Respondents Brief — American Trucking Assns., Inc. v. Browner
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; yr | Supreme Court; Os.
eZ) FILED
No. 99-1426 SEP 11 2000
In The | CLERK
Supreme Court of the United States
+
AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,
Cross-Petitioners,
CAROL M. BROWNER, Administrator of the
Environmental Protection Agency, et al.,
Cross-Respondents.
°
On Writ Of Certiorari To The
United States Court Of Appeals
For The District Of Columbia Circuit
S
BRIEF OF CROSS-RESPONDENT
AMERICAN LUNG ASSOCIATION
¢
Howarp I. Fox
Earthjustice Legal Defense Fund
1625 Massachusetts Ave., N.W.
Suite 702
ton, D.C. 20036-2212
(202) 667-4500
Counsel Record
- 4, rt +e ’ ¥
QUESTION PRESENTED
Whether the Clean Air Act requires that the Environ-
mental Protection Agency must, in setting primary
national ambient air quality standards, ignore all factors
other than health effects relating to pollutants in the air.
il
RULE 29.6 DISCLOSURE, AND
LIST OF PARTIES BELOW
Respondent American Lung Association (ALA) was
an intervenor in the court of appeals. ALA has no parent
companies or nonwholly owned subsidiaries, and there is
no parent or publicly held company owning 10% or more
of ALA’s stock.
The following were parties in one or both of the two
consolidated proceedings addressed by this petition for
certiorari (American Trucking Assns. v. USEPA, D.C. Cir.
No. 97-1440 and consolidated cases; and American Truck-
ing Assns. v. USEPA, D.C. Cir. No. 97-1441 and consoli-
dated cases):
Alliance of Automobile Manufacturers (formerly
American Automobile Manufacturers Association)
American Farm Bureau Federation
American Forest & Paper Association
American Iron and Steel Institute
American Lung Association
American Petroleum Institute
American Portland Cement Alliance
American Public Power Association
American Road and Transportation Builders
Association
American Trucking Associations, Inc.
Appalachian Power Company
Atlantic City Electric Company
Baltimore Gas and Electric Company
James Bassage
Burns Motor Freight, Inc.
Carolina Power & Light Company
Centerior Energy Corporation
Central and South West Services, Inc.
RULE 29.6 DISCLOSURE, AND
LIST OF PARTIES BELOW - Continued
Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central Power and Light Company
Chamber of Commerce of the United States
Chemical Manufacturers Association
CINergy Corporation
Citizens for Balanced Transportation
Cleveland Electric Illuminating Company
Columbus Southern Power Company
ComEd Company
Consumers Energy Company
Dayton Power & Light Company
Delmarva Power & Light Company
Detroit Edison Company
Duke Energy Company
Duquesne Light Company
Edison Electric Institute
Equipment Manufacturers Institute
FirstEnergy Corporation (A merger of Centerior
Energy Corporation and Ohio Edison Company)
Florida Power Corporation
Garner Trucking, Inc.
Genie Trucking Line, Inc.
Gloucester Company, Inc.
Michael Gregory
Idaho Mining Association
Illinois Power Company
Indiana Michigan Power Company
Indianapolis Power & Light Company
Jacksonville Electric Authority
Judy’s Bakery, Inc.
Kansas City Power & Light Company
Kennecott Energy and Coal Company
Kennecott Holdings Corporation
iV
RULE 29.6 DISCLOSURE, AND
LIST OF PARTIES BELOW - Continued
Kennecott Services Company
Kentucky Power Com pany
Kentucky Utilities Company
Louisville Gas and Electric Company
Madison Gas and Electric Company
Commonwealth of Miassachusetts
David Matusow
Brian McCarthy
Meridian Gold Company
State of Michigan
Midwest Ozone Growp
Minnesota Power
Monongahela Power Company
Montaup Electric Company
National Association of Home Builders
National Association of Manufacturers
National Automobile Dealers Association
National Coalition of Petroleum Retailers
National Indian Business Association
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners Association
National Rural Electric Cooperative Association
National Small Business United
National Stone Association
Nevada Mining Association
State of New Jersey
Newmont Gold Company
Niagara Mohawk Power Corporation
Non-Ferrous Founders Society
Northern Indiana Public Service Company
Oglethorpe Power Corporation
State of Ohio
Ohio Edison Company
Ohio Mining and Reclamation Association
Vv
RULE 29.6 DISCLOSURE, AND
LIST OF PARTIES BELOW - Continued
Ohio Power Company
Ohio Valley Electric Corporation
Oklahoma Gas & Electric Company
Otter Tail Power Company
PacifiCorp
Pennsylvania Power & Light Company
Phoenix Cement Company
Plains Electric Generation & Transmission
Cooperative, Inc.
Potomac Edison Company, The
Potomac Electric Power Company
PP&L Resources
Public Service Company of New Mexico
Public Service Company of Oklahoma
Richard Romero
Salt River Project Agricultural Improvement and
Power District
Small Business Survival Committee
South Carolina Electric & Gas Company
Southern Company
Southwestern Electric Power Company
Tampa Electric Company
Texas Gas Transmission Corporation
Toledo Edison Company
Union Electric Company
United Mine Workers of America, AFL-CIO
United States Environmental Protection Agency
Virginia Power
West Penn Power Company
West Texas Utilities Company
West Virginia Chamber of Commerce
State of West Virginia
Western Fuels Association
Wisconsin Electric Power Company
vi
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE............---000000: 1
I. EPA’s 1997 NAAQS, AND THE COURT OF
APPEALS DECISION ...........--eeeeeeeeeees 1
Il. THE CLEAN AIR ACT ..........-------eeeee 1
A. Pre-1967 Enactments..............-000005: 2
BD BR Babe cccccccesccsccsccccccccscccencces 2
Air quality criteria.................... 3
Control techniques information........ 4
Air quality standards ................. 5
C. 1970 AgmemGMMens .... 2. cccccccccccccccces 6
BURRS Ge cc cccccvcesccccoscccccceses 7
CometetD GEE on cc ccccccccccccccccces 11
Post-1970 Implementation................. 16
E. The 1977 Amendments................++-- 17
Post-1977 Developments...............-..- 22
SUMMARY OF ARGUMENT.............----++005 25
REISS ccccccccecccccsccccvcsesesoseseccccces 28
I. CONGRESS CLEARLY EXPRESSED ITS
INTENT THAT PRIMARY NAAQS BE BASED
ONLY ON HEALTH EFFECTS OF AIR POLLU-
PRED cccccccovececccccccccecocccscceseccess 29
a a ie eee cad 29
Comparison of 1970 Amendments to their
PORESEEIOOES . 2.2 oc ccccccccccccccccccceess 30
@t3
Il.
Ill.
Vi.
Vii
TABLE OF CONTENTS - Continued
1970 Legislative History.................. 31
SS oa ak ka 31
eS er I, Nate 32
THE ACT’S “PUBLIC HEALTH” MANDATE
DOES NOT ENCOMPASS INDIRECT HEALTH
PPS On ccbesccccedeseccesesneseseveshose 32
THE COURT SHOULD NOT OVERRIDE CON-
GRESS’S INTENT ON POLICY GROUNDS.... 35
THE COURT SHOULD NOT OVERRIDE CON-
GRESS’S INTENT BY PRESUMING THE RELE-
VANCE OF COMPLIANCE-RELATED
NO EXEMPTION FROM THE ACT’S HEALTH-
ONLY MANDATE IS AUTHORIZED FOR
“NON-THRESHOLD” POLLUTANTS .......... 40
EPA’S 1997 NAAQS ARE SUPPORTED BY
COMPELLING EVIDENCE OF ADVERSE
SED MOU covccccesccessosescasesesse 44
ss ceudcciiedacenseabessade 47
CRP SIOS occ ccccecesncccccsososcesocesosseese 50
Vili
TABLE OF AUTHORITIES
Page
Cases
Chicago v. Environmental Defense Fund, 511 U.S. 328
GED < nédocndevoccvecescosdosonacacsscesesasess 29, 31
Daniels v. Williams, 474 U.S. 327 (1986).............. 42
Industrial Union Dept., AFL-CIO v. American Petro-
leum Inst., 448 U.S. 607 (1980) ............-45.. 37, 44
Lead Industries Assn. v. EPA, 647 F.2d 1130 (D.C.
Cie, BREED co cccccccccccvnccecceccnsessveccctenseces 17
National Cable Television Assn. v. United States, 415
it ¥).. PAPPPPPrerrrrririrrrie irr ee 40
Natural Resources Defense Council v. USEPA, 824
F.2d 1146 (D.C. Cir. 1987). ......22.. cece eee eee ees 43
Train v. Natural Resources Defense Council, 421 U.S.
BD CRITE cv co cecccccccccccccvevccsceseccceccndesese 7
TVA v. Hill, 437 U.S. 153 (1978) ......--. eee eee eee 30, 35
Union Electric Co. v. EPA, 427 U.S. 246 (1976)... . passim
United States v. Cong. of Industrial Orgs., 335 U.S.
f. . PPerrrrrivrirritiry tt ee 30
West Virginia University Hospitals v. Casey, 499 U.S.
i SERPPPPPTTTTTTITTTTI TIT Ti 40
STATUTES
Pub. L. No. 84-159, 69 Stat. 322-23 (July 14, 1955)..... 2
Pub. L. No. 90-148, 81 Stat. 485 (November 21,
|. _, PPPPTPPPTTTTITITITITITITITITITT TTT 2
ix
TABLE OF AUTHORITIES - Continued
Page
Clean Air Act of 1963, Pub. L. No. 88-206, § 3, 77
Se ST debascdndetesusecdsebtbensscdcndesa 2
Clean Air Act of 1963, Pub. L. No. 88-206, § 5, 77
Se PN n6-kbb06s shsndamaddcneneddccteces 2
Clean Air Act of 1967, Pub. L. No. 88-206, § 101, 81
ee sit kenkendbentnedesbddasickdsessoces 6
Clean Air Act of 1967, Pub. L. No. 90-148, § 107, 81
Ph Se See codsdocccesoscdecceciol 3, 5, 13, 14
Clean Air Act of 1967, Pub. L. No. 90-148, § 108, 81
Sey GP CR cbcdcnbecdsccccesssee< 5, 12, 13, 33
Clean Air Act, as amended in 1970, § 108, 1970 LH
Be 0055056 ob 00 Ses eed eeoovedevescéeeewetoeseees passim
Clean Air Act, as amended in 1970, § 109, 1970 LH
TEP Ch Sn ssdcecegsdeoensderesecnsssoveccucconses passim
Clean Air Act, as amended in 1970, § 110, 1970 LH
Deb ceseceedutskanesodnsbedeodenedddubaedeeebe bones 15
Clean Air Act, as amended in 1970, § 111, 1970 LH
Ph dbo dudes ds ccqusendedsoeestedseetedectbebdnesece 15
Clean Air Act, as amended in 1970, § 231, 1970 LH
Pen ceneses covaseddsesecanteensenesesésedsdsoboses 15
Clean Air Act, as amended in 1970, § 302, 1970 LH
Pe cvcocccocedéonsenscsoevessoeetaséedecdébtecsecese 12
Clean Air Act, as amended in 1970, § 312, 1970 LH
Gib c ccccsecnsseectes cvenedengusdedesedusedéeessecs 14
Clean Air Amendments of 1977, Pub. L. No. 95-95,
§ 112, 91 Stat. 705-09 (1977) ........ cece eee eee 21
Clean Air Amendments of 1977, Pub. L. No. 95-95,
§ 126, 91 Stat. 730 (1977) 2. cccccccccccccccccscccecs 20
TABLE OF AUTHORITIES - Continued
Page
Clean Air Amendments of 1977, Pub. L. No. 95-95,
§ 129, 91 Stat. 746-47 (1977) ...... 2. cece cece e eee 21
Clean Air Amendments of 1977, Pub. L. No. 95-95,
§ 313, 91 Stat. 785-88 (1977) .......- cece eee eee ees 22
Clean Air Amendments of 1990, Pub. L. No.
