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

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Supreme Court, U.

FILED

No. 99-1426 | SEP 11 200

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.,

ross-Respondents.

— ¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF OF THE CLEAN AIR TRUST AND

SENATOR ROBERT STAFFORD AS AMICI CURIAE

IN SUPPORT OF CROSS-RESPONDENTS

TABLE OF CONTENTS

Page

pF Ge Bee |) . FP errrrrrrrerrirr Trier i

TABLE GE ALPTUCOUED 6 cc cccccsccccccccccesccss ii

INTRODUCTION AND SUMMARY OF THE ARGU-

DE cb eencvecscccnevscoectscceeseuceseesevenes 2

REFNO ove sccnccccccceseccccececesscesccesces 3

Il.

CONGRESS HAS PRECISELY STATED THAT

THE PRIMARY NAAQS ARE TO BE BASED

ONLY ON THE HEALTH EFFECTS ASSOCI-

ATED WITH THE PRESENCE OF AIR POLLU-

po 8 fF rrr rere

CONGRESS’S LIMITED DELEGATION TO EPA

TO CONSIDER ONLY HEALTH EFFECTS IN

SETTING THE NAAQS IS SOUND AND

eels PES 6 o ce ccccccccssevicsssceone

THE HEALTH-ONLY BASIS OF THE PRIMARY

NAAQS IS OVERWHELMINGLY CONFIRMED

BY THE EVOLUTION OF FEDERAL AIR POL-

Bis, s 8 3! = i errrrrrrrr rrr rrr rer

A. Throughout the Evolution of Federal Air

Policy, “Criteria” Always Referred Only to

the Effects Caused by Air Pollution, Not to

the Countervailing Economic Costs of Con-

trolling Air Pollution ...................5.

B. Throughout the Evolution of Federal Air

Policy, “Protection of the Public Health”

Was Understood to Require an Exclusively

Health-Based, Criteria-Based Level of Air

QeeeOY 2... ccccccccccccccccesccccscccecsce

C. Although There Was Debate Over Fixed

Deadlines for Compliance, No One Doubted

That the 1970 Primary NAAQS Would Be

Exclusively Health-Based .................

CORI oc cccsccccccccecccccesecvccccescsees

TABLE OF AUTHORITIES

Page

Cases

Chevron v. NRDC, 467 U.S. 837 (1984)................ 6

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

G2 (IGT)... .cccccccccsccccecesseus een ime 13

Dunn v. Commodity Futures Trading Comm'n, 519

US. 463 (3907) ..0ccccccccesecscsnusepeueeneeee 13

FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct.

L292 CABGE) .. cccvcccccnvcsseeesebeeeeunnan 13

United States v. Nat'l Treas. Emp. U., 513 U.S. 454

(DSS)... coccvvcvcccecececessesesee senna 6

Williamson v. Lee Optical, 348 U.S. 483 (1955) ........ 12

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.

BOTS)... cccccccccccssecesesssencuenen te innnnnEn 9

STATUTES

The Clean Air Act of 1963, § (3)(c)(2) P.L. 88-206,

77 Fak. Wa, WS (Dac. 17, WEP oc ccssvtasaseeeee 15

The Clean Air Act of 1963, § (3)(c)(3) P.L. 88-206,

77 Feak. 2, TS Dae. 17, WEED evcsvscssseeeeeee 15

The Clean Air Act of 1963, § (5)(b), P.L. 88-206, 77

Stat. 392, 396 (Dec. 87, TGR oc ccvescuesevauanees 15

The Air Quality Act of 1967, § 107(b)(1), P.L.

90-148, 81 Stat. 485, 491 (Nov. 21, 1967)........ 17, 19

The Air Quality Act of 1967, § 108(c)(1), P.L.

90-148, 81 Stat. 485, 492 (Nov. 21, 1967)........... 18

The Clean Air Act Amendments of 1970,

§ 108(a)(2), P.L. 91-604, 84 Stat. 1676, 1678 (Dec.

BE, BOF). cvccccccvncceesseneeeue een 18

ili

TABLE OF AUTHORITIES - Continued

Page

The Clean Air Act Amendments of 1970,

§ 109(a)(1)(A), P.L. 91-604, 84 Stat. 1676, 1679

ee es ce ec cae eeceseces 4, 18

The Clean Air Act Amendments of 1970,

§ 110(e)(1)(A), P.L. 91-604, 84 Stat. 1676, 1682

EEE EES 25

The Clean Air Act Amendments of 1970, § 202(b),

P.L. 91-604, 84 Stat. 1676, 1690 (Dec. 31, 1970) ..... 4

The Clean Air Act, 42 U.S.C. § 1857d(c) (1964 &

Supp. III 1964-67) (superseded) ................. 5, 20

The Clean Air Act, 42 U.S.C. § 1857c-2(c) (1964 &

Supp. III 1964-67) (superseded) .................... 5

The Clean Air Act, 42 U.S.C. § 108(a)(2), 42 U.S.C.

