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

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SUPREME COURT OF THE UNITED STATES Bee

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CAROL M, BROWNER, ADMINISTRATOR OF THE aie

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QUESTIONS PRESENTED

Whether the Clean Act requires that the Environmental

Protection Agency must, in setting nationwide air-quality

standards, ignore all factors “other that health effects relating to

pollutants in the air,” given that consideration of such factors

would permit both Agency and reviewing courts to avoid

confronting constitutional non-delegation issues.

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INTEREST OF THE AMICUS CURIAE'

Amicus Curiae, Alcan Aluminum Corporation (“Alcan”) is a

subsidiary of Alcan Aluminum Limited, a Canadian Corporation.

Alcan is engaged in the business of aluminum smelting and

fabrication. It has major manufacturing facilities in the United

States, which are subject to regulation by the Environmental

Protection Agency as well as other federal agencies. It employs

4500 men and women and operates facilities in 13 States. Because

of the substantial investment in operations in the United States,

Alcan has a direct interest in insuring that the regulatory activities

by federal agencies are predicted on a reliable basis to insure that

the actions which Congress sought to achieve are in fact attained

and that the regulated are not subjected to unnecessary costs

which do not achieve the intended benefit.

SUMMARY OF ARGUMENT

Alcan believes that the manner in which present constitutional

issue is framed by the lower court, presents an inescapable

implication in the position of the United States Environmental

Protection Agency (“EPA”) that it is not required to, and in fact

has not complied, with the reliability requirement for the

promulgation of standards.

By taking the position that it is not obligated by the Clean Air Act

to undertake a cost-benefit analysis, the EPA has implicitly

conceded that it does not have the substantiation and has not

undertaken the appropriate effort in the rulemaking process to

comply with the reliability requirements of 42 USC §7607. This

shortcoming is a two-prong failure. First, to properly evaluate

! No counsel for a party authored this brief in whole or in part, and no

person or entity, other than Amicus Curiae and their counsel, made a

monetary contribution to the preparation and submission of this brief.

Consent letters for all parties have been filed with this brief.

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benefits, one must necessarily evaluate costs. Among the costs to

be considered are not merely the costs of implementing the

standards in terms of absolute dollars to the regulated, but the

consequences of the standard’s impact from a comprehensive

standpoint to insure it does not result in changes of behavior of

the regulated and the public such that any presumed reduction of

risk from the standard is either negated or overall risk is

enhanced.

The second part of the reliability requirement is to ensure that

conclusions concerning risk associated with various limits on air

standards complies with the requirements that this Court

articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. $79 (1993).

Before this Court resolves the constitutional issue presented

unnecessarily, we urge this Court to consider a remand of this

case for comprehensive review of the record to insure that the

regulations at issue meet these reliability requirement. |

ARGUMENT

I. A FEDERAL COURT SHOULD NOT RESOLVE A

DISPUTE BY REACHING A CONSTITUTIONAL

ISSUE WHEN THE CASE MAY BE RESOLVED ON

ALTERNATIVE GROUNDS.

It is a well embedded principle that federal courts should

not reach a constitutional issue if there is a non-constitutional

ground for deciding the case. See Gulf Oil Co. v. Bernard 452

U.S. 89, 99 (1981); Mobile v. Bolden, 446 U.S. 55, 60 (1980);

Burton v. U.S., 196 U.S. 283,295 (1905); Ashwander v. Tenn.

Valley Authority, 297 U.S. 288, 347 (1936).

Il. THE STATUTORY SCHEME CLEARLY REQUIRES

THE EPA TO CONSIDER CONSEQUENTIAL COSTS

OF THE PROMULGATION OF AIR QUALITY

CRITERIA.

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The EPA paraphrases its obligation under the Clean Air Act

to use “the latest scientific knowledge” to develop air quality

criteria based on “all identifiable effects on public health or

welfare.” Petitioners Brief at 4. The EPA has apparently

interpreted 42 U.S.C. 7408 to limit its consideration exclusively to

the impact of the pollutant alone on health. The present dispute

before this Court arises because the EPA has taken the position

that the statute does not permit it to consider economic impact,

feasibility or significance of the risk. However, the EPA’s

statutory obligation to evaluate “all identifiable effects on public

health or welfare” is more comprehensive than the simple dose-

response analysis conducted by the EPA.