101-549, § 101-111, 104 Stat. 2399-2471 (1990)...... 25
Clean Air Amendments of 1990, Pub. L. No.
101-549, § 109, 104 Stat. 2470 (1990) .............. 12
Clean Air Act, § 103, 42 U.S.C. § 7403.............. 45
Clean Air Act, § 108, 42 U.S.C. § 7408.......... passim
Clean Air Act, § 109, 42 U.S.C. § 7409.......... passim
Clean Air Act, § 112, 42 U.S.C. § 7412.............. 25
Clean Air Act, § 312, 42 U.S.C. § 7612............-. 25
Clean Air Act, § 317, 42 U.S.C. § 7617.............. 22
LecisLaTiveE History
113 Cong. Rec. 19164 (July 18, 1967) ..............55- 5
116 Cong. Rec. 32900 (September 21, 1970). .8, 9, 10, 11
116 Cong. Rec. 33106 (September 22, 1970)........ 9, 11
116 Cong. Rec. 42381 (December 18, 1970) ....... 15, 16
116 Cong. Rec. 42519 (December 18, 1970) .......... 16
S. Rep. No. 403, 90th Cong., 1st Sess. (1967)
ocean endvecsucansvceccapessnsuceenedes 4, 5, 6, 9, 14, 45
H. Rep. No. 728, 90th Cong., 1st Sess. (1967)
pe ecceredcencccqucteswes steesecsgets 2, 3, 4, 5, 6, 9, 45
xi
TABLE OF AUTHORITIES - Continued
Page
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970).... passim
Conf. Rep. No. 1783, 91st Cong., 2d Sess. (1970) .... 12
S. Rep. No. 127, 95th Cong., 1st Sess. (1977) ........ 37
H. Rep. No. 294, 95th Cong., 1st Sess. (1977).... passim
S. Rep. No. 228, 101st Cong., 1st Sess. (1989)........ 25
H. Rep. No. 490, 101st Cong., 2d Sess. (1990) ....... 25
Implementation of the Clean Air Act Amendments of
1970 — Part 1 (Title 1): Hearings Before the Sub-
committee on Air and Water Pollution of the Com-
mittee on Public Works, United States Senate, No.
92-H31 (February 16-23, 1972) ................000- 16
Clean Air Act Oversight — 1973, Part 1: Hearings
Before the Subcommittee on Public Health and
Environment of the Committee on Interstate and
Foreign Commerce, House of Representatives,
No. 93-62 (September 10, 1973) ................04 36
Clean Air Act Oversight — 1973, Part 2: Hearings
Before the Subcommittee on Public Health and
Environment of the Committee on Interstate and
Foreign Commerce, House of Representatives,
No. 53-63 (September 1973)... ccccccccccccccccee
Implementation of the Clean Air Act - 1975, Part 1:
Hearings Before the Subcommittee on Environmen-
tal Pollution of the Committee on Public Works,
United States Senate, No. 94-H10 (April 22,
BOVE seus ccsvesvesctccvcassnceseeseciecess 16, 37, 47
Executive Branch Review of Environmental Regula-
tions: Hearings Before the Subcommittee on Envi-
ronmental Pollution of the Committee on
Environment and Public Works, United States
Senate, No. 96-H4 (February 27, 1979) ..... 22, 23, 38
xii
-TABLE OF AUTHORITIES - Continued
Use of Cost-Benefit Analysis by Regulatory Agencies:
Joint Hearings Before the Subcommittee on Over-
sight and Investigations and the Subcommittee on
Consumer Protection and Finance of the Committee
on Interstate and Foreign Commerce, House of
Representatives, No. 96-157 (July 30, 1979).....
Reports of the National Commission on Air Quality
and the National Academy of Sciences: Joint Hear-
ing Before the Committee on Environment and Pub-
lic Works, United States Senate, and the
Subcommittee on Health and the Environment of the
Committee on Energy and Commerce, U.S House of
Representatives, No. 97-6 (March 2, 1981) .......
Clean Air Act Oversight, Part 1: Hearings Before the
Committee on Environment and Public Works, United
States Senate, No. 97-H12 (April 9, 1981).........
Clean Air Act Oversight, Part 3: Hearings Before the
Committee on Environment and Public Works, United
States Senate, No. 97-H12 (June 9, 1981) .........
Health Standards for Air Pollutants: Hearings Before
the Subcommittee on Health and the Environment of
the Committee on Energy and Commerce, House of
_ Representatives, No. 97-97 (October 14, 1981)
sesens occencncecovessecesenecses Ge MED Sab Ute
A Legislative History of the Clean Air Amendments of
1970, Committee on Public Works, United States
Senate, No. 93-18 (January 1974)...............
A Legislative History of the Clean Air Act Amend-
ments of 1977, Committee on Environment and
Public Works, United States Senate, No. 95-16
(Amgmst 1976) 2... .ccccccccccccccccccccesecs 17,
Page
41, 43
18, 20
xiii
TABLE OF AUTHORITIES - Continued
Page
FEDERAL REGISTER
36 Fed. Reg. 1502 (January 30, 1971)................ 46
36 Fed. Reg. 8186 (April 30, 1971) ........... 16, 17, 46
43 Fed. Reg. 26962 (June 22, 1978).................. 46
44 Fed. Reg. 8202 (February 8, 1979)............. 49, 50
62 Fed. Reg. 38652 (July 18, 1997)................... 45
62 Fed. Reg. 38856 (July 18, 1997)................ 48, 49
MISCELLANEOUS
National Commission on Air Quality, To Breathe
er I i ee 22
XIV
GLOSSARY
American Lung Association
Appalachian Power Company
American Trucking Associations, Inc.
Clean Air Scientific Advisory Committee
Criteria Document
Environmental Protection Agency
Department of Health, Education, and Welfare
Joint Appendix in D.C. Cir. No. 97-1441 (Ozone
NAAQS)
Joint Appendix in D.C. Cir. No. 97-1440 (Partic-
ulate Matter NAAQS)
National Ambient Air Quality Standards
National Commission on Air Quality
particulate matter
parts per million
Regulatory Impact Analysis
Staff Paper
1
STATEMENT OF THE CASE
I. EPA’s 1997 NAAQS, AND THE COURT OF
APPEALS DECISION.
The background of the Environmental Protection
Agency (EPA) national ambient air quality standards
(NAAQS) at issue in this case is set forth in American
Lung Association’s (ALA’s) brief in No. 99-1257. In addi-
tion, the D.C. Circuit affirmed EPA’s conclusion — based
on step one of Chevron, U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) - that primary NAAQS must
be based solely on health effects relating to pollutants in
the air, not on compliance-related factors such as cost.
App. 19a-21a.! Accord, id. 15a.
Il. THE CLEAN AIR ACT.
The text, structure, and evolution of the Clean Air
Act demonstrate that the 1970 Amendments precluded
consideration of compliance-related factors in setting pri-
mary NAAQS, abandoning the contrary approach of the
1967 Act; that Congress reaffirmed the 1970 Amend-
ments’ approach in 1977, when it enacted a mandate for
periodic review and revision of NAAQS; and that Con-
gress declined to alter this approach when it enacted
another comprehensive overhaul of the Act in 1990.
1 Appendix citations refer to the appendix filed by the
Environmental Protection Agency with its petition for
certiorari. In addition, for purposes of brevity, this brief uses the
phrase “compliance-related factors” to denote socioeconomic
factors concerning compliance with NAAQS, including the cost
and feasibility of compliance, and alleged health impacts
associated with compliance.
2
A. Pre-1967 Enactments.
Eight years after authorizing the federal government
to provide technical assistance to states and localities
concerning air pollution control, Pub. L. No. 84-159, 69
Stat. 322-23 (July 14, 1955), Congress enacted the Clean
Air Act of 1963. That statute authorized federal abate-
ment of air pollution, but only in narrow circumstances
and subject to numerous limitations -— including the
requirement that courts hearing abatement suits weigh
“the practicability” and- “physical and economic fea-
sibility” of abatement. Pub. L. No. 88-206, § 5(a)-(g), 77
Stat. 396-98 (December 17, 1963).
In addition, the 1963 Act directed the Secretary of
Health, Education, and Welfare (HEW), “[w]henever he
determines that there is a particular air pollution agent
(or combination of agents), present in the air in certain
quantities, producing effects harmful to the health or
welfare of persons,” to “compile and publish criteria
reflecting 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.” § 3(c)(2). The criteria were for “informa-
tional” rather than regulatory purposes. Id.
B. 1967 Act.
In 1967 Congress enacted a substantial overhaul of
the Act, Pub. L. No. 90-148, 81 Stat. 485 (November 21,
1967), the “heart” of which was a mandate for establish-
ment of air quality standards, which were to drive abate-
ment efforts. § 108(c). See H. Rep. 728, 90th Cong., 1st
Sess. 17 (1967) (“1967 H. Rep.”). To lay the foundation for
3
establishment of standards, Congress directed the Secre-
tary to generate two kinds of information.
Air quality criteria. First, Congress continued the
1963 Act’s requirement for air quality criteria, and
directed that the criteria be “requisite for the protection
of the public health and welfare,” and that they “accu-
rately reflect the latest scientific knowledge useful in
indicating the kind and extent of all identifiable effects on
health and welfare 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)(1) and (2). They were to “include those variable
factors which of themselves or in combination with other
factors may alter the effects on public health and welfare
of any subject agent or combination of agents, including,
but not limited to, atmospheric conditions, and the types
of air pollution agent or agents which, when present in
the atmosphere, may interact with such subject agent or
agents, to produce an adverse effect on public health and
welfare.” § 107(b)(3).
The drafters explained that criteria would include
information about the health and welfare effects of air
pollution, but not about the economic or technical impacts
of pollution control. For example, the House Report noted
that, “[u}nder the proposed legislation, air quality criteria
are of much greater importance than they have been until
now,” and thus “[i]t is essential . . . that there be no
confusion about the purpose” of such criteria. 1967 H.
Rep. 16.
They describe the effects that can be expected to
occur whenever and wherever the ambient air
level of a pollutant reaches or exceeds a specific
figure for a specific time period. Thus, they
define the health and welfare considerations
4
that must be taken into account in the develop-
ment of standards and regulations. Economic and
technical considerations have a place in the pattern
of control activity but not in the development of
criteria. Air quality criteria should provide a
clear statement of how well air pollution should
be controlled in order to safeguard the public
health and welfare, economic and technical factors
notwithstanding.
Id. (emphasis added). The Senate Report was to the same
effect:
“Air quality criteria are an expression of the
scientific knowledge of the relationship between
various concentrations of pollutants in the air
and their adverse effects on man, animals, vege-
tation, materials, visibility and so on.” .. .
An expression of scientific knowledge, the crite-
ria indicate quantitatively and qualitatively the
lowest known levels of exposure at which speci-
fic deleterious effects have been reported for a
given pollutant or combination of pollutants. . . .
The committee recognizes that criteria of
ambient air quality which define health and
welfare effects of air pollution do not take into
consideration the technological and economic fea-
sibility of achieving such air quality.
S. Rep. 403, 90th Cong., 1st Sess. 26-27 (1967) (“1967 S.
Rep.”) (emphasis added; citation omitted).
Control techniques information. To provide the eco-
nomic and technological information that was lacking
from the criteria, Congress established a new mandate
that had not been part of the 1963 Act: it required the
Secretary to issue
information on those recommended control
techniques the application of which is necessary
5
to achieve levels of air quality set forth in crite-
ria . .., which information shall include techni-
cal data relating to the technology and costs of
emission control, . . . [and] such data as are
available on the latest available technology and
economic feasibility of alternative methods of pre-
vention and control of air contamination includ-
ing cost-effectiveness analyses.
