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

FILED

No. &). JUL 2 1 ann

In the

Supreme Court, U.S.

Supreme Court of the United States

—+—

AMERICAN TRUCKING ASSOCIATIONS, INC., 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 AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION AND CALIFORNIA

CHAMBER OF COMMERCE IN SUPPORT OF

CROSS-PETITIONERS AMERICAN

TRUCKING ASSOCIATIONS, INC., ET AL.

——-~—.

M. REED Hopper

Counsel of Record

Pacific poy Foundation

10360 Placerville Road,

Suite 100

fuahen Gintee

e : (916) -

Facsimile: (916) 362-2932

Counsel for Amici Curiae Pacific

Legal Foundation and California

Chamber of Commerce

Ee

QUESTION PRESENTED

Whether section 109 of the Clean Air Act

L

|

air quality standards, ignore all factors other than

health effects relating to pollutants in the air.

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation and the California Chamber of Commerce

respectfully request leave of the Court to file this brief amicus

curiae in support of Cross-Petitioners American Trucking

Associations, Inc., et al.' Counsel for American Trucking

Associations and the government have granted consent for the

filing of this brief. Original letters of consent will be lodged

with this Court. However, not all parties have responded,

necessitating the filing of this motion.

IDENTITY AND

INTERESTS OF AMICUS CURIAE

Pacific Legal Foundation (PLF) is a nonprofit, public

interest organization with thousands of supporters nationwide.

Since its establishment in 1973, PLF has researched and

litigated a broad spectrum of public interest issues. PLF

advocates a balanced approach to agency rulemaking and

supports the concept that governmental decisions and policies

should reflect a careful assessment of the social and economic

costs and benefits involved.

PLF devotes substantial resources to litigation involving

environmental issues and becomes involved in cases that raise

important public policy considerations that may create

significant legal precedents. Amicus participation is approved

by a voluntary Board of Trustees where PLF’s perspective will

assist the court in resolving the underlying legal issues. PLF’s

Board has approved amicus participation in this case.

' Pursuant to Supreme Court Rule 37.6, amici curiae affirm that no

counsel for any party in this case authored this brief in whole or part

and that no person or entity made a monetary contribution

specifically for the preparation or submission of this brief.

2

PLF has participated in numerous cases involving the

interpretation of federal environmental laws. For example,

PLF was a party of record in Pacific Legal Foundation v.

Andrus, 657 F.2d 829 (6th Cir. 1981). PLF also participated as

amicus curiae in Steel Company v. Citizens for a Better

Environment, United States Supreme Court No. 96-643

(pending); Bennett v. Spear, 520 U.S. 154 (1997); Douglas

County, Oregon v. Babbitt, 516 U.S. 1042 (1996); Babbitt v.

Sweet Home Chapter of Communities for a Great Oregon,

515 U.S. 687 (1995); and Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837 (1984).

PLF’s public policy perspective and litigation experience

in support of rational environmental protection and economic

rights will provide a necessary viewpoint on the issues

presented in this case.

The California Chamber of Commerce (Chamber) is the

largest and most broadly based employer representative in

California with a membership base of more than 11,000

businesses. These businesses represent every sector of

industry--small, medium, and large--and employ roughly 1.9

million people.

The California Chamber of Commerce recognizes the

importance of clean air to protect human health and the

environment; however, the Chamber has serious concerns about

the economic impacts the Environmental Protection Agency’s

(EPA) revised National Ambient Air Quality Standards

(NAAQS) for particulate matter (PM) and ozone will have on

California business. These rules have been promulgated despite

the fact that California’s air is significantly cleaner than it was

25 years ago and is getting better all the time. In addition,

California is already operating under the most stringent air

quality rules in the nation which places a competitive

disadvantage on California businesses. These rules will only

exacerbate this problem.

3

It will be more expensive for California to implement

these rules than other states because of the incremental costs in

making further emission reductions. Also, pollution controls

like best available control technology, onerous permitting fees

and stringent enforcement practices will make operations more

costly and complicated for businesses that are currently in

compliance (or “attainment”) areas, but will fall into

noncompliance (or “nonattanment”) areas because of the stricter

rules.

Many of the new “nonattainment areas” have no

experience in dealing with such stringent regulations, thus

many businesses will move to “cleaner” districts or relocate to

other states. In California alone, at least three areas will be

added as “nonattainment areas” for particulate matter and ten

others for ozone. These areas will have to develop plans by a

specific date demonstrating how they will meet the new

standards. If these areas do not comply, California could lose

valuable highway funds. This will translate into job losses and

reduced economic opportunities. Higher costs incurred by

industries, including aerospace, electronics, energy, and

pharmaceuticals, will only discourage new businesses and the

expansion of existing facilities. One study predicts that

California could lose over 10,000 jobs. Moreover, according to

the Reason Public Policy Institute, the new standards could cost

California $9.1 billion to implement.

The Pacific Legal Foundation and the California

Chamber of Commerce are particularly concerned about the

unwillingness of EPA to consider impacts on small business

and the lower court’s determination that EPA must not consider

costs and technological feasibility in setting air quality

standards. This is particularly troubling because of concerns

that the rules are not based on sound science.

