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

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(25) Supreme Court, U.S.

FILED

G-|1,20¢ No. 99-1426

In The

Supreme Court of the

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Cross-Petitioners,

nite? Biates

i ————

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Cross-Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF OF RESPONDENTS CITIZENS FOR

BALANCED TRANSPORTATION, RICHARD ROMERO

(on behalf of himself and his minor son,

Richard Romero, Jr.), DAVID MATUSOW,

BRIAN McCARTHY, JAMES BASSAGE

and MICHAEL GREGORY

Rosert E. YUHNKE*

2910-B County Road 67

Boulder, CO 80303

(303) 499-0425

ARIZONA CENTER FOR LAW IN THE

Pusiic INTEREST

202 E. McDowell Rd., Suite 153

Phoenix, AZ 85004-4533

(602) 258-8850

Counsel for Respondents

Citizens for Balanced Transportation,

Richard Romero (on behalf of himself

and his minor son, Richard Romero,

Jr.), David Matusow, Brian

McCarthy, James Bassage and

Michael Gregory

*Counsel of Record

BEST AVAILABLE COPY

Siep

TABLE OF CONTENTS

Page

BARE GE AUTRE 0 cc ccccccccccccccccoccess iii

I 04:05 60 ckeherrerencnccavescscecnes 1

SUMMARY OF ARGUMENT.................00005: 2

NE bvicicecddenedcedadssseddendesacsdicesss 4

I. STATUTORY ANALYSIS INDICATES CON-

GRESS DID NOT AUTHORIZE EPA TO CON-

SIDER COSTS AS A RELEVANT FACTOR IN

STUY CE 6 cs ticenbdosecuedeccssesens 6

A. The 1970 Amendments ................... 8

1. 1970 Act Repealed Control Techniques

As a Relevant Factor ................. 8

2. Pre-1970 Criteria Show Congress Did

Not Intend Costs to be Relevant...... 10

3. 1970 Act Repealed Requirement to

Revise Control Technique Information

When NAAQS Are Revised........... 11

B. “Public Health” Was Uniformly Understood

as Impairment of “Human Health” by the

Diseases of Air Pollution; Not Costs...... 14

1. “Public Health” As Congress Used the

BEE cvs secdereeSicccccscocvcnessacees 16

2. “Public Health” As the Agency Applied

GD THs cc cccccvcevscvcvesvessoseses 20

3. The Law’s Understanding of “Public

SE ccccvesdsusdusdoccesestiovccenes 22

C. Legislative History Reveals No Expectation

That Costs Are a Relevant Factor......... 26

TABLE OF CONTENTS - Continued

Page

D. The 1977 Amendments ................004 29

1. The New Duty to Review and, As

Appropriate, Revise the NAAQS...... 30

2. New Requirement for Economic Impact

Analysis of Standards................. 32

B. 1990 AmanGanems ...occvctsccsasssunuene 33

F. Structure of the Act Indicates Congress

Intended Costs be Considered When Impos-

ing Control Obligations on Sources, But Not

in Setting NAAGRS .....ccccccessesesesenen 34

II. PROTECTING AGAINST NON-THRESHOLD

POLLUTANTS DOES NOT SUPPLY AUTHOR-

ITY TO CONSIDER COSTS ......ccccccccccens 37

Ill. WHO WINS, WHO LOSES?................... 41

CONCLUGIOIN 2c ccccccccccccseccscnuen enna 45

TABLE OF AUTHORITIES

Page

Cases:

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

EEE IED OPO OETTTTTTT TTT TELE TTT 43

Goldblatt v. Town of Hempstead, 369 US 590 (1962) .... 23

Industrial Union Dept. v. American Petroleum Inst.,

EE ED pn cbcccccecccecccecccccsccccccs 4,3

Lawton v. Steele, 152 US 133 (1894)..............555. 23

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

ESIC EE PPE PCTTTTTTTLTTTLET ETT 4, 45

Mugler v. Kansas, 123 US 623 (1887)..............45. 23

Save Our Summers v. Washington State Department

of Ecology, No. CS-99-0269-RHW (E.D. Wa.) ....... 44

STATUTES:

Air Quality Act of 1967 - (reprinted in S. Rep. No.

91-1196)

Clean Air Act, as amended -

§ 107(d), 42 U.S.C. § 7407(d)..... 2.0.20. ceceee eee 34

§ 108(a), 42 U.S.C. § 7408(a) ...12, 14, 22, 28, 29, 30, 40

§ 108(b), 42 U.S.C. § 7408(b)............ 60.65. 8, 12, 26

§ 108(c), 42 U.S.C. § 7408(c) ..... 2... eee eee eeeeeeees 12

§ 109(a), 42 U.S.C. § 7409(a) ...... 2.0... cece ence eee 11

TABLE OF AUTHORITIES - Continued

Page

§ 109%(b), 42 U.S.C. § 7409(b).. 2... eee ee es passim

§ 10%(d), 42 U.S.C. § 7409(d).......... 29, 30, 31, 32, 33

§ 110, 42 U.S.C. § 7410.......... 0. eee eee 13, 31, 34, 36

SD TBR, Ge BK. © Pe cccnccccssacéccecccesascssecs 32

§ 113(e), 42 U.S.C. § 7413(e) (1981, repealed 1990) .... 36

OR Ge RE, OID vnicccindcateceeareceeeme 35

OO, GP CIO, 6 9G va cccccscccccedscecenscnns 34, 42

§ 202, 42 U.S.C. § 7521 ......... cc eeeeeeee eee 32, 34, 36

OR OOOO. OI... cncnacctnconeeee 41

EF | epee een ee 33

SS Ob ORE, OO ok dkice ccateecseee 32, 33

Legislative History -

BE. Ram. Ne. SE-206 (1977). .....ccccccccccccccccecs 31, 32

S. Rep. No. 91-1196 (1970) ............ 13, 25, 27, 28, 40

S. Rep. No. 101-228 (1909) .... 2. ccccccccccccccccces 41

TABLE OF AUTHORITIES - Continued

Page

Legislative History of the Clean Air Act Amend-

ments of 1970 (January 1974),

Web © sccsccncces 2, 13, 15, 16, 17, 24, 25, 26, 27, 28, 36

Web © vecccccseccscucessccsousconsescasenseene 9, 28, 38

Miscellaneous -

Air Quality Criteria for Particulate Matter (Janu-

ary 1969)..... spud eddceccnssusetoonscesensiunesdes 20

BRE c ccccccccevcecencoveccesecccsseecseesecee

Breyer, Breaking the Vicious Circle................

Restatement (2d) of Torts, § 821B...............

Restatement (2d), Tentative Draft No. 16 (Ameri-

f 2. 9 eer

1 Wood, Nuisances (3d Ed. 1893) ...............

INTRODUCTION

ATA challenges the D.C. Circuit’s 20-year-old affir-

mation of the EPA Administrator’s long-standing con-

struction of Clean Air Act § 109(b) that Congress chose

not to allow costs as a factor relevant to setting national

ambient air quality standards. The “trilemma” of possible

interpretative options posed by American Trucking is

based on a false trichotomy. ATA Br. 25. The more appro-

priate, and more fundamental question underlying a cor-

rect construction of the Act is whether Congress intended

to 1) delegate to an unelected administrator the respon-

sibility and authority for making the tradeoffs between

protecting human health from the adverse effects of air

pollution and the costs of protecting health, or 2) retain

for itself the authority to make such tradeoffs?

Chief Justice Rehnquist wrote in the Benzene case

that “one of the most difficult issues that could confront a

decisionmaker [is] whether the statistical possibility of

future deaths should ever be disregarded in light of the

economic costs of preventing those deaths,” and “that

Congress [is] the governmental body best suited and

most obligated to make the choice. . . . ” Industrial Union

Dept. v. American Petroleum Inst., 448 US 607, 672 (1980).

Here, respondents Citizens for Balanced Transportation

and the individuals who brought their challenge to EPA’s

failure to set an adequately protective standard for fine

particles in order to protect their ability to breathe and

lead healthy productive lives, contend that Congress

clearly chose not to empower the EPA Administrator to

make such life and death tradeoffs. Instead, all the reli-

able indicators of legislative intent lead inexorably to the

conclusion that Congress reserved such authority exclu-

sively to itself.