§ 107(c) (emphasis added). See 1967 H. Rep. 16-17 (dis-
cussing this requirement); 1967 S. Rep. 27-28 (same). See
also 113 Cong. Rec. 19175/2 (1967) (Senator Randolph:
“The economic and technological information which the
Secretary must provide as a part of the recommended
control techniques to accompany the criteria is expected
to reflect the same careful study and preparation as do
the medical and scientific data relating to air quality
criteria.”).
Air quality standards. Both criteria and control tech-
niques information were to be issued “to the States,”
§ 107(b)(1) and (c),2 which were given primary respon-
sibility for establishing air quality standards, HEW’s
standard-setting authority being limited to instances
where a state failed to establish standards. § 108(c)(1) and
(2). Whether established by the states or by HEW, stan-
dards were to be “consistent with the air quality criteria
and recommended control techniques.” Id. (emphasis added).
In addition, the Act contemplated that standards
would be “consistent with the purposes of this Act.”
§ 108(c)(2). Accord, § 108(c)(1) (addressing revised stan-
dards). Among the purposes of the 1967 Act were “to
protect and enhance the quality of the Nation’s air
2 In addition, control techniques information was to be
issued to “appropriate air pollution control agencies.” § 107(c).
6
resources so as to promote the public health and welfare
and the productive capacity of its population.”
§ 101(b)(1).
The House Report explained the standard-setting
process:
To warrant approval by the Secretary, air quality
standards for a given class of pollutants must be
consistent with the Secretary’s air quality crite-
ria and control technology data for those pollu-
tants. This means, in the opinion of the
committee, that such standards must call for air
quality levels which, based on the Secretary's
criteria, are at a minimum adequate for the pro-
tection of public health and which can be achieved
through the application of feasible control tech-
niques.
1967 H. Rep. 17-18 (emphasis added). Accord, id. 25.
The Senate committee emphasized that the air quality
standards must be “consistent with the air quality criteria
and recommended control techniques,” and explained:
An expression of public policy rather than
scientific findings, their development from air
quality criteria will be influenced not only by a
concern for the protection of health or welfare,
but also by economic, social, and technological con-
siderations. The committee feels that under any
circumstances protection of health should be
considered a minimum requirement, and wher-
ever possible standards should be established
which enhance the quality of the environment.
1967 S. Rep. 28-29 (emphasis added).
Cc. 1970 Amendments.
Congress sharply changed course in the Clean Air
Amendments of 1970, which were “a drastic remedy to
7
what was perceived as a serious and otherwise uncheck-
able problem of air pollution.” Union Electric Co. v. EPA,
427 U.S. 246, 256 (1976). See also Train v. Natural Resources
Defense Council, 421 U.S. 60, 64 (1975) (under the pre-1970
Act, “the States generally retained wide latitude to deter-
mine both the air quality standards which they would
meet and the period of time in which they would do so;”
the response of the States was “disappointing,” and
brought “little progress;” “Congress reacted by taking a
stick to the States in the form of the Clean Air Amend-
ments of 1970,” which “sharply increased federal author-
ity and responsibility in the continuing effort to combat
air pollution.”).
Senate Bill. In September 1970, the Senate reported a
bill that became the basis for the 1970 Amendments. Far
stronger than the previously reported House bill, the
Senate bill not only required that HEW establish national
ambient air quality standards for pollutants for which
criteria had been issued, but also specified that those
standards were to be “air quality standards the attain-
ment and maintenance of which are necessary to protect
the health of persons.” S. Rep. 1196, 91st Cong., 2d Sess.
86 (1970) (“1970 S. Rep.”) (§ 110(a)(3)). The committee
report explained that standards must ensure “an absence
of adverse effect on the health of a statistically related
sample of persons in sensitive groups,” including “bron-
chial asthmatics and emphysematics who in the normal
course of daily activity are exposed to the ambient envi-
ronment.” Id. 10. Within nine months of promulgation of
air quality standards, states were to submit for the Secre-
tary’s approval implementation plans providing for
8
attainment of the air quality standards within three years
of the plans’ approval. Id. 86-87 (§ 111(a)(1) and (2)).9
The Senate bill contained no language allowing the
Secretary to use compliance-related factors as a basis for
limiting the health protection mandate of proposed
§ 110(a)(3). For example, there was no provision (as in the
1967 Act) that air quality standards must be consistent
with control techniques information. Instead, “(t]he Com-
mittee recognize[d] that the States will continue to need
this information to develop meaningful programs for
implementation of ambient air quality standards on a
regional basis.” Id. 9 (emphasis added). See also 116 Cong.
Rec. 32918/2 (1970) (Senator Cooper notes that, after
NAAQS are promulgated, a control plan must be devel-
oped; “It is at this point that States and communities must
make economic decisions, and decisions on the future
growth of their areas and the kind of life they want, in
considering alternative means of achieving clean air.”)
(emphasis added).
The legislative history makes clear that the exclusion
of compliance-related factors from NAAQS-setting was a
deliberate choice. “In the Committee discussions, consid-
erable concern was expressed regarding the use of the
concept of technical feasibility as the basis of ambient air
3 In addition to NAAQS, the Senate bill mandated national
ambient air quality “goals,” to be set at levels “necessary to
protect the public health and welfare from any known or
anticipated adverse effects associated with the presence of such
air pollution agent or combination of such agents in the ambient
air.” 1970 S. Rep. 86 (§ 110(b)). The report explained that while
NAAQS “are authorized because the Committee has recognized
that protection of health is a national priority,” goals were
authorized because “man’s natural and man-made environment
must be preserved and protected.” Id. 11 (emphasis added).
9
standards,” but the committee determined that “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.”
1970 S. Rep. 2. Accord, 116 Cong. Rec. 32901-02 (quoting
1967 Senate Report language admonishing that techno-
logical and economic factors “should not be used to miti-
gate against protection of the public health and welfare,”
1967 S. Rep. 2, Senator Muskie states: “Contrary to this
intent, these considerations have been used as arguments
to comprot.ise the public health. Therefore, the commit-
tee has made explicit in this bill what is implicit to
standards designed to protect our health. That concept
and that philosophy are behind every page of the pro-
posed legislation.”); 33115/1 (Senator Prouty: “for the
first time, air quality standards will take precedence over
objections of economic impracticality and technical
impossibilities.”).
Unlike the 1967 Act, which had primarily contem-
plated application of existing technology,‘ the Senate bill’s
mandate for health-based standards to be met in a fixed
time frame was “expressly designed to force regulated
sources to develop pollution control devices that might at
the time appear to be economically or technologically
infeasible” —- an approach that is known as “technology-
* See 1967 H. Rep. 17-18 (quoted supra at 6); id. 13-14 (bill
seeks to insure “that sources of air pollution will be controlled
to the extent consistent with available knowledge of the adverse
effects of pollutants on health and welfare and with available
control technology”) (emphasis added); 1967 S. Rep. 10 (“Strong
regulatory programs are needed to insure full application of
technological, feasible, and economically reasonable methods of
control.”) (emphasis added).
10
forcing.” See Union Electric, 427 U.S. at 257. As Senator
Muskie explained:
The first responsibility of Congress is not the
making of technological or economic judgments
- or even to be limited by what is or appears to
be technologically or economically feasible. Our
responsibility is to establish what the public
interest requires to protect the health of persons.
This may mean that people and industries will
be asked to do what seems to be impossible at the
present time. But if health is to be protected,
these chalienges must be met.
116 Cong. Rec. 32901-02 (emphasis added). Accord, id.
32919/2 (Senator Cooper: “[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 eco-
nomically feasible to control it. The bill proceeds instead
to set out what is to be achieved, and places its reliance
on a great effort to develop technology, 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.”); 32902/1
(Senator Muskie notes that the bill’s requirements “will
be difficult to meet. But the committee is convinced that
industry can make compliance with them possible or
impossible. It is completely within their control. Industry
has been presented with challenges in the past that
seemed impossible to meet, but has made them possi-
ble.”).
While expressing confidence in the ability of industry
to meet these challenges, the drafters also indicated their
awareness of the costs involved. 1970 S. Rep. 2 (the
protection of public health will require “major action
11
throughout the Nation,” including “major investments in
new technology and new processes,” and revised land
use, transportation, and fuel policies; “Some facilities
may be closed.”); id. 3 (“existing sources of pollutants
either should meet the standard of the law or be closed
down”); id. 13 (recognizing that during the next several
years, it will be “impossible” in many areas to attain
NAAQS through motor vehicle tailpipe standards alone,
but nonetheless stating that the committee “does not
intend that these areas be exempt from meeting the stan-
dards;” instead, areas may need to institute transporta-
tion system changes and traffic control restrictions, which
“may impose severe hardship”).
These costs were considered justified by the urgent
need to protect public health from air pollution: 116
Cong. Rec. 32903/3 (Senator Muskie: “We have been con-
scious, I think, since early June that what we were consid-
ering writing into law could result in drastic changes in
the pattern of the life we live in the urban areas of
America. We felt that just such changes were essential if
we were really to come to grips with the problem of air
pollution.”); 1970 S. Rep. 1 (bill authorizes a “massive
attack” on air pollution, which is “more severe, more
pervasive, and growing at a more rapid rate than was
generally believed”). See also 116 Cong. Rec. 32907/3
(Senator Boggs); 32918/1 (Senator Cooper); 32919/3 (Sen-
ator Spong); 33113/3 (Senator Young); 33114/2 (Senator
Nelson); 33114/3 (Senator Prouty); 33118/1 (Senator
Yarborough); id. (Senator McIntyre).
Conference Bill. The conference adopted the
approach of the Senate bill, with certain modifications.
Instead of “standards” and “goals,” the conference bill
12
provided for “primary and secondary standards, the for-
mer relating to public health and the latter to public
welfare.” Conf. Rep. No. 1783, 91st Cong., 2d Sess. (1970),
U.S. Code Cong. & Ad. News 5377 (1970). Several aspects
of the final wording merit emphasis.
First, unlike either the House or Senate bills, the
conference bill required both primary and secondary
standards to be “based on” the air quality criteria issued
under § 108. § 109(b)(1) and (2). This formulation repre-
sented a break with the 1967 Act, which had only
required that standards be “consistent with” the criteria.
1967 Act § 108(c)(1) and (2).
Second, though revisions were made in the 1967
Act’s provision prescribing the content of criteria, no
language was inserted authorizing criteria to address eco-
nomic or social considerations associated with pollution
control. To the contrary, criteria were to “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.”
§ 108(a)(2) (emphasis added).°
Third, in addition to specifying what future air qual-
ity criteria were to contain, Congress also required the
5 While “welfare” effects were statutorily defined to
include “effects on economic values,” § 302(h), no such
definition imported economics into the statutory term “health.”
Moreover, even as to welfare, the “economic values” cognizable
for NAAQS purposes were those related to “the presence of
such pollutant in the ambient air.” § 108(a)(2). Accord,
§ 109(b)(2). See also Pub. L. 101-549, § 109(b), 104 Stat. 2470 (Nov.
15, 1990) (amendment to § 302(h) further confirming that
welfare effects relate to the presence of pollutants in the air).
13
setting of NAAQS based on previously issued criteria.
These pre-existing criteria did not address compliance-
related factors, and the short deadlines imposed by Con-
gress (30 days for proposal of NAAQS, 90 additional days
for promulgation) would not have allowed time for revi-
sion to include such factors. Indeed, far from expressing
dissatisfaction with the absence of such factors from the
criteria, Congress deleted the provision of the 1967 Act
that required HEW to reexamine pre-existing criteria. See
1967 Act § 107(b)(1). See also 1970 S. Rep. 1 (noting that
the previously issued criteria documents “increased” the
committee’s concern about public health impacts of pol-
lution).