According to the National Center for Policy Analysis

(NCPA), Brief Analysis, No. 236, July 17, 1997, even members

of EPA’s own Clean Air Scientific Advisory Committee

4

(CASAC) disagree on the need for stricter standards. Although

the EPA Administrator claims the science supporting the new

rules is indisputable, CASAC was split on what standards to

set, if any. “Eight committee members thought no standards

are justified because there is no clear evidence that setting a

standard would yield tangible health benefits.” /d. at 2. The

remaining 13 members of the committee could not agree on

whether current standards are too strict or not strict enough. /d.

Also, NCPA reports that the public never had an

opportunity to review the relevant scientific data because the

primary studies used to justify the ozone standards have never

been released by the Harvard researchers--not even to the EPA.

Id. Moreover, there is evidence that the new standards may

have an adverse effect on public health and welfare.

Initially, the EPA estimated the new standard for

particulate matter alone would save annually more than 40,000

people from premature death. /d. But later, the EPA “revealed

that this figure is the total number of lives estimated to be saved

by all clean air regulations.” /d. (emphasis in original). Then

the EPA claimed that 20,000 lives would be saved per year by

the new particulate matter standard--50% less than its original

estimate. /d. Three months after proposing the standard, “the

EPA once again reduced its estimate after an outside researcher

found a simple mathematical error in one of [EPA’s] key

studies.” /d. “This time the EPA reduced the estimated lives

saved by another 25 percent, to 15,000.” /d. “The discovery of

this error has led some analysts to question the EPA’s entire

statistical analysis.” /d. It was Dr. Kay Jones, former senior

advisor on air quality at the President’s Council on

Environmental Quality during the Carter administration, who

discovered the error. Dr. Jones completely reanalyzed the

EPA’s estimates and concluded the number is closer to 840

lives. Id.

Moreover, ground-level ozone has health benefits EPA

ignored. Ozone screens out potentially deadly ultraviolet

5

radiation. /d. According to the Department of Energy, the

required ozone reduction would: (1) “Increase malignant

cancers, causing 25 to 50 new deaths a year;” (2) “Cause as

many as 260 new cases of cutaneous melanoma and | | ,000 new

cases of nonmelanoma skin cancer;” and (3) “Cause between

13,000 and 28,000 new incidences of cataracts each year.” /d.

This is the type of balanced analysis the EPA should do,

but has not done, to ensure its environmental regulations are

reasonable and beneficial. Clearly, this case will set a

precedent affecting numerous statutory schemes and literally

millions of lives. Regulations that impose bureaucratically

defined concepts for safety, environmental protection, or

economic relationships must take into account the economic

and social costs of those regulations.

For the foregoing reasons, Pacific Legal Foundation and

the California Chamber of Commerce move to file a brief

amicus curiae in this case.

DATED: July, 2000.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae Pacific Legal

Foundation and California Chamber of

Commerce

TABLE OF CONTENTS

SUMMARY OF THE ARGUMENT...................

SED Sch es eeesercicesveeeccesscsescesvaqces

THE TERM “ADEQUATE MARGIN OF SAFETY”

IN SECTION 109 OF THE CLEAN AIR ACT, AND

THE INHERENT SCIENTIFIC UNCERTAINTY

ASSOCIATED WITH SETTING HEALTH-

RELATED STANDARDS, INDICATES

CONGRESS’ INTENT THAT THE EPA EXERCISE

ITS DISCRETION IN DETERMINING THE

FACTORS TO CONSIDER IN SETTING

NATIONAL AMBIENT AIR QUALITY

DORE ses cccvcscccasescesescccccvcece

ANY MEANINGFUL APPLICATION OF THE

“ADEQUATE MARGIN OF SAFETY”

REQUIREMENT MUST TAKE INTO ACCOUNT

THE INDIRECT HEALTH EFFECTS RESULTING

FROM THE NATIONAL AMBIENT AIR

QUALITY STANDARDS THEMSELVES ........

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TABLE OF AUTHORITIES

Page

Cases ‘

American Trucking Associations v.

Environmental Protection Agency,

175 F.3d 1027 (D.C. Cir. 1999) .......... 1-3, 5, 15-18

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) .........5605: 7

Lead Industries Association v.

Environmental Protection Agency,

pe Dit | ‘se 3 6 6, 10-11

Natural Resources Defense Council v.

Administrator, 902 F.2d 962 (D.C. Cir. 1990) ....... 17

Natural Resources Defense Council v.

Environmental Protection Agency,

824 F.2d 1146 (D.C. Cir. 1987) ................ 6-14

Union Electric Co. v. Environmental Protection

Agency, 427 U.S. 246 (1976) ........ cece ee eeeeee 10

Statutes

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DPE sd cS uucGwsnsedeetesevtneandeend 15,17

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DP « cedue en ceuuccteucechsuceuurases 1,5, 13

SD Ps 6.60 06d snc ee eesendpccdeudaeecekeaes 6

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Miscellaneous

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TABLE OF AUTHORITIES—Continued

Page

Brief Analysis, No. 236, National Center

for Policy Analysis, July 17,1997 ............. 18-19

S. Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970) ........ 8

]

STATEMENT OF THE CASE

The Clean Air Act sets up a scheme to regulate air

pollutants the “emissions of which, in [the Administrator’s]

judgment cause or contribute to air pollution which may

reasonably be anticipated to endanger public health or welfare.”