[I]n the judgment of this committee — this includes

Senators . . . of a pretty conservative political per-

suasion — Congress has the duty to say, “This is

what ought to be done in the interests of the

health of the country.”

* * *

Then industry should go to work over the next 5

years to either make it possible or, if it proves to be

impossible, ask Congress to change the policy.

* * *

That is all there is here, and it is tough. [W]e

understand it is tough.

Senator Muskie, Chair of the Senate Subcommittee on Air

and Water Pollution and chief sponsor of the Clean Air

Act Amendments, in floor debate on the committee bill,

September 21, 1970. “A Legislative History of the Clean

Air Act Amendments of 1970” (January 1974) (“Leg.

Hist.”), 240.

SUMMARY OF ARGUMENT

The statutory directive to set NAAQS that are “requi-

site to protect the public health,” with “a margin of

safety,” is a directive to set standards that will protect the

American people from the diseases of air pollution.

Application of the traditional tools of statutory construc-

tion demonstrate that costs are not a factor that Congress

has allowed to be considered in setting standards to

protect the public health.

The 1970 Amendments to the 1967 Air Quality Act,

the legislative history, the pre-enactment administrative

actions incorporated into the Act by reference, the mean-

ing of public health derived from the statements of the

members, prior agency interpretation and the meaning of

the term under the police power, the overall statutory

scheme, the problem to be solved and the historical con-

text in which the Amendments were enacted, and various

subsequent enactments affirming the 1970 Amendments

and granting temporary relief from deadlines, but not the

health standards, when Congress determined the eco-

nomic consequences of implementing the Act to be unac-

ceptable, all demonstrate that Congress required EPA to

set standards based exclusively on “the latest scientific

knowledge” of the effects of air pollution on health. The

Act does not authorize EPA to make tradeoffs between

costs and the protection of public health when setting

NAAQS. On the contrary, the history of the Act makes

clear that Congress reserved to itself the sole power to

decide whether to postpone protecting the public health

in order to serve other societal interests.

Thirty years of still-evolving economic theories of

regulation and the hindsight of the social, economic and

public health costs and benefits of implementing the

Act’s standards do not provide a permissible basis for

imposing a judicial gloss that transfers to a politically

unaccountable agency a policy choice Congress reserved

to itself.

Whether evidence of a threshold for fine particles is

ultimately discovered or not, the non-threshold status of

a pollutant is not relevant to determining Congress's

intention with regard to consideration of costs. Congress

rejected the no-effects, or zero risk, approach to setting

standards. Instead, Congress required standards to pre-

vent “adverse effects” based on the “latest scientific

knowledge,” granted the Administrator discretion to

determine what an adverse effect is, and delegated broad

latitude to set margins of safety provided that such pro-

tection could be demonstrated to be “requisite to protect

the public health.”

The Court of Appeal’s construction that costs play no

role in setting standards under § 109 should be affirmed.

ARGUMENT

Certiorari in this case is limited to the question of

statutory construction decided by the Court of Appeals in

Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980).

Nonetheless, industry parties raise questions related to

the scientific basis for EPA’s choice of standards, argue

that EPA failed to explain its choice of standards within

the continuum of options considered, rely on academic

notions of what makes good public policy with regard to

how costs should be weighed in these types of decisions,

and ask the Court to make judgments about the wisdom

of EPA’s standards. In making these arguments, ATA and

others would have this Court exceed its proper role by

asking that it weigh more heavily the policy preferences

of some economists and those industries that bear the

costs of protecting public health from the adverse effects

of their pollution than the policy choice made by

Congress as evinced by traditional tools of statutory con-

struction.

In cases of statutory construction, this Court’s

authority is limited. If the statutory language

and legislative intent are plain, the judicial

inquiry is at an end. Under our jurisprudence, it

is presumed that ill-considered or unwise legis-

lation will be corrected through the democratic

process; a court is not permitted to distort a

statute’s meaning in order to make it conform

with the Justices’ own views of sound social

policy. See TVA v. Hill (citations omitted). Indus-

trial Union Dept. v. American Petrol. Inst., at 688

(Marshall, J. dissenting).

In addition, ATA raises issues that are properly

addressed as arbitrary and capricious claims. Suggestions

that EPA has failed to adequately explain its choice of

standards or has improperly relied upon off-the-record

considerations of cost are not relevant to deciding Con-

gress’s intent in enacting § 109. These issues are, how-

ever, highly relevant to the arbitrary and capricious

challenge brought below and in this Court by Citizens for

Balanced Transportation and the individual petitioners

who seek to protect what statutory rights they have to

standards that will ensure the air they breathe is safe and

will not impair their health. If the Court deems those

issues appropriate for review, CBT invites the Court to

grant its still pending petition for certiorari. See No.

99-1442. But these issues are not properly presented for

decision based on the question of statutory construction

raised in ATA’s petition and certified in this case.

To the extent the Court considers ATA’s policy argu-

ments relevant to this case, the Court should also con-

sider what the consequences of making tradeoffs between

costs and health protection might be. In addition to the

sensitive populations of breathers whose well-being,

vitality, productivity, and very survival are required to be

protected, many other interests benefit from EPA's tradi-

tional approach to standard setting. Not the least of these

are most of the polluting industries challenging these

standards who are now protected by a measure of cer-

tainty that they will not be the targets of perpetual dam-

age and other tort claims based on evidence that their

emissions harm human health. We explore some of these

benefits, infra, to demonstrate the wisdom of Congress’

decision to settle, periodically, in one national proceeding

the levels of air quality needed to protect the public from

scientifically provable harm. All these beneficial interests

must be weighed in the balance if they are considered at

all.

I. STATUTORY ANALYSIS INDICATES CONGRESS

DID NOT AUTHORIZE EPA TO CONSIDER

COSTS AS A RELEVANT FACTOR IN SETTING

NAAQS.

In this case, the traditional tools of statutory construc-

tion clearly demonstrate that Congress did not delegate to

EPA authority to consider costs as a factor that might be

used to offset the degree of health protection to be

required by national air quality standards. The relevant

and probative indicators of legislative intent include -

e The amendments to the Act from 1967 to 1970;

e the discussion of factors relevant to setting stan-

dards in the legislative history;

e the administrative practice applying the public

health mandate of the 1967 Act as embodied in the

pre-enactment criteria documents;

e the statutory directive to set the new NAAQS

based on the pre-enactment criteria documents

which did not include considerations of cost;

e the intended meaning of “public health” as

revealed by congressional hearings and debates;

e the commitment of the common law and the scope

of the police power to protect public health as the

underlying legal context for congressional action;

e the historical context and the problem Congress

was trying to solve;

e the specific identification of costs as relevant to

some standards but not to standards under § 109;

and

e subsequent enactments that affirm § 109 as origi-

nally enacted and that provide temporary relief to

specific industries that were considered by Con-

gress to be especially burdened with the costs of

compliance.

Together, these all point consistently and inexorably to

the conclusion that Congress retained the ultimate

authority to make any tradeoffs between health protec-

tion and the public and private costs of providing health

protection.

A. The 1970 Amendments

The 1970 Amendments made two key changes to the

Clean Air Act that demonstrate the error of petitioners’

arguments: 1) repeal of the technology factor listed in

§ 108(c)(1) of the 1967 Act requiring that air quality

standards adopted and submitted to HEW for approval

be “consistent with the air quality criteria and recom-

mended control techniques issued pursuant to section 107”

(emphasis added), along with the failure to include any

similar instruction to the Administrator to consider con-

trol techniques or costs in the 1970 language of § 109(b);

and 2) repeal of the requirement in 107(b) of the 1967Act

that information on control technology and costs of con-

trol be issued to the States whenever the Secretary issued

air quality criteria.

1. 1970 Act Repealed Control Techniques As a

Relevant Factor.

Petitioners’ textual argument relies heavily on the

contention that the Administrator’s obligation under

§ 108(b) to provide information to the States on available

technology and costs demonstrates that these factors are

relevant to the NAAQS decision. But this argument does

not survive scrutiny.