Fourth, instead of providing for the inclusion of com-
pliance-related factors in criteria, Congress mandated (as
had the 1967 Act) that such factors be addressed in con-
trol techniques information. § 108(b)(1) (control tech-
niques information “shall include data relating to the
technology and costs of emission control”). Of key impor-
tance, Congress dropped the 1967 Act’s requirement that
air quality standards be “consistent with” the control
techniques information. In short, instead of being “con-
sistent with the air quality criteria and recommended con-
trol techniques,” 1967 Act § 108(c)(1) and (2) (emphasis
added), standards were to be “based on . . . [the] criteria.”
1970 Act § 109(b)(1) (emphasis added).
Fifth, because criteria were now to be used by EPA in
setting NAAQS, while control techniques information
was not, the conference (1) deleted the 1967 Act’s provi-
sion that criteria be issued “to the States,” § 108(a)(2)
(EPA “shall issue air quality criteria”) (emphasis added),
14
but (2) retained the 1967 Act’s provision that control tech-
niques information be issued “to the States and appropri-
ate air pollution control agencies.” § 108(b)(1). Thus,
though no longer used to sei air quality standards, con-
trol techniques information would continue to provide
states information useful in planning compliance, see p. 8,
supra (quoting 1970 Senate Report), as well as offering
“advance warnings to industries or other sources of con-
tamination of what will be expected of them.” 1967 S.
Rep. 27.°
Sixth, the 1967 Act’s reference to “cost-effectiveness
analyses” as a component of control techniques informa-
tion (1967 Act § 107(c)) was dropped.
Seventh, Congress deleted the provisions of the 1967
Act (see p. 5, supra) that had required air quality stan-
dards to be “consistent with the purposes” of the Act.
Eighth, in addition to the § 108(b)(1) provision con-
cerning control techniques information, the Act contains
other provisions showing that Congress knew how to
reference compliance-related factors when it wished to do
so. For example, the 1970 Act retained a pre-existing
provision mandating “a comprehensive study of the eco-
nomic impact of air quality standards on the Nation’s
industries, communities, and other contributing sources
of pollution, including an analysis of the national require-
ments for and the cost of controlling emissions to attain
such standards of air quality as may be established pur-
suant to this Act.” § 312(a) (emphasis added). Tellingly,
6 Cf. ATA Br. 40 (questioning why Congress would have
required control techniques information to be made available
contemporaneously with NAAQS-setting).
15
§ 109(b)(1) omitted any reference to such economic and
cost analysis as a basis for NAAQS.
Moreover, the 1970 Act provided that primary
NAAQS were to be attained within three years from
approval of air pollution control plans, § 110(a)(2)(A)(i),
but allowed for extensions if it could be shown that “the
necessary technology or other alternatives are not avail-
able or will not be available soon enough to permit com-
pliance within such three-year period.” § 110(e)(1)(A).
Likewise, other provisions of the 1970 Act expressly
incorporated compliance-related factors. § 111(a)(1) (new
source performance standards must provide for the
degree of emission reduction that is “achievable,” “taking
into account the cost of achieving such reduction”);
§ 231(b) (aircraft emission standards shall take effect after
such period as is necessary “to permit the development
and application of the requisite technology, giving appro-
priate consideration to the cost of compliance”).
Both houses of Congress approved the conference bill
in December 1970, expressing their awareness of the far-
reaching consequences of the legislation. 116 Cong. Rec.
42381/2 (Senator Muskie: a “tough” bill that faces the air
pollution crisis with “urgency” and makes “hard
choices”); 42393/2 (Senator Muskie: “the whole complex
of residential patterns, employment patterns, and trans-
portation patterns — the way in which people move about,
go to their work, and live - . . . must be modified if the
objective of clean air is to be achieved”); 42392/2 (Senator
Randolph: “each and every person will be called on to
pay the increased costs . . . associated with the achieve-
ment of an environment that, at a minimum, does not
endanger public health”). See also id. 42384/3 (summary
provided by Senator Muskie); 42393/1 (Senator Spong);
16
42394/2 (Senator Cooper); 42521/3 (Congressman
Hechler); 42522/2 (Congressman Rogers); 42522-23 (Con-
gressman Anderson); 42523/1 (Congressman Ryan);
42523-24 (Congressman Vanik).
D. Post-1970 Implementation.
Four months after enactment of the 1970 Act, EPA
promulgated NAAQS for six pollutants. 36 Fed. Reg. 8187
(April 30, 1971), JAPM 245. In the preamble to that notice,
EPA enunciated an interpretation from which the agency
has not since wavered: specifically, that the Act “does not
permit any factors other than health to be taken into
account in setting the primary standards.” Id. 8186/1,
JAPM 244.
At oversight hearings in 1972, EPA presented a mem-
orandum from its Office of General Counsel, which stated
that “except where specifically called for in the Act, e.g., new
source performance standards, economic considerations are
not to be the basis for the Administrator’s decisions. The
national ambient air quality standards are set at levels
necessary to protect the public health and welfare. The
cost or feasibility of meeting these standards was not a
consideration.” Implementation of the Clean Air Act Amend-
ments of 1970 — Part I, Senate Hearing 92-H31 (February
16-23, 1972), at 312 (emphasis added). Accord, id. at 18-19
(Senator Eagleton, a conferee in the 1970 Act: “In respect
to economic feasibility, it is clear again beyond any
shadow of a doubt that Congress intended that this not
be a factor insofar as the primary standards were con-
cerned relating to public health.”), 21 (similar statement
by Senator Eagleton); Implementation of the Clean Air Act -
1975, Senate Hearing 94-H10 (April 22, 1975) (“1975 S.
Hrg.”), at 775-76 (in response to a witness’s assertion that
17
the cost of pollution control should be taken into account
in setting NAAQS, Senator Muskie stated that the
drafters of the 1970 Act “decided that the only way to
handle it that made any sense was public health,” and
quoted the 1970 Senate Report language calling for “an
absence of adverse effect on the health of a statistically-
related sampling [sic] of persons in sensitive groups from
exposure to the ambient air”).
E. The 1977 Amendments.
With the passage of the 1975 deadline for attainment
of the primary NAAQS, many areas remained in violation
- especially of the photochemical oxidants NAAQS, the
predecessor to the current ozone NAAQS, which had
been set at a level substantially more stringent than the
1997 ozone NAAQS challenged in the present case. See 36
Fed. Reg. 8187/3 (1971), JAPM 245 (0.08 ppm, averaged
over one hour, not eight hours as in the 1997 NAAQS).
Responding to the specter of substantial restrictions on
industry, Congress revisited the Act.
Some - including at least one party to the present
litigation — proposed that Congress’s response should
include allowing consideration of compliance-related fac-
tors in the setting of NAAQS. A Legislative History of the
Clean Air Act Amendments of 1977 (“1977 LH”) 4181-82
(Manufacturing Chemists Association, predecessor to the
American Chemistry Council, proposed that § 109(b) be
amended to “reflect the need to consider socioeconomic
factors in the setting of standards”). Accord, id. 4190 (Dow
Chemical). These proposals were made years before the
D.C. Circuit first ruled, in Lead Industries Assn. v. EPA, 647
F.2d 1130, 1148-51 (D.C. Cir. 1980), that the Act bars
consideration of such factors.
18
Congress did not, however, adopt these proposals.
As explained by Senator Domenici, the 1970 Senate Com-
mittee had been “explicit” in ruling out consideration of
technical feasibility in the setting of NAAQS, thus con-
templating “a legislative blitzkrieg by the federal govern-
ment that would roll over economic and technical
difficulties.” 1977 LH 4505-06. Nonetheless, the NAAQS
were “one area of the law that the [1976 Senate] Commit-
tee refused to alter,” id. 4507, and that refusal carried
through to the final version of the 1977 Amendments.
Far from adopting the industry suggestions to inject
compliance-related factors into NAAQS, Congress
instead enacted a provision requiring EPA to review and
revise NAAQS and criteria at no more than five-year
intervals, applying the pre-existing mandates of §§ 109(b)
and 108. § 109(d)(1) (EPA “shall make such revisions in
such criteria and standards and promulgate such new
standards as may be appropriate in accordance with sec-
tion 108 and subsection (b) of this section”).
The drafters of § 109(d) were aware of the wide-
spread nonattainment of the existing standards and the
economic issues posed by that nonattainment. H. Rep.
294, 95th Cong., Ist Sess. 207-10 (1977) (“1977 H. Rep.”).
Indeed, they were specifically aware of the economic
problems posed by failure to attain the 1971 photochemi-
cal oxidant NAAQS - which, as previously indicated, was
substantially more stringent than the 1997 ozone NAAQS
challenged here. Id. 509-14 (dissenting views of Congress-
man Krueger, et al., noting that the photochemical oxi-
dant standard had “uniformly and pervasively proved
impossible of attainment,” with 88% of monitored regions
reporting exceedances, and that “[a] literal enforcement
19
of the Clean Air Act would permit no industrial develop-
ment in nonattainment areas after the nonattainment date
is passed”). The drafters were also aware of the 1971
NAAQS promulgation (in which EPA expressly stated
that the Act does not permit primary NAAQS to be based
on any factor other than health). Id. 180. In short, they
were aware that, when EPA undertook to reexamine the
existing photochemical oxidants NAAQS - the very
NAAQS that was threatening widespread economic
impacts in numerous areas - the agency’s interpretation
of § 109(b) would bar the agency from considering those
impacts.
Finally, the drafters of § 109(d) were aware that,
given the direction in which scientific knowledge was
developing at that time, there was a substantial prospect
that EPA would tighten the NAAQS, including the photo-
chemical oxidant NAAQS. Id. 182 (“deficiencies and lim-
itations of the national ambient air quality standards
suggest that greater not lesser control of emissions are
likely to be needed”) (emphasis added); 127 (“all indica-
tors point to the likely necessity for tightening the ambi-
ent air quality standards to protect public health”)
(emphasis added); 108-09 (quoting Johns Hopkins study
on photochemical oxidants that found “ ‘the current stan-
dard of 0.08 ppm to have little margin of safety for
susceptible populations (such as the elderly or chron-
ically ill patient), and thus a lower standard is justi-
fied ... [A] 1 hour standard of 0.06 ppm would appear to
be appropriate.’”) (emphasis added by House commit-
tee); 109 (noting that the standard recommended by the
Johns Hopkins study “would be 25 percent more stringent
than the present standard”) (emphasis added).
20
Yet, despite this awareness, the drafters included nei-
ther in the text of § 109(d) nor in their committee report
indication of any intent to overturn EPA’s interpretation
of the Act and require consideration of compliance-
related factors.
Indeed, the only place in § 109(d) where compliance-
related factors are mentioned is in a provision requiring a
scientific committee to advise EPA “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 stan-
dards.” § 109(d)(2)(C)(iv). There is no authorization for
EPA to override the terms of § 109(b) by considering such
factors in deciding whether to revise NAAQS, nor does
the legislative history indicate any such intent. To the
contrary, the drafters indicated that the § 109(d)(2)(C)(iv)
recommendations may be “of interest and assistance to
the States and to Congress in fashioning future legislation.”
1977 H. Rep. 183 (emphasis added). This provision for a
scientific committee to issue advice on compliance-related
factors stands in stark contrast to other provisions of the
1977 Amendments in which Congress showed that it
knew how to authorize regulations to be based on such
factors. See, e.g., Pub. L. 95-95, § 126, 91 Stat. 730 (August
7, 1977) (adding § 157(b)) (authorizing promulgation of
regulations to protect the stratospheric ozone layer, and
providing: “Such regulations shall take into account the
feasibility and the costs of achieving such control.”).
“In an act with basically two working parts, stan-
dards and deadlines,” Congress’s refusal to weaken the
NAAQS or the basis for setting NAAQS “left the dead-
lines as the major variable around which to struc-
ture . .. compromises.” 1977 LH 4508 (Senator Domenici).
