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

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FILED

i SEP ) 1 200

No. 99-1426 CLERK :

In the Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Cross-Petitioners

V.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents

On Writ-of Certiorari to

The United States Court of Appeals

For the District of Columbia Circuit

BRIEF FOR RESPONDENTS

MASSACHUSETTS AND NEW JERSEY

JOHN J. FARMER THOMAS F. REILLY

Attorney General Attorney General

State of New Jersey Commonwealth of Massachusetts

HOWARD L. GEDULDIG EDWARD G. BOHLEN

JOHN R. RENELLA Assistant Atty. General, Mass.

Deputy Attys. General,N.J. 200 Portland Street

Richard J. Hughes Justice Boston, MA 02114

Complex 7th Floor (617) 727-2200, ext. 3358

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612 LISA HEINZERLING

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QUESTION PRESENTED

Whether the court of appeals properly reaffirmed the

longstanding principle that, in setting and revising

National Ambient Air Quality Standards under Section

109 of the Clean Air Act, the Environmental Protection

Agency may not consider the costs of implementing

measures to attain the standards.

ii

TABLE OF CONTENTS

EP +s ccvvesvesecsessccecesecese i

TABLE OF AUTHORITIES .............000sseeceeeees iv

PE HOS Odsoncectuctucnetoosecesccecesceeses 2

A. Statutory and Regulatory Background .............. 2

Bs CPE cones vevcecccceccccesccceces 3

2. Implementing the NAAQS .................0000: 5

3. History of the Clean Air Act and NAAQS Program . 7

B. Particulate Matter and Ozone Rulemakings ......... 11

See TOPE cc cccccccccsoccceccesccccosess 12

INTRODUCTION AND SUMMARY OF ARGUMENT .. 12

PPPPTT TTT TTT TTT TITTTTTTTTTT TTT TTT Tee 15

I. THE PLAIN MEANING OF THE CLEAN AIR ACT

PRECLUDES EPA FROM CONSIDERING COSTS IN

rE PEEP Soe sceeccesccecccscecscens 15

A. Sections 108 and 109 of the Clean Air Act Clearly Direct

EPA to Consider Only the Effects of Air Pollution on

Public Health and Welfare in Setting the NAAQS . 16

B. Congress’s Explicit Recognition of the Relevance of

Costs to the Implementation of the NAAQS Confirms

the Irrelevance of Costs to Setting the NAAQS ... 24

iii

C. The Textual Arguments of Cross-Petitioners and

Their Supporting Respondents and Amici Are

Without Déssit ......ccccccscesesesesseueeneee 28

D. Neither the Nondelegation Doctrine Nor Cross-

Petitioners’ Proposed Cost-Benefit Canon Can Override

the Plain Meaning of the Statutory Language ..... 37

1. Because There Is No “Grave Constitutional Doubt”

About the Clean Air Act, The Court Should Decline

Cross-Petitioners’ Invitation to Use the

Nondelegation Doctrine as an Excuse to Rewrite the

BeateAD ow ccc cccceccesssesseneeee 37

2. Cross-Petitioners’ Proposed Cost-Benefit Canon

Cannot Override the Plain Meaning of the Statute

and Would Improperly Subvert the Legislative

PUCCEED occ cccvcccccccccscesscesseennnennee 39

II. Interpreting the Clean Air Act to Preclude the

Consideration of Costs in Setting the NAAQS Does Not

Lead to Issational Resuls .....cccossecccceseueunes 41

A. Precluding Cost-Benefit Balancing in Setting the

NAAQS Will Not Lead to Deindustrialization .... 41

B. Precluding EPA from Considering Costs in Setting the

NAAQS Does Not Allow the Administrator Privately to

Consider Costs While Publicly Denying It ....... 43

C. Congress Acted Rationally in Precluding EPA from

Considering Costs in Setting NAAQS While Allowing

EPA to Consider Costs in Implementing Them ... 45

CONCLUGION .ncccccccccvccceccccscscesseeeeeeeee 50

iv

TABLE OF AUTHORITIES

Cases:

American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981) 28

Atlantic Mutual Ins. Co. v. Commissioner of Internal Revenue,

cn cccesesecescecescccccescecccccce 30

Chevron U.S.A. v. Natural Resources Defense Council, 467 US.

EEESEESS SEPP PPPCT ETT TETTLTTETETTT TTT T TTT 6

Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (Sth Cir.

EIS SSS SOE POE POTTTTT TLL LTTE TELE EEE TTT 49

General Motors Corp. v. United States, 496 U.S. 530 (1990) . 24

Harris Trust & Savings Bank v. Salomon Smith Barney Inc., 120

— STENEPEPPPTTTTITTTTTT LETTE TTT ee 16

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) ...... 16

Industrial Union Dept., AFL-CIO v. American Petroleum Inst.,

DT ccccccccccccceccccccceccccceces 39, 42

International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America, UAW v. OSHA,

938 F.2d 1310 (D.C. Cir. 1991) 2... 6.6 ccc cece eee eens 39

Jones v. United States, 120 S.Ct. 1904 (2000) ............. 37

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

denied, 449 U.S. 1042 (1980) «0.2... cece cece eee eee 10

Pegram v. Herdrich, 120 S.Ct. 2143 (2000) ...........055. 47

Vv

Public Lands Council v. Babbitt, 120 S.Ct. 1815 (2000) ..... 30

Russello v. United States, 464 U.S. 16 (1983) ............. 25

Train v. Natural Resources Defense Council, 421 U.S. 60

GIIUED cc cceseccccvesccevceccecccccssocascscsecnsess 25

Union Electric Company v. EPA, 427 U.S. 246 (1976) . 5, 24,25

United States ex rel. Attorney General v. Delaware & Hudson

Gar, TED US. SEG IGTDD ccc cccccccccccccccccccccsccccs 38

United States v. Nordic Village, Inc., 503 US. 30 (1992) ... 30

United States v. Wong Kim Bo, 472 F.2d 720 (Sth Cir. 1972) 25

Statutes:

Administrative Procedure Act, 5 U.S.C. 706(2)(A) ....... 45

Air Pollution Control Act of 1955, Pub. L. No. 84-159, 69

BRR TEED ccc cccceccceccecccncevcececesesssecescoeses 10

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

SEG ccccccccesecccccesecoocnces 8, 9, 17, 21, 34, 35

Clean Air Act:

§ 101(b)(1), 42 U.S.C. 7401(b)(1) .. 2.6... eee eee 37

§§ 108-109, 42 U.S.C. 7408-7409 .... 2... cece eee eee 3

§ 108(a)(1)(A)-(B), 42 U.S.C. 7408(a)(1)(A)-(B) ...... 3, 47

§ 108(a)(2), 42 U.S.C. 7408(a)(2) .... 4,8, 13, 17, 22, 30, 42

er

vi

§ 108(b)(1), 42 U.S.C. 7408(b)(1) ......... 17, 18, 32-36, 45

§ 109(a)(1), 42 U.S.C. 7409(a)............. 5, 9, 18, 29, 33

§109(b)(1), 42 U.S.C. 7409(b).4,9, 16-18, 20, 23, 29-33, 35, 36

§ 109(d), 42 U.S.C. 7409(d) ..... 20.0.2 cee 4, 22, 32, 36

§110(a)(1), 42 U.S.C. 7410(a) ..... aeeaaunnane 5, 24, 25

§ 110(f), 42 U.S.C. 7410(f) .. 2.0... eee cece ee. 11, 26, 47

§ 110(g), 42 U.S.C. 7410(g) .. 2.0.2... e eee 11, 26, 47

§ 111(a), 42 U.S.C. 7411(a) ............0.00. 6, 22, 26, 29

§ 111(b)(1), 42 U.S.C. 7411(b)(1) .. 2... eee ee eee 29

§ 125(a)-(b), 42 U.S.C. 7425(a)-(b) .... 2.0 eee ee eee ee. 26

§§ 171-179B, 42 U.S.C. 7501-75094 ........ 6. cece ee. 28

§§ 171-193, 42 U.S.C. 7501-7515 ..... 2.0... cee ee eee. 11

DOE CIE Gg voivccvsnscsasnectncccevessecss 5

ek ee ee 6, 25, 29

§ 173(a)(2), 42 U.S.C. 7503(a)(2) 2.0... ce ceeeeeeeeues »

§ 179(d)(2), 42 U.S.C. 7509(d)(2) .......200eeee eee ees 22

§ 181(a)(1), 42 U.S.C. 7511(a)(1)).............22e eee 28

ES. scadectdimsinedsednatdin 6, 26

Vii

Sa il a in a ll it 23, 26

Dae, GB UE, FOG oc cccccccccccccccccces 27, 29

EG a SUE con cccccccecscesscucces 6, 27

a in Dn cccnseseseccescesesceess 31

§ 307(d)(3), 42 U.S.C. 7607(d)(3) ... 2... cee eee eee 34

Ein CUED no nencesccccecessoseceese 30

Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat.

Dt écnnbnanmeneensndddanantassedaessekaedatonendee 4

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

at sich i lh ca a a Si all oie le 10

Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104

a ite dil i al el i et oe i ol 10, 31

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

ER he aa AIA ee eae em 7-9, 37

Energy Supply and Environmental Coordination Act of

1974, Pub. L. No. 93-319, 88 Stat. 246 ............... 11, 27

Reorg. Plan No. 3 of 1970,5 U.S.C.A. App. (Supp. 1992) .. 9

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

Bln. OPER, GU Glad. BED on... cncccccvcccccccccccce: 11, 27

Federal Register:

62 Fed. Reg. 38,652 (1997) .........eccceeeeeeeeeeess 42

SES PEED cecnccceccconcesednccesucds 42

Legislative History:

CRP GMD, GOR, TSO ccc cccncccsccccccccsccesesesecs 50

Clean Air Act Oversight: Hearings before the Sen. Comm. Envt &

Pub. Works, 97th Cong., Ist Sess. (1981) ................ 10

Seat, DT BOG GAIN, CEDURE occ ccccccccccccccccccccvees 40

H.R. Rep. No. 91-1146 (2d Sess. 1970) ..............45. 50

SD, DER, BOG Comes, CRGTED on cc cccccccccccccccccccccces 40

S. Rep. No. 91-1196 (2d Sess. 1970) ..............45. 21,35

Other:

Richard N. L. Andrews, Managing the Environment, Managing

Ourselves - A History of American Environmental Policy (Yale

Univ. 1999) .... 2... cece eccee cee eee enneneenenees 12, 47

EPA, Unfinished Business: A Comparative Assessment of

Environmental Priorities (1987) ..............0.00e0eees 13

Ralph L. Keeney, Mortality Risks Induced by Economic

Expenditures, 10 RISK ANALYSIS 147 (1989)............ 46

Ralph L. Keeney and Kenneth Green, Estimating Fatalities

Induced by Economic Impacts of EPA’s Ozone and Particulate

Standards (unpublished paper available on web page of

Reason Public Policy Institute) (1997) ................. 46

Mark K. Landy, et al., The Environmental Protection Agency:

Asking the Wrong Questions from Nixon to Clinton (1994) . 44

ix

Randall Lutter, John F. Morrall, III, & W. Kip Viscusi, The

Cost-Per-Life-Saved Cutoff for Safety-Enhancing Regulatons, 37

BOON. REQUERY SPP (IGPD). cc cccccescccccccccccccs 46

Thomas O. McGarity, Reinventing Rationality (1991) .... 44

National Air Pollution Control Administration, HEW,

Guidelines for the Development of Air Quality Standards

and Implementation Plans (1969) ................... 9,21

National Air Pollution Control Administration, HEW, Pub.

No. AP-49, Air Quality Criteria for Particulate Matter (1969)

pecenendedeseadeeenbeceducdethinbnausenaeenen 19, 21

National Air Pollution Control Administration, HEW, Pub.

No. AP-50, Air Quality Criteria for Sulfur Oxides (1969) 19

National Air Pollution Control Administration, HEW, Pub.

No. AP-62, Air Quality Criteria for Carbon Monoxide (1970)

bbndueudeeeseunsnesdeueeansdladieeienlenenae >. aaa

National Air Pollution Control Administration, HEW, Pub.

No. AP-63, Air Quality Criteria for Photochemical Oxidants

SEEDED (bVObbU4b00bsebeeReeadsouseesudeeenees 19, 21, 33

National Air Pollution Control Administration, HEW, Pub.