First, the 1967 Act made “recommended control tech-

niques” expressly relevant to the setting of standards by

the States, § 108(c)(1), but did not allow technology fac-

tors to override the primary objective of protecting public

health. The 1967 Act required that the air quality stan-

dards adopted by the States meet both tests, i.e., be

“consistent with the air quality criteria and recommended

control techniques. ... ” Id. The 1967 Act did not autho-

rize the Secretary to consider costs in approving air qual-

ity standards; only the criteria and “recommended

control techniques” were identified as relevant factors.

Nor did the 1967 Act authorize the Secretary to approve

air quality standards if they were consistent with avail-

able technology, but not the air quality criteria. Both had

to be met to receive federal approval.

As Commissioner Middleton of the National Air Pol-

lution Control Administration (“NAPCA”), an agency of

the Department of Health, Education and Welfare

(“HEW”), explained to the Senate committee in 1970, the

Administration was implementing the 1967 Act by requir-

ing that “[t]he criteria documents state the level at which

effects begin. . . . The Clean Air Act provides that the

standards shall be protective of health, which means they

must be lesser than the level at which this thing [effect]

was observed.” Leg. Hist., 1185. As an example, he

pointed to the evidence in the Air Quality Criteria docu-

ments for SO2 and particulate matter showing the lowest

levels at which adverse effects were observed for each

pollutant, and explained that “[s]tandards that are

acceptable to the Secretary are those less than that

number.” Id., 1187.

The Administration’s implementation of the 1967 Act

did not allow for tradeoffs between the recommended

control techniques and standards adequate to protect

against the lowest pollution levels proven to cause

adverse effects. Rather, the best reading of the 1967 Act is

that both of the statutory factors had to be satisfied, i.e.,

that the Secretary could disapprove a State’s standard if it

failed to either require air quality cleaner than levels

proven to cause harm, or if the State failed to take advan-

tage of the levels of control that could be achieved with

recommended control techniques. But nothing in the 1967

Act or its implementation by HEW suggested that either

the private costs incurred by polluters or the public costs

of control were relevant to setting air quality standards.

In the 1970 Act, Congress deleted the requirement

that standards be based on considerations of control tech-

nology; “recommended” or otherwise. The only relevant

factors that remained in the text of § 109(b) for setting

primary standards were “requisite to protect the public

health,” “allowing a margin of safety,” and basing the

standards on the “criteria.” Factors mentioned for sec-

ondary standards include “requisite to protect the public

welfare” which Congress defined in § 302(h), “known or

anticipated adverse effects associated with the presence

of such air pollutant in the ambient air,” and basing the

standards on the “criteria.”

2. Pre-1970 Criteria Show Congress Did Not

Intend Costs to be Relevant.

There is no basis for the inference petitioners attempt

to draw that reference to the “criteria” itself imports

some notions of cost into the realm of factors relevant to

setting standards. The nature and scope of the five “Air

Quality Criteria” documents was known to Congress.

NAPCA issued the “Air Quality Criteria” for SO2 and PM

in January 1969, and the Criteria for photochemical oxi-

dants (including ozone), hydrocarbons and carbon mono-

xide were issued in March 1970, only weeks following the

President’s message proposing amendments to the Act.

The criteria documents were mentioned in committee

hearings and floor debates by Senator Muskie and other

members, and explained at committee hearings by Com-

missioner Middleton and other representatives of the

Administration. Review of these criteria documents

reveals that they contain no discussion of control tech-

niques or costs except for the economic costs caused by

pollution in the ambient air. Nothing in the criteria docu-

ments or the discussions of them by members or hearing

witnesses would have led any member of Congress to

believe that reference in the Act to “criteria” incorporated

a subtext that was understood to mean “costs.”

Furthermore, the 1970 Act directed the Administrator

to “publish proposed” primary and secondary NAAQS

within 30 days following enactment of the Amendments

“for each air pollutant for which air quality criteria have

been issued prior to such date of enactment.”

§ 109(a)(1)(A). Final NAAQS were required 90 days there-

after. § 109(a)(1)(B). EPA met these deadlines. Obviously,

Congress knew enough about the content of the pre-

enactment air quality criteria to require that standards be

issued based on them. No time was allowed for further

criteria development. Nor was there any suggestion that

criteria that omitted all consideration of costs were inade-

quate to support the promulgation of national standards.

3. 1970 Act Repealed Requirement to Revise

Control Technique Information When

NAAQS Are Revised.

In addition, Congress removed the linkage between

information on control techniques and any future

revisions to the NAAQS. Section 109(b)(1) allowed the

Administrator to “revise[ ]}” standards “in the same man-

ner as promulgated,” which required only that they be

based on the “criteria.” The inference in the 1967 Act that

future revisions to the criteria be coupled with the issu-

ance of revised technology and cost information was

removed. The new § 108(c) required only that “(t]he

Administrator shall from time to time review, and, as

appropriate, modify, and reissue any criteria or informa-

tion on control techniques. . . . ” The disjunctive elimi-

nated any obligation to reissue control technique

information when the air quality criteria were revised.

The only linkage that remained in the 1970 Act

between the issuance of control technology information

and the issuance of criteria or the proposal of NAAQS

was when new criteria required by § 108(a)(2) were

issued following the listing of a new pollutant under

§ 108(a)(1). See § 108(b)(1). This provision has been trig-

gered only twice by EPA’s listing of nitrogen oxides in

1971 and lead in 1976 as new criteria pollutants. Revi-

sions of a NAAQS, such as the standards at issue here, no

longer trigger an obligation to issue revised information

on control techniques and costs.

But even this last vestige of the prior link between

technology information and standards cannot reasonably

be read to imply that control technique information was

ever relevant to the NAAQS decision. Congress directed

the Administrator to issue the information to the States

and air pollution control agencies, not to use it himself

for any responsibility he had under the Act. Obviously,

this provision carries over from the 1967 Act when such

information was relevant to both standard setting and the

development of abatement plans by the States. After the

1970 Amendments, the information continued to be rele-

vant only to the States’ obligation to develop emissions

standards as part of the State implementation plans

required by § 110. The Act no longer made it relevant to

setting air quality standards.

Certainly, Congress understood that continuing to

provide control technology information was to support

the States’ efforts to develop implementation plans: “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. * * * The Committee intends that the

information provided pursuant to this section should

serve as guidance to the States, not as limitations on

control technology innovation.” S. Rep. No. 91-1196

(1970), 9 (Leg. Hist., 409). Nothing in this history suggests

that this information was intended to be relevant to the

Administrator's NAAQS decision.

Taken together, these many changes to the statutory

requirements governing promulgation of air quality stan-

dards, issuance of criteria and information on control

technology and costs make clear that Congress intended

that NAAQS decisions be based solely on the kinds of

health effects information contained in the pre-enactment

air quality criteria. Nothing in the statutory text, or Con-

gress’s express reliance on the pre-enactment air quality

criteria for setting the new NAAQS, suggest any hint of

requiring EPA to expand the scope of criteria documents

to include information on factors other than “the kind

and extent of all identifiable effects on public health or

welfare which may be expected from the presence of such

pollutant in the ambient air, in varying quantities.”

§ 108(a)(2). To the extent that costs might have been a

relevant factor for setting air quality standards under the

1967 Act, the 1970 Act removed any linkage between

national air quality standards and costs or technology as

relevant factors.

B. “Public Health” Was Uniformly Understood as

Impairment of “Human Health” by the Dis-

eases of Air Pollution; Not Costs.

Petitioners’ other textual argument from the 1970 Act

is that the phrase “requisite to protect the public health”

itself imports the notion that costs may be considered to

justify standards that fail to protect against significant

adverse health effects.! This notion may derive its philo-

sophical basis from 1984, but one must hope that such

' Some of the parties and amici supporting ATA reject this

extreme view, and acknowledge that there are limits to how far

costs can be relied upon to diminish the levels of health

protection a NAAQS must provide. Appalachian Power, at 25,

concedes that even under an interpretation of “public health”

that incorporates costs, a distinction must be made between

“demonstrated adverse” health effects and predicted risks of

harm. “NAAQS must be set below the level at which such

demonstrated adverse public health effects occur.” Similarly,

Senator Hatch and Congressman Bliley, at 23, accept the view

adopted by the en banc D.C. Circuit in Vinyl Chloride that “The

Administrator would not comply with section 109 by setting a

standard that did not protect against the level where scientific

data demonstrate a significant risk to the public health; she

would have failed to set a standard ‘requisite to protect the

public health.’ ”

Orwellian twists of phrase have not become the stuff our

laws are made of.