21
And indeed, Congress authorized extensions of NAAQS
attainment deadlines, requiring that specified pollution
control initiatives be undertaken during the extension
period. Pub. L. 95-95, § 129(b), 91 Stat. 746-47 (August 7,
1977) (adding § 172(a), which authorized attainment
deadlines to be extended to 1982, with a possible further
extension to 1987).
Likewise, Congress authorized compliance deadlines
for specific pollution sources to be extended until after
the applicable NAAQS attainment deadline. Pub. L.
95-95, § 112(a), 91 Stat. 705-09 (adding § 113(d)). Discuss-
ing this provision, the House committee noted that the
committee “tjook] no issue” with this Court’s holding in
Union Electric. 1977 H. Rep. 56. There this Court had
rejected the assertion that EPA was authorized to con-
sider economic and technological feasibility in acting on
state implementation plans: “Where Congress intended
the Administrator to be concerned about economic and
technological infeasibility, it expressly so provided.” 427
U.S. at 257 n.5. The House committee — the same commit-
tee that drafted § 109(d) — indicated its agreement with
this aspect of Union Electric:
First, economic and technical feasibility may be
considered, under the conditions expressly pro-
vided for in the statute, including under a DCO
[delayed compliance order] application. Second
and conversely, consideration of economic and
technical factors in other contexts (i.e. in section
110 approvals, section 307(b) judicial review of
such approvals, or in section 113 enforcement
proceedings) is not authorized.
1977 H. Rep. 68 (emphasis added). As indicated previ-
ously, the drafters of § 109(d) included no language
22
“expressly provid[ing]” for the Administrator to consider
compliance-related factors in NAAQS-setting.”
F. Post-1977 Developments.
The 1977 Amendments established a special commis-
sion which was to prepare a report concerning a broad
range of issues raised by the Act, including the Act's
economic effect. Pub. L. 95-95, § 313, 91 Stat. 785-88
(adding § 323; see especially § 323(b)(1)). In March 1981,
the commission submitted a report - joined by three
members of Congress (including the chair of the House
committee with jurisdiction over the Act), as well as
representatives of industry and state and local govern-
ment. National Commission on Air Quality, To Breathe
that “[t)]he statutory basis for setting national primary air
quality standards does not take economic factors into
account.” Id. 70. Accord, Executive Branch Review of Envi-
ronmental Regulations, Senate Hearing 96-H4 (Feb. 27,
1979) (“1979 S. Hrg.”), at 343 (Senator Muskie: “The stat-
ute clearly prohibits the use of economic considerations
in the setting of the health standards.”); id. 251 (another
7 The 1977 Amendments also included a new provision
mandating “economic impact assessment” of certain
enumerated Clean Air Act regulations. § 317, 42 U.S.C. § 7617.
Even though this provision expressly clarified that “[nJothing in
this section shall be construed to provide that the analysis of the
factors specified in this subsection affects or alters the factors
which the Administrator is required to consider” in taking the
enumerated actions, Congress still declined to include the
NAAQS among the covered provisions. See 1977 H. Rep. 51
(§ 317 applies to “non-health-related regulations”) (emphasis
added).
23
similar statement by Senator Muskie); id. 261 (Senator
Bentsen noted that EPA’s 1979 ozone NAAQS had not
been influenced by economic considerations, and added:
“I fully understand the statutory requirement that defines
your decision-making process .... ”); Clean Air Act
Oversight — Part 3, Senate Hearing 97-H12 (June 9, 1981)
(“6/1981 S. Hrg.”), at 209 (Senator Gorton: “section 109
sets the primary standards at a level requisite to protect
the public health with an educated margin of safety and
which does not include cost benefit”); Health Standards for
Air Pollutants, House Hearing 97-97 (October 14, 1981)
(“1981 H. Hrg.”), at 1 (Congressman Waxman: “[b]Joth the
agency and the courts have properly interpreted the
Clean Air Act to forbid the consideration of costs in
setting the health standards”); id. at 102 (Lester Lave - an
amicus in the present case - indicated that Congress in
1970 “dismissed the relevance of abatement cost in set-
ting the [NAAQS]”); Use of Cost-Benefit Analysis by Regula-
tory Agencies, House Hearing 96-157 (July 30, 1979), at 53
(Robert Crandall - an amicus in the present case - noted
that “primary ambient air standards are to be set without
regard to any measure of cost”).
Having so found, the Commission recommended that
“(t]he current statutory criteria and requirements for set-
ting air quality standards at the levels necessary to pro-
tect public health without consideration of economic
factors should remain unchanged.” NCAQ Report 55
(emphasis added). The Commission explained: “[I]f a
national air quality standard were based in part on the
costs of complying with it, the high costs of meeting the
standard in a few heavily polluted areas could result in
the standard’s being set at a less protective level than is
achievable in a reasonable, economic fashion in other
24
areas.” Id. 70. At hearings held to address reauthoriza-
tion, a number of legislators and witnesses likewise rec-
ommended against changing this aspect of the Act, citing
ethical, scientific, and practical considerations. See, e.g.,
Clean Air Act Oversight — Part 1, Senate Hearing 97-H12
(April 9, 1981) (“4/1981 S. Hrg.”), at 80 (former EPA
Administrator Train), 82 (former EPA Administrator
Costle); 6/1981 S. Hrg. 191 (Senator Stafford); 242-43 (Dr.
Homer Boushey, assistant professor of medicine, Univer-
sity of California); 244-45 (David Hawkins, former Assis-
tant Administrator for Air, EPA); 1981 H. Hrg. 22-23
(Marvin Schneiderman, Ph. D., senior science advisor,
Clements Associates); 72-73, 75-83 (Nicholas Ashford, Ph.
D., associate professor of technology and policy at MIT);
146-68, 200 (Douglas MacLean, ‘research associate, Center
for Philosophy and Public Policy, University of Mary-
land); Reports of the Natl. Comm. on Air Quality and the
Natl. Academy of Sciences, Joint Hearing 97-6 (March 2,
1981) (“1981 Joint Hrg.”), at 58-60 (Congressman Wax-
man).
Others - including parties and amici in this case -
disagreed and urged Congress to amend the Act to allow
consideration of compliance-related factors in NAAQS-
setting. 6/1981 S. Hrg. 419-20 (Chemical Manufacturers
Assn.), 199 (George Eads); 1981 H. Hrg. 86-87, 203 (Lester
Lave).
After many years of deliberation, Congress enacted a
major overhaul of the Clean Air Act in 1990. Recognizing
that many areas had not attained the NAAQS by the
extended deadlines in the 1977 Amendments (i.e., 1982
and 1987), the 1990 Amendments authorized further
extensions in attainment deadlines, with additional
requirements for pollution control activities in the
25
interim. Pub. L. 101-549, §§ 101-111, 104 Stat. 2399-2471
(November 15, 1990). Congress also included a number of
other provisions that expressly reference cost. For exam-
ple, Congress amended § 312 to require analysis of (inter
alia) “the costs, benefits and other effects associated with
compliance with each standard issued for . . . a criteria air
pollutant subject to a standard issued under section
[109].” 42 U.S.C. § 7612(a) (emphasis added). And it
amended the hazardous air pollutant provision of § 112
to provide for emission standards that offer “an ample
margin of safety to protect public health in accordance
with this section (as in effect before November 15, 1990),
unless the Administrator determines that a more strin-
gent standard is necessary to prevent, taking into consider-
ation costs, energy, safety, and other relevant factors, an
adverse environmental effect.” 42 U.S.C. § 7412(f)(2)(A)
(emphasis added).
In contrast to these and other amendments authoriz-
ing consideration of compliance-related factors under
other provisions of the Act, Congress made no amend-
ments to § 109 - even though Congress was clearly aware
that that provision had been construed as requiring pri-
mary NAAQS to be based only on health effects of pollu-
tants in the air. S. Rep. 228, 101st Cong., 1st Sess. 5 (1989);
H. Rep. 490, 101st Cong., 2d Sess. 145 (1990).
SUMMARY OF ARGUMENT
By mandating establishment of health-protective pri-
mary NAAQS based on air quality criteria that do not
include consideration of compliance-related factors — and
indeed by deleting from the Act a pre-existing provision
requiring air quality standards to be consistent with
26
compliance cost information - the 1970 Amendments
clearly expressed Congress’s intent that compliance-
related factors not be considered in establishing primary
NAAQS.
In 1977, moreover, Congress enacted a mandate for
periodic review and revision of NAAQS. Yet despite Con-
gress’s awareness of widespread socioeconomic impacts
resulting from nonattainment of the NAAQS promul-
gated in 1971, and despite its belief that developing infor-
mation on health effects could well result in more
stringent NAAQS, Congress reaffirmed rather than
changed the pre-existing mandate for health-protective
NAAQS based on the air quality criteria.
The Court should decline ATA’s invitation to over-
turn Congress’s clearly expressed intent on policy
grounds. Congress was entitled to write into law its pol-
icy preference that NAAQS accurately reflect health
impacts of air pollution, and that compliance-related fac-
tors be considered at other points in the process - e.g., by
the states in determining how to comply with NAAQS,
and by Congress in determining whether deadlines for
attaining NAAQS should be extended. Indeed, a special
commission established by the 1977 Amendments con-
cluded in 1981 that this approach represents wise public
policy and should not be changed - and it was not
changed, even though Congress enacted another exten-
sive overhaul of the Act in 1990.
Application of a presumption favoring consideration
of costs should be rejected as simply another attempt to
override Congress’s clearly expressed intent that
NAAQS-setting not encompass compliance-related fac-
tors. Indeed, the requested presumption directly contra-
venes this Court’s holding in Union Electric, which
27
recognized that where Congress intended EPA to be con-
cerned with economic and technological feasibility, it
“expressly so provided.” Unlike the generic, across-the-
board presumption advocated by ATA, this holding was
based on careful analysis of the specific language and
structure of the Clean Air Act. The drafters of the peri-
odic NAAQS review provision enacted in 1977 were
aware of Union Electric, and expressed approval of that
case’s approach to construing the Act. Yet in enacting the
periodic NAAQS review provision, they declined to
“expressly . . . provide[ ]” for consideration of compli-
ance-related factors.
The difficulty in establishing effects thresholds for air
pollutants offers no basis for importing compliance-
related factors into NAAQS. That difficulty was well-
known to Congress in both 1970 and 1977, yet Congress
established a mandate for promulgation and periodic
review of primary NAAQS based solely on health effects
of air pollutants. Moreover, the fact that an effects thresh-
old has not been identified does not mean that scientific
evidence documents adverse effects down to’ zero or
background levels. Should such evidence develop in the
future, it will be up to Congress to craft an appropriate
response. In the meantime, EPA can appropriately set
NAAQS based on the scientific evidence that exists, and
can (as required by § 109(b)(1)) apply its “judgment” to
set a “margin of safety” to compensate for uncertainties.
While determining the size of such a margin will neces-
sarily involve drawing distinctions of degree, this Court
has recognized that such distinctions are an integral part
of a civilized system of laws.
28
ARGUMENT
ATA concedes that, given the importance and central-
ity of the question whether compliance-related factors are
to be considered in setting NAAQS, it is highly unlikely
that Congress would have punted to EPA the discretion
to answer this question — i.e., that Congress would have
left to the preferences of the agency whether to consider
or ignore such factors. Specifically, ATA concedes that
Congress did not explicitly delegate this power to EPA
under Chevron Step One (i.e., that Congress did not
clearly express an intention that EPA can consider com-
pliance-related factors or decline to consider them as the
agency sees fit). ATA Br. 31 (“[i]t is highly unlikely that
Congress would leave choices of such magnitude to an
administrative agency”) (internal quotations omitted).
Likewise, ATA concedes that Congress did not implicitly
delegate such discretion under Chevron Step Two (by
failing to express a clear intention on the issue, thus
implicitly delegating to EPA the discretion to consider or
not consider compliance-related factors). Id. (recognizing
the “implausibility of Congress’s leaving a highly signifi-
cant issue unaddressed”) (internal quotations omitted).
