributors, and

it required those States to reduce emissions to a level that

could be achieved by employing “highly cost-effective

controls.” See 213 F.3d at 675. The court of appeals rejected

various challenges to EPA’s consideration of cost

effectiveness. Jd. at 675-678. The court concluded that the

term “significant” was inherently ambiguous, that it had

been construed in other contexts to include consideration of

costs, and there was not—as under Section 109—‘“clear

congressional intent to preclude consideration of costs.” Id.

at 678 (quoting Vinyl Chloride).

33 The other cases on which ATA relies (Br. 45-47) also involved provi-

sions of the CAA that do not specify what factors EPA is to consider and

that present no evidence of congressional intent to exclude costs. See

George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C. Cir. 1998) (con-

sideration of cost “appears to be congruent with both the congressional

purpose not to disrupt the market for imported gasoline and the Supreme

Court’s instruction to avoid an interpretation that would put a law of the

United States into conflict with a treaty obligation of the United States”);

NRDC vy. EPA, 937 F.2d 641, 645-646 (D.C. Cir. 1991) (text of provisions

governing “prevention of significant deterioration” supports inference

8. Section 109(d)(1): Revision of NAAQS. APC, but not

ATA, contends that Section 109(d)(1)’s directive that EPA

revise the NAAQS “as may be appropriate” (42 U.S.C.

7409(d)(1)) expands the range of factors that EPA may

consider when it revises NAAQS. APC Br. 39-40. The court

of appeals correctly rejected the argument. Pet. App. 20a-

21a. As that court noted, Section 109(d)(1) directs EPA to

“make such revisions in such criteria and 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).

Accordingly, the legal standard governing a decision to

revise a NAAQS, and the factors that bear on the decision,

are exactly the same as those for an initial decision to set a

NAAQS.”

9. Section 101(b)(1): Goals of the CAA. ATA and others

suggest that one of the CAA’s general goals set out in

Section 101(b) - to promote “the productive capacity” of the

Nation’s population, 42 U.S.C. 7401(b)(1)—should take

precedence over the CAA’s specific language in Sections 108

and 109 prescribing how NAAQS should be promulgated.

E.g., ATA Br. 42-43; APC Br. 23, 29-30. They essentially

contend that Section 101(b)(1) should be read to impose a

requirement to consider economic factors in all decision-

making under the Act. Section 101(b)(1) simply states,

however, that one of the purposes of the Act is “to protect

and enhance the quality of the Nation’s air resources so as to

promote the public health and welfare and the productive

capacity of its population.” 42 U.S.C. 7401(b)(1) (emphasis

that Congress meant to “balance the values of clean air, on the one hand,

and economic development and productivity, on the other.”).

4 APC’s argument that EPA faces a higher burden to revise a

standard than to set an initial standard is also wrong. APC mistakenly

relies upon inapposite case law regarding an agency’s obligation to explain

a change in policy. See APC Br. 42. When EPA revises a NAAQS, it is

not changing policy, but carrying out a specific duty imposed by the CAA

to review NAAQS at least once every five years. 42 U.S.C. 7409(d)(1).

added). The provision expresses Congress’s belief that

improved air quality would enhance the Nation’s productive

capacity by reducing the harm that air pollution causes.” It

does not alter the specific statutory directions that Congress

set out in Sections 108 and 109 to achieve that goal. Cf.

American Textile Mfrs., 452 U.S. at 510 (“When Congress

has intended that an agency engage in cost-benefit analysis,

it has clearly indicated such intent on the face of the

statute.”).

10. The UMRA and the RFA. There is no merit to the

suggestion (ATA Br. 48; Amici Hatch Br. 25) that two later-

enacted statutes, the Unfunded Mandates Reform Act, 2

U.S.C. 1501 et seg. (UMRA), and the Regulatory Flexibility

Act, 5 U.S.C. 601 et seg. (RFA), require EPA to consider

costs in promulgating NAAQS. Those Acts encourage

agencies to consider the economic effects of agency actions,

but each Act also provides that its specific requirements do

not apply if those requirements would be inconsistent with

the statute under which the agency is taking action. 2 U.S.C.

1535(b)(2) (Supp. IV 1998); 5 U.S.C. 604(a)(5) (1994 & Supp.

