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

CLERK

In The Supreme Court of the United Staee

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| FILED

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No. 99-1426 |

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Petitioners,

Vv.

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

REPLY BRIEF OF STATES OF OHIO, MICHIGAN AND

WEST VIRGINIA IN SUPPORT OF CROSS-PETITIONERS

*Counsel of Record

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

FRANK J. REED, JR.

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Fir.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

| Additional Counsel Listed on Inside Cover]

Vind

MARK J. RUDOLPH

Deputy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hansford Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan

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TABLE OF AUTHORITIES

INTRODUCTION

ARGUMENT

IV.

CONCLUSION

TABLE OF CONTENTS

EPA Mischaracterizes Cost and Other Non-

Health Factors As Compliance Issues .................

The Act Supports A Finding That EPA May

Consider Cost and Other Non-Health Factors

When Setting An Air Quality Standard. ..............

The Legislative History of the Clean Air Act

Does Not Unequivocally Establish That Cost

and Technological Feasibility May Not Be

Considered in Setting A National Air Quality

TTI OT ee TOT LER. TEE dl OTD

Expanding the Number of Factors EPA May

Consider in Setting an Air Quality Standard

Narrows Choices and Allows for An

“Intelligible Principle” in Setting the

Standard, Thus Avoiding the Issue of

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TABLE OF AUTHORITIES

Page

CASES

International Union v. OSHA,

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Lead Industries Ass'n v. EPA,

647 F.2d 1130 (D.C. Cir.),

cert. denied, 449 U.S. 1042 (1980) .............ccceeeseeereeeees 3

National Resources Defense Council v. U.S. EPA,

a), 3

Union Electric Co. v. U.S. EPA,

a 3

STATUTES

Clean Air Act § 108(a)(2);

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Clean Air Act § 108(a)(2)(A)-(B);

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Clean Air Act § 108(b)(1);

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Clean Air Act, § 109(b)(1);

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Clean Air Act § 109(d)(2)(A);

iS 5

Clean Air Act § 109(d)(2)(C)(iv);

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Clean Air Act § 110;

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MISCELLANEOUS

Hearings on Air Pollution Before the Subcomm. on

Air and Water Pollution of the Senate Comm. on

Pub. Works, 91“ Cong., 2d Sess. Pt. 4 (1970),

(Air Pollution Hearings) reprinted in 2 Staff of

Senate Comm. on Pub. Works, 93d Cong., 2d

Sess., A Legislative History of the Clean Air

Amendments of 1970 (Comm. Print 1974) ..........cc0000

| 1970 Leg. Hist. 341

A. Scalia, Responsibilities of Regulatory Agencies

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

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INTRODUCTION

The Supporting States of Ohio, Michigan and West

Virginia argued at the outset that EPA’s failure to consider

factors other than direct public health effects in setting an air

quality standard for a non-threshold pollutant may require

States to meet an unjustified standard that is impossible to

implement using enforceable control measures. EPA does

not respond to that argument. Instead, EPA characterizes

cost and factors not directly related to the physical health of

individuals as matters relating to the feasibility of compliance

and, therefore, as only relevant to implementation. By doing

so, EPA only highlights the problem with its approach—that

implementation itself is impossible if EPA does not, in the

first instance, account for the “public health” in a

comprehensive way, subject proposed standards to a

cost/benefit analysis to determine whether they are, in fact,

beneficial to the public, and then articulate an intelligible

basis for its decision.

EPA cannot justify its decision-making by relying on

the “technology forcing” nature of the Clean Air Act. The

Supporting States agree that the Act should force

technological changes and that air standards must be based

first and foremost on public health considerations. The

Supporting States cannot agree, however, that EPA may, in

the name of public health, set standards for non-threshold

pollutants without any consideration for “health” in a

complete sense and without any consideration for whether

these new standards will truly benefit the citizens of our

States.

As the Supporting States argued in Case No. 99-1257,

EPA had no authority to revise the existing ozone standard.