If such an understanding of the term “public health”

were so in vogue in 1970 as petitioners would have the

Court believe, one would think that somewhere in the

1600 pages of compiled legislative history there would be

an inkling that someone - the President perhaps, or an

administration official, or an erudite member of Congress

from Massachusetts — shared this view. But it is a telling

commentary that after all the citations to obscure journals

and academic treatises, petitioner ATA’s entire brief con-

tains only one citation to the legislative record from 1970.

Br. at 42, n.2. And that citation is not to anything Con-

gress did, but to the first annual report of the President's

Council on Environmental Quality which provided one of

the estimates of the cost of air pollution control available

to Congress.

But CEQ’s report also identifies the need to make

those expenditures to prevent the “threat to human

health,” to address “the primary public health concern”,

to reduce pollution where “adverse health effects have

been observed.” Leg. Hist., 246-47. The term “public

health” was used interchangeably with other similar

terms throughout the CEQ report, and throughout the

legislative history. A typical example of how the phrase

was used by CEQ is shown in this summary of 20th

Century disease trends:

The incidence of chronic diseases has soared

sharply during this century, while the infectious

diseases which were the primary public health

concern in the past have been brought under

control. Heart and blood vessel diseases caused

more than half the deaths in the United States in

1962. Lung cancer, once a rarity, now kills more

persons than all other cancer types combined.

Emphysema has doubled every 5 years since

World War II. Air pollution has been linked to

asthma, acute respiratory infections, allergies

and other ailments in children. Leg. Hist., 246.

“Public health” was short-hand for a collection of terms

that were generally used to communicate the concept that

the health of a large number of people is affected by

causes that are associated with conditions beyond the

control of individuals.

1. “Public Health” As Congress Used the

Term.

Ultimately, the inquiry should turn on how members

of Congress used and understood the phrase in their

discussions. There is no evidence that Congress under-

stood it to include even the public costs of protecting

health. It certainly was not understood to include the

private costs of pollution control.

When Senator Muskie, chair of the Air and Water

Pollution subcommittee and principal sponsor of the bill,

introduced the committee bill on the floor, he used a

number of terms referring to public health interchange-

ably. He made clear that the philosophy of the bill rejects

“[p]redictions of technological impossibility or infea-

sibility . . . as reasons to avoid tough standards and

deadlines, and thus to compromise the public health.”

Leg. Hist., 229. He quoted from the Senate report on the

1967 Act which declared that “the nation’s air resources

are to be conserved and enhanced to the point that gener-

ations yet to come will be able to breathe without fear of

impairment of health.” Id. The bill, he explained, repre-

sents a commitment by Congress to “effective protection

of the health of all Americans.” Id., 230. It “is not too

soon to be concerned about the health effects of auto-

mobiles on the lives of the people. ...” Id., 232. “Here, in

the case of a national objective more serious than [build-

ing war planes or sending a man to the moon] - the

national health, we have an obligation to lay down the

standards. ...” Id. None of these terms were used to

imply a subtext that includes cost. On the contrary, the

consistent theme throughout the legislative process was

that costs and technology should not be factors because

they would delay a solution to the air pollution problem.

This is most clearly revealed in the crucial floor

debate over the provisions forcing the auto industry to

meet tailpipe standards that demanded a 90% emissions

reduction beyond the standards issued under the 1967

Act; a level of reduction demonstrated only with experi-

mental vehicles. Leg. Hist., 233-40. Senator Griffin of

Michigan challenged the technology-forcing auto tailpipe

standards because the result could be the shutdown of an

industry that accounts for 1 of 7 jobs nationwide, and

because the costs of producing clean production-line

vehicles were unknown and “would not be taken into

account.” Id., 237-40. In response, Senator Muskie admits

“I do not think anyone knows [what this will cost].” Id.,

238. But he defends the bill by summarizing the evidence

of health effects from the criteria document for carbon

monoxide (a pollutant emitted almost entirely by motor

vehicles), and then explains: “We are saying in this bill

that this is what the public health requires.” Id., 236.

“{O]ur responsibility is to tell the industry what the pub-

lic health requires.” Id., 238. “The deadline is based not

on economic and technological feasibility, but on consid-

erations of public health.” Id., 239.

This debate, more than any other evidence of intent

from the 1970 history, demonstrates that the cost factors

now argued by petitioners to be included within the

alleged common understanding of public health, were

understood then to be in conflict with the commonly

understood meaning of public health. Senator Griffin

argued for including authority in the bill to allow an

expert agency to consider cost and technology when set-

ting or adjusting standards and deadlines. But Senator

Muskie clearly rejected inclusion of those factors because

they conflicted with achieving protection of the public

health. If petitioners’ view of the Act were right, Senator

Griffin would have had no reason to oppose the bill.

Although this debate centered on the tailpipe stan-

dards of the Act and not the NAAQS, it is nonetheless

probative of how Congress viewed the term “public

health.” It is also relevant to conStruing § 109(b)(1)

because the technology-iorcing policy underlying the tail-

pipe standards was embodied in the NAAQS language as

well. As Senator Muskie made clear when he presented

the committee bill, “it is now clear that continued reliance

on gradual reductions in automotive emissions would

make achievement of the ambient air quality standards

impossible within the national deadlines established in

Title I of this act.” Thus both the NAAQS and the tailpipe

standards reflected the philosophy of the bill that rejected

“[p]redictions of technological impossibility or infea-

sibility . . . as reasons to avoid tough standards and

deadlines, and thus to compromise the public health.”

Leg. Hist., 229.

Similar remarks were made by other members indi-

cating that Senator Muskie’s understanding that public

health was short hand for human health was shared

widely. Senator Nelson: “This bill before us is a firm

congressional statement that all Americans in all parts of

the Nation should have clean air to breathe, air which

does not attack their health.” Id., 378. Senator Randolph,

chair of the Public Works Committee: “The pending bill

would require the establishment within 3 to 5 years of its

enactment State implementation plans to achieve national

ambient air standards to protect the health of citizens of

this country.” Id., 286. Senator Murphy: “ .. . the air

pollution problem is . . . a menace to the health and

welfare of our people.” Id., 329. Senator Scott, minority

leader: “Unless this outpouring of contaminants is con-

trolled, . .. we may very well experience . . . a snowball-

ing adverse effect to the health and safety of our

citizens.” Id., 349. Senator Young: “ .. . within 5 years, the

air in our cities will be fit to breathe, no longer endanger-

ing the health of our citizens.”

The kinds of health effects that members talked about

are also important to their understanding of public

health. They referred to the health effects discussed in the

CEQ report — lung cancer, bronchitis, asthma, cardio-

vascular disease - ; not the health effects attributable to

unemployment or the “poverty effect” on health. Senator

Murphy, for example, cited numerous scientific journal!

articles as well as reports from the popular press linking

these kinds of adverse effects to air pollution. Id., 326-27.

Members also quoted studies reported in NAPCA’s crite-

ria documents, such as the evidence that carbon monox-

ide exceeded safe levels in Chicago more than 20% of the

time. Id., 236.

Members clearly understood the threat of air pollu-

tion to public health to be the diseases experienced by

people as a result of their exposure to pollution. With this

understanding of “public health,” this term cannot be

distorted into the vehicle for making costs relevant to

setting NAAQS.

2. “Public Health” As the Agency Applied the

Term.