IV 1998). There is a “clear inconsistency” (see Hatch Br. 25)

between the requirements of the UMRA and the RFA and

the requirement of Section 109 that NAAQS be based on the

effects of ambient pollution on health and welfare. The

UMRA and the RFA are pertinent in only one sense: They

show that Congress is well aware that there are regulatory

statutes that preclude consideration of costs. See generally

Pet. App. 25a-31a.

35 See, e.g., 116 Cong. Rec. at 42,522 (1 1970 Leg. Hist. 118) (remarks of

Rep. Anderson) (“[a]ir pollution costs the United States over $12 billion

annually,” through ruined crops, aging of buildings and clothing,

deterioration of steel in bridges, rails and ships); 116 Cong. Rec. at 32,901

(1 1970 Leg. Hist. 224) (remarks of Sen. Muskie) (“The costs of air

pollution can be * * * measured in the billions of dollars of property

losses.”).

C. The Administrator Did Not Base Her NAAQS Decisions

On Consideration Of Compliance Costs

After arguing that EPA has improperly construed

Sections 108 and 109 to preclude consideration of non-health

effects (ATA Br. 32-43), ATA reverses course and contends

that EPA “may actually be considering non-health factors in

setting NAAQS” (ATA Br. 43-45). That contention is with-

out merit. Throughout the rulemaking proceedings, EPA

was confronted with comments urging it to consider the

technological feasibility, costs, and other alleged effects of

implementing any new PM or ozone standards. EPA

responded by explaining that the CAA requires that

NAAQS be based on consideration of the health and welfare

effects posed by “the presence of the pollutant in the air,”

rather than on consideration of the feasibility or effects of

implementing the standards. See 62 Fed. Reg. at 38,683-

38,689; id. at 38,878-38,883." And while it is a matter of no

relevance to this case, there is no evidence to support ATA’s

claim (ATA Br. 43-44) that previous EPA Administrators

secretly based their NAAQS decisions on impermissible

factors.”

36 Pursuant to executive order, EPA prepared a Regulatory Impact

Analysis (RIA) for the two rules at issue here, as it must for any signifi-

cant regulatory action. 62 Fed. Reg. at 38,702. EPA explained, however,

that the RIA was for informational and implementation planning purposes

only and could not play a part in the Administrator's decision on standard-

setting. See id. at 38,703 (PM); id. at 38,887 (ozone); see also PM App.

3461-3462. An RIA is normally not a part of the record for judicial review

of a NAAQS decision. Compare 42 U.S.C. 7607(d)(7)(A) with 42 U.S.C.

7607(d)(4)(B)(ii). EPA nevertheless elected to include the RIA in these

rulemakings because it was potentially relevant to judicial review of

issues arising under the RFA, 5 U.S.C. 601 et seg. See 5 U.S.C. 611 (1994

& Supp. IV 1998) (judicial review provisions). The court of appeals

rejected the RFA challenges, Pet. App. 26a-3la, and they are not before

this Court.

37 ATA claims (ATA Br. 43-44), on the basis of a highly speculative

reconstruction of the 1979 ozone rulemaking, that Administrator Douglas

D. Congress Has Resolved The Public Policy Question Of

Whether Cost-Benefit Analysis Should Be Used In

Setting NAAQS

ATA and its supporters argue that EPA should set

NAAQS through cost-benefit analysis, balancing the benefits

of clean air against the resulting economic costs of achieving

that goal, because that technique, in their view, would

improve EPA’s decisionmaking process. E.g., ATA Br. 30,

35-36; APC Br. 30-31. The question here, however, is

whether Congress sanctioned that approach. The CAA’s

specific provisions show that Congress directed EPA to set

NAAQS based on public health and public welfare objectives

rather than on the cost-benefit methodology that ATA would

prefer. Congress was entitled to make that choice.”

Congress has had sound reasons for adhering to that

decision. Quantifying the nationwide environmental benefits

Costle “admitted” that he considered costs in reaching his 1979 decision to

revise the ozone NAAQS. See M. Landy, M. Roberts & S. Thomas, The

Environmental Protection Agency: Asking the Wrong Questions from

Nixon to Clinton 66-70 (Oxford Univ. Press 1994); see also W. Wagner,

The Science Charade in Toxic Regulation, 95 Colum. L. Rev. 1613, 1641-

1643 (1995) (relying on Landy, et al.). That claim is not accurate. Costle

understood that the statute required him to reach a decision based solely

on the scientific evidence regarding health effects, and he ultimately made

his decision on that basis. See Landy, et al., supra, at 70-74; see also

American Petroleum Inst., 665 F.2d at 1185 (upholding 1979 ozone

standard and specifically rejecting the claim that the Administrator should

have considered the cost of implementing the standard).