§ 7408(a)(2) (1994 & Supp. II] 1997)................ 4

The Clean Air Act, 42 U.S.C. § 109(a)(1)(A), 42

U.S.C. § 7409(a)(1) (1994 & Supp. III 1997)......... 4

The Clean Air Act, 42 U.S.C. § 109(b)(1), 42 U.S.C.

§ 7409(b)(1) (1994 & Supp. III 1997)................ 3

LEGISLATIVE MATERIALS

S. 3466, § 107(a) reprinted in Senate Comm. on

Public Works, 93rd Cong. 2nd Sess. 2 Legislative

History of the Clean Air Act Amendments of 1970

1483 (Comm. Print. Serial No. 93-18 1974) ..... 21, 23

S. 4358, § 111(2)(A), reprinted in Senate Comm. on

Public Works, 93rd Cong. 2nd Sess. 1 Legislative

History of the Clean Air Act Amendments of 1970

544 (Comm. Print. Serial No. 93-18 1974) ......... 25

TABLE OF AUTHORITIES - Continued

Page

H.R. 15848, reprinted in Air Pollution Control and

Solid Wastes Recycling, Hearings Before the Sub-

committee on Public Health and Welfare of the

House Committee on Interstate and Foreign Com-

merce, 91st Cong. 1st and 2nd Sess. 177 (Serial

PED DO DOO vc cccccccesvesececesesceusenceses

H.R. 17255, reprinted in Senate Comm. on Public

Works, 93rd Cong. 2nd Sess. 2 Legislative History

of the Clean Air Act Amendments of 1970 911

(Comm. Print. Serial No. 93-18 1974)..............

S. Rep. 90-403, 90th Cong. Ist Sess. (1967) ..........

H.R. Rep. 90-728, 90th Cong. Ist Sess. (1967)....... 17,

Air Pollution — 1967, Hearings Before the Subcom-

mittee on Air and Water Pollution of the Senate

Committee on Public Works on S.780, 90th Cong.

lst Sess. (1967) (Comm. Print) .................. 8,

Air Quality Criteria, Staff Report for the Subcommit-

tee on Air and Water Pollution, Senate Committee

on Public Works, 90th Cong. Ist Sess. (1968)

SRD, CR ds daca ced cha dden een senneenneeaae

Air Pollution — 1970, Parts 1-5, Hearings Before the

Subcommittee on Air and Water Pollution, Senate

Committee on Public Works, 91st Cong. 2nd Sess.

GUOTUD a ccncnccccscenucsceuceeiedusseceeestacsneees

Testimony of Dr. John Middleton at 160, reprinted

in 2 Senate Comm. on Public Works, 93rd Cong.

2nd Sess. 2 Legislative History of the Clean Air Act

Amendments of 1970 1000 (Comm. Print. Serial

RF BF PT reer ee

TABLE OF AUTHORITIES - Continued

Page

Testimony of Dr. John Middleton at 1492, Senate

Comm. on Public Works, 93rd Cong. 2nd Sess. 2

Legislative History of the Clean Air Act Amendments

of 1970 1187 (Comm. Print. Serial No. 93-18 1974).

Testimony of Dr. John Middleton at 1500-5, Sen-

ate Comm. on Public Works, 93rd Cong. 2nd

Sess. 2 Legislative History of the Clean Air Act

Amendments of 1970 1195-1200 (Comm. Print.

.19

Gastas DGe. SHES BSED. 2 ccccccccccccccccs 10, 19, 24

Testimony of Dr. John Middleton, at 1512-13,

reprinted in Senate Comm. on Public Works, 93rd

Cong. 2nd Sess. 2 Legislative History of the Clean

Air Act Amendments of 1970 1206-07 (Comm. Print

SS Be, Gee Be a ccesesescetecocscsssces 24, 26

Testimony of Fred Tucker at 240-246............. 22

Testimony of Under Secretary of HEW John Ven-

eman at 159 reprinted in Senate Comm. on Public

Works, 93rd Cong. 2nd Sess. 2 Legislative History

of the Clean Air Act Amendments of 1970 999

(Comm. Print. Serial No. 93-18 1974)...........

Executive Session of the Subcommittee on Air and

Water Pollution of the Senate Committee on Public

Works, 91st Cong. 2nd Sess. (July 23, 1970),

Edmund S. Muskie Archives, Bates College,

Lewiston, Maine, Folder SE3041-1................

Executive Session of the Senate Committee on Public

Works, 91st Cong. 2nd Sess. (Aug. 31, 1970),

Edmund S. Muskie Archives, Bates College,

Lewiston, Maine, Folder SE3041-4................