42 U.S.C. § 7408(a)(1)(A). The Administrator must publish

“air quality criteria” for these pollutants and establish national

ambient air quality standards (“NAAQS”) based on these

criteria. See id. at §§ 7408-09. The standards are of two types--

“primary” and “secondary.” A “primary” standard indicates a

concentration level “requisite to protect the public health” with

an “adequate margin of safety.” Whereas a “secondary”

standard indicates a concentration level “requisite to protect the

public welfare.” Jd. § 7409(b).

On July 18, 1997, the Environmental Protection Agency

adopted new, stricter national ambient air quality standards for

ground-level ozone (smog) and particulate matter (soot). Public

outcry over the severity of these standards resulted in

congressional oversight hearings and scores of suits from

industry, states and other parties challenging the legality of the

standards. Among others, the grounds for suit included an

argument that the EPA construed Sections 108 and 109 of the

Clean Air Act “so loosely as to render them unconstitutional.”

American Trucking Associations v. Environmental Protection

Agency, 175 F.3d 1027, 1034 (D.C. Cir. 1999) (ATA). The

Court of Appeals agreed:

Although the factors EPA uses in determining the

degree of public health concern associated with

different levels of ozone and PM [particulate matter]

are reasonable, EPA appears to have articulated no

“intelligible principle” to channel its application of

these factors; nor is one apparent from the statute.

The nondelegation doctrine requires such a principle.

See J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409, 72 L. Ed. 624, 48 S.Ct. 348

2

(1928). Here it is as though Congress commanded

EPA to select “big guys,” and EPA announced that

it would evaluate candidates based on height and

weight, but revealed no cut-off point. The

announcement, though sensible in what it does say,

is fatally incomplete. The reasonable person

responds, “How tall? How heavy?”

ATA, 175 F.3d at 1034.

EPA regards ozone definitely, and PM likely, as

nonthreshold pollutants, or pollutants that have some possibility

of adverse health effects at any level above zero. Thus, the

court found EPA’s explanations for choosing one standard over

another amounted to nothing more than assertions that stricter

standards mean less pollution and less harm while less strict

standards mean more pollution and more harm. According to

the court:

Such arguments only support the intuitive

proposition that more pollution will not benefit

public health, not that keeping pollution at or below

any particular level is “requisite” or not requisite to

“protect the public health” with an “adequate margin

of safety,” the formula set out by § 109(b)(1).

Id. at 1035.

Another ground for suit was the claim that the EPA must

consider costs, technological feasibility, and other nonhealth

factors in setting the ozone and PM standards. However, the

court rejected this claim. Specifically, with respect to costs, the

court held: “As this court long ago made clear, in setting

NAAQS under § 109(b) of the Clean Air Act, the EPA is not

permitted to consider the cost of implementing those standards.

See Lead Industries, 647 F.2d [1130,] 1148 (DC Cir. 1980).”

Id. at 1040.

3

The court also rejected the argument that EPA erred in

failing to consider detrimental health effects that are traceable

to the cost of complying with the revised national ambient air

quality standards. Citing a previous decision in the D.C.

Circuit, the court held “it is only health effects relating to

pollutants in the air that EPA may consider.” /d. at 1041.

Nevertheless, the court did hold that EPA must consider

not only the maleficent effects of a pollutant but also the

beneficent effects. The court observed that the presence of

ground-level ozone causes respiratory problems in some people

but it also shields people from the deleterious effects of

ultraviolet radiation that can cause certain forms of cancer. /d.

at 1052.

Ultimately, the court determined that the standards not

only violated the nondelegation principle but that the ozone

standard could not be enforced due to restrictions in other

provisions of the Clean Air Act. The court also invalidated the

PM standard as arbitrary and remanded to the agency to select

a new standard.

Both sides filed petitions for writ of certiorari in this

Court. The EPA sought review of the nondelegation

determination, among other things, while the opposing parties

sought review of the scope of section 109. Review was granted

in both instances and separate briefing is required in each case.

This case deals with the authority of the EPA to consider costs,

technological feasibility, and other nonhealth factors under

section 109 in setting ambient air quality standards.

SUMMARY OF THE ARGUMENT

Section 109 of the Clean Air Act requires the EPA to set

ambient air quality standards to protect public health and

welfare, but with “an adequate margin of safety.” That term

implies discretion and requires the EPA to consider nonhealth

factors. In interpreting a similar term under section 112, that

requires the EPA to set standards for hazardous pollutants with

4

“an ample margin of safety,” the D.C. Circuit Court of Appeals

determined that term does not preclude the EPA from

considering costs, technological feasibility or other nonhealth

factors. Rather, the court determined the text of the statute

granted considerable discretion to the EPA to set emission

standards and that such discretion is necessary because of the

scientific uncertainty associated with determining a safe level

of exposure for substances for which there may be no “risk-

free” limit. The court held that a determination of what is

“safe” must be made only with a consideration of health-related

factors, but that the EPA had wide latitude in what it could

consider to set the appropriate margin of safety.