38 Congress’s decision reflects what economists readily acknowledge:

cost-benefit analysis can frequently play an important role in environ-

mental regulation, but that methodology does not provide an appropriate

basis for making decisions in every regulatory context. See AEI-

Brookings Inst. Amici Br. 9-10 (noting that “[a]gencies should not be

= by a strict benefit-cost test,” that “[nJot all impacts of a decision can

quantified or expressed in dollar terms,” and that decisionmakers must

“give due consideration to factors that defy quantification”). Congress has

made the legislative judgment that the methodology is not the appropriate

ene for EPA to use in setting NAAQS. See note 42, infra.

BEST AVAILABLE COPY

of NAAQS in monetary terms creates a deceptive appear-

ance of certainty, but is fraught with difficulties, such as

placing a monetary value on preventing a senior citizen’s

premature death or a child’s asthma attack.” Quantifying the

costs associated with implementing NAAQS is a no less

uncertain undertaking. Because NAAQS are set on a

national level, because States have broad latitude in the SIP

process to select local pollution control strategies, and

because the time period from promulgation to full imple-

mentation can span many years and produce unforeseen

technological innovation, estimates of implementation costs

are inherently—and often extraordinarily—speculative.”

Indeed, EPA’s attempt to estimate the costs and benefits of

the ozone and PM NAAQS at issue in this case, for infor-

mational purposes only (see note 36, supra), has itself

become a source of debate.*' Congress’s decision to confine

the use of cost-benefit techniques to implementation efforts,

which typically involve assessment of near-term

3° See, e.g., L. Heinzerling, Regulatory Costs of Mythic Proportions,

107 Yale L.J. 1981, 2044, 2065-2068 (1998); T. McGarity, A Cost-Benefit

State, 50 Admin. L. Rev. 24-25 (1998); S. Shapiro & T. McGarity, Not So

Paradoxical: The Rationale for Technology-Based Regulation, 1991 Duke

LJ. 729, 732; H. Latin, Good Science, Bad Regulation and Toxic Risk

Assessment, 5 Yale J. on Reg. 89, 92 (1988).

4 See note 16, supra; see also, e.g., W. Harrington, R. Morgenstern &

P. Nelson, On the Accuracy of Regulatory Cost Estimates, Resources for

the Future Discussion Paper 99-18, at 10 (1999); T. McGarity, supra, 50

Admin. L. Rev. at 7, 55, 76.

41 ATA argues (ATA Br. 9-11) that EPA’s RIA shows that costs

exceed benefits. In fact, the RIA, which did not quantify many

“nonmonetizable benefits categories” (ES-3, ES-15 to ES-16), estimated

that the benefits of the revised PM standards would far outweigh their

costs and that the costs and benefits of the revised ozone standard would

be roughly commensurate. See ES-1 to ES-22; 13-2. The RIA necessari

had to rely on highly uncertain data. See ES-3 to ES-5. The fact that the

parties do not agree on the conclusions that can be drawn from the

economic analysis in this case illustrates the difficulties that ATA’s

position entails.

requirements for specific control measures on specific

industries in specific locations, is entirely understandable.”

In any event, it is not for this Court to rescind Congress’s

legislative judgment on what is quintessentially a matter of

public policy. Central Bank of Denver, N.A. v. First Inter-

state Bank of Denver, N.A., 511 U.S. 164, 188 (1994). Con-

gress has made its policy determination, and “it is up to

Congress, not this Court, to revise the determination if it so

chooses.” United States v. Noland, 517 U.S. 535, 541-542 n. 3

(1996).

Ill. EXPANDING THE RANGE OF FACTORS THAT

EPA MAY CONSIDER IN SETTING NAAQS

WOULD NEITHER RESOLVE NOR AVOID THE

CONSTITUTIONAL ISSUE PERCEIVED BY THE

COURT OF APPEALS

Perhaps ATA will address in its reply brief the question

that it has presented in its cross-petition but fails to develop

in its opening brief—whether this Court should interpret

Section 109 as allowing consideration of “non-health factors”

to “avoid confronting constitutional nondelegation issues”

(ATA Br. i). Because we will have no opportunity to respond

to ATA’s reply brief, we address that matter in the first

instance.