TABLE OF AUTHORITIES —- Continued

Page

Executive Session of the Senate Committee on Public

Works, 91st Cong. 2nd Sess. (Sept. 10, 1970),

Edmund S. Muskie Archives, Bates College,

Lewiston, Maine, Folder SE3041-6.................

Congressional Research Service, A Summary of

Clean Air Act Oversight Hearings, March 19,

20, April 20-24, 29-30, May 1, 13, 15, 20-21, 1975

(June 13, 1975), reprinted in Implementation of

the Clean Air Act - 1975, Part I, Hearings of the

Subcommittee on Environmental Pollution of the

Senate Committee on Public Works, 94th Cong. Ist

Sess. 5 (Serial No. 94-H10 1975) ............-.555.

Senate Committee on Public Works, 93rd Cong.

2nd Sess. Vols. 1-2 Legislative History of the Clean

Air Act Amendments of 1970 (Serial No. 93-18

Es he Seciocesccccccccvevcactdctbinccccsaecens passim

Clean Air Act Oversight - Part 3, Hearings Before

the Senate Committee on Environment and Public

Works, 97th Cong. 1st Sess. 191 (Serial No. 97-

H12, 1981) (remarks of Senator Stafford.) .........

Nomination of Stephen G. Breyer to Be An Associ-

ate Justice of the Supreme Court of the United

States, Hearings Before the Senate Judiciary Com-

mittee, 103rd Cong. 2nd Sess. 276-77 (S.Hrg.

103-715, July 13, 1994) (testimony of Stephen G.

Bee YOE) . 0. weer cnccccccccccccnessccccesesccess

116 Cong. Rec. 32919 (Sept. 21, 1970) Senate

Debate on S. 4358, reprinted in Senate Comm. on

Public Works, 93rd Cong. 2nd Sess. 1 Legislative

History of the Clean Air Act Amendments of 1970

262 (Comm. Print. Serial No. 93-18 1974)

(remarks of Senator John Sherman Cooper (R-

BEEN Wd ce encccccnvedtascenscnnepacencnencnseesed 8,

Vii

TABLE OF AUTHORITIES - Continued

116 Cong. Rec. 32919 (Sept. 21, 1970) Senate

Debate on S. 4358, reprinted in Senate Comm. on

Public Works, 93rd Cong. 2nd Sess. 1 Legislative

History of the Clean Air Act Amendments of 1970

265 (Comm. Print. Serial No. 93-18 1974)

Page

(remarks of Senator Howard Baker (R-TN))........ 8

116 Cong. Rec. 32905 (Sept. 21, 1970) Senate Debate

on S. 4358 reprinted in Senate Comm. on Public

Works, 93rd Cong. 2nd Sess. 1 Legislative History of

the Clean Air Act Amendments of 1970 236 (Comm.

Print. Serial No. 93-18 1974) (remarks of Senator

ee SE Cs wc ccc cc ccneeseone ends as 11

116 Cong. Rec. 42392 (Dec. 18, 1970) Senate

Debate on H.R. 17255 Conference Report,

reprinted in Senate Comm. on Public Works,

93rd Cong. 2nd Sess. 1 Legislative History of the

Clean Air Act Amendments of 1970 145 (Comm.

Print. Serial No. 93-18 1974) (remarks of Senator

Jennings Randolph (D-WV)) ...................

116 Cong. Rec. 42389 (Dec. 18, 1970) Senate

Debate on H.R. 17255 Conference Report,

reprinted in Senate Comm. on Public Works,

93rd Cong. 2nd Sess. 1 Legislative History of the

Clean Air Act Amendments of 1970 142 (Comm.

Print. Serial No. 93-18 1974) (remarks of Senator

PE DI dkccnsechedusycnuessouuseesescs

Pete V. Domenici, The Clean Air Act Amend-

ments: Balancing the Imponderables, reprinted

in Senate Committee on Environment and Pub-

lic Works, 6 A Legislative History of the Clean Air

Act Amendments of 1977, 96th Cong. 2nd Sess.