That case is instructive in interpreting section 109. The

language of section 109 is almost identical to the language of

section 112. Therefore, the term “adequate margin of safety”

should be understood to mean, as with section 112, that EPA

can consider nonhealth factors in setting NAAQS. In fact, since

ozone and particulate matter are considered “nonthreshold”

substances--substances that may affect health at any exposure

level above zero--it would be hard to credit how the EPA could

set an “adequate margin of safety,” except at zero emissions,

without a consideration of nonhealth factors.

Additionally, the determination of the court below, in this

case, that the EPA must consider the beneficial health effects of

ozone, is at odds with the court’s determination that the EPA

cannot consider other factors, including health impacts induced

by the EPA’s own air quality standards. Below, the court held

it would “seem bizarre” if the agency could only consider half

of the health impacts of a substance regulated under a statute

designed to protect public health and welfare. Likewise, it

would seem bizarre if the EPA could not consider the net health

impacts of an air quality standard it imposed on the public. It

is a fact of life that increased regulatory costs contribute to

unemployment and poverty that in turn increase health risks and

even death. If the requirement of an “adequate margin of

5

safety” is to mean anything, it must mean that EPA has

considered all related health effects and made a balanced

judgment that the air quality standards will provide a net benefit

to public health and welfare.

This Court cannot ignore or countenance EPA’s disregard

for public safety by a crabbed reading of the Clean Air Act. For

these reasons, this Court should rule that EPA not only may,

but must, consider all health and nonhealth factors that bear on

the margin of safety.

ARGUMENT

I

THE TERM “ADEQUATE MARGIN

OF SAFETY” IN SECTION 109

OF THE CLEAN AIR ACT,

AND THE INHERENT SCIENTIFIC

UNCERTAINTY ASSOCIATED

WITH SETTING HEALTH-RELATED

STANDARDS, INDICATES CONGRESS’

INTENT THAT THE EPA EXERCISE

ITS DISCRETION IN DETERMINING

THE FACTORS TO CONSIDER

IN SETTING NATIONAL

AMBIENT AIR QUALITY STANDARDS

The question as presented in this case is whether EPA may

consider costs or other nonhealth effects in setting the NAAQS.

Under the Clean Air Act, EPA must set air quality standards

“requisite to protect the public health” and “welfare” with an

“adequate margin of safety.” Section 109(b) of the Clean Air

Act, 42 U.S.C. § 7409(b). The answer given this question by

the court below was, “no.” Relying on its own precedent, the

Court of Appeals held: “As this court long ago made clear, in

setting NAAQS under § 109(b) of the Clean Air Act, the EPA

is not permitted to consider the cost of implementing those

standards. See Lead Industries, 647 F.2d at 1148.” ATA,

175 F.3d at 1040. However, subsequent to the court’s decision

6

in Lead Industries Association v. Environmental Protection

Agency, 647 F.2d 1130 (D.C. Cir. 1980), another panel of the

same court decided Natural Resources Defense Council v.

Environmental Protection Agency, 824 F.2d ‘ ‘6 (D.C. Cir.

1987) (Vinyl Chloride). Although the court i» .ae latter case

did not overrule the former, and another section of the Act was

at issue, the case offers an instructive analysis for interpreting

section 109 of the Clean Air Act.

In Vinyl Chloride, the petitioner argued that the EPA must

regulate carcinogenic air pollutants under section 112 of the

Clean Air Act without regard for nonhealth factors and,

therefore, the uncertainty about the health effects of

carcinogenic substances requires the EPA to prohibit all

emissions. Section 112 of the Act provides a means for

regulating hazardous air pollutants for which no ambient air

quality standards apply and that may result in increased

mortality or irreversible illness. See 42 U.S.C. § 7412(a)(1).

Similarly to section 109, the Act directs the EPA to designate

an emission limit under section | 12 “at the level which in [the

Administrator's judgment] provides an ample margin of safety

to protect public health.” See id. at § 7412(b)(1)(B).

The case involved vinyl chloride that the EPA designated

“an apparent nonthreshold pollutant,” meaning there is no safe

level of human exposure. Vinyl Chloride, 824 F.2d at 1148.

Consequently, the EPA _ considered two alternative

interpretations of its duty under section 112 of the Clean Air

Act. Under the first alternative, EPA would have to ban all

emissions because “a zero emission limitation would be the

only emission standard which would offer absolute safety from

ambient exposure.” 40 Fed. Reg. 59,532, 59,534 (1975). But,

the EPA decided against this interpretation because “complete

prohibition of all emissions could require closure of an entire

industry.” /d. This cost was too high, in the mind of the EPA,

given that the health risk was of unknown dimension. See id.