As we explain in the companion case, No. 99-1257, Section

109 is clearly constitutional under this Court’s nondelegation

doctrine jurisprudence. See 99-1257 Pet. Br. 22-26. Because

42 In effect, Congress has defined the CAA’s goals in terms of a public

health and welfare objective, while recognizing the validity of the view of

economists that “{e]conomic analysis can be useful in designing regulatory

strategies that achieve a desired goal at the lowest possible cost.” AEI-

Brookings Amici Br. 10. EPA's Administrator has made that point in

explaining why cost-benefit analysis is not appropriate in setting the

NAAQS: “While cost-benefit analysis is a tool that can be helpful in

developing strategies to implement our nation’s air quality standards, we

believe it is inappropriate for use to set the standards themselves.” See

1997 Hearings 282 (prepared testimony of Administrator Browner).

Congress has provided sufficient guidance “to meet any

delegation doctrine attack,” this Court has no occasion to

give Section 109 a narrowing construction to avoid an alleged

“serious question of unconstitutional delegation of legislative

power.” Federal Energy Administration v. Algonquin

SNG, Inc., 426 U.S. 548, 559 (1976).

In any event, ATA’s proposed construction would not

solve the supposed constitutional infirmity under the non-

delegation doctrine. To the contrary, it would actually grant

EPA broader discretion than Section 109’s plain language

confers. See Scalia, supra, 24 Hous. L. Rev. at 102. Under

ATA’s suggested approach, EPA would have discretion to

set NAAQS—and courts would be required to review

them—based on an open-ended inquiry into any conceivable

costs or benefits that might result from promulgation of the

NAAQS. Contrary to the court of appeals’ suppositions,

Pet. App. 14a-18a, consideration of costs and other effects of

implementation would not provide a “determinate criterion”

for EPA in setting NAAQS.“ Accordingly, while we do not

disagree with the court of appeals’ and ATA’s implication

* The principle that a statute must be construed so as to avoid doubts

as to its constitutionality applies only when the statute’s meaning is

unclear. See, e.g., Miller v. French, 120 S. Ct. 2246, 2255 (2000). Here,

Congress has made unmistakably clear its intent that EPA should base its

NAAQS decisions solely on the health and welfare effects posed by the

presence of the pollutant in the ambient air. See, e.g., CFTC v. Schor, 478

U.S. 833, 841 (1986) (the canon of constitutional doubt “does not give a

court the prerogative to ignore the legislative will”).

“4 Casting the NAAQS decision in cost-benefit terms would not resolve

the underlying scientific uncertainties that EPA must face in setting

NAAQS. See pp. 9, 11, supra. At the same time, it would introduce new

uncertainties respecting the quantification of costs and benefits that would

result from implementing the NAAQS. See pp. 45-47, supra. Economists

readily admit that, in cases where information on costs and benefits is

uncertain, “benefit-cost analysis cannot be used to prove that the economic

benefits of a decision will exceed or fall short of costs.” AEI-Brookings

Inst. Amici Br. 9.

that Section 109 would not be unconstitutional if construed

as ATA proposes, we believe that it follows a fortiori that

Section 109 is also constitutional as it has been construed and

applied throughout its 30-year existence.

In sum, Congress fulfilled its responsibility under the

nondelegation doctrine and made the fundamental policy

choice. Congress concluded that NAAQS should be set for

criteria pollutants on the basis of what is necessary to

protect public health and public welfare. Cf. American

Textile Mfrs., 452 U.S. at 509. Congress “itself determined

that the economic effects of any necessary actions to meet

the goals of [the NAAQS program] were acceptable.” See

NCAQ Report, supra, at 273; pp. 25-32, supra. It did not

authorize EPA to set NAAQS on the basis of the agency’s

projection of compliance costs. Cf. American Textile Mfrs.,

452 U.S. at 545 (Rehnquist, C.J., dissenting) (health-based

standards authorize an agency “to set exposure standards

without regard to any kind of cost-benefit analysis”). ATA

and its supporters can continue to ask Congress to recon-

sider that policy choice, notwithstanding the substantial

benefits that the CAA has provided to the American public.

See, e.g., EPA, The Benefits and Costs of the Clean Air Act,

1970 to 1990 (Oct. 1997). But unless and until Congress

elects to change the law that has been in place since 1970,

Congress’s legislative judgment should be given effect.