In short, this case presents two competing Chevron
Step One interpretations: did Congress clearly express an
intent to require EPA to consider compliance-related fac-
tors, or did it clearly express an intent to preclude such
consideration? The answer is clear: the latter is the only
interpretation compatible with the text, structure, and
evolution of the Act.
29
I. CONGRESS CLEARLY EXPRESSED ITS INTENT
THAT PRIMARY NAAQS BE BASED ONLY ON
HEALTH EFFECTS OF AIR POLLUTANTS.
1970 Amendments. Section 109(b)(1) requires that
primary NAAQS be “requisite to protect the public
health.” (Emphasis added.) Moreover, the standards must
be “based on” air quality “criteria,” id., which in turn
“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.” § 108(a)(2) (emphasis added). Thus,
the statute clearly provides that factors other than health
effects of air pollutants have no place in the setting of
primary NAAQS.§
This conclusion, clear enough on the face of
§§ 109(b)(1) and 108(a)(2), is confirmed by other portions
of the 1970 Amendments that show Congress knew how
to expressly incorporate compliance-related factors when
it wished to do so. See pp. 14-15, supra (citing examples).
“[I]t is generally presumed that Congress acts inten-
tionally and purposely when it includes particular lan-
guage in one section of a statute but omits it in
another[.]” Chicago v. Environmental Defense Fund, 511 U.S.
8 The distinction between “health” and “welfare” in
§ 108(a)(2) matches a similar distinction in § 109(b) -
specifically, between primary NAAQS to protect “health” and
secondary NAAQS to protect “welfare.” Thus, contrary to
ATA’s argument (ATA Br. 37-38), the portion of the criteria
addressing “welfare” is not relevant to EPA’s duty to set primary
NAAQS addressing “health.” And in any event, welfare effects
cognizable under the statute, like health effects, are those
relating to air pollutants — not to compliance costs. See p. 12 n.5,
supra.
30
328, 338 (1994) (internal quotations omitted). Recognizing
this principle, this Court has specifically held, in a deci-
sion construing the Clean Air Act: “Where Congress
intended the Administrator to be concerned about eco-
nomic and technological infeasibility, it expressly so pro-
vided.” Union Electric, 427 U.S. at 257 n.5. Because
Congress did not provide for compliance-related factors
to be considered in setting primary NAAQS, EPA is not
permitted to consider them.
Comparison of 1970 Amendments to their prede-
cessors. “There is no better key to a difficult problem of
statutory construction than the law from which the chal-
lenged statute emerged.” United States v. Cong. of Indus-
trial Orgs., 335 U.S. 106, 112 (1948). That comparison is
especially informative here. First, the 1970 Amendments
dropped the 1967 Act’s requirement that air quality stan-
dards be consistent with the control techniques informa-
tion and with the Act’s purposes, requiring instead that
the standards be “based on” the “criteria.” See pp. 12-14,
supra. Second, the 1970 Amendments dropped the 1967
Act’s requirement that previously issued criteria be reex-
amined, directing instead that EPA proceed forthwith to
issue NAAQS based on the then-existing criteria - which
did not address compliance-related factors. See pp. 12-13,
supra. These changes clearly demonstrate congressional
intent that compliance-related factors be excluded from
the setting of NAAQS. See TVA v. Hill, 437 U.S. 153, 185
(1978) (“The pointed omission of the type of qualifying
language previously included in endangered species leg-
islation reveals a conscious decision by Congress to give
endangered species priority over the ‘primary missions’
of federal agencies”).
31
1970 Legislative History. The clear import of the
statutory language is confirmed by the 1970 legislative
history, which shows that Congress expressly intended to
reject use of compliance-related factors in setting
NAAQS; that it intended to establish health-based
requirements that would challenge industry to develop
new technologies; and that it believed the urgency of the
air pollution problem required ambitious measures that
would have far-reaching economic impacts. See pp. 7-16,
supra.
1977 Amendments. The 1977 Amendments added a
mandate for periodic review and revision of NAAQS.
§ 109%(d). The drafters of that provision were aware both
of the failure by numerous areas to attain the NAAQS by
the 1975 deadline (and the serious economic issues raised
by that failure), and of the rulemaking notice in which
EPA had enunciated its interpretation of the Act as bar-
ring compliance-related factors from primary NAAQS-
setting. They were also aware of this Court’s decision in
Union Electric, which held that where Congress intended
EPA to be concerned with economic and technological
feasibility, “it expressly so provided,” 427 U.S. at 257 n.5
- indeed, the drafters explicitly noted their agreement
with this approacn to construing the Act. See p. 21, supra.
Nonetheless, far from “expressly . . . provid[ing]” for EPA
to consider compliance-related factors in NAAQS-setting,
Congress required that new and revised NAAQS be con-
sistent with the pre-existing mandate of § 109(b).
§ 109(d)(1). This provision stands in sharp contrast to
other sections of the 1977 Amendments mandating that
compliance-related factors be considered by EPA in
developing regulations. See p. 20, supra. See also p. 29,
supra (citing Chicago).
32
1990 Amendments. Though Congress was plainly
aware of EPA's construction of the Act, the 1990 Amend-
ments did not revise § 109 to “expressly . . . provide[ }”
for consideration of compliance-related factors - even
though the Amendments included sumerous other provi-
sions addressing such factors. See p. 25, supra.
Il. THE ACT’S “PUBLIC HEALTH” MANDATE DOES
NOT ENCOMPASS INDIRECT HEALTH EFFECTS.
ATA’s primary textual argument is that in moving
from the 1967 Act’s reference to “the health or welfare of
any persons” to the 1970 Act’s reference to “public
health,” Congress intended to sweep in alleged health
effects associated with the cost of attaining air quality
standards. ATA Br. 33-36; APC Br. 30-32. This argument
overlooks § 109(b)(1)’s express requirement that NAAQS
be “based on” criteria issued under § 108(a)(2). That latter
section likewise uses the phrase “public health,”
(emphasis added), and clearly limits what kinds of effects
are cognizable under that rubric: namely, effects “which
may be expected from the presence of such pollutant in the
ambient air.” (Emphasis added.). The socioeconomic
effects that ATA cites result from compliance with
NAAQS, not from pollutants in the air, and thus are not
“public health” effects within the meaning of § 109(b)(1).
Indeed, the 1970 Congress’s intent to preclude con-
sideration of such effects is particularly clear given its
deletion of the 1967 Act’s provision that air quality stan-
dards be consistent with the control techniques informa-
tion - information that expressly includes cost of
compliance. See p. 13, supra. These 1967 Act provisions
specifically addressing air quality standards (1967 Act
§ 108(c)(1) and (2)) furnish a more informative basis for
33
comparison than the general abatement language cited by
ATA (1967 Act § 108(a), cited in ATA Br. 33).
ATA’s reading is also impossible to square with,
§ 109(b)(1)’s mandate for NAAQS “the attainment and
maintenance of which . . . are requisite to protect the
public health.” § 109(b)(1) (emphasis added). NAAQS can
only address one thing: the concentrations of pollutants
in the air. They cannot ensure better sanitation, improved
access to medical care, better education in how to stay
healthy, or other similar health-related socioeconomic
goals. Thus, for example, if EPA relies on socioeconomic
analysis as a ground for setting NAAQS less stringent
than would be set based solely on health effects of air
pollutants, those weaker NAAQS will not and cannot
require that the resulting saved compliance costs be redi-
rected by the regulated community to investments in
public health programs. In short, if “public health” is
defined in the broad manner advocated by ATA, pro-
mulgation of NAAQS that “protect” the public health
would become impossible by definition.
Finally, ATA’s argument represents a frontal attack on
the technology-forcing mandate of the Act. See pp. 9-10,
supra (describing Congress’s technology-forcing intent).
* In considering ATA’s attempt to distinguish the health of
“persons” from “public” health, it also bears emphasis that the
1970 Senate bill, which mandated NAAQS to protect “the health
of persons,” 1970 S. Rep. 86 (§ 110(a)(3)), was intended to
require that NAAQS protect the “public health.” Id. 2 (emphasis
added). Accord, id. 9-11 (linking NAAQS to air quality criteria),
85 (§ 109(a)(2)) (requiring that criteria reflect “public health”
effects) (emphasis added). The Senate committee’s equating of
the “health of persons” with “public health” further undercuts
ATA’s argument that the transition from one phrase to the other
was intended to sweep in indirect health effects.
34
Under ATA’s approach, EPA would base NAAQS on
before-the-fact estimates of compliance costs (and resulting
alleged health impacts). Such before-the-fact cost esti-
mates, however, will necessarily reflect today’s technolog-
ical knowledge, not tomorrow’s - and will thus assign
large (perhaps infinite) cost estimates to cleanup tasks for
which known technology is nonexistent or unproven. The
predicted high price tag will produce weaker NAAQS
than would be set on the basis of health alone, resulting
in more air-pollution-induced illness and death. By com-
promising health protection based on before-the-fact pre-
dictions that requirements cannot be met, EPA would be
doing precisely what Congress foreclosed it from doing.
See pp. 9-10, supra.
Aside from the inconsistency with congressional
intent, basing NAAQS on before-the-fact compliance cost
estimates makes no sense because such estimates are
strongly biased towards overestimation. First, before-the-
fact estimates cannot take account of future technological
innovation, which in the past has produced compliance
costs far lower than initially predicted. Second, even
when technological inrmovation is not forthcoming,
before-the-fact predictions will still overestimate compli-
ance costs substantially, because they cannot forecast
future congressional exemptions relieving industry of
obligations it has been unable to meet. Thus, though
Justice Powell’s concurrence in Union Electric expressed
concerns about the adverse health impacts that would
flow from a shutdown of electric power generation, 427
U.S. at 272, a quarter-century later those fears have not
been realized - not because all NAAQS have been
attained, but because Congress has repeatedly granted
extensions to avoid the adverse economic and social
35
impacts that might otherwise ensue. See pp. 21, 24-25,
supra.
Il. THE COURT SHOULD NOT OVERRIDE CON-
GRESS’S INTENT ON POLICY GROUNDS.
Unable to refute the strong evidence demonstrating
Congress’s intent that primary NAAQS be based solely
on health effects of air pollutants, ATA resorts to public
policy arguments, claiming that consideration of compli-
ance-related factors would represent better regulatory
policy. ATA Br. 47-50. But the proper role of the courts is’
- to apply the law, not to formulate policy. TVA v. Hill, 437
U.S. at 194-95. ATA’s arguments are especially ill-founded
here, where Congress confronted and resolved that very
policy issue in both 1970 and 1977. See pp. 6-22, supra.
Moreover, after the 1977 Amendments Congress carefully
considered yet again whether to amend the Act to allow
consideration of compliance-related factors and declined
to do so, after receiving a congressionally commissioned
report (joined by members of Congress, industry, and
state and local government) recommending against con-
sideration of such factors, and after hearing from wit-
nesses on both sides of the issue. See pp. 22-25, supra.
Among those witnesses was Lester Lave, an amicus in
this case, who recognized that if Congress were to accept
his recommendation to allow consideration of compli-
ance-related factors, “it will certainly make the re-election of
Congressmen more difficult - which is why I am glad I am
on this side of the table. But we will get better public
policy and better public understanding.” 1981 H. Hrg.
203 (emphasis added). Having failed to persuade their
elected representatives to adopt their preferred approach,
Dr. Lave and his allies now hope to have better success
36
with the unelected judiciary. That profoundly undemo-
cratic approach to the making of public policy should be
rejected.
Aside from being addressed to the wrong forum,
ATA’s policy arguments are misguided. As stated nearly
twenty years ago by the Chairman of the House subcom-
mittee with authority for the Act:
The idea of using cost/benefit analysis to
decide how much to protect public health is
particularly dangerous. The protection of public
health is the keystone of the Clean Air Act. For
over a decade we have sought to protect partic-
ularly sensitive citizens such as children, the
aged and asthmatics from polluted air. I don’t
think the American people would stand for
abandoning these sensitive populations by mis-
guided use of cost/benefit analysis.