GP GPE oe bdicccucctbecescccsssicgcesuneas

Vili

TABLE OF AUTHORITIES - Continued

Page

Letter from Secretary Elliot Richardson to Senator

Jennings Randolph, Nov. 17, 1970, reprinted in

Senate Comm. on Public Works, 93rd Cong. 2nd

Sess. 1 Legislative History of the Clean Air Act

Amendments of 1970 211 (Comm. Print. Serial

Doe. SB-OB BGFE 2 cccccccccccccccccccccesccccccvess 25

Letter of J.E. Swearingen, Std. Oil of Indiana, to

Senator Jennings Randolph, Aug. 27, 1970,

reprinted in Senate Comm. on Public Works,

93rd Cong. 2nd Sess. 1 Legislative History of the

Clean Air Act Amendments of 1970 782-83

(Comm. Print. Serial No. 93-18 1974).............. 25

Letter of James D. Kittelton to Richard Grundy,

Aug. 26, 1970, reprinted in Senate Comm. on

Public Works, 93rd Cong. 2nd Sess. 1 Legislative

History of the Clean Air Act Amendments of 1970

716 (Comm. Print. Serial No. 93-18 1974) ......... 25

OTHER SOURCES

36 Fed. Reg. 8186 (1971)........ cece eee eee ee eees 26

Philip Abelson, Progress in Abating Air Pollution,

167 Science 3 (No. 3925, March 20, 1970)........... )

HEW, National Air Pollution Control Administra-

tion, Guidelines for the Development of Air

Quality Standards and Implementation Plans

\ MPPPPPYTTTITITITITITIT TTT rT TT TTT ee 17, 19

HEW, National Air Pollution Control Administra-

tion, Air Quality Criteria for Particulate Matter,

Pub. No. AP-49 (1969)... .cccccsccccccccccccccccees 4

HEW, National Air Pollution Control Administra-

tion, Air Quality Criteria for Sulfur Oxides,

RPGS CIOGED cc ccccccccccccccscccccescocecesesceses 4

TABLE OF AUTHORITIES - Continued

Ce Page

HEW, National Air Pollution Control Administra-

tion, Air Quality Criteria for Carbon Monoxide,

My SD waded be eeinnedhndiesibeceideciesensse: 4

HEW, National Air Pollution Control Administra-

tion, Air Quality Criteria for Photochemical

Oxidants [Ozone], AP-63 (1970)................045. 4

HEW, National Air Pollution Control Administra-

tion, Air Quality Criteria for Hydrocarbons,

Pe GUE WSs nd eneuccakccusdeceassebavbbensoees q

Thomas Jorling, The Federal Law of Air Pollution

Control, in Federal Environmental Law 1508

(Environmental Law Institute, Erica Dolgin &

Thomas Guilbert, eds. 1974) .......... 0.0... c ccc cuee 6

Robert Martin and Lloyd Symington, A Guide to

the Air Quality Act of 1967, 33 Law & Contemp.

PVE. SP GEG, BOG. o.oo ccccsccccesccccccces 17, 20

John Middleton, Planning Against Air Pollution,

59 American Scientist 188 (1971)...............005. 26

National Commission on Air Quality, To Breathe

Gee? SEY GE 6 ve csnnncerecescensvesvcccedeccacs 28

Note, The Air Quality Act of 1967, 54 lowa L. Rev.

SE GPUS 05 KN eserecvaccrsebarsscnsavecneensevece 17

Roger Strelow, Reviewing the Clean Air Act, 4

eee Gs GP Ge Gene encctscnccaccesessocdecsass 11

Issue of the Year: The Environment, Time at 21

es Eh POU oa dccncckéscussesanesucesyisseveseees 6

THE INTEREST OF AMICI CURIAE!

The Clean Air Trust was established in 1995 by Sena-

tors Edmund Muskie (D-ME), and Robert Stafford (R-VT)

to educate the public and policymakers about the value of

the Clean Air Act, to attain and maintain national ambi-

ent air quality standards, to promote effective enforce-

ment of the Act through grassroots education, and to

defend the Act. Senator Robert Stafford was a member of

the Senate from 1971 to 1989, and chaired the Environ-

ment and Public Works Committee 1981-1985. The Presi-

dent of the Clean Air Trust, Leon Billings, was staff

director of the Subcommittee on Air and Water Pollution

of the Senate Committee on Public Works, which Senator

Muskie chaired, during the period in which the national

ambient air quality standards (“NAAQS”) provisions

were being debated, enacted and implemented. The

Clean Air Trust has access to extensive records document-

ing the Congress's responses to the nation’s air quality

problems since the early 1960s. Amici can offer helpful

guidance to the Court by providing an authentic account

of the development of the 1970 NAAQS provisions, based

on public record sources that are highly reliable. That

account shows conclusively that Congress adopted a

coherent and sensible regulatory strategy in 1970, which

1 Pursuant to Rule 37.6 of the Rules of this Court, amici

state that no counsel for a party authored this brief in whole or

in part, and that no person or entity other than amici, or its

counsel, has made any monetary contribution to the preparation

or submission of this brief. Pursuant to Rule 37.3, amici state

that the parties have consented to the filing of this brief. Their

letters of consent have been filed with the Clerk of this Court.

included primary NAAQS based exclusively on health

considerations.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

For thirty years, the plain meaning of the Clean Air

Act has always required EPA to base primary national

ambient air quality standards (“NAAQS”) solely on the

health effects caused by air pollution. Cross-Petitioners

now ask this court to ignore that meaning and to rule that

the statute actually requires EPA to “balancle] a broad

range of factors,” Brief for Respondents Appalachian

Power, et al., In Support of Petitioner 23 (“App.Pr.Br.”),

and to “consider countervailing ‘non-health’ factors,”

Brief for Cross-Petitioners 50 (“ATA Br.”), in issuing the

NAAQS.