CONCLUSION

This Court should affirm the court of appeals’ ruling that

the Clean Air Act requires EPA to establish NAAQS based

solely on consideration of the effects on public health and

public welfare caused by the presence of criteria pollutants

in the ambient air.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

. GUZY ~~

— ya Deputy Solicitor General

JEFFREY P. MINEAR

een yg Assistant to the Solicitor

Attorneys General

Environmental Protection CHRISTOPHER S. VADEN

Agency DAVID J. KAPLAN

MARY F. EDGAR

Attorneys

SEPTEMBER 2000

APPENDIX

Section 101 of the Clean Air Act provides in relevant part:

§ 7401. Congressional findings and declaration of

purpose

* * * *& *

(b) Declaration

The purposes of this subchapter are—

(1) to protect and enhance the quality of the Nation’s air

resources so as to promote the public health and welfare

and the productive capacity of its population.

* * * * *

42 U.S.C. 7401.

Section 108 of the Clean Air Act provides in relevant part:

§ 7408. Air quality criteria and control techniques

(a) Air pollutant list; publication and revision by

Administrator; issuance of air quality criteria for air

pollutants

(1) For the purpose of establishing national primary

and secondary ambient air quality standards, the Admini-

strator shall within 30 days after December 31, 1970,

publish, and shall from time to time thereafter revise, a

list which includes each air pollutant—

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

contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare;

(la)

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

from numerous or diverse mobile or stationary sources;

and

before December 31, 1970 but for which he plans to

issue air quality criteria under this section.

(2) The Administrator shall issue air quality criteria for

an air pollutant within 12 months after he has included such

pollutant in a list under paragraph (1). Air quality criteria

for an air pollutant shall accurately reflect the latest scien-

tific knowledge useful in indicating the kind and extent of all

identifiable effects on public health or welfare which may be

expected from the presence of such pollutant in the ambient

air, in varying quantities. The criteria for an air pollutant, to

the extent practicable, shall include information on-

(A) those variable factors (including atmospheric condi-

tions) 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

welfare.

(b) Issuance by Administrator of information on air

pollution control techniques; standing consulting

committees for air pollutants; establishment;

membership

(1) Simultaneously with the issuance of criteria under

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

consultation with appropriate advisory committees and

Federal departments and agencies, issue to the States and

appropriate air pollution control agencies information on air

pollution control techniques, which information shall include

data relating to the cost of installation and operation, energy

requirements, emission reduction benefits, and environ-

mental impact of the emission control technology. Such

information shall include such data as are available on

available technology and alternative methods of prevention

and control of air pollution. Such information shall also

include data on alternative fuels, processes, and operating

methods which will result in elimination or significant

reduction of emissions.

(2) In order to assist in the development of information

on pollution control techniques, the Administrator may esta-

blish a standing consulting committee for each air pollutant

included in a list published pursuant to subsection (a)(1) of

- this section, which shall be comprised of technically qualified

individuals representative of State and local governments,

industry, and the academic community. Each such commit-

tee shall submit, as appropriate, to the Administrator

information related to that required by paragraph (1).

information

The Administrator shail from time to time review, and, as

appropriate, modify, and reissue any criteria or information

on control techniques issued pursuant to this section. * * *

(d) Publication in Federal Register; availability of copies

for general public

The issuance of air quality criteria and information on air

pollution control techniques shall be announced in the

Federal Register and copies shall be made available to the

general] public.

* * * * *

42 U.S.C. 7408.

Section 109 of the Clean Air Act provides in relevant part:

§ 7409. National primary and secondary ambient

air quality standards

(a) Promulgation

(1) The Administrator-

(A) * * * shall publish proposed regulations

prescribing a national primary ambient air quality

standard and a national secondary ambient air quality

standard for each air pollutant for which air quality

criteria have been issued prior to such date; and

(B) after a reasonable time for interested persons

to submit written comments thereon (but no later than

90 days after the initial publication of such proposed

standards) shall by regulation promulgate such pro-

posed national primary and secondary ambient air

quality standards with such modifications as he deems

appropriate.

* * * * *

(b) Protection of public health and welfare

(1) National primary ambient air quality standards,

prescribed under subsection (a) of this section shall be

ambient air quality standards the attainment and main-

tenance of which in the judgment of the Administrator,

based on such criteria and allowing an adequate margin of

safety, are requisite to protect the public health. Such

primary standards may be revised in the same manner as

promulgated.