No. AP-64, Air Quality Criteria for Hydrocarbons (1970). 19

National Research Council, Science and Judgment in Risk

ROME GIGS ov ccccccccccccctveveccccescoscoeess 33

Office of Air and Radiation, EPA, The Benefits and Costs of the

Clean Air Act, 1970 to 1990 (1997) ........cccceeeees 13, 48

xX

Office of Air and Radiation, EPA, The Benefits and Costs of the

Clean Air Act, 1990-2010

Office of Air Quality Planning and Standards, EPA,

Regulatory Impact Analyses for the Particulate Matter and

Ozone NAAQS and Proposed Regional Haze Rule (1997) 49

Public Health Service, HEW, Pub. No. 1619, Air Quality

Criteria for Sulfur Oxides (1967) .........0.seeeeeees 19

William H. Rodgers, Environmental Law (2d ed. 1994) . 7,10

Lawrence H. Tribe, Ways Not to Think About Plastic Trees:

New Foundations for Environmental Law, Yale L. J. 1315 (1974)

Sboeedeneeeececséceeeseeeeesseesesesuseeesaseses 48, 50

U.S. Council on Environmental Quality, Environmental

Quality: 25th Annual Report - 1994-95 (1997) ............ 12

BRIEF FOR RESPONDENTS

MASSACHUSETTS AND NEW JERSEY

Both this case and Browner v. American Trucking Associations,

Inc., No. 99-1257, to be heard in tandem, arise out of challenges

brought by cross-petitioners to the EPA’s promulgation of

revised National Ambient Air Quality Standards (NAAQS) for

particulate matter (PM) and ozone. Both cases, moreover,

concern the validity of EPA’s construction of the Clean Air Act

that underlies the revised PM and ozone NAAQS. In No. 99-

1257, cross-petitioners (filing there as respondents) contend

that EPA’s construction of the Clean Air Act violates the

nondelegation doctrine. In this case, cross-petitioners contend

that the Clean Air Act itself bars EPA’s longstanding position

that the statute precludes the agency from considering costs in

setting the NAAQS.

Cross-petitioners seek to link the two cases by claiming that

the source of the Clean Air Act's constitutional infirmity is

EPA’s refusal to interpret the Act to allow for the

consideration of costs in setting the NAAQS. Cross-

petitioners thus attempt to persuade this Court to reject EPA’s

interpretation of the Act by invoking the canon that courts

should construe statutes so as to avoid invalidating them on

constitutional grounds.

In our brief filed in No. 99-1257, however, we have

established the absence of any merit to cross-petitioners’ claim

of undue delegation. Brief of Respondents Massachusetts and

New Jersey, Browner v. American Trucking Assns., at 20-24 (MA

& NJ Br.). Because cross-petitioners have so closely linked

their statutory argument in this case to their constitutional

argument in No. 99-1257, the former should fall based on the

weakness of the latter. A wholly insubstantial constitutional

argument can never be a legitimate basis for rejecting an

otherwise valid agency statutory interpretation. But that is

especially so where, as in this case, cross-petitioners’ proffered

interpretation would not avoid the constitutional problem as

they see it.

There are, moreover, no other possible bases for upsetting

2

EPA’s unbroken position that the Clean Air Act allows both

EPA and the States to consider costs in implementing the

NAAQS, but does not allow EPA to consider costs in setting

the NAAQS in the first instance. The plain meaning of the

statutory language permits no other conclusion. And, contrary

to the gloomy exaggerations of cross-petitioners and their

supporters, the many decades of federal air pollution

regulation confirm the wisdom of Congress’s deliberate and

carefully crafted choices about precisely how costs should be

considered in protecting the quality of the nation’s air.

STATEMENT

A. Statutory and Regulatory Background

The NAAQS form the centerpiece of the Clean Air Act.

They protect public health by governing the quality of the

nation’s outdoor air. These standards are not, however, self-

implementing; they do not themselves directly apply to any

source of air pollution. They apply instead directly only to

those federal and state governmental authorities responsible

for ensuring that the standards are met. For that reason, while

the NAAQS are “standards” in name, they are more akin to

statutory policy objectives in their actual operation.

Federal and state authorities are statutorily obliged to

develop a series of implementing measures designed to

achieve compliance with the NAAQS. The Clean Air Act itself

mandates some of those implementing measures and their

respective timetables. The design and application of other

implementing measures are left to the discretion of the

appropriate federal or state governmental authority.

A fundamental distinction between the statutory factors

relevant to the setting of a NAAQS and the statutory factors

relevant to implementing measures designed to achieve a

NAAQS is central to the operation of the Act. Congress

deliberately and carefully decided to apply different

3

requirements to the very different regulatory tasks of setting

regulatory objectives and designing implementing measures.

In particular, Congress concluded that while costs and related

practicality and feasibility concerns should be considered ina

variety of ways in implementing the NAAQS, they should not

be considered in setting them.

During the last three decades of experience with the Clean

Air Act, Congress has steadfastly maintained that essential

distinction. Congress has repeatedly amended the Act in both

isolated and more sweeping ways to provide for more or less

consideration of costs and feasibility in aspects of the statute

concerned with implementation of the NAAQS. These changes

sometimes reflect congressional response to new knowledge

and, other times, simply to changing political priorities. Yet,

throughout these same thirty years, many of which were

marked by considerable controversy over the costs of

environmental protection, Congress has not once altered the

basic format for setting the NAAQS, a format that from the

very beginning has excluded the consideration of costs.

1. Setting the NAAQS

Sections 108 and 109 of the Clean Air Act require the

Administrator of EPA to establish and periodically revise

NAAQS for a limited subset of air pollutants. See 42 U.S.C.

7408-7409. Section 108 provides that NAAQS may be set only

for air pollutants that “cause or contribute to air pollution

which may reasonably be anticipated to endanger public

health or welfare” and “the presence of which in the ambient

air results from numerous or diverse mobile or stationary

sources.” See 42 U.S.C. 7408(a)(1)(A)-(B). Accordingly, the

Administrator may regulate a pollutant under the NAAQS

program only if she first finds that its widespread presence in

the ambient air poses a threat to public health or welfare.

The Clean Air Act provides for the establishment of both

“primary” and “secondary” NAAQS. The essential distinction

4

between the two is that primary NAAQS “protect the public

health” while secondary NAAQS “protect the public welfare.”

More particularly, Section 109(b)(1) of the Act defines the

primary NAAQS as:

ambient air quality standards the attainment and

maintenance of which in the judgment of the

Administrator, based on such criteria and allowing an

adequate margin of safety, are requisite to protect the public

health.

42 U.S.C. 7409(b)(1) (emphasis added). A secondary NAAQS

is defined as:

a level of air quality the attainment and maintenance of

which in the judgment of the Administrator, based on such

criteria, is requisite to protect the public welfare from any

known or anticipated effects associated with the presence

of such air pollutant in the ambient air.

42 U.S.C. 7409(b)(2) (emphasis added). For each standard,

therefore, the Act directs the Administrator to exercise her

“judgment” based on specific “criteria” with the added

requirement for primary NAAQS that the Administrator also

allow for “an adequate margin of safety.”

Section 108(a)(2) further details the precise content of the

air quality “criteria” on which the NAAQS must be based.

These criteria must:

reflect the latest scientific knowledge useful in indicating

the kind and extent of all identifiable effects on public

health and welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

quantities.

42 U.S.C. 7408(a)(2). Thus, the only “effects” that are relevant

under the prescribed criteria are those expected from the

pollutant’s “presence . . . in the ambient air.”

Finally, Section 109(d)(1) of the Clean Air Act directs the

Administrator to review the criteria and NAAQS every five

years. 42 U.S.C. 7409(d)(1). Based on this review, the

Administrator may promulgate a new NAAQS or revise an

5

existing one. 42 U.S.C. 7409(a)(1). The criteria relevant to the

decisions whether and how to revise an existing NAAQS are

the same as the criteria, described in section 108, for

establishing a NAAQS in the first instance. Id.

2. Implementing the NAAQS

A NAAQS does not, standing alone, directly regulate any

source of air pollution. It instead simply establishes a

statutory objective that the Clean Air Act makes federal and

state governmental regulatory authorities responsible for

achieving within a series of prescribed timetables. Hence,

while Sections 108 and 109 govern the setting of NAAQS,

including their subsequent revision, other Clean Air Act

statutory provisions govern the implementation of the NAAQS.

Section 110 of the Act, for instance, provides for the

development by states and, if necessary, by the federal

government, of state or federal “implementation plans” (SIPs

or FIPs) that provide for the “implementation, maintenance,

and enforcement” of NAAQS throughout each state. 42 U.S.C.

7410(a)(1). While section 110 details a host of requirements for

these plans, including the control of stationary sources “as

necessary to assure that [NAAQS] are achieved|[,]”’ the

overarching requirement is that the implementation plan, as a

whole, make the necessary progress toward NAAQS

compliance. “Perhaps the most important forum for

consideration of claims of economic and _ technological

infeasibility is before the state agency formulating the

implementation plan. So long as the national standards are

met, the State may select whatever mix of control devices it

desires, . . . and industries with particular economic or

technological problems may seek special treatment in the plan

itself.” Union Electric Co. v. EPA, 427 U.S. 246, 266 (1975).

Other provisions of the Clean Air Act specifically concerned

142 US.C. 7410(a)(2)(C).

6

with implementation, moreover, expressly provide for the

consideration of costs. For instance, section 111 provides for

EPA’s promulgation of technology-based standards of

performance applicable to new stationary sources of air

pollutants, including pollutants governed by the NAAQS.

Those performance standards must “tak[e] into account the

cost of achieving such reduction and any nonair quality health

and environmental impact and energy requirements.” 42

U.S.C. 7411(a). Federal emissions standards applicable to

mobile sources and aircraft, many of which emit NAAQS

pollutants, likewise mandate taking costs into account. See 42

U.S.C. 7521(a)(3)(A)(i); 42 U.S.C. 7571(b).

The nonattainment provisions of the Clean Air Act, which

apply to those parts of the nation not yet in attainment with

NAAQS, similarly reflect significant attention to costs and

technological feasibility. The touchstone for “nonattainment

plans” designed to achieve the NAAQS is “reasonableness” in

the form of “reasonable further progress” towards attaining

the NAAQS. 42 U.S.C. 7501(1), 42 U.S.C. 7502(c)(2). The Act

does not require the immediate attainment of the NAAQS,

regardless of the economic costs of such a requirement,

notwithstanding the passage long ago of previous statutory

deadlines. Nonattainment plans must instead provide for

“reasonably available control measures” and new and

modified major stationary sources must, among other things,

achieve the “lowest achievable emission rate,” which explicitly

excludes limitations “that are not achievable.” 42 U.S.C.

7502(c)(1), 7503(a)(2), 7501(3)(A). The Act also allows EPA to

construe the term “source” for the purposes of these

nonattainment requirements to allow a facility to avoid costlier

controls by reducing air pollution in one part of a

manufacturing site more than it increases pollution in another

part of the site. See Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837, 866 (1984).

7

3. History of the Clean Air Act and NAAQS Program

The Clean Air Act today embodies no fewer than eleven

separate Acts of Congress, stretching back over fifty years.’ A

central part of the legislative debates surrounding each of

these enactments has been the extent to which regulatory

objectives should turn on public health and welfare concerns

as well as the extent to which the regulatory means of

achieving those objectives should turn on considerations of

economic cost or technological feasibility. With regard to

implementation, Congress has made numerous extremely

precise and significant refinements in the statutory language

relating to where, when, and to what extent costs should be

relevant in establishing pollution control requirements

applicable to individual sources of air pollution. By contrast,

Congress has, for three decades, steadfastly adhered to the

fundamental position, reflected in sections 108 and 109 of the

Clean Air Act, that any such cost considerations should not

similarly play any role in the setting of the air quality criteria

and standards that have always served as the objectives of

federal air pollution legislation.

Congress first addressed the question of what “criteria”

should be relevant to setting air quality standards in the

original 1963 Clean Air Act.’ The 1963 statute authorized the

federal government-acting through the Secretary of the

Department of Health, Education, and Welfare (HEW)-to

establish “criteria” for air quality. 77 Stat. 392 § 3(c)(2). The

language describing the scope and content of the original air

quality criteria is strikingly similar to the corresponding

language of the Clean Air Act today.* Although Congress used

?See William H. Rodgers, Environmental Law 124 (2d ed. 1994).