This Court can and should reject Cross-Petitioners’

claim based on the statutory language and structure

alone. Cross-Petitioners hope to convince this Court to

twist the statute in their direction by arguing that setting

the primary NAAQS on the basis of health considerations

alone inevitably produces irrational policy, and that their

proposal is only common sense. This argument fails,

though, because it is wrong on its own terms. Congress

acted deliberately, rationally and sensibly in 1970, when

the NAAQS provisions were introduced into the law.

Congress gave EPA only limited authority in setting

health-based NAAOS, and reserved to itself reconsider-

ing the statute after its new philosophy toward air pollu-

tion control had been given a chance to work, all as part

of a coherent strategy to stimulate technological innova-

tion to solve a pressing national health problem. While

the approach taken in 1970 was itself innovative, the

ability of Congress to delegate limited powers to an

agency, as it did here, was and remains well-established.

The statute’s meaning is amply confirmed by uncon-

tradicted evidence of how the vocabulary used in the

1970 Act evolved during the prior decade of intense

federal engagement with the problems of clean air. Over-

whelming and reliable evidence confirms that the key

concepts of “criteria” and “protection of the public

health” were well established by the time the 1970 Act

was passed, as was the desirability of an exclusively

health-based minimum national standard.

ARGUMENT

I. CONGRESS HAS PRECISELY STATED THAT THE

PRIMARY NAAQS ARE TO BE BASED ONLY ON

THE HEALTH EFFECTS ASSOCIATED WITH THE

PRESENCE OF AIR POLLUTION IN THE AIR.

Congress has spoken to the precise question Cross-

Petitioners put at issue, and Cross-Respondents’ briefs

fully present the overwhelming textual and structural

case for the statute’s meaning. Here, we merely highlight

three telling features of the legislation.

The Administrator of EPA must issue primary

NAAQS that are in her judgment “requisite to protect the

public health” “based on such criteria and allowing an

adequate margin of safety.” § 109(b)(1). “Such criteria”

refers to the information that EPA must issue under § 108,

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.” § 108(a)(2) (emphasis added). Criteria thus

correlate levels of air pollution with the effects caused by

that pollution. This is an entirely distinct inquiry from

determining the effects of controlling pollution or assess-

ing countervailing costs.

For the five pollutants for which criteria had already

been issued prior to passage of the NAAQS provisions in

1970,2 the 1970 Act required EPA to propose NAAQS

within thirty days of enactment. § 109(a)(1)(A). This was

far too little time for EPA to perform any additional

analysis beyond what was already contained in the crite-

ria documents themselves. As Congress well knew, those

criteria documents contained absolutely no information

concerning countervailing costs. Their content was exclu-

sively focused on health or welfare effects associated with

the presence of air pollution in the air, as required by the

statute.

Not only did the short one month period limit EPA to

relying solely on the criteria documents, the express

requirement that the NAAQS be “based on such criteria”

does so as well. That language stands in marked contrast

to then-existing law, which required air quality standards

2 See HEW, National Air Pollution Control Administration,

Air Quality Criteria for Particulate Matter, Pub. No. AP-49

(1969); for Sulfur Oxides, AP-50 (1969); for Carbon Monoxide,

AP-62 (1970); for Photochemical Oxidants [Ozone], AP-63

(1970); for Hydrocarbons, AP-64 (1970).

to be “consistent with the criteria and the recommended

control techniques.” 42 U.S.C. § 1857d(c) (1964 & Supp. III

1964-67). In a provision distinct and separate from the

criteria, then-existing law required HEW to issue “recom-

mended pollution control techniques,” along with infor-

mation on “available technology,” “economic feasibility,”

and “cost-effectiveness analyses.” § 1857c-2(c). If Con-

gress had intended the NAAQS to be based on such

factors as these, as Cross-Petitioners contend, it would

not have deliberately eliminated the connection of this

control technique information to the NAAQS when it

enacted the 1970 Amendments.

II. CONGRESS’S LIMITED DELEGATION TO EPA

TO CONSIDER ONLY HEALTH EFFECTS iN SET-

TING THE NAAQS IS SOUND AND RATIONAL

POLICY.