(2) Any national secondary ambient air quality standard

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

level of air quality the attainment and maintenance of which

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

is requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary stan-

dards may be revised in the same manner as promulgated.

* * * * *

(d) Review and revision of criteria and standards; inde-

pendent scientific review committee; appointment;

advisory functions

(1) Not later than December 31, 1980, and at five-year

intervals thereafter, the Administrator shall complete a

thorough review of the criteria published under section 7408

of this title and the national ambient air quality standards

promulgated under this section and shall make such revi-

sions 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.

The Administrator may review and revise criteria or prom-

ulgate new standards earlier or more frequently than

required under this paragraph.

(2A) The Administrator shall appoint an independent

scientific review committee composed of seven members

including at least one member of the National Academy of

Sciences, one physician, and one person representing State

air pollution control agencies.

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

intervals thereafter, the committee referred to in sub-

paragraph (A) shall complete a review of the criteria

published under section 7408 of this title and the national

primary and secondary ambient air quality standards

promulgated under this section and shall recommend to the

Administrator any new national ambient air quality

standards and revisions of e:.isting criteria and standards as

may be appropriate under section 7408 of this title and

subsection (b) of this section.

Administrator of any adverse public health, welfare, social,

economic, or energy effects which may result from various

strategies for attainment and maintenance of such national

ambient air quality standards.

42 U.S.C. 7409.

Section 110 of the Clean Air Act provides in relevant part:

§ 7410 State implementation plans for national

primary and secondary ambient air quality

standards

(a) Adoption of plan by State; submission to Administra-

tor; content of plan; revision; new sources; indirect

source review program; supplemental or intermittent

control systems

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within 3

years (or such shorter period as the Administrator may

prescribe) after the promulgation of a national primary

ambient air quality standard (or any revision thereof) under

section 7409 of this title for any air pollutant, a plan which

provides for implementation, maintenance, and enforcement

ef such primary standard in each air quality control region

(or portion thereof) within such State. * * *

(2) Each implementation plan * * * shall—

* * * * *

(D) contain adequate provisions—

(i) prohibiting, consistent with the provisions of this

subchapter, any source or other type of emissions activity

within the State from emitting any air pollutant in

amounts which will—

(I) contribute significantly to nonattainment in, or

interfere with maintenance by, any other State with

respect to any such national primary or secondary

ambient air quality standard * * *.

* * * * *

42 U.S.C. 7410.

this section, if the conduct in violation of this chapter is the

private viewing of a private satellite video communication

that is not scrambled or encrypted or if the communication is

a radio communication that is transmitted on frequencies

allocated under subpart D of part 74 of the rules of the

Federal Communications Commission that is not scrambled

or encrypted and the conduct is not for a tortious or illegal

purpose or for purposes of direct or indirect commercial

advantage or private commercial gain, then the court shall

assess damages as follows:

(A) If the person who engaged in that conduct has

not previously been enjoined under section 2511(5) and

has not been found liable in a prior civil action under this

section, the court shall assess the greater of the sum of

actual damages suffered by the plaintiff, or statutory

damages of not less than $50 and not more than $500.

(B) If, on one prior occasion, the person who

engaged in that conduct has been enjoined under section

2511(5) or has been found liable in a civil action under

this section, the court shall assess the greater of the sum

of actual damages suffered by the plaintiff, or statutory

damages of not less than $100 and not more than $1000.

(2) In any other action under this section, the court

may assess as damages whichever is the greater of—

(A) the sum of the actual damages suffered by the

plaintiff and any profits made by the violator as a result

of the violation; or

(B) statutory damages of whichever is the greater

of $100 a day for each day of violation or $10,000.

(d) DEFENSE.—A good faith reliance on—

10a

(1) a court warrant or order, a grand jury

subpoena, a legislative authorization, or a statutory

authorization;

(2) a request of an investigative or law en-

forcement officer under section 2518(7) of this title; or

(3) a good faith determination that section

2511(3) of this title permitted the conduct complained

of;

is a complete defense against any civil or criminal action

brought under this chapter or any other law.

(e) LIMITATION.—A civil action under this section may

not be commenced later than two years after the date upon

which the claimant first has a reasonable opportunity to

discover the violation.

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