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

‘The statute provided:

Whenever [the Secretary] determines that there is a particular air

the same term, “criteria,” for both the scientific information on

the consequences of air pollution and standards for air quality’

the goal of the standards was clear: the Secretary was to

recommend to local, state, or interstate air pollution control

agencies those standards which “in [the Secretary’ s] judgment

may be necessary to protect the public health and welfare.”®

In the Air Quality Act of 1967, Congress used language

virtually identical to that in the 1963 Act in again directing the

Secretary of HEW to establish air quality criteria.’ The 1967

Act also introduced some of the language that now governs

the NAAQS themselves: the Act directed the Secretary to issue

“such criteria of air quality as in his judgment may be requisite

for the protection of the public health and welfare.”*

Nevertheless, Congress continued to rely mostly on the states

for the development of rules governing air quality (standards)

while relying on the federal government for the development

of the scientific documents on which the standards were to

pollution agent (or combination of agents), present in the air in

certain quantities, producing effects harmful to the health or

welfare of persons, the Secretary shall 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 pollutant agent (or

combination of agents) in the air in varying quantities.

§ (3)(c)(2), 77 Stat. at 395; cf. 42 U.S.C. 7408(a)(2).

*See § 3(c)(3), 77 Stat. at 395.

"Id.

‘The criteria were to 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.” Air Quality Act of 1967, Pub. L. No. 90-148, sec.

107(b)(2), § 2, 81 Stat. 485, 491.

*§ 107(b)(1), 81 Stat. at 491.

de criteria).

Seance ext to Chun Air tmentnamet SG

Congress provided the federal government with the exclusive

authority to set nationally uniform standards for air quality.

The states retained the task of implementing the air quality

standards, but EPA-created during Congress's deliberations

on the 1970 Amendments’-was directed to set the standards."

With respect to the air quality criteria, Congress required for

the first time that the criteria describe effects on “public health

and welfare.” Previously, it had required that criteria describe

effects on the health and welfare “of persons”" or simply on

“health and welfare.”"* Yet, while changing the language,

Congress instructed EPA to base the very first NAAQS on

HEW’s existing criteria.’ These criteria considered only the

consequences for health and welfare of the presence of

pollutants in the ambient air and they stressed the difficulties

of drawing a bright line between pollution that is harmful and

pollution that is not.'* Congress in 1970 responded to the

challenges of scientific uncertainty by further providing that

the air quality standards protecting human health-the primary

standards-must embody “an adequate margin of safety.

*See Reorg. Plan No. 3 of 1970, 5 U.S.C.A. App. (Supp. 1992).

Coe Clean Air Amendments of 1970, Pub. L. No. 91-604, sec. 109, §

4(a), 84 Stat. 1676, 1679-80.

"Clean Air Act of 1963, Pub. L. No. 88-206, § 3(c)(2), 77 Stat. 392, 395.

2A ir Quality Act of 1967, Pub. L. No. 90-148, sec. 107(b)(1), § 2, 81

Stat. 485, 491.

3See 42 U.S.C. 740%a)(1)(A), 7409(b)(1).

“See, e.g., National Air Pollution Control Administration (NAPCA),

HEW., Guidelines for the Development of Air Quality Standards and

Implementation Plans 16 (1969).

"Sec. 109(b)(1), § 4(a), 84 Stat. at 1679.

10

During the past thirty years, Congress has enacted

numerous revisions to the Clean Air Act, most significantly in

1977 and 1990,"° and Congress has considered and rejected

many more proposed amendments to the Act.” The Act today

“consumes 313 pages of the Statutes at Large, nearly ten times

the length of the original Clean Air Act of 1970...“ Yet, in

the face of all this ongoing legislative activity, Congress has

left essentially untouched the fundamental “public health”

and “welfare” basis long in existence for the development of

air quality criteria and NAAQS. Then, as now, the NAAQS

are to be based on “the kind and extent of all identifiable

effects on public health and welfare which may be expected

from the presence of such pollutant in the ambient air.”

In sharp contrast, Congress has made a host of both

targeted and sweeping revisions to the Act designed to

address the extent to which economic costs and economic and

technological feasibility should be relevant in establishing

pollution control requirements to implement the NAAQS. For

example, Congress added in 1977 and 1990 the detailed

nonattainment provisions designed to provide areas not

meeting the NAAQS with both more time and more guidance

Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685;

Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat.

2399.

"For example, Congress held extensive oversight hearings on the

Clean Air Act just a few months after the D.C. Circuit in Lead

Industries Ass’n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert. denied, 449 US.

1042 (1980), upheld EPA's view that costs are irrelevant to the setting

of NAAQS. See Clean Air Act Oversight: Hearings before the Sen. Comm.

Envt & Pub. Works, 97" Cong., 1" Sess., pts 1&2 (1981). Of course, the

proper role of costs in setting NAAQS arose in those hearings, id. at

85, yet the hearings produced no change in the NAAQS provisions.

“Rodgers, Environmental Law, supra, § 3.2, p. 140.

11

in achieving that statutory objective.”

Congress has also added a series of provisions allowing for

specific exemptions and extensions based on economic

concerns. For example, both the President of the United States

and State Governors are allowed, in specified circumstances,

to suspend statutory requirements based on concerns related

to unemployment and plant closings. 42 U.S.C. 7410(f)(2),

7410(g)(1)(B). Congress has similarly provided relief from

motor vehicle emissions standards, transportation control

measures, and emission limitations applicable to certain

manufacturing facilities.”

In sum, Congress has maintained a sharp distinction at least

since passage of the Clean Air Act of 1970, if not long before,

between the role of costs in the setting of the air quality

standards that serve as the Act's overriding objective and the

role of costs in developing the means for implementing those

standards. Congress concluded early on that compliance costs

should not be relevant to the former and has never disturbed

its initial policy judgment. At the same time, Congress

concluded that such costs should be relevant to the latter and

has since repeatedly revisited precisely how to take such costs

into account, in light of its ongoing experience with the Act's

actual operation.

B. Particulate Matter and Ozone Rulemakings

In our brief on the merits in Browner v. American Trucking

Associations, Inc., No. 99-1257, we described EPA’s rulemaking

proceedings with respect to the PM and ozone NAAQS. MA

& NJ Br. 20-24. That same description is equally relevant to

"See 42 U.S.C. 7501-7515.

See Energy Supply and Environmental Coordination Act of 1974,

Pub. L. No. 93-319, §§ 4-5, 88 Stat. 246, 256-260; Steel Industry

Compliance Extension Act of 1981, Pub. L. No. 97-23, 95 Stat. 139.

12

the issues in this case.

C. Proceedings Below

In rejecting cross-petitioners’ reading of the Clean Air Act,

the D.C. Circuit reaffirmed its longstanding conclusion that the

plain meaning of the Act forbids EPA from considering costs

in setting the NAAQS. U.S. Pet. App. 19a.”

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Clean Air Act's National Ambient Air Quality

Standards (NAAQS) program is one of the signal success

stories of American environmental law. Emissions of most of

the pollutants regulated by the program have dramatically

decreased in the thirty years that the program has been in

place, despite substantial increases in the size of our

population and in the amount of economic activity.” In a

recent peer-reviewed, retrospective study of the Clean Air

"The court also held that EPA had erred in declining to consider

evidence that ground-level ozone is beneficial for people because it

helps to counteract the adverse health effects caused by the decline

in the ozone layer (itself caused by air pollution). U.S. Pet. App. 44a-

49a. No one has sought review of this ruling.

See Richard N.L. Andrews, Managing the Environment, Managing

Ourselves - A History of American Environmental Policy 280 (Yale Univ.

1999) (“Emissions of particulate matter (smoke) dropped by nearly

80 percent from 1970 to 1994, for instance, and of lead by 98 percent,

even as the U.S. population increased by 27 percent, its gross

domestic product by 90 percent, and its vehicle use by 111 percent.

Emissions of carbon monoxide and volatile organic compounds each

dropped by over 20 percent, and sulfur by one-third; only nitrogen

oxides increased.”) (citing U.S. Council on Environmental Quality,

Environmental Quality: 25" Annual Report-1994-95, 179, 182 (1997).

Pee

13

Act's first twenty years, the EPA concluded that the Act had

produced almost 22 trillion dollars more in benefits than it had

imposed in costs, and EPA believed that even this dazzling

amount probably understated the benefits of the statute.” A

widely cited survey of EPA managers conducted in the late

1980s concluded that the air pollution addressed by the

NAAQS program should be ranked first on a list of

environmental problems ranked according to the risks they

posed to human health, welfare, and ecosystems.”

Cross-petitioners want to disrupt this successful regulatory

regime. They ask this Court to hold, contrary to thirty years of

agency and judicial precedent, that the Clean Air Act requires

EPA to balance costs against benefits in setting the NAAQS.

But in creating the NAAQS program, Congress was faced with

the questions of whether to allow costs to play any role in this

program and, if so, what role they should play. Congress

ultimately chose to exclude the consideration of costs from the

process of setting the NAAQS but to allow the consideration of

costs in the process of implementing these standards.

1. The meaning of the Clean Air Act is plain, and has been

settled for decades: costs may not be considered in setting the

NAAQS. Sections 108 and 109 of the Act clearly direct EPA, in

setting the NAAQS, to consider only the effects on public

health and welfare of breathing polluted air. These provisions

instruct EPA to base the NAAQS on air quality criteria that

themselves discuss only the effects on public health and

welfare of “the presence of [an air] pollutant in the ambient

air.” 42 U.S.C. 7408(a)(2). This instruction leaves no room for

the consideration of costs. Were there any doubt on this point,

EPA, Office of Air and Radiation, The Benefits and Costs of the Clean

Air Act, 1970 to 1990 at ES-8 (Oct. 1997). This report focused almost

exclusively on the consequences of regulating the criteria air

pollutants. Id.

“U.S. EPA, Unfinished Business: A Comparative Assessment of

Environmental Priorities 58 (1987).

14

however, it would be dispelled by the numerous provisions of

the Act explicitly allowing or requiring the Administrator to

consider costs in implementing the NAAQS; clearly Congress

knew how to permit the agency to consider costs when

Congress wanted to. For cross-petitioners to ask this Court to

insert the word “costs” into sections 108 and 109 in the face of

Congress's clear decision to exclude it is to request a large and

unwholesome shift in the Court’s approach to interpreting

statutes.

Given the clarity of the statutory text, this Court should not

distort the plain meaning of the Clean Air Act in order to

avoid the constitutional issue of delegation. The error in

rewriting a statute simply to avoid a constitutional issue is

particularly pronounced where, as here, the resolution of the

constitutional issue is, under this Court’s precedents,

straightforward and where, if anything, the proffered

alternative interpretation(s) of the statute would not avoid the

constitutional issue as cross-petitioners see it.

Cross-petitioners’ inability to mount any convincing

argument based on the language or history of the Clean Air

Act forces them to ask this Court to adopt a special canon of

construction tailor-made by them for this case: they ask the

Court to hold that unless Congress explicitly prohibits the

consideration of costs in a statute, costs must be considered.

This is nothing other than an inappropriate plea to have this

Court rewrite the Clean Air Act in order to further cross-

petitioners’ views on social policy.

2. The Clean Air Act is perfectly rational as written and as

understood for three decades. Contrary to the excited claims

of those challenging EPA’s PM and ozone rules, the Act does

not force this country to abandon industrial activity; it does

not allow the Administrator privately to consider costs and

publicly to deny it; and it reflects Congress’s considered

judgment concerning potential tradeoffs between regulatory

costs and health. Finally, by precluding the consideration of

costs in setting the NAAQS but by allowing such

15

consideration in implementing them, the Clean Air Act avoids

one of the most troublesome features of the cost-benefit

balancing cross-petitioners endorse: its tendency to

underestimate the benefits of regulation and to overestimate

the costs. This tendency also helps to explain what would

otherwise be one of the great unsolved mysteries of the

regulatory state: how a set of standards set without regard to

cost can, even from the perspective of cost-benefit analysis,

become one of the great success stories of environmental law.

ARGUMENT

I. THE PLAIN MEANING OF THE CLEAN AIR ACT

PRECLUDES EPA FROM CONSIDERING COSTS IN

SETTING THE NAAQS

Cross-petitioners and their supporting respondents and

amici offer a dizzying array of possible interpretations of the

Clean Air Act.” The proffered interpretations do, however,

have one thing in common: all of them would import some

kind of balancing of costs and benefits into the process of

setting the NAAQS.

The plain language of the Clean Air Act admits of only one

conclusion: the Act precludes EPA from considering costs in

*Cross-petitioners and respondents and amici in support of cross-

petitioners appear to disagree both over whether EPA is required or

merely permitted to consider non-health factors in setting the NAAQS

(compare ATA Br. 32 with, e.g., American Boiler Mfrs. Am Br. 4) and

over which mon-health factors are to be considered (compare ATA Br.