The phrase “requisite for the protection of the public

health” was not new to the 1970 Act. It was carried over

from § 107(b)(1) of the 1967 Act which established the

statutory benchmark for issuing air quality criteria to the

States. The interpretation of “public health” by the

agency charged with carrying out this mandate provides

reliable evidence of what Congress most likely intended

in 1967, and compelling evidence of how Congress would

have expected the term to continue to be applied under

the amended Act. The five Air Quality Criteria issued

prior to enactment of the 1970 Amendments provide the

best evidence of how the Secretary of HEW understood

the meaning of “public health.”

Most relevant here are the “Air Quality Criteria for

Particulate Matter” and the “Air Quality Criteria for Sul-

fur Oxides,” the first two to be issued under the 1967 Act.

In both documents, in the Preface, at iii, NAPCA Com-

missioner Middleton wrote:

Air quality criteria tell us what science has thus

far been able to measure of the obvious as well

as insidious effects of air pollution on man and

his environment. Such criteria provide the most

realistic basis that we presently have for deter-

mining to what point the levels of pollution

must be reduced if we are to protect the public

health and welfare.

The Introduction to both Criteria, PM at xiii and Sulfur

Oxides at x, which were required by the 1967 Act to

determine what is “requisite to protect public health,”

explain that

Air quality criteria are an expression of the

scientific knowledge of the relationship between

various concentrations of pollutants in the air

and their adverse effects on man and his envi-

ronment. * * * Air quality criteria are descrip-

tive; that is, they describe the effects that have

been observed to occur when the ambient air

level of a pollutant has reached or exceeded

specific figures for a specific time period. * * *

Technological and economic aspects of air

pollution control are considered in companion

volumes to criteria documents. [See] Control

Techniques for Particulate Air Pollutants [or Sulfur

Oxide Air Pollutants]. |

These documents clearly reveal that HEW considered

only the evidence of harm to humans that was attributa-

ble to levels of pollution in the ambient air as relevant to

its task of providing the information “requisite to protect

public health.” The separation of health effects informa-

tion into the criteria and cost information into control

techniques documents also show that information regard-

ing cost was not included in the criteria, and not consid-

ered relevant to determining what is “requisite to protect

public health.”

This agency approach to the development of air qual-

ity criteria and approval of standards was consistently

applied to the remaining criteria issued prior to the 1970

Amendments. During consideration of the Amendments,

no member questioned the agency’s approach to develop-

ing the information relevant to the standard setting deci-

sion. When Congress enacted into the new §§ 108(a)(2)

and 109(b)(1) language that required protection of public

health — indeed, language that closely paralleled the lan-

guage in the 1967 Act - the only reasonable inference is

that Congress also intended to retain HEW’s understand-

ing that “public health” meant only the adverse effects of

pollutants on human health.

3. The Law’s Understanding of “Public

Health.”

As a term of art, “public health” had then, and con-

tinues to have, a special meaning in the law. For nearly

two centuries, the common law has treated conduct or

uses of land that “involve a significant interference with

the public health” as a public nuisance. Restatement (2d)

of Torts, § 821B. In constitutional jurisprudence, this

Court has recognized the protection of public health as

one of the legitimate objects of the police power of the

state. “[The police power] is universally conceded to

include everything essential to the public safety, health,

and morals, and to justify the destruction or abatement

.. . of whatever may be regarded as a public nuisance.”

Lawton v. Steele, 152 US 133, 136 (1894). In the abatement

of a nuisance, the Court has held that the Fifth and

Fourteenth Amendments recognize no protectable prop-

erty interest in the instruments used to create the nui-

sance. “A prohibition simply upon the use of property for

purposes that are declared, by valid legislation, to be

injurious to the health, morals or safety of the commu-

nity, cannot, in any just sense, be deemed a taking or an

appropriation of property for the public benefit.” Gold-

blatt v. Town of Hempstead, 369 US 590, 593 (1962), citing

Mugler v. Kansas, 123 US 623, 668 (1887).

The draft Restatement (2d) being circulated in April

1970, defined a public nuisance as “a criminal interfer-

ence with a right common to all members of the public.”

Restatement (2d), Tentative Draft No. 16 (American Law

Institute, 1970). The Reporter who authored the Draft

concluded after reviewing the cases that “a public nui-

sance is always a crime.” To support his conclusion, he

cited the conclusions of numerous text writers who were

unanimous on the point. As an example he quoted 1

Wood, Nuisances (3d Ed. 1893), 39: “Every person owes

certain duties to the public. * * * Among these duties is

that of so using his property as not to injure the pub-

lic * * * that it is treated as a public offense, and is

Punishable by fine or imprisonment.”

Costs have never been recognized as a defense to

crimes or a lawful exercise of the police power to prevent

a significant interference with public health. The law

requires no weighing of private economic interests before

an injunction would issue to abate such offenses.

Indeed, when Senator Muskie declares in his speech

introducing the bill that - “The first responsibility of

Congress is not the making of technological or economic

judgments - or even to be limited by what is or appears

to be technologically or economically feasible. Our

responsibility is to establish what the public interest

requires to protect the health of persons.” Leg. Hist., 227

- he sounds much more like a judge in equity applying

the law of public nuisance to abate a significant interfer-

ence with the public health than a graduate school pro-

fessor offering a theory of public health policy. And when

the Senate report explains that “[a]n ambient air quality

standard is sufficient to protect the health of such persons

whenever there is an absence of adverse effect on the

health of a statistically related sample of persons in sensi-

tive groups from exposure to the ambient air,” it sounds

very much like a test for determining pollution levels that

must be reached to prevent a significant interference with

public health. Thus to the extent Congress might have

had a broader frame of reference than the implementation

of the 1967 Act by HEW for its intended meaning of

“public health,” it was most likely the way the law had

used the term for-a century or more to define conduct

that could be summarily abated under the police power.

Given the total absence of congressional references to

textbooks written by professors at graduate schools of

public health, it is wholly improbable Congress intended

the meaning suggested by petitioners. A broad study of

public policy aimed at defining targets for the investment

of public and private resources to protect public health,

or even a narrower inquiry into the environmental pro-

tection programs likely to protect the most lives, as in

Breyer, Breaking the Vicious Circle, might well consider the

best-bang-for-the-buck in developing public health pro-

grams. But by 1970, Congress had obviously advanced

well beyond the point of having chosen improved air

quality as an appropriate program for protecting the

health of the nation. Congress did not assign to EPA

responsibility for deciding whether its budget would best

be spent on achieving a safe level of air quality. Congress

declared unequivocally that its purpose was to “authorize

a massive attack on air pollution.” S. Rep., 1 (Leg. Hist.,

401). To this end, Congress directed EPA to set standards

that would ensure “an absence of adverse effect on the

health of .. . persons in sensitive groups from exposure to

the ambient air.” Id., 10. And “determined that existing

sources of pollutants either should meet the standard of

the law or be closed down... .” Id., 3. It directed EPA to

set NAAQS requisite to protect the public health, i.e., to

protect the public from the diseases of air pollution. It did

not delegate to EPA authority to decide whether the costs

of controlling emissions might be better spent on some

other public health program.

Only Congress may reverse its determination that

standards must protect public health without regard to

economic consequences. As discussed, infra, Congress has

provided relief from the economic consequences of

strictly applying such standards on numerous occasions,

but it has never reversed its decision that standards for

protecting public health be based solely on the evidence

of harm caused by pollutants in the ambient air.

C. Legislative History Reveals No Expectation

That Costs Are a Relevant Factor.

The legislative history of the 1970 Act confirms the

conclusions drawn from a straightforward reading of the

statutory text. Costs are discussed only as relevant to the

control techniques guidance to be provided the States

under § 108(b); nowhere else.

The source of legislative intent most relevant to

§ 109(b) is the Senate committee report because the text of

the final bill bears little relationship to the House bill. The

House bill would have required promulgation of national

standards “for any pollutant or combination of pollutants

which . . . endanger or may endanger the public health or

welfare,” Leg. Hist., 911, but provided no guidance what-

soever regarding the factors relevant to determining the

stringency of the standards. Had the House bill become

law, it might have been implied that Congress delegated

virtually unlimited power to the Administrator to deter-

mine relevant factors, including costs. But an Administra-

tor’s decision to weigh costs as a factor in justifying

standards that fail to protect against adverse health

effects would not have resolved the kind of constitutional

objections raised by Chief Justice Rehnquist in the Ben-

zene case to such an unlimited grant of legislative power.

