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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0357%3A26

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1202

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0357%3A26. Public record. Not legal advice.