But even assuming such authority, the Supporting States ask

that the Court vacate the PM and ozone rules and remand

them to EPA for further consideration because EPA cannot

2

show that its new air standards are “requisite” to protect

“public health.” Such a remand avoids the constitutional

question and retains Section 109 of the Act.

ARGUMENT

I. EPA Mischaracterizes Cost and Other Non-Health

Factors As Compliance Issues.

EPA argues throughout its brief that consideration of

technological feasibility should occur only at

implementation. The Supporting States agree that the

standards at issue here ultimately implicate compliance

issues because unfounded standards lead inevitably to

impossible implementation. However, EPA’s focus on the

“feasibility” of compliance is misplaced.

Cross-Petitioners have not simply raised questions of

compliance, and are not, as EPA asserts, looking to “protect{]

industry from ‘compliance costs.”” EPA Brief at 37. Rather,

the issues before the Court go to the heart of EPA’s decision-

making when setting standards for non-threshold pollutants.

Despite uncertain science, and in the face of enormous costs

to the States, industry, and, ultimately, the public, EPA must

be able to articulate a basis for its proposed standards.

Anything less violates the most basic principles of agency

authority.

Il. The Act Supports A Finding That EPA May

Consider Cost and Other Non-Health Factors

When Setting An Air Quality Standard.

In its brief, EPA employs a number of arguments in

support of its main point—that it is not permitted to consider

cost, technological feasibility, or factors other than direct

public health effects when setting a national ambient air

quality standard under Section 109(b)(1) of the Clean Air

3

Act. 42 U.S.C. 7409(b)(1). But EPA evades the real charge

in this case—articulation of a cogent principle of statutory

interpretation that will allow analysis of the statutory

language itself to determine when factors not expressly listed

in the relevant statute are to be considered by an agency.

Instead, EPA employs an interpretation heavily laden with

legislative history, without first carefully analyzing the

statutory language.

For all its focus on this Court’s decision in Union

Electric Co. v. U.S. EPA, 427 U.S. 246 (1976), EPA has

missed the critical point of statutory construction. Where

Congress presents an agency with an exclusive list of factors

it must consider in making a determination, the agency

usually cannot consider other, non-listed factors in making its

decision. In Union Electric, the Court found that a provision

exclusively enumerating eight criteria for consideration did

not authorize consideration of other criteria. /d. at 257. The

logical corollary of this principle is that where such a list is

not exclusive, the agency is permitted to consider other,

relevant factors in making its determination. See National

Resources Defense Council v. U.S. EPA, 824 F.2d 1146

(D.C. Cir. 1987) (“Vinyl Chloride”). It is this corollary

principle that is at issue here, and at the root of the important

conflict with Lead Industries Ass'n v. EPA, 647 F.2d 1130

(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980), and its

progeny.

Section 109 requires EPA to set or revise a standard

based on “criteria” issued under Section 108. The “criteria”

documents incorporate information on a non-exclusive list of

topics, including information that might alter the effects of

the pollutant on public health and the effect of other

pollutants that might interact to cause adverse health effects.

CAA § 108(a)(2)(A)-(B); 42 U.S.C. 7408(a)(2)(A)-(B). The

fact that the list in Section 108(a)(2) is non-exclusive

indicates that information other than “effects on public health

4

or welfare” may be considered when issuing “criteria”

documents upon which to set or revise a standard.

EPA argues that the list in Section 108(a)(2) “are all

encompassed within, and limited by, Section 108(a)(2)’s

general directive that ‘air quality criteria’ shall provide

information on the health and welfare effects posed by ‘the

presence of such pollutant in the ambient air.’ But EPA

misses the point that the list in 108(a) is not exclusive; it

directs that the criteria “shall include” various information,

but does not use “only,” “exclusive,” or any other language

that makes that list exclusive.