The law was drawn from the Senate bill which did

prescribe a controlling factor for setting standards, to wit,

“shall be . . . standards the attainment and maintenance

of which are necessary to protect the health of persons.”

Leg. Hist., 486. The conference committee, reverting back

to the language in the 1967 Act, adopted the controlling

phrase “requisite to protect the public health.” This lan-

guage gave direction to the Administrator to set stan-

dards at the level needed to protect the public health.

Given the common understanding of public health, supra,

the statutory text provided no authority to consider costs.

The Senate report provided guidance regarding the

kinds of populations and the types of evidence Congress

considered relevant to setting standards. The report

advised that standards need not “provide for the quality

of air required to protect those individuals who are other-

wise dependent on a controlled internal environment,”

but emphasized “that included among those persons

whose health should be protected . . . are particularly

sensitive citizens such as bronchial asth:natics and

emphysematics who in the normal course of daily activity

are exposed to the ambient environment.” S. Rep., 10

(Leg. Hist., 410). Thus, if people with serious afflictions

are healthy enough to be out in the world, the air should

be safe for them to breathe.

Congress also provided guidance regarding the mea-

sure of harm that should be used to select the level of the

standards.

Ambient air quality is sufficient to protect the

health of such persons whenever there is an

absence of adverse effect on the health of a

statistically related sample of persons in sensi-

tive groups from exposure to the ambient air.

An ambient air quality standard, therefore,

should be the maximum permissible ambient air

level of an air pollution agent or class of such

agents (related to a period of time) which will

protect the health of any group of the popula-

tion. Id.

Finally, the report also emphasized that

In setting such air quality standards the Secre-

tary should consider and incorporate not only

the results of research summarized in air quality

criteria documents, but also the need for mar-

gins of safety. Margins of safety are essential to

any health-related environmental standards if a

reasonable degree of protection is to be pro-

vided against hazards which research has not

yet identified. Id.

The margin of safety was added, no doubt, to provide

legislative authority for the agency practice described by

Commissioner Middleton by which air quality standards

“must be lesser than the level at which this thing [effect]

was observed. In addition, we say that a margin of safety

must be included.” Leg. Hist., 1185.

None of the factors Congress identified as relevant to

setting NAAQS in the report or elsewhere during the

legislative process even suggests that costs are relevant.

The primary emphasis is on providing protection against

pollution levels for which “the latest scientific knowl-

edge,” § 108(a)(2), shows an “adverse effect,” and then

adding a margin of safety to account for possible effects

not yet demonstrated. At a minimum, known or proven

effects must be protected against before the Administra-

tor — in the context of setting a margin of safety - may

make judgments concerning what degree of protection to

add against suspected effects.

In context, the factors discussed in the Senate report

are consistent only with the meaning of public health

discussed supra, that standards are to be set to prevent

the diseases of air pollution. Clearly, the concept of

adding a margin of safety is fundamentally at odds with

considering factors, such as costs, that might weigh

against providing a full measure of protection against

levels of pollution that are shown to be associated with

the diseases of air pollution. It argues for a construction

that uncertainty be weighed in favor of protection, and

not setting standards at the margin of adverse effects.

Such a policy is not consistent with considering costs.

D. The 1977 Amendments.

The 1977 Amendments affirmed the policies adopted

in the 1970 Act including Congress’s decision that stan-

dards be set solely on the basis of the evidence of harm to

health. The strongest evidence supporting this conclusion

is that Congress did not amend § 109(b). Other compel-

ling evidence includes the enactment of § 109(d)(1)

requiring the periodic review and revision, as appropri-

ate, of both the criteria under § 108 and the standards “in

accordance with section 108 and subsection (b) of this

section;” and the enactment of a required economic

impact statement for enumerated standard setting provi-

sions of the Act, but not including NAAQS.

Taken together, these changes requiring that 1) air

quality criteria issued under § 108, but not control tech-

niques information, be reviewed and revised every five

years as part of the NAAQS review process; 2) that the

review and the need to revise NAAQS be based on the

same statutory language as enacted in 1970; and 3) an

economic impact assessment be required for some stan-

dards but not the NAAQS; demonstrates Congress’s re-

affirmation of its 1970 decision not to require consider-

ation of costs as relevant to the NAAQS decision.

1. The New Duty to Review and, As Appropri-

ate, Revise the NAAQS.

ATA attempts to build an entire house of cards out of

a single phrase in the CASAC amendment,

§ 109(d)(2)(C)(iv), which calls upon CASAC to “also .. .

advise the Administrator of any adverse public health,

welfare, social, economic, or energy effects which may

result from various strategies for attainment and mainte-

nance of such national ambient air quality standards.” In

context, that assignment of authority to CASAC must be

seen as independent from its responsibilities to advise the

Administrator regarding the need for revision of NAAQS.

The CASAC amendment sets out two separate areas

of responsibility for the Committee. The first is governed

by subparagraph (d)(2)(B), and establishes a statutory

schedule for CASAC to “recommend to the Administrator

any new national ambient air quality standards and revi-

sions of existing criteria as may be appropriate under

section 108 and subsection (b) of this section.” CASAC’s

statutory schedule dovetails with the schedule governing

EPA’s review and revision of the NAAQS under (d)(1),

requiring its recommendations to be provided a year in

advance of the Administrator’s deadline. Furthermore,

CASAC’s recommendations are not unconstrained. The

Committee is, as is the Administrator, required to base its

recommendations on the relevant statutory factors estab-

lished by § 109(b). The House committee made clear its

expectation that under the review and revise amendment,

“{t]he Administrator is required to promulgate new stan-

dards and revise existing standards as are appropriate

under the terms of section 109(b) of the Act.” H. Rep. No.

95-294 (1977), 182. The explicit reference to § 109(b) as the

relevant guide for CASAC’s recommendations makes

clear that Congress did not empower CASAC to consider

any factors not relevant to the Administrator’s decision

to set or revise NAAQS under subsection (b).

Separately, and not related to their recommendations

on the revision of NAAQS, § 109(d)(2)(C) also empowers

CASAC to offer advice, not recommendations, on other

matters. Included among these subjects are various

effects which might result from strategies that might be

adopted to implement the NAAQS. In contrast to

(d)(2)(B) which calls for recommendations expressly tied

to the decision under § 109(b) and the schedule for

NAAQS review, none of the subject areas of advice

invited by Congress under (d)(2)(C) are related to any

particular decision to be made by the Administrator. The

House committee explained that “this advice may be of

interest and assistance to the States and to Congress in

fashioning future legislation.” H. Rep., 183. It certainly

could also be relevant to EPA in the event the Agency

found itself promulgating federal implementation plans

for States under § 110(c).

ATA’s argument that the directive to provide general

advice on the economic effects of implementation strate-

gies provides authority for consideration of costs when

setting NAAQS is a bootstrap argument that would

impermissibly overrule Congress's explicit directive that

CASAC’s recommendations on NAAQS be addressed

solely to factors that are appropriate under § 109(b).

Nothing in the revision requirements of § 109(d) even

hint at the possibility that Congress intended to modify

its decision in 1970 to base NAAQS solely on evidence of

harm to public health.

2. New Requirement for Economic Impact

Analysis of Standards.

If Congress had intended in 1977 to add costs to the

NAAQS decision, it certainly had a context for doing so

when it required economic impact assessments for other

standards. But it clearly rejected that option. As finally

enacted, § 317, 42 U.S.C. § 7617, requires 1) “the costs of

compliance,” 2) “potential inflationary or recessionary

effects,” 3) “effects on competition,” 4) “effects ... on

consumer costs,” and 5) “effects . . . on energy use” to be

considered as part of the development of a standard. But

by its terms, the section only applies to the specific stan-

dards enumerated in subsection 317(a).

These enumerated provisions of the Act were those

for which costs had been explicitly identified as relevant

factors in the controlling statutory section, as, for exam-

ple, new source performance standards under § 111 and

new discretionary tailpipe standards under § 202. Section

109(b) was notably missing from the list. Nor was Con-

gress’s omission of § 109(b) inadvertent. “Nor is this

section intended to alter the statutory basis for rulemak-

ing under any section of the Act. Economic factors

referred to in this section may be considered by the

Administrator only to the extent allowed by the basic

substantive provision.” H. Rep., 53.