1981 Joint Hrg. 58-59 (Congressman Waxman). See 1970 S.
Rep. 10 (noting intent to protect “particularly sensitive
citizens such as bronchial asthmatics and emphysema-
tics”). Yet that is just what ATA proposes, arguing that
the lives of the “weakest” victims of air pollution should
be assigned a smaller monetary value, because they
might have died soon anyway. ATA Br. 13, 19.
In addition to being inconsistent with congressional
intent, such arguments raise profound moral and ethical
issues. Indeed, when a witness told a House committee
that air-pollution-induced mortality involved the “har-
vesting” of already weakened individuals, a Congress-
man responded that “I have heard of wheat harvest and
corn harvest,” but “this harvest of humans is just hard for
me to take. . . . My goodness gracious, let us get away
from that, not harvest our people.” Clean Air Act Over-
sight - 1973, Part 1, House Hearing 93-62 (Sept. 10, 1973)
37
at 82-83 (Congressman Carter). See also 4/1981 S. Hrg. 94
(Senator Stafford: the Act embodies “the ethical principle
that government should not condone levels of air pollu-
tion which are harmful to public health”); 1981 H. Hrg.
199 (Congressman Waxman: “Once you talk about a
human being for sale, you have already taken and
ascribed a different value to a human being than most of
us would, by saying that a human life is an invaluable
commodity.”); 1975 S. Hrg. 774 (Senator Muskie: “[h]ow
do you quantify in dollar terms health effects”?); 6/1981
S. Hrg. 243 (Senator Stafford: “it is hard to discover how
much human life is worth”); Industrial Union Dept., AFL-
CIO v. American Petroleum Inst., 448 U.S. 607, 672 (1980)
(“Benzene”) (Rehnquist, J., dissenting) (the question
whether human life should be balanced against economic
costs presents “what has to be one of the most difficult
issues that could confront a decisionmaker”).
Congress has resolved these weighty issues by man-
dating primary NAAQS based on health effects of air
pollutants. That decision should not be second-guessed
by the judiciary.
ATA’s policy argument also overlooks the structure
of the Clean Air Act, which does consider compliance-
related factors — but at the stage of achieving the NAAQS,
not setting them. See pp. 8, 15, 20-21, 24-25, supra. See also
1977 H. Rep. 13 (nonattainment provisions of 1977
Amendments, which extended deadlines for attaining
NAAQS, were “a means of assuring realization of the dual
goals of attaining air quality standards and providing for
new economic growth”) (emphasis added); S. Rep. 127,
95th Cong., 1st Sess. 2-3 (1977) (responding to the
“serious concern that achievement of air quality stan-
dards required to protect public health may impose unac-
ceptable constraints on the Nation’s capacity to achieve
38
the kind of economic activity necessary to bring about
full employment and a balanced Federal budget,” com-
mittee concluded that “more time was needed to achieve
public health protection”) (emphasis added).
Preserving health-based standards, while allowing
more time to attain them where necessary, serves impor-
tant policy goals:
We prohibited the use of an economic test in
setting health standards because we thought the
public was entitled to know what the health
requirements were.
If we could not afford to be healthy, that is a
second question, but we ought to at least know
what was necessary to be healthy.
1979 S. Hrg. 343 (Senator Muskie). Accord, 6/1981 S. Hrg.
244-45 (David Hawkins, former Assistant Administrator
of EPA for Air).
IV. THE COURT SHOULD NOT OVERRIDE CON-
GRESS’S INTENT BY PRESUMING THE RELE-
VANCE OF COMPLIANCE-RELATED FACTORS.
In an attempt to dress up its policy arguments in the
garb of statutory construction, ATA asks the Court to
adopt as a general rule of interpretation a presumption
that costs may be considered, unless there is a “clear
congressional intent” to preclude such consideration.
ATA Br. 46 (citation omitted). Here, however, Congress
has expressed a clear intent to limit primary NAAQS to
health effects of air pollutants. See pp. 29-32, supra.
Moreover, ATA’s requested presumption flies in the
face of Union Electric: “Where Congress intended the
Administrator to be concerned about economic and tech-
nological infeasibility, it expressly so provided.” 427 U.S.
39
at 257 n.5. Unlike ATA’s proposed presumption, that rul-
ing was not an abstract across-the-board rule of construc-
tion designed to apply to statutes in general, but a
conclusion based on careful analysis of congressional
intent as revealed by the Clean Air Act in particular, which
explicitly authorizes consideration of compliance-related
factors in some provisions, but not in others. See pp.
12-15, supra. Moreover, the drafters of § 109(d) expressly
indicated their acceptance of this aspect of Union Electric.
See p. 21, supra. Under these circumstances, it would be
especially inappropriate to override congressional intent
with a policy-based presumption of the kind urged by
ATA.
Indeed, a presumption of the kind advocated by ATA
would be an unworkable approach to statutory inter-
pretation. If the presumption were limited to costs, it
would represent an unwarranted attempt to place a
thumb on the scale of statutory interpretation by favoring
some factors over others: why should courts presume the
relevance of compliance costs, but not (for example) of
health? If on the other hand the presumption were broad-
ened to make cognizable all the “pros and cons” of
agency action, ATA Br. 30 (citation omitted), the result
would be an utterly unworkable presumption that every
provision of every statute includes every factor that some
litigant might consider relevant to an agency decision.
Congress’s ability to craft targeted statutory programs
that operate in specified ways (for example, by providing
for air quality standards to be set on the basis of health
alone, and for costs to be considered in determining how
to meet the standards and whether congressional exten-
sions of attainment deadlines are warranted) would be
compromised.
40
Finally, ATA’s effort to justify its presumption on
nondelegation grounds (ATA Br. 1) is meritless. The Act’s
NAAQS provisions pose no colorable nondelegation
problem that could justify imposing a narrowing con-
struction of the Act. ALA Br. in 99-1257 at 18-36. More-
over, ATA does not propose a narrowing construction of
the Act, but rather a widening construction: instead of
excluding factors from consideration so as to narrow the
scope of the congressional delegation (as this Court did in
Natl. Cable Television Assn. v. United States, 415 U.S. 336,
342-43 (1974)), ATA seeks to expand the breadth of the
congressional delegation by including a wide range of
factors beyond the health effects enumerated in the Act.
See ATA Cross-Pet. 23 (“the key text of Section 109(b)
rules in consideration of ‘public health,’ but fails to rule
out consideration of anything”) (emphasis in original).
Vv. NO EXEMPTION FROM THE ACT’S HEALTH-
ONLY MANDATE IS AUTHORIZED FOR “NON-
THRESHOLD” POLLUTANTS.
ATA argues that a health-only mandate should not
apply because the pollutants at issue are “non-threshold.”
ATA Br. 25-26. This argument must be rejected. As previ-
ously shown, the Act clearly requires primary NAAQS to
be based solely on health effects of air pollutants. Con-
gress made no exemption from this mandate for “non-
threshold” pollutants, and it is not the role of the judici-
ary to create such an exemption based on the argument
that Congress “would have done so had it thought about
it.” West Virginia University Hospitals v. Casey, 499 U.S. 83,
100 (1991).
41
Moreover, Congress clearly did think about this issue.
It enacted the 1970 Act’s health-only mandate after hav-
ing been told by EPA’s predecessor agency that “[t]o
identify a no-known-effects level is something that would
be, in my opinion, not only extremely difficult but very
likely not possible.” A Legislative History of the Clean
Air Amendments of 1970 at 1184 (John Middleton of
HEW). And in 1977 the drafters of § 109(d) wrote exten-
sively concerning the likely absence of effects thresholds
for various pollutants, 1977 H. Rep. 106-12, yet declined
to authorize EPA to consider compliance-related factors
in setting NAAQS. Subsequently, the difficulty in identi-
fying effects thresholds was brought to Congress’s atten-
tion again by those advocating consideration of
compliance-related factors (including amici in the present
case), see, e.g., 1981 H. Hrg. 86 (Lester Lave), but Congress
declined to include in the 1990 Amendments authoriza-
tion to consider such factors.
ATA argues that in the case of “non-threshold” pollu-
tants, a health-only mandate would result in standards
set either at zero, or at a non-zero level chosen “arbi-
trarily.” ATA Br. 29-30. This argument is meritless. Appa-
lachian Power concedes that NAAQS must be set below
the level at which “demonstrated adverse public health
effects” occur. APC Br. 25. Identification of the level at
which such effects occur is a health-only inquiry, and is
not arbitrary: to the contrary, it is based on evaluation of
scientific evidence concerning health effects to determine
which effects have been demonstrated, and which of
those demonstrated effects are adverse. 6/1981 S. Hrg.
240-41 (Dr. Homer Boushey, professor of medicine, testi-
fies that if a health effect is defined as “a measurable
change” in a health parameter, then identification of a
42
threshold may be difficult or impossible, but if the focus
shifts to “adverse” effects, i.e., “change that is likely to be
associated with impairment of function or the develop-
ment of symptoms, I think it is possible to identify a level
where such an effect may occur with a high degree of
probability in a portion of the population”).
Second, identification of how far below the level of
demonstrated adverse effects the standard should be set
is likewise a health-only inquiry, pursuant to the Act’s
requirement to set an “adequate margin of safety” that is
“based on” criteria addressing health effects of air pollu-
tants. § 109(b)(1). The exact amount of the margin of
safety cannot be reduced to a formula, and will neces-
sarily depend on the Administrator’s “judgment”
(§ 109(b)(1)) concerning how much protection is war-
ranted against effects that are less well-understood. See
1970 S. Rep. 10. That such a judgment may require dis-
tinctions of degree rather than of kind does not make it
arbitrary. Daniels v. Williams, 474 U.S. 327, 334 (1986)
(quoting with approval Justice Holmes: “I do not think
we need trouble ourselves with the thought that my view
depends upon differences of degree. The whole law does
sO as soon as it is civilized.”) (citation omitted).
Moreover, the fact that an effects threshold above
zero may not have been identified does not necessarily
mean that scientific evidence documents adverse effects
down to zero or background levels. As the D.C. Circuit
has recognized, “when a straight line extrapolation from
known risks is used to estimate risks to health at levels of
exposure for which no data is available,” that “[t]his
method, which is based upon the results of exposure at
fairly high levels of the hazardous pollutants, will show
some risk at every level because of the rules of arithmetic
43
rather than because of any knowledge.” Natural Resources
Defense Council v. USEPA, 824 F.2d 1146, 1165 (D.C. Cir.
1987) (emphasis added). Thus, if NAAQS are based on
scientific evidence, and on margins of safety reasonably
selected through assessment of scientific evidence and
uncertainties in that evidence, they need not automat-
ically be set at zero or background levels even for non-
threshold pollutants.
It is possible that scientific knowledge concerning
effects at lower pollutant concentrations may progress to
the point where NAAQS at zero or background levels are
the only available choice under § 109(b)(1). At that point,
it will be for Congress to decide upon and enact an appro-
priate response — for example, by extending deadlines as
it has done in the past, or by changing the paradigm of
NAAQS decisionmaking. 4/1981 S. Hrg. 1 (Senator
Stafford: “The Clean Air Act is not immutable. We have
made changes in the original 1970 law as we have gained
more knowledge about the effects of air pollution and the
effects of the statute.”). Accord, 6/1981 S. Hrg. 220 (Sena-
tor Randolph).
Finally, ATA’s criticism of the alleged arbitrariness of
§ 109(b)(1) ignores the arbitrariness in ATA’s own sug-
gested approach. Far from being a determinate process,
cost-benefit analysis involves many value judgments — in
deciding how to assign quantitative values,!° as well as
how to weigh non-quantified factors. See AEI-Brookings
10 For example, how much are human life and health
worth? See pp. 36-37, supra. How much future technological
innovation will occur, thus driving down compliance costs? See
pp. 9-10, supra. See also 1981 H. Hrg. 27 (Marvin Schneiderman:
cost-benefit analysis “is very sensitive to some strictly technical
and arbitrary issues” such as the choice of a discount rate).