And the language of Section 108(b) reinforces that

interpretation of Section 108(a). Simultaneously with

issuance of the criteria, EPA collects and issues to the States

“information on air pollution control techniques.” CAA §

108(b)(1); 42 U.S.C. 7408(b)(1). EPA gathers the

information in consultation with advisory committees and

federal departments and agencies. CAA § 108(b)(1); 42

U.S.C. 7408(b)(1). The information includes data on a wide

range of factors, including cost of installation and operation,

energy requirements, emission reduction _ benefits,

environmental impacts of the emission control technelogy,

alternative fuel processes, and operating methods that will

result in the elimination or reduction of emissions. CAA §

108(b)(1); 42 U.S.C. 7408(b)(1).

EPA argues that Section 108(b) indicates only that

Congress wanted to continue the program of “separately”

providing States with information on emission controls so

that the States can implement air quality standards. But if so,

it is much more likely that Congress would have truly

separated the language, by putting it in Section 110, which

describes state implementation plans. Its presence in 108

suggests that the information is connected with establishing

_—— — —_— <_<

5

criteria, not implementing state plans. CAA § 110; 42 U.S.C.

7410.

Also, Section 109(d), under which EPA is to review

and revise criteria and standards every five years, requires the

establishment of an independent scientific review committee

to review and recommend changes to the criteria and

standards. CAA § 109(d)(2)(A); 42 U.S.C. 7409(d)(2)(A).

The committee is to advise the Administrator of a large

number of factors, including “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.” CAA §

109(d)(2)(C iv); 42 U.S.C. 7409(d)(2(C iv).

EPA again argues that the language in Section 109

requiring committee advice on a long list of health and non-

health issues is in a separate subsection from that requiring

advice on reevaluating air quality standards, and therefore

that the non-health factors are not to be considered when

revising the standard. However, EPA does not suggest why

the committee is to gather this information and report to the

Administrator, if she is not to use it in revising an air quality

standard. And the presence of such a requirement in Section

109, rather than elsewhere in the Act, indicates that the

purpose of the information is for revising standards.

In short, EPA has not shown that the statutory

language prohibits consideration of cost and non-health

factors. Indeed, many provisions suggest that such factors

can and should be considered.

6

Ill. The Legislative History of the Clean Air Act Does

Not Unequivocally Establish That Cost and

Technological Feasibility May Not Be Considered

in Setting A National Air Quality Standard.

EPA relies heavily on various remarks made during

congressional hearings for its proposition that costs and other

non-health factors may not be considered in setting an air

quality standard. The Supporting States cited to legislative

statements that indicate Congress intended for costs to be

considered.

For instance, EPA cites various passages, mostly

comments made by Senator Muskie during the 1970

hearings. However, other members make comments that

indicate otherwise. For example, Senator Baker states:

Now, on the other side of the question of where

[the standard] ought to be set is unanswerable.

And it will continue to be unanswerable because

we at the legislative department and the

executive department through its appropriate

administrative channel are going to have to

monitor the state of the art, the condition of the

world, the economic impact in dislocations, the

situation as it continues from year to year and

decide what we are going to do about it.

Hearings on Air Pollution Before the Subcomm. on Air and

Water Pollution of the Senate Comm. on Pub. Works, 91"

Cong., 2d Sess. Pt. 4, at 1488, 1489 (1970), (Air Pollution

Hearings) reprinted in 2 Staff of Senate Comm. on Pub.

Works, 93d Cong., 2d Sess., A Legislative History of the

Clean Air Amendments of 1970 at 1186 (Comm. Print. 1974)

(hereinafter “2 1970 Leg. Hist.”) (emphasis supplied); EPA

Brief at 28, n.8. This passage at least implies that economic

impacts will influence the revision of air quality standards.

In addition, EPA cites Senator Muskie

“reemphasiz[ing] that the concept of this bill . . . is not keyed

to any condition that [EPA] finds technically and

economically feasible.” EPA Brief at 26. This comment was

made in regard to the amendment creating a standing

consulting committee for each pollutant to advise EPA on

technology and costs. However, the sponsor of the

amendment, Senator Randolph commented:

It is my belief that since enactment of the 1967

amendments to the Clean Air Act, it has become

apparent that one of the deficiencies . . . has

been the agency’s lack of understanding of

industrial pollution control techniques. It is, of

course, easy for Government to arrive at a set

figure for industry to meet without giving due

consideration to whether those requirements are

obtainabie on the basis of available control

technology.

| 1970 Leg. Hist. 341 (emphasis supplied). Again, this

passage at least implies that available control technology

should be considered in setting a standard.