This explanation of § 317 by the House committee

makes clear that Congress intentionally chose to require

consideration of costs for some standard setting provi-

sions of the Act and not others; that Congress did not

expect costs to be considered under provisions where

costs were not mentioned as relevant factors such as

§ 109(b); and that Congress chose not to revise its 1970

decision to exclude costs from § 109(b).

E. 1990 Amendments.

In 1990, Congress once again did not amend § 109(b).

Nor was the duty added by § 109(d) to review and revise

in accordance with subsection (b) amended.

The only amendment related to NAAQS was the

addition of a requirement for the preparation of periodic

economic impact analyses “associated with compliance

with each standard issued for - (1) a criteria air pollutant

subject to a standard issued under section 109.”

§ 312(a)(1). This provision required a retrospective anal-

ysis one year after enactment, and a prospective analysis

biennially thereafter. The provision does not direct the

Administrator to take the results into account when set-

ting or revising NAAQS. Where Congress did require that

the results of the economic impact assessment required

by § 317 be taken into account when the affected stan-

dards were being adopted, but did not require a similar

result here, it can only be concluded that Congress did

not intend the information developed for the economic

impact analysis required by § 312 to be relevant to the

NAAQS decision.

F. Structure of the Act Indicates Congress

Intended Costs be Considered When Imposing

Control Obligations on Sources, But Not in Set-

ting NAAQS.

The overall structure of the Act shows that Congress

chose carefully when costs should be considered and

when not. As a general rule, costs are identified as a

relevant factor when deciding the degree of emissions

reduction to be required of specific sources or source

categories. In contrast, costs are excluded from the deci-

sion when the health protection targets of the Act are

being determined. This scheme is consistent with the

intended meaning of “requisite to protect the public

health,” supra.

The degree of emissions control required on existing

stationary sources is primarily governed by the require-

ments for State implementation plans in §§ 110 and 172 of

the Act, and controls on major new or modified station-

ary sources are governed by the new source performance

standards adopted nationally for various source catego-

ries, and the case-by-case requirements for new construc-

tion permits in §§ 165 or 173, depending on whether the

source is located in an area designated “nonattainment”

or “attainment/unclassifiable” under § 107(d). Emissions

standards for motor vehicles are governed by § 202, and

other sections of Title II provide for standards on other

mobile sources such as aircraft and construction equip-

ment. Standards for motor vehicle fuels are set under

§ 211. All of these provisions include explicit consider-

ation of costs, except for § 173 which relies upon a tech-

nology-based standard for determining the control

requirement for major stationary sources in nonattain-

ment areas. Standards for fuels under § 211 must consider

costs if the standards are based on factors related to the

performance of motor vehicle engines, § 211(c)(1)(B),

(2)(B), but not when the standards are set to protect

public health under § 211(c)(1)(A), (2)(A).

The only provision of the Act that requires more

emissions reductions than those obtained by taking cost

factors into account are the requirements of §§ 110(a)(2)

and 172(c) requiring implementation plans to provide for

attainment of the NAAQS. In most areas of the country,

States can demonstrate attainment by satisfying the “rea-

sonably available control technology” requirement for

stationary sources and the “reasonably available control

measures” requirement to reduce emissions from vehicle

use and other area emissions. § 172(c)(1). Only in the

more heavily polluted areas are less cost-effective con-

trols or technology-forcing requirements needed to attain

by the statutory deadlines.

But where this scheme has imposed widespread bur-

dens on industries that Congress considers important to

the national interest, Congress has not been reluctant to

intervene to protect those industries from the conse-

quences of strict implementation of the NAAQS and the

statutory deadlines. Four classic examples are 1) the pro-

visions in § 125 establishing a procedure for relieving

major fuel burning sources from requirements that might

result in shutdown and major economic dislocations; 2)

the ten-year waiver allowed by § 119 (1977) for existing

nonferrous smelters from the requirement to meet the

NAAQS by installing continuous emission control tech-

nology; 3) the Steel Industry Compliance Extension Act of

1981, § 113(e) (added 1981, repealed 1990), that allowed

large integrated steel plants to stretch out their compli-

ance programs beyond the deadlines established in the

1977 Act, and 4) amended § 202 that granted the exten-

sion to 1981 of the original deadline in the 1970 Act for

autos to achieve the required 90% reduction in tailpipe

emissions by 1975. Congress has also given governors

general authority to grant temporary emergency suspen-

sions of SIP requirements. § 110(g).

This statutory scheme, as implemented with occasio-

nal interventions by Congress, demonstrates the underly-

ing premise of this argument, i.e., that Congress reserved

to itself the option to provide relief when the require-

ments of health-based standards have proven to impose

costs or other burdens that are ultimately deemed politi-

cally unacceptable. As Senator Muskie promised in 1970,

“li]f the Congress, which would have made the policy in

the first instance, is persuaded that the industry cannot

do the job, Congress could change the policy.” Leg. Hist.,

236. And so in 1977 Congress did change the policy to

give industries all across the land more time to meet the

standards. But Congress did not change the underlying

policy that air quality standards must be set solely on the

basis of what is needed to protect public health.

The original scheme, combined with congressional

interventions, has served well to promote the effective

implementation of the public health protection objectives

of the Act without major disruptions to the economy,

without triggering massive layoffs and without causing

widespread shutdowns among the nation’s most pollut-

ing industries. There is nothing broken here that requires

—

fixing. And even if there were, it would be up to Con-

gress to fix it; not a court.

Here the inquiry into legislative intent should end.

The relevant indicators of the factors Congress consid-

ered relevant to setting NAAQS consistently lead to only

one conclusion - Congress required NAAQS to be based

exclusively on the latest scientific knowledge of the

adverse effects of air pollution on human health. Nothing

in the statutory text of the legislative history suggests

that costs are relevant to that task. Clearly, Congress

rejected the option of delegating to an administrative

agency the authority to compromise protection of public

health based on considerations of cost, and reserved to

itself the exclusive power to make tradeoffs between the

protection of the public from the diseases of air pollution

and the public and private costs of providing that protec-

tion.

II. PROTECTING AGAINST NON-THRESHOLD

POLLUTANTS DOES NOT SUPPLY AUTHORITY

TO CONSIDER COSTS.

ATA and others suggest that the congressional choice

not to allow costs as a relevant factor in setting NAAQS,

as evinced by traditional tools of statutory construction,

needs to be reconsidered because EPA’s 1997 standards

address pollutants that are presumed to be non-threshold

pollutants. But the legislative history indicates that Con-

gress considered the non-threshold problem. In its direc-

tive to adopt standards that “are requisite to protect the

public health”, “and allow[{] an adequate margin of

safety,” Congress directed EPA to regulate to protect

against exposures for which “the latest scientific knowl-

edge” establishes that adverse health effects would occur,

and to add a margin of safety to protect against effects

that might reasonably be anticipated to occur.

Neither of these statutory directives for standard-

setting require EPA to set standards at zero unless scien-

tific evidence demonstrates that adverse effects are

proven to occur at any exposure greater than zero. Those

are not the facts of this case. There is no compelling

scientific evidence of adverse health effects below the

range of levels considered by EPA, and the agency has

not adopted zero-risk standards. But even if there were

evidence of harm at such levels, the answer to the statu-

tory construction question would remain the same - Con-

gress did not authorize the EPA Administrator to decide

that some Americans should be allowed to die because

the costs of preventing those deaths is too high. But, as

Senator Muskie said, Congress will be sitting and can

change the policy if the consequences of a standard are

unacceptable.

During the Senate hearings, after Commissioner Mid-

dleton explained “that a national air quality standard will

be one that protects against the minimum adverse health

effect,” he was asked by Senator Eagleton whether “that

is different than known no-effects.” In the dialogue that

followed, Leg. Hist., 1184-85, Dr. Middleton explained

that they were very different.