All parties to this case must agree that our govern-

ment’s laws should always be expected to do more good

than harm. See ATA Br. 43. Cross-Petitioners claim, how-

ever, that unless the Environmental Protection Agency

weighs costs against benefits each time it issues a

NAAQS, those standards must be “of necessity, arbi-

trary.” Id. 29. This is a gross misunderstanding of the

Constitution’s division of labor under the principles of

separated powers. Congress has the responsibility in the

first instance to make policy choices that do more good

than harm, and it also has the Constitutional authority to

choose an approach to a problem that delegates limited

responsibilities to an administrative agency. In the envi-

ronmental area, as in others, Congress’s choices come to

this Court with a strong presumption that they have a

rational basis. See, e.g., United States v. Nat'l Treas. Emp.

U., 513 U.S. 454, 468 (1995). In contrast, an agency’s first

responsibility is to be faithful to the delegation Congress

has made, so that it cannot and should not “balanc[e] a

broad range of factors,” App.Pr.Br. 23, unless Congress

has directed or permitted it to do so. Whenever tradi-

tional tools of statutory construction demonstrate that

Congress has not delegated an authority or responsibility

to the agency, “that is the end of the matter, for the court,

as well as the agency.” Chevron v. NRDC, 467 U.S. 837, 842

(1984).

In 1970, Congress had ample reason to decide that

delegating responsibility to set primary NAAQS based on

health effects alone was part of a legislative approach to

improving air quality that would do more good than

harm. The nation’s air quality was deteriorating, and

pollution had become the nation’s most serious problem

in the minds of its citizens.* The inadequate existing

federal policy had been predicated on exactly the course

that Cross-Petitioners now urge, with air quality stan-

dards limited by technological feasibility and economic

cost.4 Congress had come to understand the problems

3 See Issue of the Year: The Environment, Time at 21 (Jan. 4,

1971) (reporting Harris poll showing “Americans now regard

pollution as ‘the most serious’ problem confronting their

community - well ahead of crime, drugs and poor schoois.”)

4 See Thomas Jorling, The Federal Law of Air Pollution

Control, in Federal Environmental Law 1058, 1060 n.9

(Environmental Law Institute, Erica Dolgin & Thomas Guilbert,

eds. 1974) (citing pre-1970 sources). Mr. Jorling was minority

counsel on Senate Committee on Public Works as it was drafting

the 1970 Act.

with such a strategy, which relied heavily on the assis-

tance of industry to develop costly technologies when

this was against their self-interest.5 In order to change

industry’s incentives so as to stimulate the technological

innovation crucial to solving a pressing health problem,

Congress adopted health-based minimum standards with

deadlines for compliance backed by sanctions. As Senator

Muskie, the chief architect of the Clean Air Act Amend-

ments of 1970, explained it to his colleagues, such an

approach was

probably the only way in which we are really

going to generate the sense of urgency that is

necessary to deal with this problem of air pollu-

tion effectively. We have tried other ways and

they have not worked . . . The legislation on

auto exhaust is an illustration of how the thing

can stretch out if you leave it to administrative

discretion and the technology which the indus-

try is willing to develop.®

5 As Senator Muskie said, “It is difficult to draw precise

lines in these instances, because those who will be required to

provide the technological know-how tend to resist, and we have

to try to form independent judgments as to what may be

possible. And they are not of particular assistance to us in

forming those judgments.” Executive Session of the Senate

Committee on Public Works, 91st Cong. 2nd Sess. 114-15 (Aug. 31,

1970), Edmund S. Muskie Archives, Bates College, Lewiston,

Maine, Folder SE3041-4. The automobile industry had provided

the best object lesson in how slowly technological

breakthroughs by industry occur when this is the incentive

structure, as there had been a federal presence in addressing the

auto exhaust problem since 1955.

6 Executive Session of the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 91st Cong. 2nd

Sess. 14-15 (July 23, 1970), Edmund S. Muskie Archives, Bates

College, Lewiston, Maine, Folder SE3041-1.

So Congress deliberately “abandon(ed| the old

assumption of requiring the use of only whatever tech-

nology is already proven and of permitting pollution to

continue when it is not economically feas pie %o control

it.”7 In imposing sanctions for non-compliance by a date

certain, Congress sought to achieve a health-based mini-

mum level of air quality by giving industry self-inter-

ested reasons to “stretch[] the [technological]

possibilities . . . to find ways to do things that we are told

in many, many instances cannot be done.” Thus “deliber-

ate decision to rule out arguments based on” some factors

otherwise relevant to a full cost benefit inquiry stands at

7 Senate Debate on S. 4358, 116 Cong. Rec. 32919 (Sept. 21,

1970) (remarks of Senator John Sherman Cooper (R-KY))

reprinted in Senate Comm. on Public Works, 93rd Cong. 2nd

Sess. 1 Legislative History of the Clean Air Act Amendments of 1970

262 (Serial No. 93-18 1974) (“1970 Leg. History”). See also, 116

Cong. Rec. 32919 (remarks of Senator Howard Baker (R-TN)

(bill represents a “basic change in the philosophy of the

Government of the United States toward” air pollution)),

reprinted in 1 1970 Leg. History 265. Congress had been studying

the incentives problem for years. E.g., Air Pollution - 1967

Hearings before the Subcommittee on Air and Water Pollution of the

Senate Committee on Public Works, on S. 780 and Related Matters

Pertaining to the Prevention and Control of Air Pollution, 90th

Cong. Ist Sess. at 760-61 (Feb. 8, 1967) (HEW Secretary John

Gardner describing incentive problem); id. at 1-20 (Feb. 13, 1967)

(Subcommittee discussing incentives and the need for stringent

regulations with California officials).

8 Executive Session of the Senate Committee on Public Works,

91st Cong. 2nd Sess. 114-15 (Aug. 31, 1970) (remarks of Senator

Muskie), Edmund S. Muskie Archives, Bates College, Lewiston,

Maine, Folder SE3041-4.

the very heart of the 1970 Act,® and, like the Clean Water

Act decisions Congress would make two years later, Con-

gress acted here “based on long experience, and aware of

the limits of technological knowledge and administrative

flexibility.” 1

Fully cognizant that air pollution control would be

costly,'! Congress still believed that the approach of the

1970 Act was justified by the urgency of the problem.

Experts from the Administration had testified that the

necessary technology was close at hand even though they

* The limitations on tailpipe emissions from automobiles

received even more attention than the NAAQS provisions, and

these also precluded EPA from considering countervailing

factors, this time by means of Congress enacting the standards

directly into law, § 202(b), P.L. 91-604, 84 Stat. 1676, 1690, even

though the auto industry said it lacked the technology to

implement them.

10 Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042 (D.C. Cir.

1978). In the case of clean water, Congress ruled out arguments

based on potentially monetizable benefits in deciding that all

firms must apply best practicable technology to abate their

water effluent, regardless of the effects their pollution was

having on receiving water quality. Id.

'! See, e.g., Senate Debate on H.R. 17255 Conference Report,

116 Cong. Rec. 42392 (Dec. 18, 1970) (remarks of Senator

Randolph (D-WV) (noting that the Muskie Subcommittee and

the full Public Works Committee had “talked about the

economics of this legislation as well as the health standards of

the legislation,” and that “it will be costly.”)), reprinted in 1 1970

Leg. History 145. See also, Philip Abelson, Progress in Abating

Air Pollution, 167 Science 3 (No. 3925, March 20, 1970) (noting

public can expect a six to ten percent increase in electricity

prices from reductions in sulfur content of coal alone, but

concluding that “this seems a small price to pay” “in view of the

health hazards and other costs.”).

would not commit to a definite date.'2 Congress knew

that industry estimates of capability tended to overstate

costs and understate technological ability, and for that

reason industry was going to be “of no particular assis-

tance” to Congress making the judgments Congress had

to make.!%

Just as importantly, Congress was not shirking the

issue of costs when it did not delegate the authority to

balance costs and benefits in setting the NAAQS." As

Senator Muskie declared in discussing the deadlines for

meeting health-based standards, “[w]e want to give the

country a clear cut goal and say this is the goal. Congress

12 Air Pollwtion - 1970 Part 4, Hearings Before the

Subcommittee om Air and Water Pollution, Senate Committee on

Public Works, 9ist Cong. 2md Sess. 1505 (1970) (“1970 Senate

Hrgs.”) (Dr. John Middleton, head of NAPCA, testifwing that “I

think the levels we have come acfoss in relation to adverse

health effects are achievable and they are achievable in short

periods of timie.”’), reprinited in 2 1970 Leg. History 1200; see also,

¢.g., Semate Debate on S. 4358, 116 Comg. Rec. 32919 (Sept. 21,

1970) (rematks of Senator Cooper (R-KY)) (“I do not know if the

(NAAQS) . cam be accomplished in all places by 1975.

However, as emplhasured by the Semator from Maire [Muskie -

D(ME)] aru dhe Semawor from Delaware [Boggs - R(DE)], we

have set these stamdards because we believe that they can be

met.”), reprinted im 1 1970 Leg. History 261.

13 See n.5,, abowe.

“4 Nor was Cosjgress eliminating costs from consideration

im the overal/] implementation of the Act. For instance, sitate

amplementation mians can select the most cost effective means of

compliance, delayed compliance orders, added later to the Act,

permit some consideration of cosits, and Congress thas rewusited

the statute to make adjustments when costs have proven to be

imposing. See n.17, below.

says it is... . If the decision is important enough for the

Congress to make in the first instance, then only the

Congress ought to change it.”!5 Congress could revisit the

Act after its approach had been given a chance to suc-

ceed, and when industry had made good faith efforts to

comply.’ Congress could then make adjustments to

1S Executive Session of the Senate Committee on Public Works,

91st Cong. 2nd Sess. 349-350 (Sept. 10, 1970), Edmund S. Muskie

Archives, Bates College, Lewiston, Maine, Folder SE3041-6.

