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

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* oD | ~“Supreme Court, U.S.

FILED

No. 99-1426 SEP 11 2000

In The | CLERK

Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Cross-Petitioners,

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 OF AMICUS CURIAE UNITED STATES

PUBLIC INTEREST RESEARCH GROUP

EDUCATION FUND IN SUPPORT OF

CROSS-RESPONDENTS

James Kerry Weeks, Esquire

Counsel of Record

Davip M.

Syracuse University College of Law

E.I. White Hall

acuse, NY 13244-1030

(315) 443-2524

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QUESTION PRESENTED

Should the Court construe section 109 of the Clean

Air Act, 42 U.S.C. § 7409, to require EPA to consider cost

in setting national ambient air quality standards?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .....cccccccosssscsunenene i

TABLE OF CONTENTS ....0scccvcsccssccseuneeneee ii

TABLE OF AUTHRORITERS ....scscccccecsssuseunene Vv

INTEREST OF AMICUS CURIAE .................. 1

INTRODUCTION ....ccccsscccsesccseuen sa nnnnnene 1

SUMMARY OF ARGUMENT.................-5008: 2

ARGUMENT ......cccccacsccvcesoeeceesennnnnnene 4

I. ELECTED REPRESENTATIVES SHOULD

DECIDE WHETHER TO REVISE SECTION 109

TO INCLUDE COST CONSIDERATIONS. ..... 4

Il. THE NON-DELEGATION DOCTRINE DOES

NOT JUSTIFY JUDICIAL REVISION OF SEC-

TOON 16D ...ccsccscsccescesnceuneee nee 5

A. SINCE ONLY “GRAVE DOUBTS” ABOUT

CONSTITUTIONALITY TRIGGER CON-

STRUCTION TO AVOID A CONSTITU-

TIONAL ISSUE, THE AVOIDANCE

CANON DOES NOT APPLY HERE....... 5

B. CONSTRUCTION TO AVOID MERE NON-

DELEGATION CLAIMS UNDERMINES

DEMOCRATIC VALUES BY AUTHORIZ-

ING UNGUIDED JUDICIAL RECON-

STRUCTION OF NUMEROUS STATUTORY

PROVO Gs oo coccsscccesedcsstocducenes 7

Page

1. A LITIGANT CAN RAISE A NON-DEL-

EGATION CLAIM UNDER ANY STAT-

UTE DELEGATING AUTHORITY......

2. SINCE MANY DIFFERENT CON-

STRUCTIONS CAN CLARIFY A STAT-

UTE, JUDGES’ SELECTION OF

SAVING CONSTRUCTIONS WILL

REFLECT THEIR POLICY PREFER-

DPESSORRSERSSec cde cecdscceccoccce

CONSTRUING SECTION 109 TO INCLUDE

COST CREATES A STATUTE FOREIGN TO

WHAT THE ENACTING CONGRESS

PTT TTL TLITT TTT TT

INCLUDING COST EXACERBATES ANY

CONSTITUTIONAL DIFFICULTY BY

MAKING SECTION 109’S PRINCIPLE LESS

EE «ccatecsvecescececceccccecs

Ill. INDUSTRY’S PROPOSED CLEAR STATEMENT

RULE SUBVERTS DEMOCRATIC VALUES.....

INDUSTRY’S CLEAR STATEMENT RULE

MAKES ADMINISTRATIVE AGENCIES

MORE LIKE LEGISLATURES .............

INDUSTRY’S CLEAR STATEMENT RULE

CONFLICTS WITH PRECEDENT

DESIGNED TO ASSURE THAT AGENCIES

AND COURTS RESPECT LEGISLATIVE

POY DION on ccc ccccccccccccces

Page

THE CONSTITUTION DOES NOT AUTHO-

RIZE JUDGES TO ENACT THEIR VIEWS

OF SOUND RISK MA'“AIGEMENT INTO

BAD vccncncccencesddmaavadbansisddesccees

1. CLEAR STATEMENT RULES GENER-

ALLY REQUIRE A QUASI-CONSTITU-

TIONAL FOUNDATION ..............

2. JUDICIAL REVIEW OF LEGISLA-

TION’S REASONABLENESS SHOULD

NOT GUIDE STATUTORY INTER-

PURPEUEEIS CReeecgtescessvcctcecsocecs

3. THE ADMINISTRATIVE PROCEDURE

ACT DOES NOT JUSTIFY A NEW SUB-

tks 22

ADDING COST CONSIDERATIONS TO

SECTION 109 WILL CHANGE POLICY,

NOT IMPROVE EPA’s REASONING ......

THE COURT SHOULD NOT CREATE A

LEGAL RULE REFLECTING AN ECO-

NOMIC THEORY LACKING CONSTITU-

TIONAL FOUNDATION ..................

SEE 0s ce vceicusencdeccsencesceenessveess

TABLE OF AUTHORITIES

Page

Cases

Adkins v. Children’s Hospital, 261 U.S. 525 (1923),

overruled West Coast Hotel Co. v. Parrish, 300

a Oe Oe ees 20, 21

Almendarez-Torres v. United States, 523 U.S. 224

DS dle ited sidcutiadeduuadkakwicaeaue 2, 6, 11, 19

American Petroleum Inst. v. Costle, 665 F.2d 1176

i ee eee | he eeenbanedes 23

American Steel Foundries v. Tri-Cities Cent. Trades

CR, Ae Ec ccccecvccesesesvccess 29

American Textile Mfrs. Inst., Inc. v. Donovan, 452

th Sin cecctucucssesdeounteadn 3, 12, 14, 16

American Trucking Ass'ns v. EPA, 175 F.3d 1027

Es We nave duce ch aehh ee hebeseentseanwsl 9, 13

American Trucking Ass'’ns v. EPA, 195 F.3d 4 (D.C.

Sh Tl d. c¢ellidulliidun Vein endtnshbheseeeoeneie 10

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)......... 6

Arkansas v. Oklahoma, 503 U.S. 91 (1992)............. 22

Astoria Federal Sav. & Loan Ass'n v. Solimino, 501

U.S. 104 (1991) .......... LS a EPR Ie eee 17

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87 (1983) ........... 24

Boomer v. Atlantic Cement Co., 257 N.E. 2d 870

DE Pi ivenadsenteenedinesimanieebecendunees 28

Bowman v. Humphrey, 100 N.W. 854 (Iowa 1904) ..... 27

Page

Chevron v. Natural Resources Defense Coumcil, 467

Be Ge Gene ccceccccecccnnetncnmeninnetunis 8

Citizens to Preserve Overton Park, Inc. v. Valpe, 401

ef Ren . 3, 4, %, B

Duplex Printing Press Co. v. Deering, 254 US. 443

SED 06 0560666nbeoucssecsenssuneienmnnantnda 29

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) .... 18

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)........... 17

Ferguson v. Skrupa, 372 U.S. 726 (1963) ........ 4, 20, 21

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) .... 27

Gregory v. Ashcroft, 501 U.S. 452 (1991)........... 17, 19

Industrial Union Dep't, AFL-CIO v. American Petro-

leum Inst., 448 U.S. 607 (1980) .................... 10

Int'l Ass'n of Machinists v. S. B. Street, 367 U.S. 740

SE Haneclisedncrdentvdnunseudnebekesseveoensess 9

Jones v. United States, 526 U.S. 227 (1999)........... 6, 9

Landgraf v. USI Film Products, 511 U.S. 244 (1994) .... 18

Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C.

Din cncicntinnddndnndlane an endten ae 11, 16, 23

Lochner v. New York, 198 U.S. 45 (1905).... 3, 20, 26, 28-30

Milk Wagon Drivers’ Union, Local No. 753 v. Lake

Valley Farm Products, 311 U.S. 91 (1940)........... 29

Miller v. French, 120 S. Ct. 2246 (2000) .............. 11

Mistretta v. United States, 488 U.S. 361 (1989)...... 5, 10

Vii

Page

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins.

ig CD. SP GUE: cocceccccscosccecceseess 16, 22

National Cable Television Ass‘n, Inc. v. United States,

YE COUPE occcccccncncceenesecesencessecs 10

Natural Resources Defense Council v. Administrator,

Sa pas wee GAG. Cle BODE). ... 2c cccvccccccces 22, 23

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .... 21

New York Times v. Sullivan, 376 U.S. 254 (1964)....... 8

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

SED esGbtseccesksudebescusevensisecessecssedet 9, 18

Rust v. Sullivan, 500 U.S. 173 (1991).................. 6

Schooner Paulina’s Cargo v. United States, 11 U.S. (7

od eee cdeneaednbadesaunn dae 19

Seacord v. The People, 13 N.E. 194 (Ill. 1887)......... 27

Secretary of Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (1982).......... 24

Sullivan v. Jones & Laughlin Steel Co., 57 A. 1065

BP, TERED ccccccccccuvcccsstencsevecdedosteocasees 28

Susquehanna Fertilizer Co. v. Malone, 20 A. 900 (Md

Ps 4p cccccesensédueconceanedenesuccoeusspeseusss 28

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).... 13

Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967) .... 23

Train v. Natural Resources Defense Council, 421 U.S.

PP stand cdvaneddeatenboteundeteannateneuséed 15

Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997) ........ 5

Vili

Page

Union Electric Co. v. EPA, 427 U.S. 246 (1976). .3, 4, 15, 16

United States v. E.C. Knight Co., 156 U.S. 1 (1895) .... 29

United States v. Haggar Apparel Co., 526 U.S. 380

SINOED vevacccceccséeccsenacduductecsoseeusvedonsecs 7

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) ..6, 11

United States v. Rutherford, 442 U.S. 544 (1979)..... 2, 21

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) .... 21

Whalen v. Union Bag & Paper Co., 101 N.E. 805

ts SEE bec vccnceccncanenedesénesdesesedsacaces 27

Williamson v. Lee Optical, 348 U.S. 483 (1955).... 13, 18, 21

Yee v. City of Escondido, 503 U.S. 519 (1992) ......... 24

STATUTES

SS Cees GED Sv ccvdcceddetevecdavocevscccsceneny 4

as ENG 0 bs capbciccésevceccndscéncesesouaczes 22

Sn 6 ot asceddavacctcovdvacccduateséna 1, 14

SP Cs PU cc ddccccgenccdcacedéscccasness 22

The Administrative Procedure Act, 5 U.S.C.

is +: cn csctphauenndacnetesevbaces 3

The Unfunded Mandates Reform Act, Pub. L. No.

REI FEENEY Dann a nner 4

OTHER LEGISLATIVE MATERIALS

141 Cong. Rec. H2252 (1995)............ceeeeeee

H.R. 9, 104th Cong. § 422(a)(2), (b)(1) (March 10,

SOUP cc cdeccesseececeseceneseoenscesoesseecoes

Review of EPA’s Proposed Ozone and Particulate Mat-

ter NAAQS Revisions-Part 2 Before the Subcomm.

on Health and Env’t. and the Subcomm. on Over-

sight and Investigations of the House Comm. on

Commerce, 105th Cong. 48 (1997)(statement of

Richard L. Brodsky, Chairman, New York State

Assembly Committee on Environmental Con-

PT TTT errr rT rer TTT eT TTT re

S. 343, 104th Cong. § 623(a) (1995)..............

S. S61, 105th Comm. (1996) 22... ccccccccccccccees

S. 2362 § 703(c)(1)(A), 106th Cong. (2000).......

S. Rep. 106-90 (1995) ... cc cccccccccccccccscccces

SECONDARY AUTHORITY

David M. Driesen, The Societal Cost of Environmen-

tal Regulation: Beyond Administrative Cost-Benefit

Analysis, 24 Ecology L. Q. 545 (1997) ...... 12,

Donald T. Hornstein, Reclaiming Environmental

Law: A Normative Critique of Comparative Risk

Assessment, 92 Colum. L. Rev. 562 (1992)......

E.J. Mishan, Cost-Benefit Analysis (1982) .........

Mark Sagoff, The Economy of the Earth (1988)....

Morton J. Horowitz, The Transformation of Ameri-

can Law 1780-1860 (1977) .......002cceecceeees

13, 25

Reina Steinzor, Devolution and the Public Health, 24

Harv. Envtl. L. Rev. 351 (2000).................

Richard Posner, The Federal Courts: Crises and

PD Ge 0.00086 bnd hanes dascccnsdicceueens

Thomas O. McGarity, A Cost-Benefit State, 50

Fs We ES OF ED od Gu ivccnedeecoduenacus

Thomas O. McGarity, Regulatory Analysis and Reg-

ulatory Reform, 65 Tex. L. Rev. 1243 (1987)......

Thomas O. McGarity, The Courts and the Ossifica-

tion of Rulemaking: A Response to Professor Seiden-

*. & Se SF) ere

William Blackstone, Commentaries on the Laws of

England (Dawsons of Pall Mall ed. 1966).......

William M. Wiecek, The Lost World of Classical

Legal Thought: Law and Ideology in America,

POSSE GUN es cndstudenedepecencniaps cece:

William N. Eskridge & Philip P. Prickey, Quasi-

Constitutional Law: Clear Statement Rules as Con-

stitutional Lawmaking, 45 Vand. L. Rev. 593

SOP heh 4 6 cnednpcbunecécecasesaeaceestacsexs

INTEREST OF AMICUS CURIAE

The United States Public Interest Research Group

Education Fund is a non-profit organization promoting

democratic decision-making and environmental protec-

tion, with a long history of advocacy at the state and

federal levels for clean air.! It has an interest in the

protection the new ozone and particulate standards offer

and in the legal principles that allow Congressional intent

to control the implementation of laws protecting signifi-

cant public interests.

INTRODUCTION

Industry and its supporters ask the Court to avoid

deciding their non-delegation claim by construing section

109 of the Clean Air Act (Act), 42 U.S.C. § 7409, to require

EPA to consider cost in setting National Ambient Air

Quality Standards (NAAQS). See Opening Brief for Cross-

Petitioners American Trucking Associations et al. at 24, 50

[hereinafter ATA Br.]; Opening Brief of Ohio, Michigan,

and West Virginia in Support of Cross-Petitioners at 4-10.

In addition, Industry urges this Court to invent a new

clear statement rule, requiring agency consideration of

cost absent explicit statutory language barring its consid-

eration. See Opening Brief of Cross-Petitioner Appala-

chian Power et al. at 46-47 [hereinafter AP Br.]; Brief of

Amicus General Electric in Support of Cross-Petitioners

at 18 [hereinafter GE Br.]. This brief focuses upon these

pleas for extraordinary construction of the Act.

1 The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no person or entity other than the amicus and its counsel made

any monetary contribution to the preparation or submission of

this brief.

SUMMARY OF ARGUMENT

Congress has actively considered the statutory

changes that Industry seeks from this Court, but has

chosen not to amend section 109. Elected representatives,

rather than unelected judges, should decide whether to

revise the Act. See United States v. Rutherford, 442 U.S. 544,

555 (1979) (federal courts do not sit as councils of revi-

sion).

Statutory construction to avoid mere claims of

unconstitutional delegations can subvert democratic

values by improperly modifying numerous statutes. See

generally Almendarez-Torres v. United States, 523 U.S. 224,

237-38 (1998). Because most statutes have their vagaries,

any good lawyer can identify a “hard question” that a

statutory provision does not answer. If the existence of an

unanswered question triggers extraordinary judicial con-

struction of a statute, then the judiciary may rewrite

much of the United States Code. Furthermore, since

judges can add specificity to statutes in several different

ways their constructions will necessarily reflect their pol-

icy judgments. Addition of cost to section 109, however,

renders it less intelligible by adding a factor without

specifying which cost sensitive principle should govern

the NAAQS. Proper application of the rule that only

“grave” constitutional doubts trigger construction to

avoid a constitutional issue precludes extraordinary con-

struction of section 109 and avoids subversion of demo-

cratic values.

Industry’s proposed clear statement rule, which

would require agencies to consider cost absent an explicit

contrary statutory statement, also subverts democratic

values. The Industry clear statement rule conflicts with

precedent designed to assure that administrative agencies

and courts implement legislative policy. That precedent

directs agencies (and therefore reviewing courts) to base

their decisions on the factors the statute explicitly makes

relevant to agency decisions. See Citizens to Preserve Over-

ton Park v. Volpe, 401 U.S. 402, 411-13 (1971); Union Electric

Co. v. EPA, 427 U.S. 246, 257-65 (1976); American Textile

Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 507-12 (1981).

The Industry clear statement rule conflicts with this pre-

cedent by generally requiring consideration of a factor

not listed in authorizing legislation.

This Court should not enact a clear statement rule to

advance contemporary policy preferences that receive

regular consideration in Congress. Industry encourages

this Court to engage in Lochner-like review of the rea-

sonableness of the policy of protecting public health from

pollution, hoping to convince the Court to use a clear

statement rule to favor consideration of cost. The Admin-

istrative Procedure Act (APA), 5 U.S.C. §§ 551-559,

701-706, does not justify this approach to statutory “inter-

pretation.” Basing statutory construction on judicial

assessment of the reasonableness of statutory policies

would undermine objective statutory interpretation and

democratic control.

Adding cost to section 109 would make reasoned

decision-making under the APA more difficult. It

increases the need for policy judgments that are difficult

to rationalize, such as judgments about how to value

human life and health. This change of statutory policy

would make section 109 less “determinate” than it is now.

Industry’s proposal for a clear statement rule favor-

ing a cost-benefit test invites a return to the days when

the Court discredited itself by creating general principles

of law advancing contemporary economic theory. Cf.

Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes J.

dissenting). This Court should decline the invitation.

ARGUMENT

I. ELECTED REPRESENTATIVES SHOULD DECIDE

WHETHER TO REVISE SECTION 109 TO

INCLUDE COST CONSIDERATIONS.

In recent years, elected officials have actively consid-

ered revisions to the Act like the revision of settled law

Industry seeks from this Court. The 104th Congress, for

example, considered, but rejected, legislation that might

have applied a cost-benefit test to the Act and, indeed,

substantially all government regulation. See H.R. 9, 104th

Cong. § 422(a)(2), (b)(1) (March 10, 1995); S. 343, 104th

Cong. § 523(a) (1995); 141 Cong. Rec. H2252 (1995) (bill

would supersede Clean Air Act’s “adequate margin of

safety” requirement); S. Rep. 104-90, at 135 (1995) (addi-

tional views). That Congress also rejected revision of the

Act in the legislation it did enact, The Unfunded Man-

dates Reform Act, Pub. L. No. 104-4, 109 Stat. 48, which

only requires cost-benefit analysis (CBA) of major rules

when the underlying law allows for consideration of cost.

See 2 U.S.C. § 1532(a). Subsequent Congresses repeatedly

rejected bills that might amend section 109. See e.g. S. 981,

105th Cong. (1998). Several of the Congressional amici

urging this Court to modify section 109 sponsored some

of these failed bills and have introduced legislation now

before Congress to convert the Act into a cost-benefit

statute. See S. 2362 § 703(c)(1)(A), 106th Cong. (2000).

Article I of the Constitution vests legislative author-

ity in elected representatives so that citizens can demo-

cratically control significant policy choices, see Ferguson v.

Skrupa, 372 U.S. 726, 729 (1963), like the choice about

whether to change cost’s role under the Act, cf. Union

Electric Co. v. EPA, 427 U.S. 246, 266 (1976) (states may

consider cost in writing regulations of pollution sources

to achieve the NAAQS); Reina Steinzor, Devolution and the

Public Health, 24 Harv. Envtl. L. Rev. 351, 352 (2000)

(citing “consistent public support for more stringent envi-

ronmental regulation”). Congress is far better equipped

than a court to consider the many contending factual and

policy arguments that bear on the issue of whether to

require consideration of cost in section 109. See Turner

Broad. Sys. v. FCC, 520 U.S. 180, 195 (1997). See e.g. Thomas

O. McGarity, A Cost-Benefit State, 50 Admin. L. Rev. 7,

46-49 (1998) (debunking claim that regulatory costs cause

serious health problems). Judicial revision of section 109

would be inappropriate.

Il. THE NON-DELEGATION DOCTRINE DOES NOT

JUSTIFY JUDICIAL REVISION OF SECTION 109.

The non-delegation doctrine only requires that Con-

gress include an intelligible principle (i.e. a general policy

directive) in laws delegating authority to administrative

agencies. Mistretta v. United States, 488 U.S. 361, 372-73

(1989). To convert this doctrine into an engine for recon-

struction of statutes with policies as clear as section

- 109(b)(1)’s health protection principle would promote

judicial, rather than democratic, governance, thereby sub-

verting the non-delegation doctrine’s principle aim.

A. SINCE ONLY “GRAVE DOUBTS” ABOUT

CONSTITUTIONALITY TRIGGER CON-

STRUCTION TO AVOID A CONSTITU-

TIONAL ISSUE, THE AVOIDANCE CANON

DOES NOT APPLY HERE.

Allowing litigants to secure favorable constructions

of statutes by raising colorable, but not terribly persua-

sive, constitutional claims undermines democratic values.

See Almendarez-Torres v. United States, 523 U.S. 224, 238

(1998). For that reason, construction of statutes to avoid a

constitutional issue is only appropriate when, in the

words of Justice Holmes, “grave doubts” arise about a

statute’s constitutionality. See United States v. Jin Fuey

Moy, 241 U.S. 394, 401 (1916). Judges properly invoke this

canon only when they believe that “the alternative is a

serious likelihood that the statute will be held unconstitu-

tional.” Almendarez-Torres, 523 U.S. at 238.2 See e.g. Jones v.

United States, 526 U.S. 227, 239-51 (1999) (extensively

analyzing case law before concluding that a grave consti-

tutional doubt exists). Even constitutional objections that

have “some force” do not create “grave doubts” trigger-

ing application of the avoidance canon. See Rust v. Sul-

livan, 500 U.S. 173, 191 (1991) (constitutional claims about

restrictions on abortion counseling).

This “grave doubt” limitation helps avoid creation of

“statutes foreign to those Congress intended, simply

through fear of a constitutional difficulty that, upon anal-

ysis, will evaporate.” Almendarez-Torres, 523 U.S. at

237-38. Congress often lacks the practical ability to over-

rule erroneous judicial construction, given all of the mat-

ters pressing for its attention. See Richard Posner, The

Federal Courts: Crises and Reform 285 (1985). So adherence

to this limitation is necessary to avoid distorting elected

representatives’ policy choices. See Almendarez-Torres, 523

U.S. at 238.

No grave doubt (indeed no colorable claim) can exist

about section 109’s constitutionality. This Court has

2 This Court has never questioned Almendarez-Torres’

treatment of the avoidance canon. Cf. Apprendi v. New Jersey, 120

S. Ct. 2348, 2360-63 (2000) (distinguishing Almendarez-Torres’

constitutional holding).

repeatedly upheld delegations of authority pursuant to

general principles much broader (and less determinate)

than the standard governing the NAAQS.

B. CONSTRUCTION TO AVOID MERE NON-

DELEGATION CLAIMS CAN UNDERMINE

DEMOCRATIC VALUES BY AUTHORIZING

UNGUIDED JUDICIAL RECONSTRUCTION

OF NUMEROUS STATUTORY PROVISIONS.

The policy supporting the grave doubt requirement

has special force in the non-delegation context. A practice

of construing statutes to avoid mere claim. of unconstitu-

tional delegations would severely undermine democratic

governance.

1. A LITIGANT CAN RAISE A NON-DELE-

GATION CLAIM UNDER ANY STATUTE

DELEGATING AUTHORITY. '

Since legislation almost always leaves some issues

unresolved, litigants can raise non-delegation claims

about almost every statute relying upon executive branch

implementation. See United States v. Haggar Apparel Co.,

526 U.S. 380, 392-93 (1999) (Congress probably cannot

anticipate all applications of a general policy). And,

absent adherence to the precedent discussed above, rai-

sing such a claim could trigger unusual constructions of a

statute.

In particular, if an issue about the intelligibility of the

principle of protecting public health with an adequate

margin of safety can trigger special construction, judicial

reconstruction of statutes will become frequent indeed. A

general statutory principle often fails to provide a “deter-

minate criterion” that functions like an algorithm, dictat-

ing a precise result for each application of the statute. If

every problem that requires discretionary line-drawing

without legislative “determinate criterion” presents an

occasion for extraordinary construction, the judiciary,

meaning every federal and state trial and appellate judge

that interprets federal law, would have authority to

reconfigure much of the United States Code. Cf. Chevron

v. Natural Resources Defense Council, 467 U.S. 837, 864-66

(1984) (democratic principles require that agencies, not

courts, interpret ambiguities in statutes).

The avoidance canon does not now control most stat-

utory construction, because the Constitution’s specific

provisions usually present problems in somewhat limited

areas. For example, free speech claims may arise in libel?,

but arise seldom (if at all) in the environmental context,

where the law limits pollution rather than communica-

tion. The non-delegation doctrine, by contrast, involves a

general theory of legislation, so litigants can raise non-

delegation claims about a wide variety of statutes.

2. SINCE MANY DIFFERENT CONSTRUC-

TIONS CAN CLARIFY A STATUTE,

JUDGES’ SELECTION OF SAVING CON-

STRUCTIONS WILL REFLECT THEIR

POLICY PREFERENCES.

Application of the avoidance canon in the non-dele-

gation context will usually force judges to shape saving

constructions reflecting their individual views of sound

policy. Many different constructions serving many differ-

ent values may clarify a statutory mandate. For example,

3 See e.g. New York Times v. Sullivan, 376 U.S. 254 (1964).

imagine a statute requiring EPA to write “sound environ-

mental regulations.” A judge could clarify this by requir-

ing that costs not exceed benefits or that no individual

suffer health impairment. The choice between these views

(and other possibilities) would necessarily reflect a judi-

cial policy preference.

In other cases, the first party to litigate a non-delega-

tion issue will have an opportunity to secure its preferred

saving construction. This explains why this case poses a

question of whether to require consideration of cost,

instead of whether to add specificity to section 109 by

requiring, for example, that EPA protect against all health

effects more likely than not to harm 100 or more people.

Cf. American Trucking Ass‘ns v. EPA, 175 F.3d 1027, 1038-39

(D.C. Cir 1999).

Under other constitutional doctrines, the nature of

the constitutional problem controls the policy direction of

constructions avoiding constitutional questions. The

avoidance canon tends to encourage free speech,‘ protect

criminal defendants,5 and limit regulation of churches,*

because of the substantive content of the constitutional

provisions underlying the constructions. Therefore, the

substantive policies that the judicial constructions imple-

ment have roots in constitutional values, rather than judi-

cial policy decisions lacking constitutional foundation.

This problem of frequent unprincipled reconstruction

of statutes to avoid non-delegation issues has not

4 See e.g. Int'l Ass'n of Machinists v. S. B. Street, 367 U.S. 740,

749-50 (1961).

5 See e.g. Jones v. United States, 526 U.S. 227, 239-40(1999).

6 See e.g. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507

(1979) (construing statute to avoid NLRB jurisdiction over

church-operated schools).

bedeviled courts in the past because the non-delegation

doctrine clearly permits Congress to delegate pursuant to

general standards. Mistretta v. United States, 488 U.S. 361,

372-73 (1989). This explains why only one of this Court’s

recent majority opinions has construed a statute to avoid

a non-delegation claim. See National Cable Television Ass'n,

Inc. v. United States, 415 U.S. 336 (1974). And that case

arose in the tax area, where, according to Justice Douglas’

majority opinion, a long tradition of non-delegation sup-

ports an inference that Congress does not intend to dele-

gate its constitutional authority to tax at all. See id. at

340-41.

The plurality opinion in the “Benzene” case men-

tioned the non-delegation doctrine without explicitly

invoking the avoidance canon, stating that the Occupa-

tional Safety and Health Act “might” offend the non-

delegation doctrine absent the construction the plurality

adopted. See Industrial Union Dep't, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality opin-

ion). A footnote in Mistretta, 488 U.S. at 373 n. 7, charac-

terizes this statement as a use of the non-delegation

doctrine to narrow a statute, but the Benzene plurality

states that its resolution of the case “turns, to a large

extent” on the analysis of two specific statutory subsec-

tions (which the opinion parses at length before briefly

mentioning non-delegation). “Benzene”, 448 U.S. at 639.

Cf. American Trucking Ass'ns v. EPA, 195 F.3d 4, 14 (D.C.

Cir. 1999) (Judge Silberman dissenting) (characterizing

Benzene’s reference to non-delegation as a “make-

weight”). In any case, Benzene does not involve explicit

consideration of the intelligible principle issue or a major-

ity opinion on application of the avoidance canon. Any

reinterpretation of the dormant non-delegation doctrine

that brings the Act into doubt would encourage non-

delegation claims in conjunction with requests for novel

statutory construction, rather than avoidance of constitu-

tional questions. |

C. CONSTRUING SECTION 109 TO INCLUDE

COST CREATES A STATUTE FOREIGN TO

WHAT THE ENACTING CONGRESS

INTENDED.

The avoidance canon requires judges to limit them-

selves to constructions “not plainly contrary” to Congres-

sional intent. See Miller v. French, 120 S. Ct. 2246, 2255

(2000) (declining to apply canon). This limit prevents

judicial creation of statutes foreign to the enacting Con-

gress’ intentions. Almendarez-Torres, 523 U.S. at 238.

Yet Industry invokes the canon to transform a health

protective statute into a cost-benefit statute. The enacting

Congress clearly sought to overcome Industry resistance

to cleaning up pollution by excluding cost considerations

from the Act’s goal setting provision. See Lead Industries

Ass'n v. EPA, 647 F.2d 1130, 1149 (D.C. Cir. 1980). Industry

seeks to incorporate selected teachings of the largely

subsequent law and economics movement into the Act,

but the Congress of 1970 was not among the pupils. Other

briefs will discuss Congressional intent in detail.

D. INCLUDING COST EXACERBATES ANY

CONSTITUTIONAL DIFFICULTY BY MAK-

ING SECTION 109’S PRINCIPLE LESS INTEL-

LIGIBLE.

The avoidance canon only authorizes constructions

that avoid constitutional issues. See United States v. Jin

Fuey Moy, 241 U.S. 394, 401 (1916). It does not authorize

constructions that fail to resolve or exacerbate a constitu-

tional problem.

If, however, section 109 creates grave constitutional

doubts, construing it to require consideration of cost

exacerbates the constitutional problem by making the

Act’s principle less intelligible than it is now. The Act

now contains a policy of protecting the public from air

pollution’s ill effects. Adding cost considerations makes

that policy less clear. It raises questions about whether

EPA may allow a population of people to die or become

ill from air pollution, a question that the current statute

resolves clearly.

Requiring consideration of cost would introduce per-

vasive vagueness into section 109. A requirement to con-

sider cost does not establish a policy about how cost

factors should influence decisions. EPA may take cost

into account by writing standards reflecting all economi-

cally feasible health protections. See e.g. American Textile

Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 508-09 (1981).

This approach involves assessment of industry’s financial

capacity for compliance expenditures, rather than a com-

parison between costs and benefits. See David M. Driesen,

The Societal Cost of Environmental Regulation: Beyond

Administrative Cost-Benefit Analysis, 24 Ecology L. Q. 545,

609-10 (1997). Alternatively, Congress may require one of

several possible relationships between costs and benefits.

See e.g. id. 582-85 (benefits must exceed cost contrasted

with benefits must equal cost); Donovan, 452 U.S. at 506

(reasonable relationship). So requiring EPA to consider

cost hardly provides a more intelligible principle than the

principle that EPA should protect public health from air

pollution. Indeed, it establishes no principle at all; it just

adds a factor.

Ill. INDUSTRY’S PROPOSED CLEAR STATEMENT

RULE SUBVERTS DEMOCRATIC VALUES.

Industry urges the Court to adopt a clear statement

rule requiring agencies to consider cost unless Congress

specifically states that the agency may not consider cost.

GE Br. at 18; ATA Br. at 45-46. Industry would require

consideration of “risk-risk” tradeoffs as well. See GE Br.

at 18. But no case or controversy exists over a “risk-risk”

issue, as distinct from the cost issue. See American Truck-

ing, 175 F.3d at 1051-53 (requiring EPA to consider the

relationship between ground-level ozone and ultra-violet

rays on remand). Cf. GE Br. at 2-3.

The proposed clear statement rule, if adopted, would

subvert democratic values. It would make judges agents

of statutory revision rather than honest interpreters of

Congressional intent. Cf. Tennessee Valley Auth. v. Hill, 437

U.S. 153, 194-95 (1978) (we must put aside our views of

the wisdom of Congressional action in reviewing a stat-

ute). It would therefore undermine Congressional control

of policy.

A. INDUSTRY’S CLEAR STATEMENT RULE

MAKES ADMINISTRATIVE AGENCIES

MORE LIKE LEGISLATURES.

Presumptively requiring agencies to weigh all of the

pros and cons of their actions makes them more similar to

special purpose legislatures. See generally David M. Drie-

sen, The Societal Cost of Environmental Regulation: Beyond

Administrative Cost-Benefit Analysis, 24 Ecology L. Q. 545,

605-13 (1997). Weighing all of the pros and cons of a

policy choice is the quintessential legislative activity. See

generally Williamson v. Lee Optical, 348 U.S. 483, 488 (1955)

(“it is for the legislature’. . . to balance the advantages

and disadvantages of the new requirement.”). Having

weighed the pros and cons, Congress decided to have

EPA execute a rather specific policy, a policy of protecting

public health and welfare from air pollution. See 42 U.S.C.

§ 7409. Cf. American Textile Mfrs. Inst., Inc. v. Donovan, 452

U.S. 490, 509 (1981) (Congress chose a balance between

costs and benefit in favoring worker health). Industry’s

proposal to presumptively require agencies to employ a

legislative ethos broadening the range of potential out-

comes, rather than criteria reflecting specific Congres-

sional policy choices, conflicts with its call for more

“determinate” statutory criteria.

B. INDUSTRY’S CLEAR STATEMENT RULE

CONFLICTS WITH PRECEDENT DESIGNED

TO ASSURE THAT AGENCIES AND COURTS

RESPECT LEGISLATIVE POLICY DECISIONS.

The major purpose of judicial review of agency action

has been to ensure that agencies carry out Congressional

mandates. The Industry clear statement rule seeks instead

to use judicial review as a means of revising statutes to

make them conform to Industry’s view of sound risk

management legislation. See AP Br. at 4; GE Br. at 1.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402 (1971), reveals that this Court created “hard look”

judicial review precisely to ensure that agencies focus

exclusively on factors relevant to implementing specific

Congressional policy decisions, rather than engage in

open-ended cost-benefit balancing. This Court inter-

preted the APA to require reviewing courts to consider

“whether the decision was based on consideration of the

relevant factors and whether there has been a clear error

in judgment.” Overton Park, 401 U.S. at 416. The Court

used the term “relevant factors” to refer to the factors the

governing statute explicitly makes relevant, not all fac-

tors that might be considered relevant if the agency were

a legislature. In particular, the Court interpreted a man-

date barring construction of federally funded highways

through parkland “unless there is no feasible and pru-

dent alternative ...” Id. at 411. The Court rejected the

government’s argument that this provision authorizes “a

wide-ranging balancing of competing interests.” See id. at

411-12. The Court held that the Secretary of Transporta-

tion could only permit destruction of parkland if “he

finds that alternative routes present unique problems.”

Id. at 413. This Court remanded so that the District Court

could ascertain whether the Secretary undertook the lim-

ited inquiry the statute required, or violated the statute

by engaging in “wide-ranging balancing.” See id. at 413,

415-16, 420.

In case after case, this Court focuses not on the

question of what factors can be relevant to a decision in

an abstract sense (weighing pros and cons), but on what

factors the statute commands the agency to consider in

order to carry out a prior Congressional policy. Thus, in

Union Electric Co. v. EPA, 427 U.S. 246, 256 (1976), the

Court rejected claims that EPA may consider cost and

feasibility in deciding whether to approve a state imple-

mentation plan, the package of regulations states write to

generate the emission reductions needed to meet the

NAAQS, see Train v. Natural Resources Defense Council, 421

U.S. 60, 65-67 (1975). The Act listed factors that EPA must

take into account in reviewing state plans. See Union

Electric, 427 U.S. at 257. The Act did not list cost and

feasibility. Id. This Court held that the Administrator

cannot consider cost and feasibility unless these factors

can be found among the “eight criteria” listed. Id. The

Court analyzed the issue of whether cost and feasibility

can be found, not by reference to any presumptive policy

preference, but by parsing the language and legislative

history of the Act. See id. at 257-65 (parsing the Act and

concluding that Congress had decided to force pollution

sources to develop control devices that might appear

“economically or technically infeasible”).

Similarly, in American Textile Mfrs. Inst., Inc. v. Don-

ovan, 452 U.S. 490, 509 (1981), this Court rejected an

argument that the Occupational, Safety and Health

Administration must conduct CBA. Since the governing

statute explicitly required a determination of feasibility,

i.e. what is capable of being done, the Court declined to

require a reasonable relationship between costs and bene-

fits. Id. at 506-09. CBA is not required, said the Court,

because feasibility analysis is. Id. at 509.

Donovan rejects the notiun that costs are balanced

against benefits absent a contrary statement. Donovan

states that “Congress uses specific language” when it

intends that “an agency engage in cost-benefit analysis.”

Id. at 510-11. The Court justifies this statement by citing

statutory provisions that expressly say that Congress

wants costs and benefits weighed against each other,

provisions unlike section 109 or the statutory provision

before the Donovan Court. Id. at 510. This lack of a state-

ment requiring CBA supported the Court’s holding that

Congress meant to require none. See id. at 510-12. Sim-

ilarly here, section 109 does not mention cost at all, so it

does not include it. See Lead Industries Ass'n v. EPA, 647

F.2d 1130, 1148 (D.C. Cir. 1980) (Congress expressly

directs EPA to consider costs when it intends them to be

considered). Hence, Congress intends to focus agencies

exclusively on the criteria it writes to guide their deci-

sions. See e.g. Motor Vehicle Mfrs. Ass’n v. State Farm

Mutual Ins. Co., 463 U.S. 29, 34, 46-48 (1983) (failure to

pe EN EGET ED

consider availability of airbags makes recission of rule

requiring passive restraints arbitrary and capricious

under a statutory “mandate . . . to achieve . . . safety”).

All of these cases reject judicial broadening of nar-

towly focused statutes. Rather, this Court construes stat-

utes with the goal of confining the agency to the factors

Congress expressly lists, since Congress makes policy

choices by selecting limited criteria to govern agency

decisions. Industry’s proposal conflicts with this prece-

dent by presumptively adding a factor in order to change

policy.

C. THE CONSTITUTION DOES NOT AUTHO-

RIZE JUDGES TO ENACT THEIR VIEWS OF

SOUND RISK MANAGEMENT INTO LAW.

Although federal courts have no general law making

power, see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938),

Industry asks this Court to establish a broad risk manage-

ment principle requiring consideration of cost in all regu-

latory settings, see GE Br. at 1. Congress rather than the

judiciary chooses the principles governing pollution con-

trol. The judiciary should limit itself to assessing Con-

gressional intent without the use of a clear statement rule

biasing that assessment toward Industry’s view of desir-

able policy.

1. CLEAR STATEMENT RULES GENERALLY

REQUIRE A QUASI-CONSTITUTIONAL

FOUNDATION.

Clear statement rules serve to protect only “weighty

and constant” values, often derived from constitutional

structure. See Astoria Federal Sav. & Loan Ass‘n v. Solimino,

501 U.S. 104, 108 (1991). See e.g. Gregory v. Ashcroft, 501

U.S. 452, 461 (1991) (rule discourages interference with

state sovereign powers under our constitutional scheme).

See generally William N. Eskridge & Philip P. Frickey,

Quasi-Constitutional Law: Clear Statement Rules as Constitu-

tional Lawmaking, 45 Vand. L. Rev. 593 (1992). Industry

does not identify any constitutional foundation for its

clear statement rule.

Constitutional values often justify the risk of judicial

distortion of Congressional policy choices that adherence

to a clear statement rule entails. For a clear statement rule

sometimes may lead to constructions that stray from the

most natural contextually appropriate meaning of statu-

tory language. See e.g. NLRB v. Catholic Bishop of Chicago,

440 U.S. 490, 504-06 (1979) (holding that the NLRB lacks

jurisdiction over teachers at religious schools without

examining broad statutory language defining employer

and employee); EEOC v. Arabian Am. Oil Co., 499 U.S. 244,

262-63 (1991) (dissenting opinion) (clear statement rules

compel selection of “less plausible” constructions and

exclude extrinsic aids to interpretation); Landgraf v. USI

Film Products, 511 U.S. 244, 251 (1994) (recognizing that

Congress superseded EEOC v. Arabian Am. Oil Co.'s hold-

ing). Industry cannot and does not argue that protecting

public health from air pollution without considering cost

is irrational as a matter of “substantive” due process. See

GE Br. at 18 n. 37. The protection of public health through

air quality standards is obviously related to a legitimate

public purpose. See Williamson v. Lee Optical, 348 U.S. 483,

491 (1955). Nevertheless, Industry invites this Court to

revise section 109 based on its views of the reasonable-

ness of the health protection principle. See ATA Br. at 25;

GE Br. at 4-12.

2. JUDICIAL REVIEW OF LEGISLATION’S

REASONABLENESS SHOULD NOT

GUIDE STATUTORY INTERPRETATION.

This Court should reject Industry’s invitation to base

a canon of construction (or any statutory interpretation)

on its assessment of the wisdom of a legislative principle,

such as the principle of protecting the public from air

pollution’s ill effects. The Court’s proper role in interpret-

ing statutes is to determine Congressional intent. See

Schooner Paulina’s Cargo v. United States, 11 U.S. (7

Cranch) 52, 60 (1812) (Marshall, C.J.). If federal and state

judges develop substantive canons derived from their

assessment of the reasonableness of legislation, the

canons and the interpretations they lead to will neces-

sarily reflect judges’ views of sound policy.

Policy arguments that Congress regularly considers,

such as arguments about cost considerations, form an

inappropriate basis for a clear statement rule. See Almen-

darez-Torres, 523 U.S. at 267 (dissenting opinion) (we pre-

sume that Congress agreed with traditional practice or

common law, not “our current policy judgments”). A

clear statement rule ensures that the legislature faces a

constitutional issue that it may otherwise neglect. See

Gregory, 501 U.S. at 461 (“clear statement” rule “assures

that legislature has faced” the federalism issue) [citations

omitted]. Since Congress considers cost issues central to

environmental law, a clear statement rule on this subject

does not force a confrontation with a neglected constitu-

tional value; rather, it distorts Congressional choices

about contemporary policy issues.

This Court has rejected searching judicial review of

the reasonableness of economic legislation precisely

because judges tend to enact their economic and social

views into law when making rulings based on an assess-

ment of reasonableness. See Ferguson v. Skrupa, 372 U.S.

726, 729 (1963) (repudiating unreasonableness test for

substantive due process, because it leads judges to “strike

down laws” thought “unwise or incompatible with some

particular economic or social philosophy.”). The Lochner

Court framed the constitutional question economic legis-

lation raised as whether the legislation was “an unreason-

able, unnecessary, and arbitrary” interference with

personal liberty or a “reasonable . . . exercise of the police

power.” Lochner v. New York, 198 U.S. 45, 56 (1905). The

Court reached a conclusion that a law limiting bakers to a

ten hour work day is arbitrary by adopting reasoning

very much like that which Industry invites this Court to

apply in the case at bar. The Court speculated that the

law “might” prove counterproductive in terms of its own

objectives. Compare id. at 59 (limits on hours of employ-

ment “might seriously cripple the ability of the laborer to

support .. . his family.”) with GE Br. at 10 (pollution

control costs “could” increase asthma). And the Lochner-

era Court frequently used difficulties in justifying precise

line drawing to question the rationality of economic legis-

lation. Compare Lochner, 198 U.S. at 62 (calling conclusion

that 10 hours of work does not endanger health, but 10

and a half hours does “entirely arbitrary”); Adkins v.

Children’s Hospital, 261 U.S. 525, 556-57 (1923), overruled,

West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937)

(board “probably found it impossible to follow the indefi-

nite standard of the statute” authorizing a minimum

wage for women, “and brought . . . different factors into

the problem”) with GE Br. at 17-18 (because scientific

information cannot “definitively determine” a precise air

quality standard, implementing a health criterion is

impossible and EPA considers cost factors). Finally, that

eeeaianamill

Court often treated a failure to weigh all pros and cons as

unreasonable. See Adkins, 261 U.S. at 557 (failure to con-

sider cost to employer of providing a minimum wage).

Contra Parrish, 300 U.S. at 397 (rejecting this approach).

Justice Brandeis warned of the danger of enacting

judicial “prejudices into legal principles” through review

of social and economic legislation under the “arbitrary”

and “capricious” standard of substantive due process. See

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis J. dissenting). This Court ultimately concluded

that it should abandon the kind of evaluation of legisla-

tive reasonableness that Industry seeks, because it had

led to the creation of legal principles based on judges’

economic and social views. See Ferguson, 372 U.S. at

729-30; Williamson v. Lee Optical, 348 U.S. 483, 488 (1955).

For the same reason, this Court should reject judicial

assessment of the reasonableness of a legislative principle

as the basis for a clear statement rule. Such an approach

will invite the creation of clear statement rules erecting

the views of state and federal judges into legal principles

governing statutory “construction”. Clear statement rules

should have roots in constitutional substance, not the

contemporary policy preferences of unelected judges.

3. THE ADMINISTRATIVE PROCEDURE

ACT DOES NOT JUSTIFY A NEW SUB-

STANTIVE CANON.

Since the constitution does not authorize judicial

revision of statutes based on rationality review, see United

States v. Rutherford, 442 U.S. 544, 555 (1979) (federal

judges may not “rewrite legislation in accord with their

own conceptions of prudent public policy.”), Industry

invokes the APA as a quasi-constitutional justification for

extraordinary judicial construction. General Electric, for

example, asks this Court to hold that agency action under

a regulatory statute “is not reasoned unless the agency

considers” compliance costs (and risk tradeoffs), invok-

ing the APA’s arbitrary and capricious standard. GE Br. at

1-2, 4, 12. It then asks the Court to construe “[a]cts of

Congress” in light of this abstract judicial assessment of

reasonableness. Id. at 12.

A holding that a particular agency action is unrea-

soned under the APA and parallel provisions, i.e. arbi-

trary or capricious, could never justify a statutory

construction, it would simply justify a remand to the

agency. See 5 U.S.C. § 706(2) (only authorizing courts to

“hold unlawful and set aside” agency action found arbi-

trary and capricious); 42 U.S.C. § 7607(d)(9) (only author-

izing reversal of such action). If section 109 precludes cost

consideration, then EPA consideration of cost would be

arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n v.

State Farm Mutual Ins. Co., 463 U.S. 29, 43 (1983) (“Nor-

mally an agency rule would be arbitrary and capricious if

the agency has relied on factors which Congress has not

intended it to consider.”). So EPA’s failure to consider

cost can be arbitrary and capricious only if one assumes

what Industry is trying to prove, that section 109 requires

consideration of cost. Cf. Arkansas v. Oklahoma, 503 U.S.

91, 113 (1992) (EPA’s failure to consider river’s degraded

state not arbitrary and capricious, because that status is

not an important factor under a correct reading of the

law); Natural Resources Defense Council (NRDC) v. Admin-

istrator, 902 F.2d 962, 978 (D.C. Cir. 1990) (petitioner’s

“real dispute is not with EPA but with Congress”).

Industry cannot secure review of its abstract claim

that all agency action not considering cost is unreasoned

under the APA, see GE Br. at 1, because the Court does

not have before it all of the reasons that government

agencies have supplied or might supply in the future to

justify their actions. This claim requires review of prior

D.C. Circuit holdings that EPA has provided satisfactory

explanations for several NAAQS without considering

cost. See NRDC, 902 F.2d at 968-74; American Petroleum

Inst. v. Costle, 665 F.2d 1176, 1183-87 (D.C. Cir. 1981); Lead

Industries Ass'n v. EPA, 647 F.2d 1130, 1156-67 (D.C. Cir.

1980). These holdings show that Industry’s claim that

setting health-based standards without considering cost

is impossible is simply wrong. Cf. GE Br. at 17. But the

relevant records are not before the Court, and the APA

only authorizes on the record review. See Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 419 (1971). And

Industry's argument requires an inappropriate hypotheti-

cal assessment of reasoning that agencies have not yet

provided, since the argument encompasses an abstract

claim that all future actions will be unreasoned. Cf. Toilet

Goods Ass’n v. Gardner, 387 U.S. 158, 163 (1967) (declining

to adjudicate claim that agency cannot inspect plants

without knowing agency reasons for inspecting a particu-

lar plant).

Industry questions the reasonableness of the legisla-

ture requiring an agency to protect health without consid-

ering cost, while framing its request for a new canon of

construction as a mere application of the APA. It goes far

beyond the record that would form the basis for APA

‘review, see Overton Park, 401 U.S. at 419, and deploys the

full range of policy arguments it uses before Congress to

question the wisdom of the health protection principle.

Industry’s claim that all possible applications of the prin-

ciple that health should be protected regardless of cost

are unreasonable is tantamount to claiming that the

health protection principle itself is unreasonable. Cf. Sec-

retary of Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494 n. 5 (1982) (equating a claim

that law is incapable of valid application with a claim

that law itself is invalid); Yee v. City of Escondido, 503 U.S.

519, 534 (1992) (allegation that ordinance advances no

legitimate state interest no matter how applied states a

facial claim about the law itself). The APA simply does

not authorize presumptive judicial legislation based on

judges’ views of the reasonableness of existing law. Cf. S.

981 § 627(d), 105th Cong. (1998) (rejected bill that might

have generally authorized courts to set aside agency

action that did not take cost into account).

D. ADDING COST CONSIDERATIONS TO SEC-

TION 109 WILL CHANGE POLICY, NOT

IMPROVE EPA’S REASONING.

General Electric states that “neither science nor

health considerations alone can definitively determine”

the level of a standard. See GE Br. at 17 [emphasis added].

But combining cost considerations with health consider-

ations will not “definitively determine” the level of a

standard either. In either case, EPA will have to make

some judgment in interpreting complicated and often

incomplete scientific evidence. Cf. Baltimore Gas & Electric

Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87,

103-06 (1983) (court must be “at its most deferential” in

evaluating agency actions involving scientific determina-

tions). If costs are added EPA must make further judg-

ments that are even harder to rationalize.

In order to compare costs and benefits, EPA would

have to make numerous policy choices in deciding how

much weight to give the benefits. In order to estimate the

numbers of deaths and illnesses a proposed standard

would avert, EPA would have to make judgments about

how to deal with data gaps. See Donald T. Hornstein,

Reclaiming Environmental Law: A Normative Critique of

Comparative Risk Assessment, 92 Colum. L. Rev. 562, 572

(1992) (National Academy of Sciences has identified

almost fifty decisional points in risk assessment). It

would have to, in other words, judge the adequacy of a

margin of safety in extrapolating seemingly precise dam-

age estimates from incomplete data. EPA would then

have to decide how much weight to give the benefits it

identified. These kinds of policy choices, not the science

or cost data, would determine the standards.

Its choice of valuation methodology would become

extremely important, involving EPA in a whole new set of

judgments that would be difficult to defend rationally.

Suppose that EPA decides to value health benefits by

estimating how much a polluter would have to pay a

pollution victim to accept a predicted illness or death. A

pollution victim might well refuse to accept even a tril-

lion dollars to accept the pollution that will cause her

demise. See E.J. Mishan, Cost-Benefit Analysis 171 (1982).

Hence, this willingness to accept methodology coupled

with a strong perfect information assumption might lead

the regulator to prohibit any pollution predicted to kill

people or cause serious illness.

The regulator might, on the other hand, ask how

much the victim would be willing to pay to abate pollu-

tion. See David M. Driesen, The Societal Cost of Environ-

mental Regulation: Beyond Administrative Cost-Benefit

Analysis, 24 Ecotocy L. Q. 545, 589-90 (1997). This would

generate very different results, especially if the regulator

assumed that the victim does not know that she herself

will die or experience illness. See id. at 588-591; Mishan,

supra at 171 (wealth limits price a person will pay for a

good, but price a person may demand to forego a good

“can be infinite”). Indeed, even if one treated the core

methodology as a given, numerous policy judgments

would still come into play in applying the methodology.

The raw scientific and cost information would not deter-

mine a standard. Adding cost to section 109 changes

legislative policy, but it makes reasoned decision-making

under the APA harder, not easier.

E. THE COURT SHOULD NOT CREATE A

LEGAL RULE REFLECTING AN ECONOMIC

THEORY LACKING CONSTITUTIONAL

FOUNDATION.

In his Lochner dissent, Justice Holmes chided the

Court for deciding the case “upon an economic theory

which a large part of the country does not entertain,” see

Lochner, 198 U.S. at 75, although laissez-faire theory

enjoyed a strong following among the lawyers of his day.

See William M. Wiecek, The Lost World of Classical Legal

Thought: Law and Ideology in America, 1886-1937, 82-83

(1998).

Industry urges this Court to follow a practice that

discredited the Lochner-era Court, allowing a contempor-

ary economic theory to heavily influence the creation of

general legal principles lacking constitutional foundation.

Industry’s clear statement rule’s push toward CBA, see

e.g. ATA Br. at 30, reflects neoclassical economic theory.

That theory defines-optimal public policy as the product

of an economic analysis of costs and benefits, see e.g.

Mishan, supra at 141-48, thus supporting the view that

CBA should precede all important public policy deci-

sions.

Many voters may not subscribe to neoclassical eco-

nomic theory, especially as applied to the setting of envi-

ronmental goals. A very common-view holds that

pollution causing death or serious illness should simply

cease, regardless of cost. See e.g. Review of EPA's Proposed

Ozone and Particulate Matter NAAQS Revisions-Part 2

Before the Subcomm. on Health and Env’'t. and the Subcomm.

on Oversight and Investigations of the House Comm. on Com-

merce, 105th Cong. 48, 49 (1997) (statement of Richard L.

Brodsky, Chairman, New York State Assembly Committee

on Environmental Conservation) (calling a cost-benefit

approach to human health protection “morally repug-

nant”).

This view has deep roots in the common law maxim

sic utere tuo ut alienum non laedas (roughly, do no harm),

which often implied regular imposition of strict liability.

See III William Blackstone, Commentaries on the Laws of

England 217 (Dawsons of Pall Mall ed. 1966); Morton J.

Horowitz, The Transformation of American Law 1780-1860

32 (1977). While some courts relaxed the strict approach

in subsequent years, many 19th and early 20th century

courts repudiated balancing of equities and ordered

plants to abate their pollution or shut down. See Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237-39 (1907) (Holmes

J.) (allowing “possible [economic] disaster” because the

petitioning State “has the last word as to whether .. . its

inhabitants shall breathe pure air”); Seacord v. The People,

13 N.E. 194, 200-01 (Ill. 1887) (rule against balancing

conveniences is well settled); Bowman v. Humphrey, 100

N.W. 854, 855 (Iowa 1904) (evidence that a defendant's

business provides “great benefit and profit to the. . .

public” held inadmissable); Whalen v. Union Bag & Paper

Co., 101 N.E. 805, 806 (N.Y. 1913) (enjoining operation of a

pulp mill even though abatement may cost far more than

the damage inflicted); Sullivan v. Jones & Laughlin Steel

Co., 57 A. 1065, 1071 (Pa. 1904) (enjoining coal dust emis-

sions and declining to balance conveniences); Sus-

quehanna Fertilizer Co. v. Malone, 20 A. 900, 902 (Md. 1890)

(rejecting “reasonable use” limitation and CBA when

damage is non-trivial). Cf. Boomer v. Atlantic Cement Co.,

257 N.E. 2d 870, 871-73, 875 (N.Y. 1970) (explaining that

New York’s settled rule requires automatic injunction of a

continuing nuisance, but choosing to abandon this rule in

light of need for public regulation).

Contemporary critics of CBA object to it on both

practical and normative grounds. Many critics believe

that bureaucrats ought not and cannot attach a monetary

value to human life. See Thomas O. McGarity, Regulatory

Analysis and Regulatory Reform, 65 Tex. L. Rev. 1243,

1294-95 (1987). See also Mark Sagoff, The Economy of the

Earth 26-29 (1988) (public policy should reflect qualitative

value choices rather than summation of preferences). And

critics claim that, in practice, a weighing of costs and

benefits will give short shrift to environmental and public

health considerations that cannot be easily quantified. See

e. g- Thomas O. McGarity, A Cost-Benefit State, 50 Admin.

L. Rev. 7, 11 (1998) (CBA will “invariably” reduce stat-

utes’ environmental protection); Thomas O. McGarity, The

Courts and the Ossification of Rulemaking: A Response to

Professor Seidenfeld, 75 Tex. L. Rev. 525, 541-49 (1997)

(explaining how a cost-benefit requirement and hard look

judicial review ended regulation under section 6 of the

Toxic Substances Control Act).

To be sure, a requirement to consider cost does not

specify how it should be considered, and therefore does

not mandate full compliance with the theory of optimal

pollution. But the Lochner-era Court did not consistently

and fully adopt laissez-faire theory either. William M.

eR SS

Wiecek, The Lost World of Classical Legal Thought: Law and

Ideology in America, 1886-1937, 7 (1998). Rather, the

Court’s decisions reflected the influence of laissez-faire

views and contemporary elite distaste for labor laws. See

id. at 9-10, 86, 140-43, 159-61, 178. This was enough to

earn it a reputation as unprincipled and ideological. See

id. at 142-43, 160-61, 178, 201. Industry’s proposed statu-

tory canon similarly reflects deep antipathy toward envi-

ronmental law and the embrace of an economic theory.

Typically, discussions of the Lochner-era address con-

- stitutional rulings, the specific focus of Holmes’ Lochner

dissent. But, the Court’s statutory interpretation reflected

its laissez-faire like views as well. Lochner itself held that

a statute requiring a sixty-hour work week for bakers

violated “liberty of contract” and thus the due process

clause of the Fourteenth Amendment. 198 U.S. at 46 n. 1,

53, 64. The Court also tended to view labor actions as

“coercive” interference with rights protected by due pro-

cess and construed anti-trust laws to authorize injunction

of strikes and boycotts. See e.g. Duplex Printing Press Co. v.

Deering, 254 U.S. 443, 465-66, 478-79 (1921) (boycott coer-

cively interferes with a “property right”); American Steel

Foundries v. Tri-Cities Cent. Trades Council, 257 U.S. 184,

202, 205 (1921) (picketers coercively interfere with a prop-

erty right). Cf. United States v. E.C. Knight Co., 156 U.S. 1,

9, 16-18 (1895) (anti-trust laws do not regulate sugar

monopoly). The Lochner-era Court’s adoption of statutory

interpretation reflecting its anti-labor laissez-faire policy

views contributed to that Court’s poor reputation as an

ideological court. See Milk Wagon Drivers’ Union, Local No.

753 v. Lake Valley Farm Products, 311 U.S. 91, 102-03 (1940)

(discussing Congressional findings of “abuses of judicial

power” and misinterpretation of anti-trust law). This

Court repudiated these labor injunction cases in 1940, just

as it repudiated much of the Lochner-era’s constitutional

legacy. See id.

Industry’s arguments invite this Court to emulate the

Lochner-era vice of treating a policy running afoul of an

economic theory as irrational. This Court should decline

the invitation and leave Congress the task of deciding

whether to conform existing law to a contemporary eco-

nomic theory.

CONCLUSION

We ask the Court to affirm the Court of Appeals

ruling confirming that EPA may not consider cost in

writing the NAAQS.

Respectfully submitted,

James KerrH WEEKS

(Counsel of Record)

Davip M. DRiEsEN

Syracuse University College of Law

E.I. White Hall

Syracuse, New York 13244-1030

(315) 443-2524

a7 i

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