Dr. Middleton. To identify a no-known

effects level is something that would be, in my

opinion, not only extremely difficult but very

likely not possible.

I could not tell you where that level would

be, because the knowledge that we have shows

there is not any single level where something

either begins or stops. There are a series of

things taking place. Two things happen: the

state of our knowledge is always in flux,

improvement, and secondly, it is not that simple

a decision, because the causes of destruction of

lung tissue, as an example, may be the result of

a series of biochemical effects that occurred ear-

lier and that may be difficult to detect... .

Senator Muskie. How does that relate to

your national ambient air quality standard

which you say would be set at the no-health-

effects point?

Dr. Middleton. The criteria documents state

the level at which effects begin, some measur-

able things that are observed to take place. The

Clean Air Act provides that the standards shall

be protective of health, which means they must

be lesser than the level at which this thing was

observed.

* * *

Senator Muskie. But there is a no-effects

area?

Dr. Middleton. We know from the criteria

published for sulfur oxides, that at certain levels

definite adverse effects occur in the lung. We

also know that at a little lower level there are

more subtle effects on the action of the lung,

and that below that some enzyme system begins

to fail or to function improperly.

The no-effect level would have to be some-

where below that... .

The central distinction of this dialogue is between a

“no-effects” level, which is comparable to a zero risk

policy, and an “adverse effects” level. The distinction is

reflected in the 1969 “Air Quality Criteria for Sulfur

Oxides”, where studies were reported that included both

changes in bodily functions, Id. Chapter 7, and more

severe effects characterized as “increased mortality,”

“increased daily death rate,” “increased hospital admis-

sions,” “sharp rise in illness rates,” “accentuation of

[chronic lung disease] symptoms,” and “increased sever-

ity and frequency of respiratory diseases.” These more

severe effects, however, were the studies relied upon to

judge effects on health. Id., 161-62.

” “

When Congress stated that “[a]mbient air quality is

sufficient to protect the health of such persons whenever

there is an absence of adverse effect on the health of a

statistically related sample of persons in sensitive groups

from exposure to the ambient air,” S. Rep., 10, it was

obviously adopting the approach followed by NAPCA in

issuing its Criteria documents and its approach to

approving state-submitted standards. That approach can

best be described as the evidence of harm test; something

significantly more than merely evidence of a detectable

change that has no direct relationship to health status.

The judgment Congress made is that NAAQS should

prevent “adverse effects” as demonstrated by “the latest

scientific knowledge” required by § 108(a)(2) for the

development of the air quality criteria, and that a margin

of safety must be allowed so that NAAQS are set below

the level at which harm was demonstrated. The deter-

mination as to what effects constitute an adverse effect,

and how the margin of safety should be determined, was

left to the sound judgment of an expert administrator.

That judgment, when exercised, must be based on rea-

soned decisionmaking and not be arbitrary or capricious.

CAA § 307(d)(9).

The nature of the process Congress created is there-

fore driven by the advances in the scientific understand-

ing of the relationship between air pollution and disease.

As the science advances, if adverse effects are detected at

lower levels of exposure, the Act requires the standards

to be revised. But it only demands a response to evidence

of adverse effect, not suspected or predicted effects.

Beyond that, the Act also delegates to the Administrator

discretion to consider suspected or predicted effects in

setting the margin of safety. But the margin of safety does

not require EPA to set “zero” as the standard, or even

allow her to set a “zero” standard unless there is a

credible basis for the Administrator to conclude that such

a standard is “requisite to protect the public health.”

Ill. Who Wins, Who Loses?

The objective of the Act is to ensure there will be no

victims of the diseases of air pollution. EPA estimates that

its fine particle standards alone will prevent 15,000

deaths per year in the U.S. PMJA 3486-87. In 1990, Con-

gress cited evidence that annually “50,000 premature

deaths may be caused by air pollutants. . . . ” S. Rep. No.

101-228 (1989), 3. The total death toll from air pollution in

general, or fine particles in particular, is not, by any

reliable estimate, an insignificant public health problem.

Eliminating death by air pollution is possible, someday,

only if the standards that animate the control programs

under the Act are set at levels that will prevent those

deaths.

If that goal is compromised by standards that fail to

require that level of protection, there will be many losers.

Most obvious are the victims of the pollution itself -

those thousands who suffer premature death, or the tens

of thousands who require frequent hospitalization and

medical attention, or the hundreds of thousands who

need to bear the burden of the expense and physical side

effects of increased medication, and the millions of Amer-

icans forced to stay home from school, or work or the

sand lot baseball diamond on a summer afternoon.

Among these victims are the individuals filing this brief

who are virtually incapacitated on high pollution days.

These losses by the victims of pollution can be mon-

etized for analysis purposes, but in human terms these

are losses that cannot be fully compensated with money.

Nor is there any mechanism routinely to compensate the

victims for these losses. The reality is that if not pre-

vented, most of those losses will never be compensated.

If the NAAQS are not based on the latest scientific

evidence of harmful levels of air pollution, then there

may be numerous other losers as well. First will be the

States that have responsibility for issuing most new

source permits under the Act. Federal law requires only

that permit applicants demonstrate that their emissions

will meet the NAAQS. E.g., see § 165(a). But many State

air statutes and most State’s common law prohibit emis-

sions that injure, harm or endanger public health. If there

is a substantial body of evidence that harm will occur at

levels allowed by the NAAQS, then State agencies will

become the battleground for determining the necessary

limits on emissions to protect public health. The result

will be a return to the days of conflict over each new

source permit on public health grounds. Permit appli-

cants will have no assurance that they can get a permit by

simply demonstrating compliance with the NAAQS, per-

mitting agencies will have to develop expertise in various

fields related to the science of health effects, and commu-

nities will have no assurance that their air will be safe to

breathe if the NAAQS are met. This approach will also

produce multiple conflicting determinations of the

amount of pollution exposure that can be allowed and

still protect the public health.

Such challenges are already being brought based on

the evidence of harm from short-term SO2 exposures that

convinced the D.C. Circuit to remand the SO2 NAAQS to

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

1998), and the evidence that the fine particle NAAQS is

not adequate to protect against most of the mortality and

morbidity effects of high daily exposures that is the basis

for CBT’s challenge in this case. In Pittsburgh, citizens

challenged a permit for a new coke plant proposed by

LTV on the ground that SO2 and fine particle emissions

meeting both NAAQS would cause significant harm to

the public health, and in Arizona the City of Tempe

raised similar issues in a demand that EPA quantify the

residual risks of exposure to fine particles that would not

be prevented by the 1997 NAAQS as part of the NEPA

review of a new power plant. In Washington State, the

parents of an asthmatic 10-year-old boy and a 7-year-old

girl with cystic fibrosis are suing the State under the

Americans With Disabilities Act for the failure to adopt

emissions controls to prevent life-threatening levels of

fine particle pollution from wheat stubble burning that

nonetheless meet EPA’s 24-hour NAAQS for PM2.5. Save

Our Summers v. Washington State Department of Ecology,

No. CS-99-0269-RHW (E.D. Wa.). If EPA is allowed to set

NAAQS that fail to protect against scientifically demon-

strated adverse effects because of costs, or otherwise fail

to meet the standard of the law, then these kinds of

challenges to new and existing sources will likely become

commonplace nationwide.

There is a significant benefit for all stakeholders,

including the industry petitioners in this case, that flows

from the confidence of the public that if the NAAQS are

met their air will be safe, and the certainty for industry

and the permitting agencies that flows from one national

standard that ensures the public is protected from the

known adverse effects of air pollution. These benefits are

some of the objectives Congress had in mind when it

replaced the process for setting many regional standards

with one national standard that protects the public health

with an adequate margin of safety.

CONCLUSION

The decision of the Court of Appeals in Lead Indus-

tries Ass'n v. EPA, and subsequent cases, holding that

costs play no part in setting NAAQS, should be affirmed.

Respectfully submitted,

Rosert E. YUHNKE

Counsel for Citizens for Balanced

Transportation, Richard Romero

(on behalf of himself and his

minor son, Richard Romero, Jr.),

David Matusow, Brian McCarthy,

James Bassage and Michael

Gregory

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.