These examples, together with those cited in the

Supporting States’ opening brief, indicate that there are

numerous instances in the legislative history where members

of Congress express the opinion that factors other than public

health are to play a role in setting and revising an air quality

standard. Thus, at the very least, the legislative history

indicates a diversity of opinion on the issue and may be more

accurately interpreted that Congress did net want cost and

technological feasibility to stand in the way of meeting a

standard. In any case, the history does not go to how EPA is

to determine standards for non-threshold pollutants. EPA’s

heavy reliance on such a history is therefore misplaced, and

8

should be given less credence than the statutory language

itself.

IV. Expanding the Number of Factors EPA May

Consider in Setting an Air Quality Standard

Narrows Choices and Allows for An “Intelligible

Principle” in Setting the Standard, Thus Avoiding

the Issue of Nondelegation.

Finally, despite the uncertainty surrounding the

standards, EPA argues that expanding the range of factors

that it may consider in setting an air quality standard would

exacerbate the problem of defining a standard, as i would

increase, rather than decrease its discretion under Section

109. EPA Brief at 47-49. Therefore, in EPA’s view,

consideration of cost and other factors does not avoid the

nondelegation question. But, contrary to EPA’s contention,

additional factors actually narrow, rather than broaden,

choices in decision-making and, therefore, resolve the issues

before the Court without the need to resolve the

constitutional question.

Useful analogies abound to illustrate this point. In a

well-known principle of plane geometry, an infinite number

of straight lines can be drawn through a single point, but two

points define only one straight line. In the purchase of a car,

if the only criterion for the car is its size, a huge number of

choices are available. As each new criterion (e.g., price,

color, safety record, gas mileage, etc.) is added to the

decision-making process, the choices narrow dramatically.

So it is here. In determining an air quality standard,

consideration of the single factor of health effects on

individuals (especially for a non-threshold pollutant)

identifies a broad range of possible standards. Addition of

the further factors of societal costs and benefits narrows that

9

range considerably and will help, rather than hinder,

definition of a standard based on an “intelligible principle.”

Limited considerations of costs and other factors do

not involve an “open ended inquiry” into every conceivable

cost, as EPA suggests. Cost-benefit analysis “is simply a

weighing of all the desirable effects of a proposed action

against all the undesirable effects, whether or not they are

susceptible of being expressed in economic terms.” A.

Scalia, Responsibilities of Regulatory Agencies Under

Environmental Laws, 24 Hous. L. Rev. 97, 101 (1987). See

also International Union v. OSHA, 938 F.2d 1310, 1319-21

(D.C. Cir. 1991). Therefore, the inquiry may reasonably

involve only those costs directly relevant to the limitation of

a particular pollutant. Of course, as EPA asserts, that inquiry

will be open to debate. But such debate is the price of public

comment and agency rulemaking. And the ultimate agency

decision resulting from such an analysis “is particularly

— for a court to second-guess.” 24 Hous. L. Rev. at

101.

On the other hand, failing to consider any factor other

than direct health effects results in the present, unreasonable

result—no intelligible principle whatsoever for the ozone and

particulate matter standards. EPA reasonably should

consider costs and other non-health factors when setting and

revising a national air quality standard.

10

CONCLUSION

For the foregoing reasons, the States of Ohio,

Michigan and West Virginia respectfully request that the

Court order the lower court to vacate the ozone and

particulate matter standards, and remand the particulate

matter standard to EPA for reconsideration of those

standards.

*Counsel of Record

October, 2000

Respectfully submitted,

BETTY D. MONTGOMERY

\ttorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

FRANK J. REED, JR.

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

{| Additional Counsel Listed on Next Page]

MARK J. RUDOLPH

Deputy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hansford Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan