Amicus Curiae Brief — American Trucking Assns., Inc. v. Browner

S Court, US.

FILED

@ JUL 2 1 2000

No. 99-1426

Sic

IN THE SUPREME COURT OF THE UNITED STATES

CLERK

American Trucking Associations, Inc., Chamber of

Commerce of the United States, et al.,

Cross-Petitioners,

Vv.

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 FOR SENATORS JAMES M. INHOFE, TIM .

HUTCHINSON, ROBERT F. BENNETT, AND

GEORGE VOINOVICH AS AMICI CURIAE IN

SUPPORT OF CROSS-PETITIONERS

Paul Rosenzweig

Rosenzweig Law Office, LLP

516 C Street, NE, Suite 300

Washington, DC 20002

(202) 543-9370

21.27

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE............c.cccccceseeseeeee 1

I. The Clean Air Act Does Not Prohibit The

\iidetanten onder Slr sney ately ‘li

Health Risks, Risk Significance, And Economic

A. The Plain Language Of The Statute Does

Not Prohibit Consideration Of Costs

B. Prohibiting Consideration Of Costs And

Risk Significance Would Be Irrational

And Contrary To The Statute's

1. Prohibiting Consideration Of

Costs Effectively Prohibits

Consideration Of Countervailing

2. The Administrator's Construction

Adverse Health Risks, Regardless

Of Costs -- An Absurd Result

Not Contemplated By The

*

3. Congress Should Not Be Presumed

To Have Intended To Ignore

Societal Costs Imposed By

PRB GIIROIII .rcscccscensestenemel 15

II. Passage Of The Clean Air Act Amendments In

1990 Did Not Ratify The Rule In Lead

FRGNGITEBS ...0001s0scsncecessenseennsennsiaianniaiaaaele 17

A. Reliance On Legislative Inaction

Violates The Presentment Clauses........ 17

B. Reliance on Legislative Inaction Violates

Separation of Powers Principles............ 22

C. Legislative Inaction Is An Ambiguous

Indicator Of Congressional Views ......... 28

COIN EAIIOIN ..0c0ccessessesesscessssosssssnessnnennninnnnnnnnn 30

TABLE OF AUTHORITIES

Cases

Ashwander v. TVA, 297 U.S. 288 (1936)............. 5

Bob Jones University v. United States,

ean 19-20

Bowsher v. Synar, 478 U.S. 714 (1986)............. 23

Buckley v. Valeo, 424 U.S. 1 (1976)...............0... 22

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

EES ee 6

City of Boerne v. Flores, 521 U.S. 507 (1997).... 23

Clinton v. City of New York, 524 U.S.

a taitiaciereaeart tate rmtemnnttnnccnnne 22, 24

CPSC v. GTE Sylvania, Inc., 447 U.S.

ee 28

FDA v. Brown & Williamson Tobacco

Corp., 120 S.Ct. 1291 (2000)................ passim

Grand Canyon Air Tour Coalition v.

FAA, 154 F.3d 455 (D.C. Cir. 1998)............. 16

Haig v. Agee, 453 U.S. 280 (1981) ..................... 19

Harris Trust and Savings Bank v. Salomon

Smith Barney Inc., 120 S.Ct. 2189 (2000) .. 6-7

Haynes v. United States, 390 U.S. 85 (1968) .... 29

Hughes Aircraft Co. v. Jacobson,

a rasaes 6

Industrial Union Dep't v. American Petroleum

Inst. 448 U.S. 607 (1980) ...................... 15, 16

INS v. Chadha, 462 U.S. 919 (1983)......... passim

Jones v. United States, 120 S.Ct. 1904

EE 5

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

ET passim

Lorillard v. Pons, 434 U.S. 575 (1978)......... 21-22

Maez v. Mountain States Tel. & Tel. Inc.,

54 F.3d 1488 (10% Cir. 1995) ......................... 6

iv

Merrill Lynch, Pierce, Fenner & Smith v.

Curran, 456 U.S. 353 (1982)...................04. 19

Metropolitan Washington Airports Authority

v. Citizens for Abatement of Aircraft

Noise, Inc., 501 U.S.252 (1991)................. 23

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

eee rE 16

Miller v. French, 2000 WL 775572 (U.S.

Te i iiciiciiastncisssineestcitciemuinsiaicaniindeiniie 22, 23

Mistretta v. United States, 488 U.S.

a) EE 23, 27

Morrison v. Olson, 487 U.S. 654 (1988) ............ 23

Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982)................ 23

NRDC v. EPA, 824 F.2d 1146

(D.C. Cir. 1987) (en banc) .............. 8, 9, 15, 28

Pension Benefit Guaranty Corp. v. LTV

Corp., 496 U.S. 630 (1990) ..................:00eecee 29

Prill v. National Labor Relations Board,

755 F.2d 941 (D.C. Cir. 1965)........................ 6

Reeves v. Ernst & Young, 507 U.S. 170

crannies 7

Richards v. United States, 369 U.S. 1

TTT clnsesiestesiniisinatetiesinicattinlaaidenineiamenitiniciitaliaiaaaii 7-8

Rodriguez v. United States, 480 U.S. 522

a ic la eiear menial tainted cinta 17

Sea-Land Service, Inc. v. Dep't of Transp.,

137 F.3d 640 (D.C. Cir. 1995) ...............ccccee 6

Securities and Exchange Commission v.

Chenery Corp., 318 U.S. 80 (19493)................ 6

Smiley v. Citibank (S.D.) N.A., 517 U.S. 735

United States v. Philadelphia National

Bank, 374 U.S. 321 (1963) ...........:cccccceeseeeee 28

v

United States v. Price, 381 U.S. 204 (1960) ...... 28

United States v. Midwest Oil Co.,

ee es GE ccccescsncnccssnsnncsnseeressnscenees 19

United States v. Wise, 370 U.S. 405 (1962). 28, 29

United States ex rel. Attorney General v.

Delaware & Hudson Co., 213 U.S.