7

Under the second alternative, EPA would have to set

emission standards for nonthreshold pollutants that require

emission reductions to the lowest level possible by use of the

best available control technology. EPA adopted this

interpretation arguing it would “produce the most stringent

regulation of hazardous air pollutants short of requiring a

complete prohibition in all cases.” /d. When the EPA finally

adopted vinyl chloride emission standards based on this

interpretation, the agency was sued for relying on cost and

technology considerations rather than exclusively on health

factors.

In an opinion authored by Judge Bork, the court framed

the question for review--not unlike the question in this case--as

whether the Clean Air Act adopts an exclusive focus on health

such that “the Administrator must set a zero level of emissions

when he cannot determine that there is a level below which no

harm will occur.” Vinyl Chloride, 824 F.2d at 1152. The court

adopted the Chevron standard of review; whether “Congress

has directly spoken to the precise question at issue.” /d. (citing

Chevron, USA, Inc, v. Natural Resources Defense Council,

467 U.S. 837, 842-43 (1984)). And, “if so, ‘that intention is the

law and must be given effect.’” Jd. “‘If the statute is silent or

ambiguous with respect to the specific issue,’ then we accept an

agency interpretation if it is reasonable in light of the language,

legislative history, and underlying policies of the statute.” /d.

Turning first to the language of the Act, the court noted

that section 112 requires EPA to set an emission standard for

hazardous air pollutants that in the Administrator’s judgment

would provide “an ample margin of safety.” This directive is

reflective of section 109 (under consideration in the case at bar)

that requires “an adequate margin of safety” for national

ambient air quality standards. The court found this language

inconsistent with NRDC’s argument that the EPA has no

discretion in setting emission standards for pollutants with

uncertain risks. The statute did not define “ample margin of

safety.” However, Judge Bork observed that the Senate Report

discussed a similar requirement in the context of setting

NAAQS under section 109. The report explained the purpose

of the “margin of safety” is to provide “a reasonable degree of

protection . . . against hazards which research has not yet

identified.” S. Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970).

According to the court, this definition comported with the

“historical use of the term in engineering as ‘a safety factor . . .

meant to compensate for uncertainties and variabilities.’” Vinyl

Chloride, 824 F.2d at 1152.

The court concluded:

Congress’ use of the word “safety,” moreover, is

significant evidence that it did not intend to require

the Administrator to prohibit all emissions of non-

threshold pollutants. As the Supreme Court has

recently held, “safe” does not mean “risk free.”

Industrial Union Dep't AFL-CIO v. American

Petroleum Institute, 448 U.S. 607, 642, 65 L. Ed. 2d

1010, 100 S. Ct. 2844 (1980). Instead, something is

“unsafe” only when it threatens humans with “a

significant risk of harm.”

Id. at 1153.

Thus, the court determined the NRDC’s view would

eliminate any discretion and render the term “ample margin of

safety” meaningless.

Had Congress intended that result, it could very

easily have said so by writing a statute that states no

level of emissions shall be allowed as to which there

is any uncertainty. But Congress chose instead to

deal with the pervasive nature of scientific

uncertainty and the inherent limitations of scientific

9

knowledge by vesting in the Administrator the

discretion to deal with uncertainty in each case.

Vinyl Chloride, 824 F.2d at 1153.

With respect to the legislative history, the court found no

support for NRDC’s position. If anything, the court concluded,

the history cuts the other way.

To accept the petitioner’s contention that section 1 12

requires the Administrator to prohibit all emissions

of non-threshold pollutants, we would have to

conclude that, without even discussing the matter,

Congress mandated massive economic and social

dislocations by shutting down entire industries. That

is not a reasonable way to read the legislative

history.

Id. at 1154.

At most, the court found, “The Legislative history is

simply ambiguous with respect to the question of whether the

Administrator may permissibly consider cost and technological

feasibility under section 112.” Jd. at 1157. So it is in the

present case. Parties on both sides of the issue cite to the

legislative history for support.

Since NRDC argued, much like the EPA argues in the

present case, that the EPA is never permitted to consider cost

and technological feasibility under section | 12, but is limited to

health factors alone, the court had to determine whether EPA

could consider cost and technological feasibility at all. This

parallels the question presented in this case.

The court determined that section 112, on its face did not

suggest Congress intended to prohibit the consideration of any

particular factor. /d. Rather, the court believed that although

the term “to protect the public health” shows an intent to make

health the primary consideration, the language does not specify

10

the factors the EPA may consider in the “judgment” of the

Administrator to ensure “an ample margin of safety.” /d.

Instead, the language used, and the absence of any

specific limitation, gives the clear impression that

the Administrator has some discretion in determining

what, if any, additional factors he will consider in

setting an emission standard.

Id. at 1155.

But the petitioner argued that the structure of the Clean

Air Act, the Supreme Court’s interpretation of section 110 in

Union Electric Co. v. Environmental Protection Agency,

427 U.S. 246 (1976), and the D.C. Circuit Court’s interpretation

of section 109 in Lead Industries precludes a consideration of

costs and technological feasibility. The court responded,

however, that in those other cases the courts “rejected an

argument that the EPA must consider cost and technological

feasibility as equal factors in importance to health” and “[wJe

reject the same argument here.” /d., 647 F.2d at 1157.

Nevertheless, the court held, “these decisions do not provide

precedential support for the petitioner’s position that, as a

matter of statutory interpretation, cost and technological

feasibility may never be considered under the Clean Air Act

unless Congress expressly so provides.” /d.

In Union Electric Co. v. Environmental Protection

Agency, 427 U.S. 246, this Court concluded that “[wJhere

Congress intended the Administrator to be concerned about

economic and technological infeasibility, it expressly so

provided.” /d. at 257 n.5. However, in Vinyl Chloride, Judge

Bork stated:

We simply do not, as the NRDC does, read these

statements as announcing the broad rule that an

agency may never consider cost and technological

feasibility, under any delegation of authority, and for

any purpose, unless Congress specifically provides

1]

that the agency is authorized to consider these

factors. At most, we believe that these statements

stand for the proposition that when Congress has

specifically directed an agency to consider certain

factors, the agency may not consider unspecified

factors. Because Congress chose not to limit

specifically the factors the Administrator may

consider in section 112, this discussion in Union

Electric is not in point here.

824 F.2d at 1158.

Likewise, Union Electric is not on point in the case at bar

either. Congress has not dictated all the factors the

Administrator may consider under section 109 in setting

national ambient air quality standards. Although section 108

sets forth specific air quality criteria on which the NAAQS are

based, Congress did not specifically limit the scope of the

Administrator’s “judgment” to set standards with an “adequate

margin of safety” under section 109.

Lead Industries Association v. Environmental Protection

Agency, 647 F.2d 1130, is a different matter. In that case, the

D.C. Circuit Court of Appeals held that section 109 prohibits

the consideration of all nonhealth factors in setting air quality

standards. Although the language of section 109, calling for an

“adequate margin of safety,” is almost identical to the language

of section 112, calling for an “ample margin of safety,” the

court in Vinyl Chloride distinguished section 109 from section

112 arguing the court found in Lead Industries that the

“structure” of the Act dictated a different result in interpreting

section 109. But notwithstanding the court’s nod to its own

circuit precedent, the conclusion that two nearly identical

statutory provisions should be read differently is inconsistent

with the court’s ultimate holding in Vinyl Chloride that the

language of the Act is determinative.

12

Ultimately, the court held:

Since we cannot discern clear congressional intent to

preclude consideration of cost and technological

feasibility in setting emission standards under

section 112, we necessarily find that the

Administrator may consider these factors.

Vinyl Chloride, 824 F.2d at 1163.

Nevertheless, the court found that in Vinyl Chloride the

EPA had drifted into “a zone of impermissible action.” /d. The

court’s objection with the standard set by EPA was that the

EPA had not determined an acceptable !evel of risk for vinyl

chloride but had “simply substituted technological feasibility

for health as the primary consideration.” /d.

The court found in Vinyl Chloride that Congress was

primarily concerned with health but, as in the present case, EPA

had not determined the effect of the level of emissions on

health. Nor had EPA determined a level at which the

proscribed emission would be “safe” or provide an “ample

margin of safety.” /d. at 1163.

We find that the congressivnal mandate to provide

“an ample margin of safety” “to protect the public

health” requires the Administrator to make an initial

determination of what is “safe.” This determination

must be based exclusively upon the Administrator’s

determination of the risk to health at a particular

emission level .... The Administrator cannot under

any circumstances consider cost and technological

feasibility at this stage of the analysis. The latter

factors have no relevance to the preliminary

determination of what is safe.

Id. at 1164-65.

13

But, the court found another stage of the analysis, apropos

to the case at bar, that would allow, or even require, other

considerations.

Congress, however, recognized in section 112 that

the determination of what is “safe” will always be

marked by scientific uncertainty and thus exhorted

the Administrator to set emission standards that will

provide an “ample margin” of safety. This language

permits the Administrator to take into account

scientific uncertainty and to use expert discretion to

determine what action should be taken in light of

that uncertainty. ... It is only at this point of the

regulatory process that the Administrator may set the

emission standard at the lowest level that is

technologically feasible. Because consideration of

these factors at this stage is clearly intended “to

' protect the public health,” it is fully consistent with

the Administrator’s mandate under section 112.

Id. at 1165.

The Administrator’s mandate is not meaningfully different

under section 109 where the Administrator is required to set

NAAQS based first on the objective air quality criteria defined

in section 108 and then to designate an emission level “requisite

to protect the public health” and “welfare” with an “adequate

margin of safety.” 42 U.S.C. § 7409(b).

This approach to setting national ambient air quality

standards satisfies the clear intent of Congress to establish

health-based standards while at the same time recognizing the

express directive of the Act for the Administrator to use his

“judgment” in setting an “adequate margin of safety.” Just like

vinyl chloride, EPA regards ozone definitely, and PM likely, as

nonthreshold pollutants. As such, an emission standard based

solely on health impacts would dictate a complete ban. But, the

consideration of other factors, including cost and technological

14

feasibility, would allow a margin of safety that does not mean

“risk-free.”

And while Congress used the modifier “ample” [or

“adequate”’} to exhort the Administrator not to allow

“the public [or] the environment . . . to be exposed to

anything resembling the maximum risk” and,

therefore, to set a margin “greater than ‘normal’ or

‘adequate,’” Congress still left the EPA “great

latitude in meeting its responsibility.”

Congress’ use of the word “safety,” moreover, is

significant evidence that it did not intend to require

the Administrator to prohibit all emissions of non-

threshold pollutants. As the Supreme Court has

recently held, “safe” does not mean “risk-free.”

Industrial Union Dep't AFL-CIO v. American

Petroleum Inst., 448 U.S. 607, 642, 65 L. Ed. 2d

1010, 100 S. Ct. 2844 (1980). Instead, something is

“unsafe” only when it threatens humans with a

“significant risk of harm.” /d.

Vinyl Chloride, 824 F.2d at 1153.

As a general proposition, it is hard to imagine how the

Administrator could ever determine an “adequate margin of

safety” for nonthreshold pollutants, like ozone and particulate

matter, without considering nonhealth factors. In fact, a strictly

health-based determination of safe levels of emissions would

require virtually no discretion on the part of the Administrator.

Risk alone would dictate a zero emissions standard for ozone

and PM. However, as expressed in the statutory purpose,

Congress intended a more reasoned approach to air pollution

regulation--an approach that was protective of public health and

welfare but also one that enhanced “the productive capacity” of

the nation. See 42 U.S.C. § 7401. This balancing of “health

and welfare” with “productive capacity” requires a

consideration of nonhealth factors and an exercise of the “great

15

latitude” the court in Vinyl Chloride determined Congress had

left the EPA to accomplish its responsibility. Vinyl Chloride,

824 F.2d at 1153. Therefore, this Court should conclude that

EPA not only may, but must, consider cost, technological

feasibility, and other nonhealth factors in setting ambient air

quality standards under section 109 of the Clean Air Act.

ANY MEANINGFUL APPLICATION OF

THE “ADEQUATE MARGIN OF SAFETY”

REQUIREMENT MUST TAKE INTO

ACCOUNT THE INDIRECT HEALTH EFFECTS

RESULTING FROM THE NATIONAL AMBIENT

AIR QUALITY STANDARDS THEMSELVES

According to the court below, EPA must consider the

beneficial as well as the adverse health effects of ozone. See

ATA, 175 F.3d at 1052. In support of this position, the court

offered a well-reasoned, commonsense rationale. /d. However,

the court ignored this rationale when it determined that EPA

may not consider the health effects that result from EPA’s own

standards. The court’s reasoning is inconsistent.

The beneficial effects of ground-level, or tropospheric,

ozone are documented. Ozone acts as a shield against the

effects of the sun’s harmful ultraviolet rays helping to prevent

cataracts and skin cancer. See id. at 1051. However, the EPA

“explicitly disregarded” these benefits when it estimated the

effects of ozone concentration in establishing its ambient air

quality standard. /d. To justify itself, the EPA claimed to rely

on its statutory mandate to base ambient air quality standards

on published criteria that are to “reflect the latest scientific

knowledge useful in indicating the kind and extent of all

identifiable effects on public health or welfare which may be

expected from the presence of such pollutant in the ambient air,

in varying quantities.” 42 U.S.C. § 7408(a)(2). As the court

noted, the term “all identifiable effects” would seem on its face

to include beneficial effects. ATA, 175 F.3d at 1051.

16

To avoid this plain reading of the Act, EPA seized on

the term “such pollutant” and argued it must consider only

those factors that make the substance a “pollutant.”” However,

the Court of Appeals countered that the phrase “pollutant” is

“simply a label used to identify a substance to be listed and

controlled by the statute.” /d. And while a substance with no

adverse effects whatsoever would not qualify as a “pollutant,”

the court argued this “fact of nomenclature does not visibly

manifest a congressional intent to banish consideration of

whole classes of ‘identifiable effects.”” /d.

Moreover, the court found the legislative history shed

no light on the subject and, in any event, that EPA’s

interpretation of the Clean Air Act failed the reasonableness

standard of Chevron:

[I]t seems bizarre that a statute intended to

improve human health would, as EPA claimed

at argument, lock the agency into looking at

only one half of a substance’s health effects in

determining the maximum level for that

substance. At oral argument even EPA counsel

seemed reluctant to claim that the statute

justified disregard of the beneficent effects of a

pollutant bearing directly on the health

symptoms that accounted for its being thought

a pollutant at all (suppose, for example, a

chemical that both impedes and enhances

breathing, depending on the person or

circumstances); he also seemed unable to

distinguish that case from the one here--where

the chemical evidently impedes breathing but

provides defense against various cancers.

Legally, then, EPA must consider positive

identifiable effects of a pollutant’s presence in

the ambient air in formulating air quality criteria

under § 108 and NAAQS under § 109.

ee

17

ATA, 175 F.3d at 1052.