30/(cost-benefit balancing might mean analyzing standard according

to “significant risks or other similar rubrics,” or according to the

quality-adjusted life-years saved by the standard) with Hatch Am. Br.

18 (“feasibility concerns would not trump health” under the statute)

and with Inhofe Am. Br. 10-12 (EPA permitted to consider

countervailing health risks, risk significance, cost and technological

feasibility)).

16

setting the NAAQS. “[I]n any case of statutory construction,

our analysis begins with the language of the statute .... And

where the statutory language provides a clear answer, it ends

there as well.” Harris Trust & Savings Bank v. Salomon Smith

Barney Inc., 120 S.Ct. 2180, 2191 (2000), quoting Hughes Aircraft

Co. v. Jacobson, 525 U.S. 432, 438 (1999) (internal citation and

quotation marks omitted). As we explain below, the statutory

text alone is clear enough to resolve the issue presented here;

that text precludes the cost-benefit balancing cross-petitioners

embrace.” Where Congress has wanted to include some kind

of balancing test in health, safety, and environmental

legislation, it has done so clearly, carefully, and with due

attention to the specific circumstances at hand. In the Clean

Air Act itself, Congress clearly and carefully balanced, or

allowed EPA to balance, costs and benefits only when the

NAAQS are being implemented, not when they are being set.

Cross-petitioners’ efforts to force the meaning they desire into

the language of the statute must fail.

A. Sections 108 and 109 of the Clean Air Act Clearly Direct

EPA to Consider Only the Effects of Air Pollution on

Public Health and Welfare in Setting the NAAQS

Section 109(b)(1) of the Clean Air Act provides that the

primary NAAQS are standards “the attainment and

maintenance of which in the judgment of the Administrator,

based on such criteria and allowing an adequate margin of

safety, are requisite to protect the public health.” 42 U.S.C.

7409(b)(1). Secondary NAAQS are those “requisite to protect

**Lest there remain any doubt, however, we also offer citations to the

legislative history confirming the conclusion that the Clean Air Act

precludes the consideration of costs in setting the NAAQS. For a

fuller account of the evolution of the NAAQS program in Congress,

see MA & NJ Br., No. 99-1257, at 7-19; Clean Air Trust Am. Br.,

passim.

17

the public welfare”; they do not similarly allow for a margin

of safety. 42 U.S.C. 7409(b)(2). In determining what it means

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

safety” and what it means to “ protect the public welfare,” it is

crucial to consider the kind of evidence Congress directed EPA

to take into account in setting the NAAQS.

Congress directed EPA to set the NAAQS “based on” the air

quality criteria. 42 U.S.C. 7409(b)(1)-(2). In formulating the

directive in this way in the 1970 amendments, Congress

eliminated previous language that had required the states, in

setting their own air quality standards, to set standards

“consistent with” both “the air quality criteria and

recommended control techniques” HEW had previously been

required to issue.” Clearly, then, in 1970 Congress was

instructing EPA to base the NAAQS on air quality criteria

alone. The content of the criteria documents is thus critical to

determining the content of the NAAQS.

In section 108(a)(2), Congress supplied the answer to the

question concerning the proper scope of the criteria documents

in unambiguous terms. This section provides that the air

quality criteria are to “reflect the latest scientific knowledge

useful in indicating the kind and extent of all identifiable effects

on public health or welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

quantities.” 42 U.S.C. 7408(a)(2). Thus: air quality criteria are

not to be based on economic information; the effects of concern

are not costs; the effects to be discussed are not theoretical

effects predicted by abstract economic models; and the

relevant effects are not those arising from regulation itself.

This conclusion is further confirmed by section 108(b)(1).

This provision requires EPA, “[s]imultaneously with the

issuance of criteria under subsection (a) of this section,” to issue

information on the costs and feasibility of various pollution

” Air Quality Act of 1967, Pub. L. No. 90-148, sec. 108(c)(1), § 2, 81

Stat. 485, 492 (emphasis added).

18

control technologies. 42 U.S.C. 7408(b)(1) (emphasis added).

Section 108(b)(1) thus clearly distinguishes the “criteria”-on

which NAAQS are to be “based,” 42 U.S.C. 7409(b)(2)-from

information on economic costs and technological feasibility.

Section 109(a)(1) and 109(b)(1) together also make plain that

air quality criteria must discuss only the effects of air pollution

on health and welfare, not the effects of regulation on the

economic costs of pollution control. In section 109(a)(1),

Congress directed the Administrator to issue, within thirty

days of December 31, 1970, primary and secondary NAAQS

“for each air pollutant for which air quality criteria have been

issued prior to such date,” 42 U.S.C. 7409(a)(1), and in section

109(b), Congress provided that the new primary and

secondary NAAQS were to be “based on such criteria.”* 42

U.S.C. 7409(b)(1)-(2). The criteria that had been issued prior to

the stated date were those issued by the Secretary of HEW

under the prior version of the Clean Air Act. In directing EPA

to set the new NAAQS based on HEW’s criteria documents,

Congress explicitly endorsed the documents HEW had so far

compiled.

The HEW criteria documents that Congress endorsed

confirm the exclusive relevance of scientific evidence of

human health effects and the irrelevance of economic effects.

HEW opened its 1969 criteria document on particulate matter

with the following description of air quality criteria:

Air quality criteria are an expression of the scientific

knowledge of the relationship between various

concentrations of air pollutants in the air and their adverse

effects on man and his environment. . . . Air quality criteria

are descriptive; that is, they describe the effects that have

been observed to occur when the ambient air level of a

*For air pollutants for which criteria were issued after December 31,

1970, EPA was directed to issue NAAQS simultaneously with those

criteria and, again, the NAAQS for such pollutants were to be “ based

on such criteria.” 42 U.S.C. 7409(a)(1), 7409(b)(1).

19

pollutant has reached or exceeded specific figures for a

specific time period.”

In keeping with this understanding of the role of air quality

criteria, HEW’s criteria discussed scientific research from

epidemiological, clinical, toxicological, and meteorological

investigations.” They discussed effects on human health,

including the initiation and aggravation of respiratory diseases

including asthma,” impairment of the oxygen-carrying

capacity of the blood,” and premature death,” and they

discussed these effects only insofar as they were tied to air

pollution. HEW’s criteria documents did not discuss

compliance costs, and they did not discuss effects that arose

See NAPCA, HEW, Pub. No. AP-49, Air Quality Criteria for PM 1-1

(1969) (1969 PM Criteria Doc.); NAPCA, HEW, Pub. No. AP-62, Air

Quality Criteria for Carbon Monoxide 1-1 (1970) (1970 CO Criteria

Doc.); NAPCA, HEW, Pub. No. AP-64, Air Quality Criteria for

Hydrocarbons 1-1 (1970) (1970 HC Criteria Doc.); NAPCA, HEW,

Pub. No. AP-63, Air Quality Criteria for Photochemical Oxidants 1-1

(1970) (1970 Ozone Criteria Doc.); NAPCA, HEW, Pub. No. AP-50,

Air Quality Criteria for Sulfur Oxides 1-1 (1969) (1969 SOx Criteria

Doc.); see also Pub. Health Service, HEW, Pub. No. 1619, Air Quality

Criteria for Sulfur Oxides iv (1967) (1967 SOx Criteria Doc.).

See, e.g., 1967 Sox Criteria Doc., supra.

See 1970 Ozone Criteria Doc., supra, at 10-7.

2See 1970 CO Criteria Doc., supra, at 10-3.

See 1967 SOx Criteria Doc., supra, at xxix.

“See 1967 SOx Criteria Doc., supra, at liii (graphical depiction of

results of studies concerning health and welfare effects of sulfur

oxides); 1969 PM Criteria Doc., supra, at 188-89 (summary of health

effects at various exposure levels); 1970 CO Criteria Doc., supra, at

10-7 (table reflecting health effects at various exposure levels); 1970

Ozone Criteria Doc., supra, at 10-9 to 10-13 (text and table detailing

health and welfare effects associated with different levels of

exposure).

20

from regulation itself rather than from air pollution.

Congress’s endorsement of HEW’s basic approach in the

criteria documents compiled as of 1970 thus shows what the

criteria on which the NAAQS are to be based should include

(scientific research into the health effects of pollution) and

what they should not include (economic research into the

economic consequences of regulation).”

The explicit directive to EPA to base the first NAAQS on

HEW’s criteria documents also helps to explain the meaning

of the “adequate margin of safety” that Congress required for

the NAAQS. 42 U.S.C. 7409(b)(1). The concept of a margin of

safety as embraced in the Clean Air Act was an outgrowth of

HEW’s experience in developing the first criteria documents.

HEW’s review of the scientific literature on the criteria

pollutants had revealed a diverse array of harms which

occurred at a diverse array of pollution levels.” HEW also was

convinced that the lowest level at which an air pollutant was

shown in scientific research to have caused an adverse public

health effect was not necessarily the lowest level at which that

pollutant in fact caused such an effect.” HEW thus

Because of the importance of the issues settled therein, copies of all

the relevant HEW criteria documents that predate passage of the

1970 Act have been lodged with the Court.

See sources cited supra, n. 34.

“In its 1969 guidelines on developing air quality criteria, HEW

explained:

The exposure levels which have thus far been associated with

identifiable effects . . . are not necessarily the lowest levels of

exposure that will produce such effects. Nor are those effects

necessarily the only ones produced by such exposures.

Knowledge of the synergistic effects of air pollutants is limited.

So is knowledge of possible long-term genetic effects. .. . In short,

air quality criteria cannot be interpreted as threshold values;

indeed, for many types of air pollutants, there may not be a

threshold of risk to health and the environment. In the evaluation

"ae

21

recommended that margins of safety be incorporated in then-

existing state air quality standards in order to remedy the

problem of under-protection that might otherwise follow from

the limits of scientific proof.“ Congress accepted this

recommendation when it required in 1970 that the federal

government set ambient air quality standards that allowed “an

adequate margin of safety.” The requirement that EPA allow

an adequate margin of safety in the NAAQS thus signals a

congressional embrace of a particular approach towards the

scientific uncertainty that inevitably attends estimates of the

effects of air pollution, an approach that leans in the direction

of stricter rather than more lenient standards where (as they

always are) the facts are uncertain.

Congress's embrace of HEW’s original criteria also helps to

explain the meaning of the “public health” to be discussed in

the criteria and protected by the NAAQS. Although Congress

in the 1970 Clean Air Amendments shifted from requiring that

criteria describe effects on “health and welfare” to requiring

of biological effects of environmental contaminants, whether in

the community or occupational environment, accumulating

evidence has almost invariably shown that adverse effects can

and do occur at exposure levels that at one time were considered

“safe.”

NAPCA, HEW, Guidelines for the Development of Air Quality

Standards and Implementation Plans, supra, at 16.

*1969 PM Criteria Doc., supra, at 189; see also 1970 Ozone Criteria

Doc., supra, at 10-13; 1970 CO Criteria Doc., supra, at 10-6.

*The Senate report on the legislation explained that “margins of

safety are essential to any health-related environmental standards if

a reasonable degree of protection is to be provided against hazards

which research has not yet identified.” S. Rep. No. 91-1196, 91"

Cong., 2d Sess., at 10 (1970).

“Air Quality Act of 1967, Pub. L. No. 90-148, sec. 107(b)(1), § 2, 81

Stat. 485, 491.

22

that they describe effects on “public health and welfare,”

Congress’s simultaneous endorsement of the criteria

documents already comprled demonstrates Congress’ s belief

that those documents «:iequately reflected the kinds of human

health effects Congress thought relevant to setting the

NAAQS. In other words, the insertion of the word “ public”

before the word “health” did not fundamentally change the

nature of the inquiry tte be conducted in developing the criteria

documents; specifically, it did not change that inquiry from a

scientific investigation of the health and welfare effects of

pollution into an imwestigation of the economic costs of

regulation. Instead), by targeting public health, Congress

simply instructed EPA to target health effects in populations

rather than in single imdividuals.

The language of the Clean Air Act also clearly instructs EPA

to consider only the effects on human health and welfare that

are caused by air pollution, not those that might be caused by

regulation itself. Im describing the criteria on which the

NAAQS are to be based, section 108(a)(2) makes this point

plain by instructing EPA to consider only the effects on health

and welfare “which may be expected from the presence of [an

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

U.S.C. 7408(a)(2). This is a clear directive to EPA to focus on

the effects of air pollution, not the effects of regulation.

Elsewhere in the Act, Congress demonstrated that it knew

how to tell EPA to look at health and welfare effects arising

from causes other than air pollution. Indeed, in the Clean Air

Act, Congress invented a new (albeit clunky) phrase-“nonair

quality impacts”-to refer to such effects. See, e.g., 42 U.S.C.

7411(a)(1) (defining “standard of performance” for new

stationary sources to include consideration of, among other

things, “any nonair quality health and environmental

impact”); 42 U.S.C. 7509(d)(2) (requiring states that have not

attained NAAQS by applicable deadlines to revise SIPs to

include measures prescribed by Administrator, including

measures feasible “in light of technological achievability, costs,

23

and any nonair quality and other air quality-related health and

environmental impacts”); 42 U.S.C. 7545(k)(1) (directing

Administrator, in establishing requirements for reformulated

gasoline, to take into account “the cost of achieving such

emission reductions, any nonair-quality and other air-quality

related health and environmental impacts and energy

requirements”). No such reference to “nonair quality” impacts

appears anywhere in the statutory provisions relevant to the

setting of the NAAQS. Here too, moreover, Congress's

endorsement of HEW’s original criteria documents is

revealing: HEW did not discuss the effects of regulation on

human health and welfare, it discussed the effects of air

pollution on human health and welfare.

Consistent with the lessons learned from HEW’s experience

in developing the original criteria documents, Congress

expressly acknowledged the necessity of deference to the

Administrator's “judgment” in promulgating any NAAQS

based on such criteria. 42 U.S.C. 7409(b)(1-2). HEW’s criteria

documents testified to the high degree of scientific uncertainty

unavoidably surrounding both the assessment of public health

effects at varying levels of air pollution and the related task of

selecting a level requisite to protect public health. Congress

provided procedural and substantive guidance for those

administrative actions, yet recognized the Administrator's

decisions would ultimately require “judgment.”

In directing EPA to set standards to protect the public

health and welfare, Congress nowhere added a qualifier based

on economics or feasibility. Cross-petitioners no doubt wish

that the statute were written differently; they no doubt wish

that the statute provided, for example, that NAAQS are

standards requisite to protect the public health “in light of

economic costs, technological feasibility, or any other factor.”

But the statute is not so written and the words that Congress

im fact used leave no room for cross-petitioners’ preferred

policy outcome. The Court should, accordingly, decline cross-

petitioners’ invitation to add to the factors Congress itself has

24

identified as relevant to the process of setting the NAAQS.

See, e.g., Union Electric Co. v. EPA, 427 U.S. 246, 257 (1976)

(refusing to require Administrator, in reviewing adequacy of

SIPs, to consider factors (cost and feasibility) not specified by

section 110(a)(2) of Clean Air Act, 42 U.S.C. 7410(a)(2)). This is

especially so where, as here, Congress clearly paid close

attention to the issue of economic costs and specified that this

factor would play an important role, not in the setting of the

NAAQS, but in their implementation.

B. Congress’s Explicit Recognition of the Relevance of Costs

to the Implementation of the NAAQS Confirms the

Irrelevance of Costs to Setting the NAAQS

The NAAQS themselves do not regulate any source of

pollution. Instead, they set the health-based benchmark that

the regulation of sources of pollution is to achieve. Pollution

sources are regulated under the Act both by the states and by

the federal government. In both state and federal regulation

of pollution sources, costs and feasibility play a significant

role. Moreover, in cases in which efforts to achieve the

NAAQS cause significant economic hardship, Congress has

provided several specific, targeted escape valves allowing

departures from the requirements of the Act.

These features of the Act, discussed in detail below, lead to

two important conclusions. First, because so many provisions

of the Clean Air Act explicitly require or allow EPA to take

costs into account in setting standards under the Act,

Congress's failure to explicitly allow EPA to consider costs in

setting the NAAQS should be taken as decisive evidence that

it meant to preclude such consideration in that process.

“[W]here Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” GMC v.

United States, 496 US. 530, 537-38 (1990) (unanimously

25

declining to insert deadline into section 110(a)(3)(A) of Clean

Air Act, noting Congress's establishment of explicit deadlines

elsewhere in Act), quoting Russello v. United States, 464 US. 16,

23 (1983), quoting United States v. Wong Kim Bo, 472 F.2d 720,

722 (5th Cir. 1972). Second, to import the consideration of

costs into the process of settiny the NAAQS would upset

Congress’s carefully constructed, and carefully limited,

scheme for allowing such economic costs to affect the quality

of the ambient air.

The states are the entities primarily responsible for

implementing the NAAQS. The states’ basic obligation under

the Act is to ensure attainment and maintenance of the

NAAQS by the relevant deadline; “[s]o long as the national

standards are met, the State may select whatever mix of

control devices it desires .. .” Union Electric Company, 427 US.

at 266; see also Train v. Natural Resources Defense Council, 421

U.S. 60, 79 (1975). The states’ deadlines, however, may be

extended by the Administrator based in part on the

“availability and feasibility of pollution control measures.” 42

U.S.C. 7502(a)(2)(A). In numerous ways, moreover, states

themselves are encouraged to choose the most cost-effective or

least economically disruptive means of achieving the NAAQS.

42 U.S.C. 7410(a)(2)(A) (including “economic incentives such

as fees, marketable permits, and auctions of emissions rights”

in the list of control measures states may include in their SIPs);

7410(a)(2)(H) (requiring states to provide for revision of their

SIPs “as may be necessary to take account of .. . the

availability of improved or more expeditious methods of

attaining” the NAAQS); 42 U.S.C. 7410(a)(3)(B) (in aftermath

of energy crisis of early 1970s, requiring states to determine

whether they could revise their SIPs in relation to fuel burning

stationary sources without interfering with NAAQS

compliance).

In limited circumstances, states may temporarily avoid

some of their obligations under the statute in order to prevent

significant economic disruption and unemployment. For

26

example, a Governor may petition the President “to determine

that a national or regional energy emergency exists of such

severity” that sanctions for excess emissions of sulfur dioxide

or nitrogen oxides should be temporarily suspended. 42

U.S.C. 7410(f). Such a suspension may be issued only upon a

finding of “high levels of unemployment or loss of necessary

energy supplies for residential dwellings” within the vicinity

of an affected source. 42 U.S.C. 7410(f)(2). In addition, if a

state has submitted a revision to a SIP which has been pending

before the Administrator for a year or more, the Governor of

that state may temporarily suspend the provisions of the SIP

she seeks to revise, if the revised SIP meets the requirements

of the Act and “is necessary (i) to prevent the closing for one

year or more of any source of air pollution, and (ii) to prevent

substantial increases in unemployment which would result

from such closing.” 42 U.S.C. 7410(g)(1). In a similar vein, a

Governor may, in cooperation with the President, require the

use of locally or regionally available coal or coal derivatives in

order to avoid “significant local or regional economic

disruption or unemployment.” 42 U.S.C. 7425(a)-(b).

The federal government also plays a substantial role in

efforts to achieve the NAAQS. EPA sets emissions standards

for cars and trucks, major new stationary sources of pollution,

and other pollution sources. Although these requirements

need not pertain exclusively to the pollutants regulated under

the NAAQS program, in practice, those pollutants have been

their focus. Congress has allowed or required EPA to consider

costs in every one of these standard-setting contexts. See 42

U.S.C. 7521(a)(3)(A)(i) (in setting standards for mobile sources,

Administrator is directed to give “appropriate consideration”

to “cost, energy, and safety factors”); 42 U.S.C. 7545(c)(2)(B)

(Administrator may not regulate fuel additive on account of its

harm to vehicle emission control systems unless it first does

“cost benefit analysis” of such regulation); 42 U.S.C. 7411(a)(1),

(b)(1) (for certain categories of new sources, Administrator

must set “standards of performance” which take into account

27

“costs and nonair quality health and environmental impacts

and energy requirements”); 42 U.S.C. 7547(a)(3) (in setting

deadlines for compliance with emissions standards for

nonroad vehicles, Administrator is directed to give

“appropriate consideration” to cost); 42 U.S.C. 7571(b) (in

setting deadlines for compliance with emissions standards for

aircraft, Administrator is directed to give “appropriate

consideration” to cost).

Thus both the states and EPA enjoy extensive authority to

consider costs in their efforts to achieve air quality meeting the

NAAQS. To be sure, neither the states nor EPA has the

authority to revise the NAAQS themselves based on costs, or

to extend the deadlines for meeting the NAAQS beyond the

deadlines and extensions provided in the statute. Only

Congress has this authority. A brief review of the history of

the NAAQS program in Congress shows that Congress has not

hesitated to soften the requirements of the Clean Air Act

where it has found this necessary to avoid significant

economic disruption. Tellingly, however, Congress has never

chosen to avoid such disruption by tinkering with the NAAQS

themselves. Hence, in Congress as well as in the states and at

EPA, costs find their expression in the implementation rather

than in the setting of the NAAQS.

On numerous occasions, Congress has revised the deadlines

and implementation strategies required by the Act. See, e.g.,

Energy Supply and Environmental Coordination Act of 1974,

Pub. L. No. 93-319, § 5(a)-(b), 88 Stat. 246, 258 (extending

deadlines for motor vehicle emissions standards); id. § 4, 88

Stat. at 256-58 (restricting EPA’s authority to impose

transportation control measures in federal implementation

plans and requiring a study of the economic impact of certain

transportation control measures); Steel Industry Compliance

Extension Act of 1981, Pub. L. No. 97-23, 95 Stat. 139 (allowing,

for certain iron- and steel-producing operations, extension of

deadline for compliance with emission limitations).

In addition, the extraordinarily detailed nonattainment

28

provisions Congress added to the Act in 1977 and 1990 reflect

just such a consideration of economic costs and feasibility.

Congress declined to require immediate strict adherence to

deadlines for NAAQS compliance that had since passed. In

1977, for example, Congress instead developed a program that

allowed for states to develop nonattainment plans that

achieved “reasonable further progress” toward attaining

NAAQS. See 42 U.S.C. 7501-7509a. And in 1990, Congress

substantially extended (by as much as twenty years) the

deadlines for areas that had not yet attained the NAAQS in

effect at that time. See, e.g., 42 U.S.C. 7511(a)(1).

In adjusting the deadlines and implementation strategies for

meeting the NAAQS, Congress itself has balanced the public

health and welfare goals of the statute against the economic

and technological challenges posed by meeting those goals.

Cf. American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509

(1981). Congress has concluded that to the extent any such

balancing is relevant, its goals are best met by confining the

consideration of costs and feasibility to implementation of the

NAAQS rather than by basing the setting of the NAAQS on

such factors in the first instance. ;

C. The Textual Arguments of Cross-Petitioners and Their

Supporting Respondents and Amici Are Without Merit

Cross-petitioners and their supporting respondents and

amici attempt to smuggle the consideration of costs into the

process of setting the NAAQS through several arguments

based on the language of the Act. These arguments are

exceedingly weak. Indeed, insofar as cross-petitioners and

their supporters simply ignore statutory language contrary to

their central claim, their arguments border on the wholly

frivolous.

“Public Health.” Cross-petitioners and their supporting

respondents and amici argue thai the term “public health”

imports consideration of compliance costs into the NAAQS-

29

setting process. This argument is wrong for many reasons.

First, as already discussed, in the 1970 amendments to the

Clean Air Act, Congress expressly embraced HEW’s approach

to describing impacts on public health by requiring that EPA's

new NAAQS be based on the criteria documents HEW had

already compiled. 42 U.S.C. 7409(a)(1)(A), 7409(b)(1). HEW’s

approach did not look at the economics of regulation. Instead,

it looked at the health effects of air pollution on the human

population. Cross-petitioners’ interpretation of the words

“public health” is inconsistent with Congress's endorsement

of HEW’s criteria documents.

Moreover, cross-petitioners’ interpretation would create an

awkward situation in which costs would be relevant to setting

the primary NAAQS, but not to setting the secondary NAAQS.

Only the primary NAAQS are set according to the

requirements of “public health,” which, cross-petitioners

argue, are determined by looking at costs. 42 U.S.C. 7409(b)(1).

Thus, under cross-petitioners’ interpretation of the term

“public health,” EPA is obliged to be cost-conscious in

protecting human health, but is not so obliged when

protecting the environment through the secondary NAAQS.

This interpretation is in considerable tension with Congress's

predominant focus on the health effects of air pollution.“

Furthermore, cross-petitioners’ argument is inconsistent

with the text of numerous provisions of the Act. Many

provisions of the Act explicitly allow or require EPA to

consider both economic costs and “public health” in setting

regulatory standards under the Act. See, e.g., 42 USC.

7502(a)(1), 7502(a)(3)(A)(i) (motor vehicles); 42 U.S.C.

7411(a)(1), 7411(b)(1) (new source performance standards); 42

U.S.C. 7547(a)(1), 7547(a)(3) (nonroad vehicles); 42 U.S.C.

7571(a)(2)(A), 7571(b) (aircraft emissions). See also 42 U.S.C.

“'Cross-petitioners also argue that the term “welfare” incorporates

consideration of costs, but this argument simply ignores critical

language in the definition of welfare. See infra at 31.

30

7612(a) (requiring economic impact analysis describing effects

of Clean Air Act standards on the “public health” and

“economy”). If “public health” includes “costs,” as cross-

petitioners argue, Congress could have rested, in every one of

the cited sections, with a simple directive to EPA to consider

effects on public health. To paraphrase this Court's decision

last Term in Public Lands Council v. Babbitt, 120 S.Ct. 1815, 1826

(2000), why would Congress add the words “costs” if (as

cross-petitioners’ argument implies) they add nothing?”

“Welfare.” Next, cross-petitioners argue that EPA must

consider costs in setting the NAAQS because section

108(a)(2)(C) directs EPA to describe, in its criteria documents,

“any known or anticipated adverse effects on welfare.” 42

U.S.C. 7408(a)(2)(C). Because, they reason, the definition of

“welfare” includes “effects on economic values,” the criteria

documents must describe the compliance costs of regulation.

ATA Br. 37-39.

Even if cross-petitioners’ interpretation of the word

“welfare” were correct (which, as we explain below, it is not),

their argument would be irrelevant to EPA’s decision to revise

the primary NAAQS for PM and ozone. Cross-petitioners’

erroneous reading of the definition of “welfare” in section

302(h) cannot change the language of section 109(b)(1), which

requires primary NAAQS to protect the public health. 42 U.S.C.

7409(b)(1). The criteria documents’ discussion of effects on

welfare is not relevant to setting the primary NAAQS; surely

cross-petitioners are not arguing that effects on wildlife, for

example, should be considered in setting the primary NAAQS,

and yet effects on wildlife are also included in the definition of

“welfare.” Cross-petitioners’ arguments based on the

“See also Atlantic Mutual Ins. Co. v. Commissioner of Internal Revenue,

523 U.S. 382, 388 (1998) (declining to accept interpretation of statute

that led to redundancy); United States v. Nordic Village, Inc., 503 U.S.

30, 36 (1992) (“a statute must, if possible, be construed in such

fashion that every word has some operative effect”).

31

definition of welfare are irrelevant to the primary NAAQS.

In setting the secondary NAAQS for an air pollutant, EPA

is explicitly instructed to consider only the effects on welfare

“associated with the presence of such air pollutant in the ambient

air.” 42U.S.C.7409(b)(2) (emphasis added). Thus, even where

secondary NAAQS are concerned, the Clean Air Act makes

clear that the only welfare effects that are relevant are those

arising from air pollution, not those arising from regulation.

In any event, cross-petitioners’ argument that “welfare”

encompasses general economic effects is mistaken. Cross-

petitioners can offer this argument only by ignoring critical

language in section 302(h)’s definition of “welfare.” Section

302(h) provides in full:

All language referring to effects on welfare includes, but is

not limited to, effects on soils, water, crops, vegetation,

manmade materials, animals, wildlife, weather, visibility,

and climate, damage to and deterioration of property, and

hazards to transportation, as well as effects on economic

values and on personal comfort and well-being, whether

caused by transformation, conversion, or combination with other

air pollutants.

42 U.S.C. 7602(h) (emphasis added).” The last, italicized

clause of this definition makes clear that the effects on

“welfare” with which Congress was concerned were only the

effects from air pollution. Cross-petitioners can argue that

“welfare” includes the compliance costs of regulation itself

only by ignoring the critical last clause of this definition;

indeed, they omit this portion of the definition from their brief

entirely without any notation, such as an ellipsis, indicating

“The italicized clause was added in 1990, § 109(b), 104 Stat. 2470, to

“make[] clear that welfare effects extend to consequences of air

pollutant emissions that may occur after the pollutant has been

chemically altered following its release, and to effects caused by the

combined impacts of air pollutants.” H.R. Rep. No. 101-490, 101"

Cong. 2d Sess. 274 (1990) (emphasis added).

32

that they have done so. ATA Br. 37-38; see alsoGE Am. Br. 16.“

“Appropriate.” Respondents in support of cross-petitioners

argue that cost-benefit analysis is imported into the NAAQS-

setting process via the word “appropriate” in section 109(d)(1).

App. Pwr. Br. 39-40. Again, however, reading the entire

statutory provision at issue serves to defeat respondents’

argument. Section 109(d)(1) provides in pertinent part:

Not later than December 31, 1980, and at five-year intervals

thereafter, the Administrator shall complete a thorough

review of the criteria published under section 7408 of this

title and the national ambient air quality standards

promulgated under this section and shall make such

revisions in such criteria and standards and promulgate

such new standards as may be appropriate in accordance with

section 74(8 of this title and subsection (b) of this section.

42 U.S.C. 7409(d)(1) (emphasis added). Thus

“appropriateness” is defined by the requirements of sections

108 and 109(b), which, we have established, do not require or

allow cost-benefit balancing.

Furthermore, the word “appropriate” appears only in

reference to the revision of an existing NAAQS or the post-

1980 establishment of a new NAAQS, not in reference to the

setting of the first NAAQS in the 1970s. According to

respondents’ view that the word “appropriate” has a separate

office from the Act's other language, then, the initial NAAQS

set in the 1970s must have been governed by a different

standard than revisions to the NAAQS. Section 109(b)(1)

explicitly rules out such a possibility; it provides that primary

“Cross-petitioners’ interpretation of the words “welfare” and

“public health” also would render unnecessary section 108(b)(1)’s

directive to EPA to furnish information on pollution control costs.

42 U.S.C. 7408(b)(1). If information on costs were a requisite part of

the criteria documents, as cross-petitioners argue, then there would

have been no need for a separate requirement that EPA develop

information on the costs of pollution control.

33

NAAQS “may be revised in the same manner as

promulgated.” 42 U.S.C. 7409(b)(1).

“Adequate margin of safety.” Respondents supporting cross-

petitioners argue that Congress must have meant, in requiring

a margin of safety, to require EPA to consider costs. App. Pwr.

Br. 36. However, as explained above, supra at 20-21, Congress

required a margin of safety in 1970 in response to HEW’s

conviction that the lowest levels at which scientific research

had shown adverse effects were probably not the lowest levels

at which such effects occurred. In its early criteria

documents-on which Congress required EPA to base the first

NAAQS (42 U.S.C. 7409(a)(1), 7408(b))-HEW had thus

recommended a “margin of safety” designed to protect

subpopulations more vulnerable to the effects of air pollution

than the general population.“ The requirement of a margin of

safety was thus a response to scientific uncertainty, not a way

to sneak economic consequences into the setting of the

NAAQS.”

“Judgment.” Several amici argue that the word “judgment”

in section 109(b)(1) requires EPA to consider costs. GE Am. Br.

13; Hatch Am. Br. 9-10. As we set forth above, however, supra

at 23, this term signals only Congress's candid recognition of

the uncertainties attending decisions about the quality of air

requisite to protect the public health. The term cannot fairly

be read, notwithstanding amici’s claim, to allow the

Administrator to consider any factor that she might in her

own “judgment” deem relevant. Indeed, that is precisely the

See, e.g., 1970 Ozone Criteria Doc., supra, at 10-13.

“The concept of a margin of safety has a long history in toxicology.

Toxicologists have long recommended that acceptable daily intakes

of toxic substances be determined by dividing by 100 the level at

which no adverse human health effects have been found to occur, in

order to account for variations in the sensitivity of the human

population. See National Research Council, Science and Judgment in

Risk Assessment 29-31 (1994).

34

kind of fanciful statutory interpretation that, unlike the

reading we support, could theoretically raise a nondelegation

issue.

Public comments. Remarkably, cross-petitioners also argue

that the fact that EPA must respond to the public’s “written

comments, data, or documentary information,” 42 U.S.C.

7607(d)(3), means that these comments, data, and information

will be “part of the Administrator’ s decisionmaking data set.”

ATA Br. 40. That is to say, apparently, the Administrator must

consider anything submitted in the public record as relevant

to her decision setting the NAAQS. Such a process would

allow public commenters to determine the scope and content

of EPA’s obligations in setting the NAAQS. The proposition

is fantastical.

Information to States on Control Technologies. Cross-

petitioners also assert that costs must be considered in setting

the NAAQS because Congress directed EPA to provide

information on the costs and feasibility of control technologies

in issuing new air quality criteria pursuant to section 108(a).

ATA Br. 40. This argument, too, is misguided for several

reasons.

As explained above, supra at 17, when Congress amended

the Clean Air Act in 1970, it eliminated language that had

previously required air quality standards to be consistent with

both air quality criteria and the information on control

techniques HEW had been required to provide.” Moreover,

the Act itself distinguishes the “criteria” on which NAAQS are

to be based from the information on control techniques

required by section 108(b)(1). 42 U.S.C. 7408(b)(1). Cross-

petitioners would undo these careful legislative

determinations by contending that the information on control

“Air Quality Act of 1967, Pub. L. No. 90-148, sec. 108(c)(1), 81 Stat.

485, 492.

35

techniques must influence the setting of the NAAQS. |

The information on control techniques required by section

108(b)(1) was clearly designed not to affect the NAAQS-setting

process, but instead to give the states a running start on

developing plans to implement the NAAQS. In requiring that

this information be provided to “states and appropriate air

pollution control agencies,” Congress clearly contemplated

that this information would be used by such entities in

implementing the NAAQS in timely fashion. 42 USC.

7408(b)(1).” Indeed, the state respondents supporting cross-

“Cross-petitioners’ claim that this Court should import cost

considerations into section 109(b) because the statute does not say

that the NAAQS should be based “solely” on the criteria (ATA Br.

39) likewise ignores the full language of the statute clearly

distinguishing criteria from information on costs, 42 U.S.C.

7408(b)(1); ignores Congress's deliberate decision in 1970 to

uncouple the choice of standards from information on costs and

feasibility, see Air Quality Act of 1967, Pub. L. No. 90-148, sec.

108(c)(1), § 2, 81 Stat. 485, 492; and ignores Congress's ability,

demonstrated elsewhere in the Act, to direct EPA to consider costs

when it wanted the agency to do so. Congress need not have added

the extra word “solely” to add an extra dollop of clarity to an already

plain statutory scheme. Cross-petitioners’ contrary suggestion is

merely a variant of their misguided request for a new canon of

statutory construction, discussed infra at 39-41.

“The Senate Report on the 1970 Amendments explained: “Reports on

control techniques, as under existing law, would be issued

simultaneously with the publication of criteria. The Committee

recognizes that the States will continue to need this information to

develop meaningful programs for implementation of ambient air

quality standards on a regional basis.” S. Rep. No. 91-1196, Fist

Cong., 2d Sess., at 9 (1970). Cross-petitioners can see no purpose in

EPA's development of information on control costs and technologies,

other than to inform the NAAQS-setting process, because they are

apparently unable to believe that Congress would want to give the

states plenty of time to contemplate their possible regulatory

36

petitioners recognized this point in the court below. They

argued that EPA had erred in failing to provide the

information required by section 108(b) with respect to the rules

at issue here, complaining that EPA had “side-stepped its

responsibility under §108 to assist the States by developing

fundamental information, thus making it much more difficult

for the States to develop and implement adequate control

strategies.” State Petitioners’ Final Merit Br., at 9, American

Trucking Assns. v. Browner, No. 97-1440 (D.C. Cir. 1999).

CASAC advice. Cross-petitioners also maintain that section

109(d)(2)(C)(iv) imports cost considerations into the NAAQS-

setting process. ATA Br. 41. This is plainly wrong. Section

109(d)(2)(C)(iv) requires CASAC to

advise the Administrator of any adverse public health,

welfare, social, economic, or energy effects which may

result from various strategies for attainment and maintenance

of such national ambient air quality standards.

42 U.S.C. 7409(d)(2)(C)(iv) (emphasis added). Cross-

petitioners, once again, simply ignore critical language in the

statutory text as well as the basic distinction Congress drew

between the setting and the implementing of NAAQS, in which

Congress allowed for consideration of costs only with regard

to the latter. Section 109(d)(2)(c)(iv) explicitly requires CASAC

to report only on the broad implications of “strategies for’

attainment and maintenance of the NAAQS, not on the

implications of the NAAQS themselves. Moreover, CASAC’s

charge to recommend new or revised NAAQS is explicitly tied

to the standard-setting requirements of section 108 and 109(b),

42 US.C. 7409(d)(2)(B); nothing in section 109(d)(2)(c)(iv)

purports to change those requirements.

“Productive capacity.” Respondents in support of cross-

petitioners also make the far-fetched claim that cost-benefit

analysis is required by the Clean Air Act because the preamble

responses to changes in the NAAQS. ATA Br. 40 (referring to

“inexplicably premature” mandate of section 108(b)(1)).

37

identifies of the purposes of the statute the

nt of “the public health and welfare and the

productive capacity of [the nation’s] population.” App. Pwr.

Br. 29, quoting 42 U.S.C 7401(b)(1). This preamble language,

which has been unchanged since the 1963 Clean Air Act,

does not even remotely support respondents reading of it.

The preamble makes clear that the poyulation’s health,

welfare, and productive capacity are to be “promote(d]” by

“protect[ing] and enhancling] the quality of the Nation’s air

resources”-not by refusing to regulate in the face of

demonstrable health risks. 42 U.S.C. 7401(b)(1).

D. Neither the Nondelegation Doctrine Nor Cross-

Petitioners’ Proposed Cost-Benefit Canon Can Override

the Plain Meaning of the Statutory Language

No doubt insecure about their arguments based on the

statutory text, cross-petitioners seek refuge in canons of

statutory construction. The first canon cross-petitioners

invoke is that of avoiding constitutional invalidation where a

constitutional interpretation of a statute is available. The

second is a new canon proposed by cross-petitioners which

would inject a cost-benefit test into any environmental statute

that did not use certain magic words in precluding such a test.

Neither canon should be used to defeat the plain meaning of

the Clean Air Act.

1. Because There Is No “Grave Constitutional Doubt” About

the Clean Air Act, The Court Should Decline Cross-

Petitioners’ Invitation to Use the Nondelegation Doctrine

as an Excuse to Rewrite the Statute

As we discussed in detail in our opening brief in Browner v.

Cee Clean Air Act of 1963, Pub. L. No. 88-206, § 1(b)(1), 77 Stat. 392,

393.

38

American Trucking Associations, Inc., No. 99-1257, the Clean Air

Act, and EPA's interpretation of the Act, are plainly

constitutional under this Court's precedents on delegation.

MA & NJ Br. 28-43. Moreover, as set forth above, cross-

petitioners’ proffered interpretation of the Act is inconsistent

with the plain meaning of the Act. Thus, by asking this Court

to adopt their interpretation of the Act in order to avoid

deciding the constitutional issue reached by the court below,

cross-petitioners are inviting this Court to rewrite a statute in

order to avoid deciding a straightforward and well-settled

constitutional issue. The Court should decline to do so.

Just last Term, this Court affirmed “the guiding principle

that ‘where a statute is susceptible of two constructions, by one

of which grave and doubtful constitutional questions arise and

by the other of which such questions are avoided, our duty is

to adopt the latter.” Jones v. United States, 120 S.Ct. 1904, 1911

- (2000), quoting United States ex rel. Attorney General v. Delaware

& Hudson Co., 213 U.S. 366, 408 (1909). Cross-petitioners’

arguments fail each of the three requirements of the principle

stated in Jones: as we established above, the Clean Air Act is

not susceptible of two constructions; as we set forth in detail

in our opening brief in Browner v. American Trucking

Associations, precluding costs in the setting of the NAAQS does

not raise “grave and doubtful constitutional questions” ; and,

finally, as discussed below, cross-petitioners’ proffered

interpretation(s) would not even avoid the constitutional

question as they present it.

This case is before the Court because the court of appeals

created a new requirement in the name of the nondelegation

doctrine-one that demands that guidance for administrative

action prescribe a quantitative “stopping point” for regulation.

US. Pet. App. 11a. The problem for cross-petitioners and their

supporters is that the various interpretations of the Clean Air

Act they offer do not supply such a “stopping point.”™

*'Cross-petitioners and their supporters cannot even agree as to

39

Nowhere do cross-petitioners identify exactly what the cost-

benefit balancing they desire would entail. Indeed, they offer

the Court a virtual smorgasbord of possibilities (ATA Br. 30),

ranging from analysis “under ‘significant risk’ and similar

rubrics” to analysis based on “quality-adjusted life years” to

the kind of cost-benefit analysis endorsed in International

Union, United Automobile, Aerospace & Agricultural Implement

Workers of America, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir.

1991), which required “identifying values for lost years of

human life and for suffering and other losses from non-fatal

injuries.” I/d. at 1320.

Quite apart from the administrative license created by cross-

petitioners’ failure to choose among the multitudinous ways

in which costs can be taken into account in setting regulatory

standards, none of cross-petitioners’ analytical frameworks,

even viewed in isolation, identifies a stopping point for

regulation. An instruction from this Court telling EPA to

consider quality-adjusted life years rather than lives lost, for

example, would not tell EPA how many life years it should

strive to save. It would, at most, tell the agency not to worry

quite so much about the effects of air pollution on the elderly,

the disabled, and the ill.

2. Cross-Petitioners’ Proposed Cost-Benefit Canon Cannot

Override the Plain Meaning of the Statute and Would

Improperly Subvert the Legislative Process

As much as conceding the weakness of their arguments

whether the Act permits or requires EPA to consider costs in setting

the NAAQS (compare ATA Br. 32 with Inhofe Am. Br. 10), and thus

cannot agree as to whether Congress itself made the most basic

choice inherent in health and safety regulation-whether to balance

human lives against economic costs. Cf. Industrial Union Dept., AFL-

CIO v. American Petroleum Inst., 448 U.S. 607, 672 (1980) (Rehnquist,

J., concurring in judgment).

40

based on the statutory language, cross-petitioners and their

supporting respondents and amici urge this Court to adopt a

new canon of construction. ATA Br. 46-47; App. Pwr. Br. 46-

47; GE Am. Br. 18-22. The plainest statement of the content of

this new canon appears in General Electric’s brief: “[A] federal

agency is required to consider costs and risk trade-offs in the

absence of an express congressional statement forbidding the

agency from doing so.” GE Am. Br. 18. GE submits that this

new requirement should apply only to “environmental and

other regulatory statutes.” /d. at 1.

Cross-petitioners and their supporters ask this Court, in

other words, to adopt a canon of construction that licenses the

rewriting of a particular category of statutes. This is a radical

request, and one this Court should roundly reject.

Cross-petitioners’ new canon would have this Court ignore

the language of the Clean Air Act establishing that Congress

deliberately excluded the consideration of costs from the

process of setting the NAAQS. Because Congress did not,

three decades ago, foresee this new canon and therefore did

not then know that it must use certain explicit, magic words in

excluding the consideration of costs, Congress's work could be

undone. This is not a canon of statutory construction at all; it

is a canon of statutory destruction.

Congress itself has, moreover, rejected an interpretive

principle like the one recommended by cross-petitioners. Very

recently, Congress considered and rejected bills that would

have imposed what came to be known as a “supermandate”

on agencies charged with protecting human health and the

environment. This supermandate, like the canon proposed by

cross-petitioners, would have applied a cost-benefit test to

federal regulations. See H.R. 9, 104th Cong. § 422(a)(2), (b)(1)

(March 10, 1995); S. 343, 104th Cong., § 629(a) (1995).

*The brief of amici Environmental Defense, et al., provides a detailed

discussion of the extensive congressional debates over, and rejection

of, generic cost-benefit tests for federal health and environmental

4]

The question whether to apply a generic cost-benefit test to

health and environmental regulation is a public policy

decision of the highest order. Congress so far has not

embraced such an across-the-board test. This Court should not

wade into these politically charged waters by adopting the

cost-benefit canon cross-petitioners propose.

Il. Interpreting the Clean Air Act to Preclude the

Consideration of Costs in Setting the NAAQS Does Not

Lead to Irrational Results

At the end of the day, the real complaint of cross-petitioners

and their supporting respondents and amici is that the Clean

Air Act does nut reflect “ wise social policy.” App. Pwr. Cross-

Pet. 7. Their contention that the law is unwise, however, rests

on a mischaracterization of the l-w in operation and is belied

by three decades of success. Their argument, moreover,

fundamentally misapprehends the ro] of this Court in relation

to the Congress.

A. Precluding Cost-Benefit Balancing in Setting the NAAQS

Will Not Lead to Deindustrialization

Throughout their briefs, cross-petitioners and their

supporting respondents and amici suggest that precluding the

consideration of costs in setting the NAAQS will force EPA to

set standards for criteria pollutants at zero, thus effectively

ending industrial activity in this country. They believe this

result follows from the “nonthreshold” character of the criteria

pollutants. Their argument betrays a deep misunderstanding

of the concept of a nonthreshold pollutant. Asa consequence,

cross-petitioners seriously misrepresent EPA's degree of

authority under the statute. .

Cross-petitioners implicitly embrace a conception of

regulation.

42

nonthreshold pollutants as pollutants that have been shown not

to have a threshold, that is, pollutants that have been shown

to have adverse effects on human health or the environment at

every nonzero level. This is not EPA’s conception of a

nonthreshold pollutant.

When EPA discusses the possibility that particulate matter

and ozone are nonthreshold pollutants, it is referring to the

fact that these pollutants have not been shown to have a

threshold, that is, it has not been demonstrated that these

pollutants cease to have adverse effects on human health or

the environment below a certain level. EPA does not claim to

have proven that PM and ozone have adverse effects on

human health at every nonzero level. See NAAQS for Ozone,

62 Fed. Reg. 38,856, 38,863 (1997); NAAQS for PM, 62 Fed. Reg.

38,652, 38,674-75 (1997). Thus, when EPA discusses the

possibility that these are “nonthreshold” pollutants, it is

referring to a lack of evidence that there is a threshold.

This lack of evidence would not be sufficient to support a

NAAQS. The Clean Air Act requires the Administrator to

present evidence of harm before she may set or revise the

NAAQS. She may not set the NAAQS based on the lack of

evidence of no harm. Section 108(a)(2) makes this point plain:

the criteria on which the NAAQS are to be based must

describe “all identifiable effects on public health or welfare.” 42

U.S.C. 7408(a)(2) (emphasis added). Indeed, if EPA were

allowed to set the NAAQS based on the lack of evidence of no

harm, there would be no need to develop criteria documents

at all, because EPA would not be required to show health

effects before regulating. In such a regime, it would

presumably be up to the regulated community to show the

harmlessness of air pollution, rather than being up to the

government to show its harmfulness. This is not the

regulatory regime created by the Clean Air Act.”

In contrast, in Industrial Union Dept., AFL-CIO v. American Petroleum

Institute, 448 U.S. 607 (1980), this Court addressed the Occupational

43

As a consequence, cross-petitioners’ claim that EPA is

required to set pollutant levels at zero when faced with a

nonthreshold pollutant is mistaken. ATA Br. 25. EPA is not

required to set the NAAQS at zero for such pollutants because

nonthreshold pollutants are not what cross-petitioners claim

them to be; they are not pollutants that have been shown to be

harmful at all nonzero levels, they are pollutants that have not

been shown to be harmless at all nonzero levels. Indeed, if

EPA did indeed attempt to set a NAAQS based on the lack of

evidence of harmlessness rather than based on affirmative

evidence of harmfulness, we expect that cross-petitioners

would be first in line to challenge the agency’s decision.

B. Precluding EPA from Considering Costs in Setting the

NAAQS Does Not Allow the Administrator Privately to

Consider Costs While Publicly Denying It

Cross-petitioners argue that EPA should be required to

consider costs in setting the NAAQS because this would

simply formalize an informal system that has developed in

which the Administrator privately considers costs in setting

the NAAQS while publicly denying she is doing so. ATA Br.

43-45. Their evidence for this allegation of unspoken but

routinized illegality is altogether unpersuasive.

In addition to engaging in rank speculation about what

Administrator Browner’s private thoughts might have been

during the PM and ozone rulemakings at issue here, ATA Br.

44, cross-petitioners assert that Administrators Costle and

Ruckelshaus considered costs in NAAQS rulemakings

Safety and Health Administration's “cancer policy,” which

presumed that no safe level of carcinogenic substances existed and

required workplace standards to be set based on this presumption.

Id. at 624. EPA has not adopted this kind of presumption in setting

the NAAQS.

44

undertaken during their tenures at EPA. But both Costle™ and

Ruckelshaus” were careful to ensure that their final decisions

were not based on statutorily proscribed factors.

In both instances, to be sure, as cross-petitioners’ sources

note, the Administrator (or, in Ruckelshaus’s case, EPA staff)

had before him information on the costs of implementing the

standards he was in the midst of setting.” This demonstrates

nothing. In NAAQS rulemaking proceedings, EPA is

commonly confronted with information on costs even though

it has repeatedly denied the relevance of this information.”

Moreover, EPA is charged at once with setting and with —

implementing the NAAQS. As emphasized throughout this

brief, it is pe.fectly appropriate for EPA to consider costs in

implementing the NAAQS. Because the process of

implementation begins straight on the heels of setting the

NAAQS, an Administrator will naturally have before her

information on the implementation of standards even as she

sets them. Indeed, as cross-petitioners have emphasized, EPA

“Mark K. Landy, et al., The Environmental Protection Agency: Asking

the Wrong Questions from Nixon to Clinton 70 (1994). Indeed, Costle

rejected the standard recommended by economic advisors hostile to

the Clean Air Act's prohibition on the consideration of costs. As

Landy, whose account of Costle’s deliberations forms the basis of

cross-petitioners’ speculations, summarized it: these economic

advisors “could argue about the statute as much as they wanted,

Costle felt, but they could not fault him for following it.” Id. at 73.

ATA Br. 44.

*See Landy, supra, at 67-70 (Costle’s decision); Thomas O. McGarity,

Reinventing Rationality 47-48 (1991) (Ruckelshaus’s decision).

*’In fact, respondents and amici supporting cross-petitioners obtain

their outsized estimates of the costs and other consequences of the

revised PM and ozone NAAQS from comments placed in the docket

in the rulemakings at issue here. See App. Pwr. Br. 4, n. 4; id. at 18,

n. 45; GE Am. Br. 9.

45

must issue information on the costs and feasibility of control

measures “simultaneously with” issuing the criteria

documents on which the NAAQS are based. 42 U.S.C.

7408(b)(1).

So long as, in setting the NAAQS, the Administrator

excludes the cost information from her determination, the

statutory mandate is satisfied. There is absolutely no grounds

in the record before this Court to presume that any

Administrator has ever violated that clear duty.

Equally important, the possibility that an Administrator

will act unlawfully by considering factors that are statutorily

proscribed is not reason to rewrite a statute to take account of

those factors. If an Administrator were ever to consider

statutorily proscribed factors in setting a NAAQS, resort could

be had to the judicial process and to the standard allowing an

agency action to be overturned if “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

Administrative Procedure Act, 5 U.S.C. 706(2)(A).

C. Congress Acted Rationally in Precluding EPA from

Considering Costs in Setting NAAQS While Allowing

EPA to Consider Costs in Implementing Them

Respondents argue that precluding the consideration of

costs in setting the NAAQS defeats the public-health purposes

of the Act by imposing regulatory costs that harm people’s

health. App. Pwr. Br. 18. In addition, cross-petitioners assert

that EPA cannot reasonably maintain a distinction between the

consideration of costs in setting the NAAQS and the

consideration of costs in implementing them. ATA Br. 45-47.

Neither claim has merit. Not only did Congress sensibly

address the potential tradeoffs between regulatory costs and

health, but the distinction between setting the NAAQS and

implementing them has served federal air pollution control

efforts well.

Respondents and amici supporting cross-petitioners seek to

46

convince this Court that interpreting the Act to forbid EPA to

consider the health effects of the economic consequences of

regulation in setting the NAAQS would be irrational. In fact,

their briefs repeatedly suggest that people will die if EPA is

allowed to set the NAAQS without balancing costs against

benefits. According to the respondents and amici supporting

cross-petitioners, anywhere from approximately 3,000 to

27,000 people will die as a result of the costs of the revised PM

and ozone standards.”

There is not one bit of empirical evidence supporting these

outlandish claims. Cross-petitioners’ supporters cite no

empirical study on the effect of the costs of any actual

regulation on human health, let alone any empirical study on

the effect of the cost of these standards on human health.”

Instead, they refer to two sets of controversial studies which,

based on abstract, theoretical economic models, purport to find

a generalizable relationship between regulatory costs and

human mortality. These studies are filled to the brim with

controversial assumptions about the income-depressing effects

of regulation, the effects of wealth on health, and even the

value of a human life.”

Suffice it to say that respondents’ and amici’s unqualified

assertions about the relationship between the costs of public

See Mercatus Center Am. Br. 19 n. 14; App. Pwr. Br. 18.

*Indeed, respondents’ risk estimates are based on cost estimates that

themselves are wholly unsubstantiated. App. Pwr. 18 n. 45.

“Respondents and amici rely on: Ralph L. Keeney and Kenneth

Green, Estimating Fatalities Induced by Economic Impacts of EPA's

Ozone and Particulate Standards (1997) (unpublished paper available

on web page of Reason Public Policy Institute); Ralph L. Keeney,

Mortality Risks Induced by Economic Expenditures, 10 RISK ANALYSIS

147 (1990); and Randall Lutter, John F. Morrall, Ill, & W. Kip Viscusi,

The Cost-Per-Life-Saved Cutoff for Safety-Enhancing Regulatons, 37

ECON. INQUIRY 599 (1999).

y

47

health regulation and public health itself are subject to

extremely serious empirical and normative criticisms.

However, this Court is not the forum for resolving these

complex empirical and normative issues; rather, Congress is

the “preferable forum for comprehensive investigations and

judgments of social value.” Pegram v. Herdrich, 120 S.Ct. 2143,

2150 (2000). And, in the Clean Air Act, Congress has resolved

these issues by prohibiting EPA from considering costs in

setting the NAAQS but allowing the agency to consider costs

in implementing them. Indeed, Congress specifically provided

limited, targeted escape valves allowing departures from the

requirements of the Act where significant economic

disruptions or unemployment would otherwise result. See,

e.g.,42 U.S.C. 7410(f)-(g). This was a perfectly reasonable and

rational response to the complex empirical and normative

issues raised by the prospect that ceasing economic activity

that “endanger[s] public health and welfare,” 42 U.S.C.

7408(a)(1)(A), might lead to a loss in income.

Congress’s distinction between the factors relevant to

setting the NAAQS and those relevant to implementing them

is similarly reasonable. Contrary to cross-petitioners’ claims,

the Clean Air Act's NAAQS program has been a large-scale

success. From a purely environmental perspective, the

program has resulted in a substantial absolute reduction in

emissions of almost all of the criteria pollutants.” But what is

most striking is that these reductions have occurred alongside

significant increases in population and economic activity. The

quality of the ambient air Americans breathe every day has

improved dramatically while the economy has expanded and

our national wealth has increased. In the absence of the

controls imposed by the Clean Air Act, those increases in

economic activity would undoubtedly have been accompanied

by a significant worsening of air quality.

°'See Andrews, Managing the Environment, Managing Ourselves, supra,

at 280.

48

Even from the perspective of a traditional economic

analysis, the success of the Clean Air Act cannot fairly be

gainsaid. According to EPA’s peer-reviewed economic

analysis, the reductions in emissions of air pollutants have

most likely produced trillions of dollars more in benefits than

they have imposed in costs. A congressionally mandated

study of the Clean Air Act's benefits and costs, published last

year, anticipates that the benefits of the Act between 1990 and

2010 will exceed the costs by a ratio of 4 to 1.

The Clean Air Act reflects Congress’s central insight that

the best way to achieve such dramatically positive results was

not to base the nation’s objectives for environmental quality on

prospective cost-benefit analysis. Congress understood the

pitfalls presented by basing environmental objectives on cost-

benefit analysis in the first instance rather than taking such

concerns dynamically into account at later stages, while

implementing controls to achieve those objectives.

Because of the proclivity of cost-benefit analysis for

quantification and commensuration, cost-benefit analysis

tends to highlight those costs and benefits that can be both

quantified and stated in terms of a common metric, such as

dollars. It follows that cost-benefit analysis tends to underrate

those things that cannot be so quantified and monetized; it

tends, in Professor Tribe’s famous formulation, to “dwarf[] soft

variables.”™

This feature of cost-benefit analysis makes it a particularly

unhelpful analytical framework for setting air quality

standards under the Clean Air Act. While a retrospective cost-

benefit analysis may, like that done with respect to the Clean

“See EPA, The Benefits and Costs of the Clean Air Act, supra, at ES-8.

“EPA, The Benefits and Costs of the Clean Air Act 1990 to 2010, v (1999).

“Laurence H. Tribe, Ways Not to Think About Plastic Trees: New

Foundations for Environmental Law, 83 Yale L.J. 1315, 1318-19 & n.25

(1974).

I Le es =

49

Air Act, demonstrate the wisdom of policy choices decades

after those choices were made, a prospective cost-benefit

analysis might have discouraged a policymaker from making

those very same choices in the first instance.

On the cost side, for example, it is very difficult accurately

to estimate the consequences of a technology-forcing regulatory

requirement before that requirement has forced any

technology. It is much easier to assume that the technology

used to implement the new requirement will be the same as,

and cost as much as, the technology that existed before the

requirement was imposed. And indeed, this is the approach

taken by EPA when it has, as it is obliged to do by Executive

Order, tried to estimate the costs of the NAAQS. With respect

to the rules at issue here, EPA thought its cost estimates would

prove significantly overstated because of the likely effects of

technological innovations.” But it could not quantify these

effects, and so they do not show up in its economic analysis.

Likewise, with respect to benefits, the empirical and

normative complexity of quantifying and monetizing the

benefits of good health, long life, and fresh air are well known.

When these benefits cannot be quantified or monetized, they

do not amount to much in cost-benefit analysis.” Even when

they can be both quantified and monetized, an important

normative shift occurs when the analyst begins to ask not how

clean must the air be to protect public health but how much

See Office of Air Quality Planning and Standards, Environmental

Protection Agency, Regulatory Impact Analyses for the Particulate

Matter and Ozone NAAQS and Proposed Regional Haze Rule at 9-2

to 9-4 (1997).

“See, e.g., Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1219 (Sth Cir.

1991) (dismissing importance of unquantified benefits of banning

asbestos in course of disapproving EPA's cost-benefit analysis of the

ban).

50

would citizens pay to make it so.”

Under the Clean Air Act, then, prospective cost-benefit

analysis of the kind cross-petitioners endorse would tend to

have the following effect: it would tend to overestimate costs

(because it could not adequately account for technological

innovation) and underestimate benefits (because so many

important things cannot be counted). The result would likely

be a systematic tendency toward underprotection of the health

and welfare central to the Act.

Congress decided in the 1970 Clean Air Act to respond to

the inherent uncertainties of cost-benefit analysis and its

tendency to compromise environmental objectives by

excluding its consideration from the setting of NAAQS. No

doubt this was “drastic medicine,”““ but Congress had

declared a “war against air pollution,”” and it knew that wars

are not won by setting one’s sights as low as possible.

Of course, the question before the Court is not ultimately

whether the Court believes, as we do, that Congress acted

wisely in 1970 in deliberately deciding not to compromise its

national goals for clean air based on cost-benefit analysis. For

the Constitution wisely entrusts Congress with the

responsibility for making those important policy

determinations. Cross-petitioners’ exclusive remedy remains

now, as it has been for the past thirty years, in the legislature

and not the courts.

CONCLUSION

The judgment of the court of appeals should be affirmed

insofar as the court held that the Clean Air Act precludes EPA

from considering costs in setting the NAAQS.

“Cf. Tribe, supra, at 1329-32.

116 Cong. Rec. 32, 904 (Statement of Sen. Muskie).

“HR. Rep. No. 91-1146, at 1 (1970).

Respectfully submitted.

JOHN J. FARMER

Attorriey General

State of New Jersey

HOWARD L. GEDULDIG

JOHN R. RENELLA

Deputy Attys. General, N.J.

Richard J. Hughes Justice

Complex 7th Floor

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

RICHARD J. LAZARUS

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

THOMAS F. REILLY

Attorney General

Commonwealth of Massachusetts

EDWARD G. BOHLEN

Assistant Atty. General, Mass.

200 Portland Street

Boston, MA 02114

(617) 727-2200, ext. 3358

LISA HEINZERLING

Counsel of Record

Special Asst.Atty. General, Mass.

Special Counsel, New Jersey

Georgetown Univ. Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9115