INES FE IE Sa 5

Zemel v. Rusk, 381 U.S. 1 (1965)...........000000000... 19

Constitution, Statutes and Rules

eee 10

U.S. Const. Art. I, § 7, cls. 2 and 3............ passim

Clean Air Act § 108(a),

EI 9, 13

Clean Air Act § 109(b)(1),

42 U.S.C. § 7409(b)(1)........................06 passim

Clean Air Act § 109(d),

nen 3, 29

Clean Air Act § 181, 42 U.S.C. § 7511............... 29

Clean Air Act § 302(h), 42 U.S.C. § 7602.......... 10

Clean Air Act § 312(a),

Er 29

Ozone Final Rule, 62 Fed. Reg. 38,855 ......passim

Particulate Matter Final Rule,

A ee passim

Particulate Matter Proposed Rule,

ini nseniaiettarietasiinmetintaiteantibiate 13

Bs HTT cxtesinestenenicesinissnecuatininsiaenteiiendiapebainasldianiaiadatie 1

Miscellaneous

Black's Law Dictionary (6" ed. 1990) ............... 18

Breyer, Stewart, Sunstein & Spitzer,

ADMINISTRATIVE LAW AND REGULATORY

gg enn 14

vi

THE FEDERALIST, No. 47

8 EE ae 22, 23

OMB, REPORT TO CONGRESS ON THE COSTS

AND BENEFITS OF FEDERAL REGULATIONS

S. Rep. No. 1196, 91** Cong. 2d Sess. (1970)....... x

S. Rep. No. 1335, 54" Cong. 2d Sess. (1897)..... 18

"Statement on Signing the Bill Amending the

Clean Air Act," reprinted in, A LEGISLATIVE

HISTORY OF THE CLEAN AIR ACT

AMENDMENTS OF 1990.....................ccccceccceeees 21

Sunstein, /nterpreting Statutes in a Regulatory

State, 103 HARV. L. REV. 405 (1989) ........... 16

Webster's Collegiate Dictionary

ry haa cea 8

RE

INTEREST OF AMICI CURIAE!

Amici are Senators of the United States of

America. Senator James M. Inhofe represents the

citizens of Oklahoma. Senator Tim Hutchinson

represents the citizens of Arkansas. Senator Robert F.

Bennett represents the citizens of Utah. Senator George

Voinovich represents the citizens of Ohio.

Senator Inhofe is Chairman of the Subcommittee

on Clean Air, Wetlands, Private Property, and Nuclear

Safety of the Committee on Environment and Public

Works of the United States Senate. Senators Bennett

and Voinovich are members of the Subcommittee and

Senator Hutchinson served as a member of the

Subcommittee in the 105" Congress. While serving as

Governor of Ohio, Senator Voinovich was Chairman of

the Republican Governors Association Environmental

Task Force.

Amici have an interest in ensuring that the

statute in question not be construed in a manner that

violates the fundamental separation-of-powers principles

inherent in the United States Constitution in derogation

of their legislative powers and responsibilities. In

addition, amici will have substantial legislative

responsibility for the reauthorization of the Clean Air Act

when the 107 Congress considers it and for oversight of

the Administrator's implementation of the Act. Finally,

1 The parties have consented to the submission of this

brief. Their letters of consent have been filed with the Clerk of

the Court. Pursuant to Supreme Court Rule 37.6, none of the

parties authored this brief in whole or in part and no one other

than amici, or counsel contributed money or services to the

preparation or submission of this brief.

2

amici represent millions of citizens who will be affected

by implementation of the Act. Amici are, therefore,

vitally interested in the proper construction of the Clean

Air Act.

SUMMARY OF ARGUMENT

The Administrator interprets the Clean Air Act to

require that, in setting National Ambient Air Quality

Standards ("NAAQS"), she may not consider any factor

other than benefits to the public health from the

standards set. In other words, the Administrator

believes that the statute prohibits consideration of

countervailing health risks, economic costs or technical

feasibility.

This construction of the statute is at odds with the

statutory language. The statutory phrase "adequate

margin of safety" uses words that permit the

Administrator to balance the public health benefits of a

proposed NAAQS against other public policy factors.

Indeed, Congress could not have intended any other

interpretation. Absent consideration of any

countervailing factors, the logical import of the

Administrator's view is that the statute requires the

complete elimination of all human-generated pollutants

that have an adverse health effect -- but Congress never

intended to order or permit the deindustrialization of

America.

Nor can the Administrator's construction of the

statute be saved by reliance on an alleged ratification of

that construction when the Congress reauthorized the

Clean Air Act in 1990. Reliance on subsequent

Congressional inaction as ratification gives that inaction

legislative character and effect. After this Court's

decision in INS v. Chadha, 462 U.S. 919, 957 (1983), the

3

only permissible actions having legislative effect are

those that comport with the Presentment Clauses (U.S.

CONST. Art. I, § 7, cls. 2, 3) and the structural

requirements of separation of powers. Moreover, amici

can attest to the reality of the modern day legislative

process; Congressional inaction has, except in the most

unusual circumstances, little, if any, practical

interpretive value.

ARGUMENT

The Clean Air Act stands as the signature

environmental enactment of the United States Congress.

Given its impact on public health and the national

economy, the proper construction of the Act is of vital

interest to the American people. But far more is at stake

in this case than these manifestly significant concerns.

In light of the Administrator's actions, the Court is

obliged to confront, squarely, fundamental questions

about the balance of authority between the Legislative

and Executive branches of government.

In 1997, acting pursuant to Section 109(d) of the

Clean Air Act, 42 U.S.C. § 7409(d), the Administrator of

the Environmental Protection Agency promulgated final

rules revising existing NAAQS for ozone, see 62 Fed. Reg.

38,855, and particulate matter, see 62 Fed. Reg. 38,652.

The revised NAAQS were set by the Administrator to

meet the statutory mandate that they "“allow[] an

adequate margin of safety . . . requisite to protect the

public health." CAA §109(b)(1). In setting these

standards -- whose implementation will substantially

affect every member of the public and all American

industry -- the Administrator concluded that the

statutory framework prevented’ consideration of

4

“economic costs or technical feasibility." E.g. 62 Fed.

Reg. at 38,878.2 This interpretation is, however, not

consistent with the language and purpose of the Clean

Air Act; nor was it ratified by Congressional

reauthorization of the Act in 1990.

First, nothing in the language of the Act

constrains the Administrator's authority to consider the

significance of the risk posed by potential pollution or the

costs to be incurred by virtue of the adoption of the

proposed regulations. To conclude to the contrary, as the

District of Columbia Circuit did in Lead Industries, 647

F.2d at 1148, is to presume that Congress has acted

irrationally. It has not, and the Administrator has acted

under the mistaken belief that the Act prohibits

consideration of countervailing health risks and other

economic costs.

Second, the Administrator cannot look to the

reauthorization of the Clean Air Act in 1990 as a

subsequent "ratification" of the statutory interpretation

announced in Lead Industries. Subsequent legislative

inaciion does not qualify as an authoritative legislative

pronouncement. To rely on inaction as acquiescence is

deeply inconsistent with the Constitutional requirement

of Presentment (Art. I, § 7, cls. 2, 3) and principles of

separation of powers.

2 In fairness to the Administrator, she believed that

her determination to ignore economic and technical factors, as

well as other health-related costs, was mandated by the

decision of the District of Columbia Circuit in Lead Industries

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

3 By resolving this case on grounds of statutory

construction, the Court will avoid the difficult Constitutional

questions posed by the delegation doctrine issue presented in

I. The Clean Air Act Does Not Prohibit The

Administrator From Considering

Countervailing Health Risks, Risk Significance,

And Economic Feasibility

The Act requires the Administrator to set NAAQS

at a level of ambient air quality sufficient to "allow[] an

adequate margin of safety . . . requisite to protect the

public health.". CAA § 109(b)(1). The Administrator,

acting under the aegis of Lead Industries, believes that

this language requires her to consider only the

health-related benefits of a proposed regulation, without

regard to countervailing health risks, other economic

costs, or the significance of the risks being addressed.

Yet nothing in this plain language remotely purports to

limit the Administrator's discretion. Indeed, such an

interpretation is irrational and contrary to the

underlying statutory purpose of the Clean Air Act.

Because the Administrator mistakenly believed that the

—— eee

the companion case, No. 99-1257. Properly construed, the

Clean Air Act permits the Administrator to interpret the Act as

embodying an intelligible principle of implementation. As this

Court has said: "[Wjhere a statute is susceptible of two

constructions, by one of which grave and doubtful

constitutional questions arise and by the other of which such

questions are avoided, our duty is to adopt the latter." Jones v.

United States, 120 S.Ct. 1904, 1911 (2000) (quoting United

States ex rel. Attorney General v. Delaware & Hudson Co., 213

LS 366, 408 (1909)); see also Ashwander v. TVA, 297 U.S. 288,

$48 (1936) (Brandeis, J., concurring). To the extent the Court

deems it necessary to address the delegation question at issue

in No. 99-1257, amici concur that without a limiting principle

the Administrator's present construction of the Act renders it

an impermissible delegation of the legislative function.

6

statute limited her discretion, the decision to adopt the

ozone and particulate matter NAAQS was arbitrary and

capricious.‘

A. The Plain Language Of The Statute Does Not

Prohibit Consideration Of Costs Or Risk

Significance

"As in any case of statutory construction, [the

Court's] analysis begins with the language of the

statute.... And where the statutory language provides a

clear answer, it ends there as well." Hughes Aircraft Co.

v. Jacobson, 525 U.S. 432, 438 (1999); see also Harris

Trust and Savings Bank v. Salmon Smith Barney Inc.,

* An agency's mistaken interpretation of law renders

its decision arbitrary and capricious. "An agency action,

however permissible as an exercise of discretion, cannot be

sustained ‘where it is based not on the agency's own judgment

but on an erroneous view of the law." Sea-Land Service, Inc. v

Dep't of Transp., 137 F.3d 640 (D.C. Cir. 1995) (quoting Prill v.

National Labor Relations Board, 755 F.2d 941, 947 (D.C. Cir.

1985)); see also Securities and Exchange Commission uv.

Chenery Corp., 318 U.S. 80, 94 (1943) ("[I]f the action is based

upon a determination of law as to which the reviewing

authority of the courts does come into play, an order may not

stand if the agency has misconceived the law."); Maez uv.

Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1505 (10%

Cir.1995) (agency action founded on mistake of law is arbitrary

and capricious under Administrative Procedures Act). For

essentially the same reasons, amici also believe that the

Administrator's position is as an impermissible construction of

the law under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-

43 (1984). Both modes of legal analysis build on the same

factual premise -- the Administrator misunderstood the law.

Cf. Smiley v. Citibank (S.D.) N.A., 517 US. 735, 741-42 (1996)

(Chevron II analysis similar to arbitrary and capricious review).

7

120 S.Ct. 2180, 2191 (2000) (same). Thus, if an

examination of the text gives a clear and unequivocal

answer to the interpretive question presented, that

textual answer controls unless some "clearly expressed

legislative intent to the contrary" is manifested in the

legislative history of the enactment. Reeves v. Ernst &

Young, 507 U.S. 170, 177 (1993).

Here the text of the statutory language is clear.

The Administrator is obliged to provide an "adequate

margin of safety" to protect public health. This is not an

absolute command that the Administrator consider only

public health benefits -- yet the Administrator and the

District of Columbia Circuit in Lead Industries have

misconstrued it as such.

Congress could have enacted the "health only"

standard of Lead Industries -- and had it wished to do so,

it would have written with far greater clarity. Congress

might have commanded, for example, that the NAAQS be

set to "protect public health to the maximum extent

practical without regard for economic costs or technical

feasibility" -- but did not. Congress might have written

that the NAAQS be set "giving exclusive consideration to

the public health benefits resulting from reductions in"

pollutants -- but it did not. In amici's experience it would

be exceedingly odd for Congress to command that

“economic costs, countervailing health risks, and

technical feasibility" be ignored without using those

words or any reasonable cognates of them in the statute.

To the contrary, the text of CAA § 109(b)(1)

speaks in terms of moderation and comparison, not in

terms of absolutes. Amici believe that "the legislative

purpose is expressed by the ordinary meaning of the

words used." Richards v. United States; 369 U.S. 1, 9

8

(1962). Here, the ordinary words used do not support the

Administrator's construction of the law.

The word "adequate," for example, connotes

sufficiency, not excess. See Webster's Collegiate

Dictionary 14 (10% ed. 1999) (defining adequate as

"sufficient for a specific requirement"). And, in some

contexts "adequate" carries with it the implication of

minimum sufficiency. See id. (alternately defining

adequate as “barely sufficient"). Thus, use of the word

"adequate" plainly signals that the Administrator is to

set NAAQS at a level that suffices to the purpose, and no

more.®

So too, the use of the word "margin" connotes a

"spare amount or measure or degree allowed or given for

contingencies." Webster's Collegiate Dictionary 711 (10t

ed. 1999). Thus, the statutory text commands the

Administrator to strike a balance, defining an adequate

margin of safety somewhere above the minimum

necessary to protect public health. Cf. NRDC v. EPA,

824 F.2d 1146, 1153 (D.C. Cir. 1987) (en banc) ("Vinyl

Chloride") (recognizing that an "ample" margin of safety

is one greater than an "adequate" margin).

And finally, the word "safety" also betokens

balance. "Safe" means "free from harm or risk" and

"secure from threat of danger." Webster's Collegiate

Dictionary 1030 (10% ed. 1999). Concepts of "risk" and

5 This is consistent with the legislative history in the

Senate reflecting an intent that the NAAQS be set at the

"maximum permissible ambient air level" which will protect the

public health. S. Rep. No. 1196, 91st Cong. 2d Sess., at 10

(1970) (emphasis supplied). In other words, the Administrator

is to do what is needed, and no more.

9

"threat" are relative metrics, not absolutes. "Use of the

word ‘safety’. . . is significant evidence that [Congress]

did not intend to require the Administrator to prohibit all

emissions of non-threshold pollutants .... ‘[S]Jafe' does

not mean ‘risk-free’. ... [S]omething is ‘unsafe’ only

when it threatens humans with '‘a significant risk of

harm.” Vinyl Chloride, 824 F.2d at 1153 (citation

omitted).®

But how is the adequacy of a margin of safety to

be measured? Any value beyond the scientifically

minimum requisite provides a "margin." And any level of

protection provides a measure of "safety" greater than

that provided by a less stringent level. To measure the

"adequacy" of a margin the margin must be balanced

against some countervailing value. In this regard, Lead

Industries’ casual rejection of any countervailing balance

to public health benefits is simply inconsistent with the

plain language of CAA § 109(b)(1).

The Administrator's reading also disregards

parallel textual provisions that were intended to guide

the Administrator in assessing the adequacy of the

protection of public safety. CAA § 108(a)(2) directs the

Administrator to issue criteria -- that is, informational

compilations used in NAAQS standard setting, see 62

Fed. Reg. at 38,654 (particulate matter criteria), 38,857

(ozone criteria) -- that include information on any "known

or anticipated adverse effects on welfare." CAA

§ 108(a)(2)(C). Consideration of the effects on the

6 Amici agree that Congress used the phrase “public

health" to refer to a well known, scientific discipline. Because

the meaning of that reference is fully developed in the parties’

briefs, amici do not repeat that analysis here.

10

"welfare" of the public expressly requires consideration of

other factors beyond the public health effects of a

particular regulation. See CAA §302(h) (defining

"welfare" to include, inter alia, “effects on economic

values and on personal comfort and well-being"); cf. U.S.

CONST. Preamble ("to . . . promote the general Welfare").

Countervailing economic costs, health risks, and

technical factors are potentially “anticipated adverse

effects on welfare." Thus, as a matter of textual exegesis,

Congress has said that however significant and

important the magnitude of any particular public health

concern, there are other public policy factors that may be

considered in making the requisite regulatory decision.

So that our point is clear, we make it explicit:

Amici do not contend that the text of CAA § 109(b)(1)

requires the consideration of economic costs; rather, we

make the simpler and equally sustainable point that

CAA § 109(b) does not prohibit such consideration.’

What the law does require is that the

Administrator identify some factor -- some aspect of the

public "welfare" -- against which to measure the

adequacy of the margin of safety proposed. That factor

might be the economic cost and technical feasibility of the

7 Were the Administrator to give these regulations

such consideration she might well reevaluate and revise her

decision. As the Office of Management and Budget has

reported, the net present value of the costs associated with

implementing the ozone final rule, in its current form, exceed

the societal benefits of the rule. See REPORT TO CONGRESS ON

THE COSTS AND BENEFITS OF FEDERAL REGULATIONS, at 72

(2000) (costs of $62 billion; benefits of $11-59 billion). Data on

the particulate matter final rule are ambiguous. /d. at 73 (costs

of $230 billion; benefits of $148-816 billion).

11

regulation proposed; it might be (as we suggest, infra

§ 1.B.2) an assessment of the significance of the risk

being addressed; it might be a comparative risk analysis

attempting to determine whether the resources required

to implement the regulation in question would produce

greater benefits if put to another use; or it might be some

combination of all of these factors. What is

unsupportable is the Administrator's assertion of an

effectively standardless, unconstrained authority to set

NAAQS levels without any attempt to justify the

adequacy of the margin of safety proposed.*

B. Prohibiting Consideration Of Costs Or Risk

Significance Would Be Irrational And

Contrary To The Statute's Purpuse

Any fair reading of the Administrator's position

must acknowledge the irrationality of the decision she

supposes Congress to have made. No court should so

lightly assume that Congress has legislated without

sense. Under the Administrator's interpretation, the

Agency may not consider countervailing adverse health

risks, nor may it consider other economic costs, nor may

8 See, e.g. 62 Fed. Reg. at 38,688, ("The Administrator

is not limited to any single approach to determining an

adequate margin of safety"); id. at 38,883 (same). EPA has

blandly asserted that its decisions need not be based on any

"generalized paradigm;” "may not be amenable to quantification

in terms of what risk is ‘acceptable’ or any other metric;" and

are “largely judgmental in nature." Jd. at 38,688, 38,883. This

is not a balanced measure of the “adequacy” of a particular

margin of safety -- it is an assertion that an arbitrarily set

margin is “adequate” simply because the Administrator says it

is. The text of CAA § 109(b)(1) demands more.

12

it consider whether the health risks it addresses are of

any public significance. On this reading, the statute

logically requires the total elimimation of anthropogenic

sources of ozone and parti-ulate matter -- a manifestly

absurd result that Congress «ewer intended.

1. Prohibiting Comsideration Of Costs

Effectively Prohibits Consideration Of

Countervailing Health Risks

The most striking aspect of the Administrator's

counter-intuitive interpretmtion of CAA § 109 is that the

Administrator believes it impermissible to consider

whether the regulations proposed might have net adverse

health effects. So long, in the Administrator's view, as a

positive health benefit from regulation is identified, the

substantial (and perhaps significantly greater) adverse

health-related costs that will be incurred are of no

statutory importance.

Thus, in the ozone final rule, the Administrator

affirmatively chose to disregard the potential health

benefits of tropospheric ozone as a shield from the

harmful effects of ultraviolet radiation. See, e.g., Ozone

JA 255-71, 2579, 2666, 2676, 2849, 3089 (summarizing

this evidence); id. at 210 (declining to consider it). Amici

are not, of course, in a position to opine on the

significance or validity of the scientific data presented in

opposition to the ozone rule -- but at this juncture neither

is the Administrator.

On the present state of the administrative record

the Administrator is in an uncomfortable -- and

incomprehensible -- position. She argues that even

though the beneficent health effects of tropospheric ozone

(in preventing skin cancers, for example) may actually

outweigh the harmful health effects of tropospheric ozone

13

(in effecting breathing) the law obliges her to utterly

ignore those potentially countervailing health benefits.

But the language of the statute requires no such

thing -- the criteria for issuing NAAQS for any particular

air pollutant are required to include information on

"variable factors which may alter the effects on public

health or welfare of such air pollutant.” CAA

§ 108(a)(2)(A) (emphasis added). A beneficial health

effect is surely one that “alters” the effect on public

health. Thus, Congress has spoken directly to this

question and rejected this irrational conclusion.

2. The Administrator's Construction

Requires Elimination Of All Adverse

Health Risks, Regardless Of Costs — An

Absurd Result Not Contemplated By The

Statute

Of equal significance is the logical import of the

Administrator's “health benefit only" focus. For

non-threshold pollutants this interpretation has only one

intelligible stopping point -- elimination of all

anthropogenic pollutant production.

It is a sad, but undisputed, scientific fact that

ozone (certainly) and particulate matter (with a high

degree of probability) are non-threshold pollutants. See

62 Fed. Reg. at 38,863 (ozone); 61 Fed. Reg. at 65,651

(particulate matter). In other words, they have adverse

health effects at naturally occurring background

atmospheric concentration levels. Thus, even the total

elimination of all human ozone and particulate matter

production would not suffice to eliminate all adverse

public health effects, as natural ozone and particulate

matter levels would continue to have adverse effects.

14

But if (as the Administrator has argued) public

health is the only statutorily permissible consideration

then there is no bright-line at which to set the requisite

NAAQS level. The only logical response to non-threshold

pollutants, consistent with that statutory comstruction, is

to minimize adverse health risks to the maximum extent

practical -- a standard that, in this instance, calls for the

elimination of all human activity which generaites either

ozone or particulate matter. Such a standard would, of

course, be nonsensical, as it would require the closure of

every major industrial plant in America and the

elimination of all automobile transportation.

The Administrator, understandably, shies away

from the implications of her “health benefit only"

formulation. Yet, as the court below correctly recognized,

Pet.App. 7a-lla (No. 99-1257), any effort to justify an

intermediate NAAQS standard above one eliminating all

human pollutant production without reference to some

counter-balancing factor is nothing more than arbitrary

line-drawing, lacking rational basis or explanation.

Amici submit that implicit in the necessity for

setting a threshold for non-threshold pollutants is the

requirement that the Administrator assess the public

significance of the adverse health risks to be addressed.®

When Congress legislates it does not intend to solve all

9 Perhaps this is merely a reformulation of the question

of costs. See Breyer, Stewart, Sunstein & Spitzer,

ADMINISTRATIVE LAW AND REGULATORY POLICY 65 (4* ed. 1999)

("(Cjan an agency sensibly decide whether a risk is ‘significant’

without also examining the cost of eliminating it?").

Alternatively, it may be viewed as a formulation that looks

solely to the benefit side of the cost/benefit question.

15

the problems of air pollution no matter what the costs

imposed by the solution. Similarly, it does not enact a

statute of general applicability addressed to a particular

class of problems (such as, air pollution) with the intent

that all problems within the class be addressed no matter

how trivial or insignificant. Amici can attest that, as this

Court has already recognized, legislation of general

applicability is typically intended only to address

“significant risks" within the general class. See

Industrial Union Dep't v. American Petroleum Inst., 448

U.S. 607, 646 (1980) (plurality opinion) ("Benzene")

(construing Occupational Safety and Health Act to

require a determination that risk is "“significant”").

Congress, in legislating, looks to resolve the larger issues

of public importance; we do not generally intend to

expand the sphere of federal influence to every corner of

the economy.

In this instance, the Administrator's construction

of the law, carried to its logical endpoint, rests on the

premise that Congress intended such an expansion and

contemplated the deindustrialization of America. "It is

simply not possible that Congress intended such havoc in

the American economy and not a single representative or

senator mentioned the fact." Vinyl Chloride, 824 F.2d at

1155.

3. Congress Should Not Be Presumed To

Have Intended To Ignore Societal Costs

Imposed By Regulation

Finally, amici submit that the Administrator's

interpretation of CAA § 109(b)(1) is contrary to the

appropriate background rule of statutory construction.

We have endeavored to demonstrate that the statute is

clear and that its text permits consideration of economic

and social costs and risk significance. But even if we are

16

wrong -- if the statute is not as clear as we believe -- then

at a minimum, the Administrator must acknowledge that

the statute does not contain an express prohibition on the

consideration of such factors. We submit that the proper

rule of construction is to resolve any such ambiguity in

favor of permitting consideration of social costs and risk

significance, absent a clearly expressed Congressional

intent to the contrary. '°

Though this Court has never clearly adopted such

a rule of construction, it is a logical outgrowth of

Congress's practice of delegating substantial discretion to

administrative agencies. When, for example, the Federal

Aviation Administration is tasked with the "substantial

restoration of the natural quiet" of the Grand Canyon,

there is no reason to suppose that in deciding how

substantial the restoration should be the FAA cannot

consider the costs that will be borne by the air tourism

industry. See Grand Canyon Air Tour Coalition v. FAA,

154 F.3d 455, 475 (D.C. Cir. 1998); see also Michigan v.

EPA, 213 F.3d 663, 2000 WL 180650, at *12 (D.C. Cir.

2000) (permitting consideration of cost absent clear

expression of Congressional intent to _ preclude

consideration). Thus, in amici's view, Congress

generally enacts statutes with the intention that they be

read to authorize regulations with benefits "roughly

commensurate with their costs." Sunstein, /nterpreting

Statutes in a Regulatory State, 103 HARV. L. REV. 405,

457 (1989).

1© As this Court said in Benzene, 448 U.S. at 646, such

a rule of construction may be Constitutionally mandated to

avoid serious delegation issues. We address here, however,

only the prudential concerns, leaving the Constitutional

question for resolution in the companion case, No. 99-1257.

17

In sum, as this Court said in an unrelated context:

"[NJo legislation pursues its purposes at all costs.

Deciding what competing values will or will not be

sacrificed to the achievement of a particular objective is

the very essence of legislative choice -- and it frustrates

rather than effectuates legislative intent simplistically to

assume that whatever furthers the statute's primary

objective must be the law." Rodriguez v. United States,

480 U.S. 522, 525-26 (1987). Here, the Administrator

has adopted precisely such a simplistic and untenable

presumption; her interpretation of § 109(b)(1) must be

rejected.

II. Passage Of The Clean Air Act Amendments In

1990 Did Not Ratify The Rule In Lead Industries

In defense of the NAAQS final rules, the

Administrator relies on the actions of a subsequent

Congress which, in 1990, reauthorized the Clean Air Act

without making any change in the operative language of

CAA § 109(b)(1). From this reauthorization, the

Administrator infers Congressional acquiescence in the

Lead Industries interpretation of the Act. But such an

inference is unwarranted. Indeed, any general theory of

statutory interpretation that places significant reliance

on Congressional failure to modify a statute in light of an

intervening judicial decision is contrary to the provisions

of the Presentment Clauses of the Constitution and the

principles of separation of powers. It also ignores the

realities of the legislative process.

A. Reliance On Legislative Inaction Violates

The Presentment Clauses

Congress exercises its legislative power only

through the process of legislative enactment specified in

18

the Constitution. As this Court held in INS v. Chadha,

462 U.S. 919, 957 (1983), that process requires

compliance with "(t]he bicameral requirement, [and] the

Presentment Clauses," followed by the President's

approval of the legislation (or an override of his veto).

These requirements are not mere empty formalities --

rather the "bicameral requirement and the Presentment

Clauses serve essential constitutional functions." Jd. at

951. They are the bedrock foundation of the

Constitution, "intended to erect enduring checks on each

Branch and to protect the people from the improvident

exercise of power." Jd. at 957.

One necessary implication of the holding in

Chadha is that Congressional silence or inaction may not

be read by the courts as approval of a prior judicial

interpretation of an existing statute. All legislative acts,

after Chadha, require legislative enactment. Reading

Congressional silence as approval of a judicial decision

effectively treats Congressional silence as an exercise of

the legislative power, without that exercise comporting

with Constitutional requirements.

As the Court said in Chadha, in determining

whether an act is legislative in character this Court must

look to “its character and effect," id. at 952 (quoting

S.Rep. No. 1335, 54% Cong. 2d Sess., 8 (1897)), not its

form. Interpreting Congressional inaction as affirmative

approval of a judicial interpretation (or an administrative

interpretation) is indistinguishable from an affirmative

Congressional enactment of the _ judicial (or

administrative) interpretation as positive law. Indeed,

the quintessential hallmark of a legislative enactment is

that it constitutes "law" -- that is, that courts use it as an

expression of what the statutory law is. See Black's Law

Dictionary 884 (6 ed. 1990) (defining "law" as including

statutory enactments). When legislative inaction is

19

treated as a substantive adoption of a judicial or

administrative rule the courts imbue that inaction with

both "legislative" character and effect.

This highlights the fundamental flaw in a

principle of statutory interpretation that relies on an

unexpressed subsequent Congressional intent as

determinative. It is not consistent with Chadha. As the

Court said: "To allow Congress to evade the strictures of

the Constitution and in effect enact Executive proposals

into law by mere silence cannot be squared with Art. I."

462 U.S. at 958, n.22.

It is true that, in the past, this Court has on

occasion relied upon Congressional inaction in concluding

that Congress has ratified (or consented to) a prior

judicial or administrative decision. See, e.g., Merrill

Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353

(1982) (relying on failure to disturb judicial decision in

later revision of law); Bob Jones University v. United

States, 461 U.S. 574 (1983) (relying on Congressional

failure to repeal administrative interpretation); Haig v.

Agee, 453 U.S. 280 (1981) (same); Zemel v. Rusk, 381 U.S.

1 (1965) (same); United States v. Midwest Oil Co., 236

U.S. 459 (1914) (Congressional failure to limit

Presidential exercise of Executive power). But each of

these cases is readily distinguishable on the simple

ground that it arose prior to Chadha.'' While it might

'! Candor compels the acknowledgment that the

decision in Bob Jones University preceded Chadha by only a

month. Nevertheless, precede Chadha it did. Moreover, the

Court reached its decision in Chadha, when squarely faced

with the question of Constitutional limits on Congressional

legislative powers, in the face of the dissent's direct reliance on

Bob Jones as a counter-example. 463 U.S. at 991 (White, J.,

dissenting). Thus, Chadha can only be read as a rejection of

20

have been appropriate for this Court to rely on

Congressional silence as equivalent to legislative

approval before it adopted the construction of the

Presentment Clauses embodied in Chadha that

interpretive methodology can no longer be sustained. '?

Nor can the implications of Chadha be evaded by

attempting to recharacterize Congressional inaction as

Congressional action. Congress's decision to reauthorize

the Clear Air Act in 1990 cannot be fairly characterized

as an affirmative adoption of the Lead Industries rule.

As even the Administrator is obliged to concede,

Congress did not amend CAA § 109(b)(1) in any relevant

respect. See U.S. Opp. 14 ("Congress did not change the

substantive criteria for setting and revising NAAQS" in

1977); id. at 15 ("Congress . . . did not change the legal

standard on which NAAQS are based" in 1990). And, as

amici can attest, legislative enactments that are carried

the Bob Jones interpretive methodology. Of equal significance,

as the Court acknowledged in Bob Jones, its reliance on

Congressional inaction was one of two alternative grounds for

its decision. Ultimately, the Court found that Congress had

“affirmatively manifested its acquiescence in the IRS policy [at

issue in Bob Jones] when it enacted" other provisions of the

Internal Revenue Code. 461 U.S. at 601.

12 The only post-Chadha case that might be read to rely

on Congressional inaction as an interpretive tool is FDA v.

Brown & Williamson Tobacco Corp., 120 S.Ct. 1291 (2000). For

reasons we discuss, infra, we do not understand Brown &

Williamson to overrule Chadha sub silentio. Moreover, in our

view, Brown & Williamson does not truly involve Congressional

inaction.

21

forward in reauthorization without change are often

given little (if any) substantive consideration. '

Thus, it is simply untenable to characterize this

sort of non-consideration as a legislative enactment; it

bears little (if any) resemblance to the paradigm of the

legislative process mandated by Chadha. "The legislative

steps outlined in Art. I are not empty formalities; they

were designed to assure that both Houses of Congress

and the President participate in the exercise of

lawmaking authority." 462 U.S. at 958, n.22.'4 Allowing

legislative silence by a subsequent Congress to be used as

a tool of statutory construction simply does not comport

with Article I requirements.'5

'§ In this regard CAA § 109(b)(1) is typical. During

reauthorization in 1990, no substantive reconsideration was

given to the legal standards embodied in CAA § 109(b)(1). No

amendments were proposed to that provision; no votes were

taken in either the House or the Senate.

‘4 President Bush was apparently of the view that the

reauthorization of the Clean Air Act did not adopt the

reasoning of Lead Industries. As he said upon signing the Act:

"To address the serious concerns raised by the cost of this

legislation, | am directing Bill Reilly, Administrator of the

Environmental Protection Agency, to implement this bill in the

most cost-effective manner possible. ... These implementation

strategies will help keep unnecessary costs and job losses down,

while ensuring the achievement of the environmental goal of

this bill in the most efficient manner possible." See “Statement

on Signing the Bill Amending the Clean Air Act November 15,

1990" reprinted in A LEGISLATIVE HISTORY OF THE CLEAN AIR

ACT AMENDMENTS OF 1990, Vol. I at 727-28.