This analysis makes good sense. It does seem bizarre

that a statute designed to protect health and welfare would not

allow a consideration of the net health effect of a regulated

substance. It seems equally bizarre, therefore, that the court

determined that EPA must disregard the adverse health and

welfare effects of its own standards.

State Petitioners in the court below argued that the EPA

must “consider the environmental consequences resulting from

the financial impact of the [revised ozone and PM standards] on

the federal Abandoned Mine Reclamation Fund Act.” ATA,

175 F.3d at 1041. However, the court determined this argument

was precluded by earlier precedent. In Natural Resources

Defense Council v. Administrator, 902 F.2d 962, 972-73 (D.C.

Cir. 1990), the appellate court decided EPA could not consider

the health effects of unemployment caused by the EPA’s

national ambient air quality standards and held EPA may only

consider the “health effects relating to pollutants in the air.”

See 42 U.S.C. § 7408(a)(2) (“Air quality criteria for an air

pollutant shall accurately reflect the latest scientific knowledge

useful in indicating the kind and extent of all identifiable effects

on public health or welfare which may be expected from the

presence of such pollutant in the ambient air, in varying

quantities.”’).

Unlike the positive health benefits of ozone that

we hold the EPA must consider, any detrimental

health effects resulting from the financial

impact upon the mine fund, like the health

consequences of unemployment, are traceable to

the cost of complying with the revised PM,, .,

and ozone NAAQS and not to the presence of

those pollutants in the air.

ATA, 175 F.3d at 1041.

18

But this determination is flawed. Section 108 governs

the setting of air quality criteria for impacts expected from the

presence of “pollutants in the air.” However, the establishment

of air quality standards requisite to protect the public health and

welfare with an “adequate margin of safety” is governed by

Section 109. And, as argued above, costs can and should be

considered in determining “an adequate margin of safety”

because the terms “adequate” and “safety” connote some

balancing and judgment on the part of the Administrator.

Therefore, even if the establishment of the air quality criteria,

upon which the air quality standard is based, must exclude

costs, the setting of an “adequate margin of safety” is not so

constrained.

But even if a consideration of costs was categorically

prohibited by Section 109, which it isn’t, the factors Petitioners

argued must be addressed in this case were not direct costs but

indirect health effects resulting from implementation of the

NAAQS. In this case, State Petitioners argued the EPA must

consider adverse environmental effects that derive from

financial impacts on the mining fund. In NRDC, parties argued

that implementation of the air quality standard for particulate

matter would result in adverse health effects from increased

unemployment. It is a well-established, if unfortunate fact of

modern life, that as poverty increases health declines.

Some analysts estimate that the revised ozone and PM

rules “will eliminate 220,000 jobs and cost the average

household about $1,200 per year in discretionary spending.”

Brief Analysis, No. 236, Page 2, National Center for Policy

Analysis, July 17, 1997. According to the American Thoracic

Society, poverty is the number one risk factor for asthma,

therefore, the new rules “will worsen health by increasing

unemployment and lowering household income.” /d. This is

the conclusion of Dr. Wendy Gramm, former administrator of

the Office of Regulatory Affairs in the United States Office of

Management and Budget (OMB), and Susan Dudley, vice

—_-— ~——__y

19

president and director of environmental analysis at Economists,

Inc. Jd. Based on OMB estimates “ that for every $9 million

to $12 million decline in aggregate personal income one life is

lost and EPA cost estimates for the rules, Gramm and Dudley

found that the new ozone standard alone could result in 7,000

deaths a year.” /d.

Surely, any safety margin would be inadequate if it did

not account for actual harm to the public resulting from

implementation of air quality standards that are supposed to

protect public health and welfare. As the Court of Appeals

would have it, the EPA could impose air quality standards that

caused an actual net health risk to the public, such as 7,000

deaths a year from the rules in this case. This is patently

unreasonable. Congress could not have intended such a blind

application of the law. Nor does the law countenance

absurdities.

If the requirement that the EPA set an “adequate margin

of safety” for NAAQS is to mean anything, it must mean that

EPA has considered all related health effects and made a

balanced judgment that the air quality standards will do more

good than harm with respect to public health and welfare. The

lower court cannot ignore or countenance EPA’s disregard for

public safety by a crabbed reading of the Clean Air Act. For

these reasons, this Court should rule that the setting of NAAQS

does not preclude, indeed requires, a consideration of all related

health effects that derive from the regulated substance and the

regulation of that substance.

>

CONCLUSION

EPA must set air quality standards that are protective of

public health and welfare. However, Congress gave EPA

discretion in determining “an adequate margin of safety” for

those standards. The setting of an “adequate” margin of safety

20

implies that EPA may set a limit above the “zero-risk” level,

even for those substances, like ozone and particulate matter,

that are nonthreshold pollutants. Thus, by any reasonable

interpretation of the term “adequate,” EPA must consider

nonhealth factors. This Court should so hold.

DATED: July, 2000.

Respectfully submitted,

M. REED Hopper

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae Pacifie

Legal Foundation and California

Chamber of Commerce