The statute further defines what it means by “all identifiable

effects” to include “those variable factors (including atmospheric

conditions) which of themselves or in combination with other

factors may alter the effects on public health or welfare of such air

pollutant.” 42 U.S.C. 7408 (a) (2) (A). This broad requirement

imposes on the EPA the obligation to evaluate the totality of the

consequences of its proposed regulatory efforts. Even if the EPA

is correct that it is not obligated to consider the economic impact

on the regulated entity as a factor in itself, to the extent that such

impact translates into adverse impact on public health or welfare,

such as making needed energy for heating, cooling or

transportation practically unavailable to certain groups such a

requirement is mandated.

It appears clear that the EPA has developed no reliable data to

address this requirement. In fact, it does not even appear to have

reliable data to demonstrate the likely consequences of the

approach it has chosen on the simple dose-response issue as

contrasted with the other alternative options available. Thus

concludes Professor Cass R. Sunstein’ who studied the record in

depth that the final rules at issue are not accompanied by any

2 Cass R. Sunstein, /s the Clean Air Act Unconstitutional?, 98 MICH.

Law REV. 303, 328 (1999).

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quantification of the risks associated with competing standards.

Nor is there an explanation of the basic value judgment showing

what level of risk was chosen and why they are requisite to

protect public health.

This Court should remand this case with instructions to the EPA

to develop the record as required by 42 U.S.C. 7408 (a) (2) (A).

Ill. IT DOES NOT APPEAR THAT THE BASIS ON WHICH

THE EPA PROMULGATED THE CHALLENGED

REGULATIONS IS BASED ON RELIABLE EVIDENCE

AS REQUIRED BY DAUBERT.

This case is an appropriate case for this Court to confirm that

the Daubert standard which established the standard for

“reliability” for expert testimony in federal court is also

applicable to agency rule making. Daubert and its progeny

‘““establishes a standard of evidentiary _reliability.””’

Commentators have recognized the logical relationship between

the reliability standard for admissibility and the same requirement

for federal agency action:

... The APA has express language that directly supports

the application of the Supreme Court’s Daubert Four.

APA section 556(d) states that “sanction may not be

imposed or rule or order issued except...[when]

supported by and in accordance with reliable, probative

and substantial evidence.‘

3 Kumho Tire Co. . Carmichael, 118 S.Ct. 1167, 1175 (quoting Daubert,

125 L. Ed. 2d. at 482). (emphasis added).

4 Charles D. Weller and David B. Graham, New Approaches To

Environmental Law and Agency Regulation: The Daubert Litigation

Standard, 30 ELR 10557, 10568 (2000). The authors argue that there is

no plausible reason why Daubert should not be applied to all agency

adjudication or rule making., at 10569. In fact courts have already

imported Daubert into agency rule making. See: Libas v. Food Lion,

Inc., 171 F.3d 308 (S" Cir. 1998).

OE ON PO ane

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The Federal Appellate Courts have recognized that any deference

to an agency is based on its status as an expert and as such its

position must comport with expert behavior. See: Chicago Board

of Trade v. SEC, 187 F.3d 713 (7*h Cir. 1999) (stressing that

agency must act like an expert to receive deference) and Bechtel

v.FCC, 10 Fed 3°4. 875 (D.C. Cir. 1993) (agency action set aside

when it failed to undertake the empirical analysis to support

factual propositions).

Since the EPA did not attempt to quantify the risks, it is virtually

impossible to determine why the agency chose the standards it

adopted. Without specification of the range of benefits attainable

from various approaches, “there is a weak role for sound science

in standard setting”. ° It is impossible to evaluate the reliability of

the agency rulemaking because it is impossible to discern the

basis for the EPA judgments.

CONCLUSION

For the foregoing reasons, Alcan believes that the EPA has

not established that its standards are rooted in sufficiently reliable

evidence. Accordingly, the Court should vacate the EPA ozone

and particulate standards on this basis and remand this case with

instructions to the EPA to promulgate new standards based on the

reliability standard articulated in Daubert.

Respectfully submitted,

Lawrence A. Salibra, Il

Alcan Aluminum Corporation

6060 Parkland Blvd

Mayfield Heights, Ohio 44124

(440) 423-6918

Attorneys for Amicus Curiae

Alcan Aluminum Corporation

5 Sunstein, supra., at p. 363