‘8 Thus, our view is that the method of statutory

analysis adopted in Lorillard v. Pons, 434 U.S. 575, 580-81

(1978) ("Congress is presumed to be aware of an administrative

22

B. Reliance on Legislative Inaction Violates

Separation of Powers Principles

Underlying the Presentment Clauses analysis this

Court utilized in Chadha is an equally fundamental, yet

distinct dimension of the analysis. “The principle of

separation of powers was not simply an abstract

generalization in the minds of the Framers: it was woven

into the documents that they drafted in Philadelphia in

the summer of 1787." Buckley v. Valeo, 424 U.S. 1, 124

(1976) (per curiam). Sometimes, as in Chadha, those

principles find animation in particular textual provisions

of the Constitution. Often, however, application of the

principles springs from the “very structure’ of the

Constitution that exemplifies the concept of separation of

powers." Miller v. French, 2000 WL 775572 at *9 (U.S.

June 19, 2000) (quoting Chadha, 462 U.S. at 946). Those

structural principles preclude giving interpretive effect to

Congressional inaction.

"Separation of powers was designed to implement

a fundamental insight: concentration of powers in the

hand of a single branch is a threat to liberty." Clinton v.

City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J.,

concurring). Thus, as Madison wrote of the principle of

separation of powers: "No political truth is certainly of

greater intrinsic value or is stamped with the authority

of more enlightened patrons of liberty." THE FEDERALIST

No. 47 (J. Cooke ed. 1961). Where "the whole power of

or judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change"),

simply cannot be squared with and does not survive this

Court's decision in Chadha.

23

one department is exercised by the same hands which

possess the whole power of another department, the

fundamental principles of a free constitution are

subverted." Jd.

This Madisonian concern -- what this Court

appropriately characterizes as fear of the “hydraulic

pressure inherent within each of the separate branches

to exceed the outer limits of its power," Chadha, 463 U.S.

at 591 -- reflects a anxiety that one branch will, through

its actions, seek to encroach on the powers of another and

aggrandize to itself greater power. Mistretta v. United

States, 488 U.S. 361, 382 (1989). For this reason, the

Court has routinely struck down, on separation of powers

grounds, actions that unify in a single branch power

more appropriately diffused among the several branches

or that undermine the authority of one coordinate branch

for the benefit of another. Jd. See, e.g., City of Boerne v.

Flores, 521 U.S. 507 (1997) (legislative enactment

encroaching on_ judicial function); Metropolitan

Washington Airports Authority v. Citizens for Abatement

of Aircraft Noise, Inc., 501 U.S. 252 (1991) (legislative

agent exercising executive function); Bowsher v. Synar,

478 U.S. 714 (1986) (legislative branch exercising

executive removal authority); Northern Pipeline Constr.

Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Article

I judges exercising Article III powers).

Conversely, where a statute poses no danger of

encroachment or aggrandizement, separation of powers

concerns do not require invalidation. See, e.g., Miller v.

French, 2000 WL 775572 (U.S. June 19, 2000) (approving

legislative limitation on judicial procedures); Morrison v.

Olson, 487 U.S. 654 (1988) (approving judicial

appointment of inferior Executive officer). Thus, the

separation of powers principle insures that one branch of

government not intrude upon the legitimate sphere of

24

another. See City of New York, 524 U.S. at 450

(Kennedy, J., concurring) ("when the peuple delegate

some degree of control to a remote central authority, one

branch of government ought not possess the power to

shape their destiny without a sufficient check from the

other two").

A theory of statutory interpretation construing

legislative silence as legislative assent is an assault on

the fundamental separation of powers principles inherent

in the structure of the Constitution. Wholly apart from

the textual requirements attending the enactment of

particular legislation, to read legislative inaction as

approval would work a wholesale redistribution of power

from the Legislative to the Executive branch. No longer

would Congress be able to serve as a check on Executive

power. Rather, the Executive could readily act to extend

the outer bounds of its authority and if, for whatever”

reason, Congress did not affirmatively act to check that

excess, the Judiciary would construe that inability as

acquiescence. ‘

But this stands the concept of checks and balances

on it head -- separation of powers exists to establish an ex

ante restriction on the abuse of power, not as an

expression of the opportunity for the Legislative branch

to act ex post to redress an imbalance created by

Executive abuse. Indeed, given the structural ability of

the Executive to frustrate a Legislative response through

the use of the veto power, the doctrine of acquiescence by

silence is, in practice, a license for Executive expansion of

its power so long as one-third of the Members of either

the House or Senate are willing to sustain a Presidential

veto of corrective legislation. Amici greatly fear the

growth in Executive power that flows from this mistaken

interpretative principle.

25

Nor will it do to respond that this diminution of

Legislative power is ameliorated by the availability of

judicial review. The cannon of construction at issue --

ratification by silence -- reflects a conscious decision of

the Judicial branch to refrain from invalidating certain

assertions of Executive power. In effect, the courts

become complicit (through their rules of statutory

interpretation) in an Executive raid on the Legislative

function. This is precisely the sort of encroachment and

aggrandizement that the principle of separation of

powers precludes; amici respectfully submit that, as a

cannon of construction, the doctrine of ratification by

acquiescence cannot be Constitutionally permissible.

The instant case presents a paradigm example.

Here, the Administrator has acted in a manner that

expands the jurisdiction of the Environmental Protection

Agency. The indisputable effect of her assertion of

authority to lower the NAAQS in the manner she has

done is to sweep far greater number of individuals and

American businesses within the regulatory ambit of the

Agency.'6

‘6 The Administrator's decision to do so came, in the

case of the particulate matter NAAQS, despite her high degree

of “uncertainty in the characterization of health effects

attributable to exposure to ambient PM." 62 Fed. Reg. at

38,655 (emphasis supplied). Whatever may be said about the

respective powers of the Legislative and Executive branches, it

cannot be gainsaid that the resolution of policy uncertainties is

the province of the American public's elected representatives.

not its unelected (and only indirectly accountable) bureaucracy.

The contrary rule, inherent in the Administrator's submission,

would work a sea change in the distribution of power, to the

significant detriment of political accountability.

26

But this assertion of greater regulatory authority

is precisely the sort of “hydraulic” expansion that this

Court's separation of powers teachings counsel should be

viewed with grave concern. It plainly does not come with

any affirmative legislative enactment. Nor does it come

with any assurance that a majority of Congress (as

constituted in 1990) approved of that interpretation.

Nonetheless, the Administrator would have this Court

infer from legislative inaction Congressional approval of

this expansion of Executive authority. In amici's view,

the quintessential legislative prerogative (in concert with

an appropriate Presidential approval or veto) is to define

the scope of the law and make the bedrock policy decision

of to whom a law should apply. Here, the

Administrator's interpretation has _ stripped the

Legislative branch of that prerogative and aggrandized to

the Executive branch that power.

Recognition of this separation of powers principle

serves to distinguish this case from the Court's recent

decision in FDA v. Brown & Williamson Tobacco Corp.,

120 S.Ct. 1291 (2000). In Brown & Williamson, the

Court reviewed subsequent legislative actions relating to

tobacco, reading them in pari materia with Congressional

silence concerning the scope of the FDA's direct authority

over tobacco products. But one should not read Brown &

Williamson as using Congressional silence to infer

approval of a regulatory action.

In Brown & Williamson the alleged Congressional

acquiescence accompanied an Executive abnegation of

power. The FDA had, historically, declined to assert an

expanded tobacco jurisdiction. That refusal posed no

threat to the Legislative branch and did not reflect an

effort to broaden the jurisdictional reach of an Executive

agency at the expense of Congress's authority to speak to

the fundamental legal and policy questions presented by

27

such an extension. Indeed, it is somewhat conceptually

skewed to treat Congressional acquiescence in Executive

inaction on the same footing as alleged acquiescence in

Executive action. In the former case (exemplified by

Brown & Williamson) the status quo in the balance

between Legislative and Executive powers is maintained.

In the later case (at issue here) the Executive action

upsets the balance and alters the status quo.

In amici's view, the two situations are distinct.

When both Congress and the Executive branch decline to

exercise their powers, no danger of encroachment is

posed and separation of powers principles do not require

that the Judicial branch ignore that joint

Legislative/Executive acceptance of the status quo."

That situation poses no threat to amici's role as

legislators and their Constitutional responsibilities.

Conversely, when the Executive seeks to expand its

power and upset the status quo, the cannon of ratification

by inaction "“undermine[s}] the authority and

independence" of the Legislative branch by reassigning

the legislative power to the Executive branch. Mistretta,

488 U.S. at 382.

'7 Thus, amici's experience is that Congress is unlikely

to delegate a policy decision of great economic and political

magnitude to an administrative agency. Cf. Brown @&

Williamson, 120 S.Ct. at 1301. Those are issues the citizens

expect amici to address in their legislative capacity and, absent

an express statement to the contrary, should be presumed

reserved to Congress.

28

C. Legislative Inaction Is An Ambiguous

Indicator Of Congressional Views

Beyond the Constitutional barriers to reliance on

subsequent legislative inaction, any theory of statutory

construction that gives substantial weight to inaction as

indicative of Congressional intent is inconsistent with the

realities of the legislative process. As amici can attest,

and as this Court has often said, “the views of a

subsequent Congress form a hazardous basis for

inferring the intent of an earlier one." United States v.

Price, 381 U.S. 204, 313 (1960); see also CPSC v. GTE

Sylvania, Inc., 447 U.S. 102, 117 (1980) (same); United

States v. Philadelphia National Bank, 374 U.S. 321, 348-

49 (1963) (same).

This is especially so in the case of legislative

failure to act. Given the institutiona: barriers to

successful legislative enactment, failure to amend a

statute can result from any number of causes. See Vinyl

Chloride, 824 F.2d at 1162 & n.10. It may be the product

of endorsement or ratification (as the Administrator

would suggest). But sometimes it is the product of

passivity, indecision, or indifference. Sometimes the

Congress cannot act even though a majority disapproves

of a judicial or administrative interpretation because, the

procedural rules of the Senate or House permit a

minority to block substantive consideration of a

legislative proposal.

For these practical reasons, in amici's experience

subsequent legislative inaction is of virtually no weight

in determining legislative intent. Cf., United States v.

Wise, 370 U.S. 405, 411 (1962). "Such non-action by

Congress affords the most dubious foundation for

drawing positive inferences." Price, 381 U.S. at 310-11.

Congressional inaction lacks “persuasive significance"

29

precisely because any number of “equally tenable

inferences" may be drawn from inaction. Wise, 370 U.S.

at 411; see also Pension Benefit Guaranty Corp. v. LTV

Corp., 496 U.S. 630, 650 (1990) (same); Haynes v. United

States, 390 U.S. 85, 87-88, n.4 (1968) (same); Sullivan v.

Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J.,

concurring).

Here, to the extent Congress spoke at all in 1990,

it rejected the Administrator's view and attempted to

limit and restrain regulatory expansion. Congress

directly addressed the problem of ozone pollution in

adopting the Clean Air Act amendments in 1990,

effectively codifying the then-existing ozone NAAQS of

0.12 parts per million. See Title 1, Part D, Subpart 2,

Pub. L. No. 101-549, CAA § 181 (codified at 42 U.S.C.

§ 7511). Concurrently, Congress directed the EPA to

conduct a comprehensive study of the impact of the Act

on the “public health, economy, and environment of the

United States" including, particularly, the requirement

to “consider the costs, benefits and other effects

associated with compliance with each [NAAQS]." CAA

§ 312(a). And, most significantly, in creating a scientific

review committee to advise the Administrator on

revisions to the NAAQS, Congress required that it report

to the Administrator on any “adverse public health,

welfare, social, economic, or energy effects which may

result from various strategies for attainment and

maintenance of such [NAAQS]." CAA § 109(d)(2)(C)(iv).

This modest subsequent history contrasts sharply

with that at issue in Brown & Williamson. In Brown &

Williamson the Court was not faced with a single,

ambiguous statutory reauthorization. Rather, the FDA's

new assertion of jurisdiction ran contrary to 35 years of

Congressional enactments relating to tobacco, 120 S.Ct.

at 1312, including express consideration and rejection of

30

bills that would have extended the FDA's authority, id.

at 1309. As this Court noted, it did not rely oa Congress’

failure to act as a ground for decision; instead, the

decision rested on the enactment of a comprehensive

legislative scheme that made sense only if read in pari

materia with a rejection of FDA's tobacco jurisdiction. Id.

at 1312-13. Thus, Brown & Williamgon is "not a case of

simple inaction by Congress that purportedly represents

acquiescence in an agency's position" and is not in

conflict with the position amici espouse here. /d. at 1312.

In sum, in the case of the Clean Air Act,

subsequent Congressional enactments (unlike those at

issue in Brown & Williamson) cannot possibly be read as

an affirmative adoption of the Lead Industries rule. The

most that can be said is that Congress was divided and

uncertain and therefore was unable or unwilling to

legislate any modification of CAA § 109. This is a far and

distant cry from legislative silence that betokens assent.

CONCLUSION

For the foregoing reasons, the decision of the

Court of Appeals should be affirmed on the alternate

grounds presented by the cross-petition.

Respectfully submitted.

Paul Rosenzweig

Rosenzweig Law Office, LLP

516 C Street, NE, Suite 300

Washington, DC 20002

(202) 543-9370

Counsel for Amici Curiae

Senator James M. Inhofe, et al.

July 2000