44
Br. 10 (stressing importance of weighing “equity” and
other “qualitative” factors “that are not easily quantified
or monetized”). A health-only inquiry involves fewer
variables, and thus fewer opportunities for arbitrary deci-
sionmaking, than ATA’s approach, which would open up
EPA’s deliberations to anything that might be considered
a “pro[ ]” or a “con[ ]” of a NAAQS. See ATA Br. 30. See
also Benzene, 448 U.S. at 682 (Rehnquist, J., dissenting) (“If
§ 6(b)(5) authorizes the Secretary to reject a more protec-
tive standard in the interest of administrative feasibility, I
have little doubt that he could reject such standards for
any reason whatsoever, including even political fea-
sibility.”) (emphasis added).
VI. EPA’S 1997 NAAQS ARE SUPPORTED BY COM-
PELLING EVIDENCE OF ADVERSE HEALTH
EFFECTS.
ATA casts aspersions on the evidentiary underpin-
nings of EPA’s 1997 NAAQS. ATA Br. 6-7, 12-14; APC Br.
10-13. Aside from being irrelevant to the statutory issue
raised by ATA’s petition, these arguments are meritless.
The evidentiary background for EPA’s 1997 NAAQS
is explained in ALA’s brief in No. 99-1257. Several points
deserve emphasis here. First, the suggestion that the
effects documented by EPA do not constitute demon-
strated adverse public health effects simply because they
do not rise to the dire severity of the London Killer Fog
(APC Br. 25) must be rejected. Over thirty years ago,
Congress criticized “the false impression that air pollu-
tion is a health hazard only when unusual weather condi-
tions conspire to produce localized disasters. . . . The
subtler, less dramatic long-range effects of air pollution
45
are of much more serious consequence to the population
as a whole.” 1967 H. Rep. 4-5. Accord, 1967 S. Rep. 9.
Second, the notion that EPA is “regulat[ing] air pollu-
tion to ever more stringent levels” (APC Br. 2) not previ-
ously foreseen ignores a simple reality: the 1997 ozone
NAAQS (0.08 ppm, eight-hour average) regulates to sub-
stantially less stringent levels than the 1971 photochemi-
cal oxidants NAAQS (0.08 ppm, one-hour average).
Indeed, the drafters of § 109(d) noted without protest that
the 1971 photochemical oxidants NAAQS might need to
be revised to regulate even more stringent levels. 1977 H.
Rep. 108-09. In short, the argument that EPA’s substan-
tially less stringent 1997 NAAQS strayed below the
pollution levels of concern to Congress is simply unsus-
tainable.
PM NAAQS. With respect to the PM NAAQS, indus-
try has not disputed the adverse nature of the public
health effects at issue (e.g., death, hospitalization, respira-
tory illness, and missed work and school days), see 62
Fed. Reg. 38657/1 (1997), JAPM 7, but instead has chal-
lenged EPA’s reliance on epidemiological studies, which
do not demonstrate a biological mechanism through
which PM causes adverse effects. ATA Br. 13. The D.C.
Circuit resoundingly rejected this argument, App.
55a-56a, and with good reason. Congress recognized that
epidemiological studies are one of “four types of evi-
dence which link air pollution to specific health detri-
ment,” 1967 S. Rep. 9, accord, 1967 H. Rep. 3, and indeed
has directed EPA to “conduct studies, including epidem-
iological, clinical, and laboratory and field studies, as
necessary to identify and evaluate exposure to and effects
of air pollutants on human health.” 42 U.S.C.
§ 7403(d)(1)(A) (emphasis added). See also 6/1981 S. Hrg.
46
194 (Dr. Norton Nelson, professor of environmental med-
icine: “The most directly relevant data is epidemiological
data,” because it “deals with humans, not rats or mice”)
(emphasis added).
The epidemiological database available to EPA amply
justified establishment of a fine particle NAAQS to pro-
tect against adverse public health effects occurring at
particulate concentrations allowed by the prior NAAQS.
In contrast to, for example, the 1971 photochemical oxi-
dant NAAQS, which was based on a single epidemiologi-
cal study,'! the 1997 PM NAAQS was based on “[o]ver
60” such studies that “found consistent, positive, signifi-
cant associations between short-term PM levels and mor-
tality and morbidity endpoints.” SP V-54, JAPM 2011.
And in sharp contrast to the six sentences that repre-
sented EPA's entire explanation of the 1971 PM NAAQS,
36 Fed. Reg. 1502/2 (1971), JAPM 260, EPA provided
thorough and detailed analysis that convinced all four of
CASAC’s epidemiologists of the need for new NAAQS
addressing fine particles, the particle fraction most
clearly identified with the effects. Wolff 6/13/96 Ltr.,
Table 1, JAPM 3165. Three of those epidemiologists con-
cluded:
EPA has appropriately synthesized this evidence
and drawn a responsible public health conclu-
sion, namely, that particulate concentrations at
current levels are causally associated with excess
mortality and morbidity. Furthermore, we agree
that fine particulates, as currently indexed by
PM2.5, are the most appropriate indicator for
11 36 Fed. Reg. 8186/2 (1971), JAO 3539; 43 Fed. Reg.
26962/2-3, 26965 (table) (1978), JAO 3516, 3519.
47
the component of the particulate air mass to
which these adverse effects are attributed.
Lippmann 3/20/96 Ltr 7, JAPM 3159 (emphasis added).
EPA’s issuance of a fine particle NAAQS not only
responds to compelling scientific evidence, but also ful-
fills the promise EPA made decades ago, when it told
Congress that the 1971 PM NAAQS “was promulgated
with the full understanding and intention that later ambi-
ent air quality standards for specific fractions or compo-
nents of the total suspended particulate would be
necessary.” 1975 S. Hrg. 755 (Dr. John Knelson, Director,
EPA Human Studies Laboratory). Indeed, the drafters of
109(d) expressly directed EPA’s attention to testimony
that, because the 1971 PM standard “fail[ed] to differenti-
ate between large particulate that results from blowing
dust and the much finer particulate that results from
human activity,” it allowed “many heavily industrialized,
obviously ‘polluted’ urban areas [to] meet the standard.”
Clean Air Act Oversight — 1973, Part 2, House Hearing
93-63 (Sept. 1973), at 826 (Texas Air Control Board), cited
in 1977 H. Rep. 182.
EPA’s fine particle standard is designed to provide
improved public health protection against such pollution.
Far from protecting just a few scattered individuals, it is
one of the most important public health regulations of
our time, holding out the promise of preventing thou-
sands of deaths, tens of thousands of hospital admissions
and respiratory illnesses, and millions of days of missed
work and restricted activity each year. See RIA 12-43,
JAPM 3486.
Ozone NAAQS. With respect to the ozone NAAQS,
the evidence demonstrating adverse public health effects
is likewise compelling. First, human clinical studies were
48
conducted on volunteers, who were dosed with specified
concentrations of ozone for specified periods. Those
studies showed that, after 6.6 hours of exposure to 0.08
ppm ozone, 10% of the subjects had drops in lung func-
tion of 20% or more - with individual decreases ranging
as high as 37.9%. ALA Br. in 99-1257 at 8.
EPA expressly found that the effects of 0.08 ppm
ozone are adverse for sensitive individuals. 62 Fed. Reg.
38864/1, JAO 9. EPA’s conclusion that adverse effects
were experienced by “some” of the clinical study partici-
pants at 0.08 ppm, id., even if interpreted extremely cau-
tiously as encompassing only relatively few of the sixty
individuals participating in the two key prolonged expo-
sure studies at that level,!2 would still mean that a signifi-
cant percentage of exposed individuals can be expected
to experience adverse effects at 0.08 ppm. Moreover,
because the individuals tested in these studies were all
healthy young adults,’ these results understate the likely
impact on sensitive populations such as asthmatics. CD
9-26, JAO 1767 (“The magnitude of individual changes
can become more important in persons with impaired
respiratory systems (e.g., asthmatics) who already have
reduced baseline lung function.”). Extrapolated to the
national population, the clinical studies belie any sugges-
tion that ozone’s adverse effects strike only a few scat-
tered individuals.
In addition to the human clinical data, epidemiologi-
cal evidence demonstrated increased hospital admissions
and emergency room visits for respiratory causes at
12 See CD 7-58 Fig. 7-4, JAO 1515 (60 individuals tested at
0.08 ppm, 6.6-hour duration).
13 See CD 7-54, JAO 1511 (Horstman and McDonnell).
49
ozone levels allowed by the prior NAAQS. 62 Fed. Reg.
38864/1, JAO 9. For each ozone-induced hospital admis-
sion, moreover, there are far larger numbers of other
ozone-induced health effects including asthma attacks
and visits to doctors and outpatient facilities. Id. 38868/1,
JAO 13. It is scant consolation to the stricken individuals
that some of these adverse health effects may be “tran-
sient and reversible.” ATA Br. 6. See 6/1981 S. Hrg. 233
(Dr. Boushey: “most attacks of asthma” are reversible, but
“no physician or lay person who has witnessed the dis-
tress of an asthmatic attack could fail to recognize it as an
adverse health effect”). See also ALA Br. in 99-1257 at 7-8
(victims describe asthma attacks); 44 Fed. Reg. 8207/3
(1979), JAO 3485 (“Even when reversible, respiratory
symptoms may restrict normal activity or limit the per-
formance of tasks.”).
Unable to refute the scientific evidence documenting
adverse effects from ozone exposure at concentrations
allowed by the prior NAAQS, industry is left with cri-
tiques of EPA’s risk assessments, which attempted to
gauge how many individuals would come into contact
with various ozone levels. APC Br. 11-12. But EPA deter-
mined in this rulemaking, based on cogent scientific evi-
dence, that a significant percentage of the population
experiences adverse health effects at ozone levels permit-
ted by the prior standard. EPA was not required to deny
public health protection based on a prediction of the size
of the affected groups or the frequency with which they
will come into contact with polluted air. People who
currently pursue or may in the future need or want to
pursue multi-hour outdoor exercise - whether they are
children at camp, construction workers, landscapers, or
letter-carriers — are entitled to do so without fear of
ozone-induced respiratory impairment. See, e.g., 1970 S.
50
Rep. 10 (NAAQS must protect sensitive citizens “who in
the normal course of daily activity are exposed to the
ambient environment”), 36 (“Recommendations that chil-
dren not run to and from school and that events be
suspended are not a substitute for reducing pollution.”);
44 Fed. Reg. 8210/1 (1979), JAO 3488 (“Standards must be
based on a judgment of a safe air quality level and not on
an estimate of how many persons will intersect given concen-
tration levels. EPA interprets the Clean Air Act as provid-
ing citizens the opportunity to pursue their normal
activities in a healthy environment.”) (emphasis added).
Finally, as to both PM and ozone, it bears emphasis
that this case (unlike Benzene) does not present a situation
where an agency has regulated at pollutant levels an
order of magnitude below the range where adverse
effects are demonstrated. To the contrary, as shown above
and in ALA’s brief in No. 99-1257 (at 34-35), the scientific
evidence documents adverse health effects in the range
where both the PM and ozone NAAQS were set.
CONCLUSION
For the foregoing reasons, the Court should affirm
the D.C. Circuit’s conclusion that primary NAAQS must
be based solely on health effects of air pollutants.
DATED: September 8, 2000.
Respectfully submitted,
Howarp I. Fox
Earthjustice Legal Defense Fund
1625 Massachusetts Ave., N.W.,
Suite 702
Washington, D.C. 20036-2212
(202) 667-4506
Counsel of record for
American Lung Association
3¢
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