16 See, e.g., Senate Debate on S. 4358, 116 Cong. Rec. 32905

(Sept. 21, 1970) (remarks of Senator Muskie (“Congress, I

assume, will be in session in 1971, 1972, 1973, 1974 and

1975 .. . The companies would be in a position to make their

case. If the Congress, which would have made the policy in the

first instance, is persuaded that the industry cannot do the job,

Congress could change the policy . . . [T]his would be — as it is

now - a policy decision of such moment to the country that it

ought to be made by nobody other than the Congress, so that the

decision gets the visibility, the prestige and the responsibility

that are necessary to deal with this problem.”)), reprinted in 1

1970 Leg. History 236; Senate Debate om H.R. 17255 Conference

Report, 116 Cong. Rec. 42389 (Dec. 18, 1970) (wemarks of Senator

Baker (acknowledging that under the ®wll “the legislative

department will be called upon to sit as @ faetiiinding body to

decide whether or not the automobile im@ustry will be

permitted to continue manufacturing automo ies. assuming it

has not fully met this statutory deadline,” even though he

thought this to be “a horrible prospect.”)), reprinted in 1 1970

Leg. History 142. See also, Roger Strelow, Reviewing the Clean

Air Act, 4 Ecol. L. Q. 582, 588 (1975) (Critics claim the Act

“unreasonably demands clean air to the detriment of conflicting

social and economic considerations . .. A more pragmatic view

of the Act, however, suggests that Congress simply wanted to

ensure that maximum cleanup was achieved and that the

consequences of an unqualified commitment to clean air were

explored before the Act’s limited provisions for ‘balancing’

clean air with other values were expanded.”).

accommodate countervailing costs it believed weighty

enough to warrant them.!” Congress behaved responsibly

in keeping in its own hands the question of how to

balance the nation’s health against the countervailing

costs. When human health is involved, “{t]here is no

economics that tells you the right results . . . there is no

economics that tells . .. us how much we’re prepared to

spend ... on the life of another person . . . [T]hat’s a

decision that people make through their elected represen-

tatives.” 16

By mandating health-based NAAQS, Congress was

exercising its well-recognized Constitutional authority to

delegate to an agency only one aspect of a problem at a

time. See, ¢.g., Williamson v. Lee Optical, 348 U.S. 483, 489

(1955). Congress has made similar limited delegations

innumerable times, often in ways that deny an agency the

authority to conduct the kind of wide ranging cost-bene-

fit inquiry that Cross-Petitioners erroneously contend

EPA must have. For example, Congress has denied the

Secretary of Transportation authority “to engage in a

wide-ranging balancing of competing interests,” in favor

'? Indeed, since 1970, Congress has made a number of

adjustments in the Act to accommodate difficult compliance

problems, but it has never altered the NAAQS. For details, see

the Briefs of Cross-Respondent American Lung Association,

and of Environmental Defense, et al., as Amici Curiae in Support

of Respondents.

‘6 Nomination of Stephen G. Breyer to Be An Associate

Justice of the Supreme Court of the United States, Hearings

Before the Senate Judiciary Committee, 103rd Cong. 2nd Sess.

276-77 (S.Hrg. 103-715, July 13, 1994) (testimony of then-Judge

Stephen Breyer).

of making “protection of parkland [of] paramount impor-

tance” in selecting routes for the interstate highway sys-

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

402, 411-412 (1971). Similarly, Congress has required the

FDA to restrict its safety inquiry to “determin[ing] that

the product itself is safe as used by consumers,” prohibit-

ing it from considering other “countervailing effects”

such as the effects of leaving the product on the market.

FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct. 1291,

1304 (2000). Not only does the record show Congress

made a rational, considered judgment, the regulatory reg-

ime it established is fully within Congress’s competence.

This Court must respect that judgment.

Ill. THE HEALTH-ONLY BASIS OF THE PRIMARY

NAAQS IS OVERWHELMINGLY CONFIRMED

BY THE EVOLUTION OF FEDERAL AIR POLLU-

TION POLICY.

The “history of evolving congressional regulation in

[an] area” can properly inform the Court’s understanding

of legislative meaning. Dunn v. Commodity Futures Trading

Comm'n, 519 U.S. 463, 475 (1997). In the case of the Clean

Air Act, its evolution in the 1960s confirms conclusively

that the key terms Congress used in 1970 to describe

EPA’s NAAQS responsibilities already had well-estab-

lished meanings that excluded the consideration of costs

in setting minimum standards. “Criteria” always referred

to the effects on health or welfare caused by various

concentrations of ambient air pollution, as ascertained by

the best available science. “Protection of the public

health” referred to a level of air pollution at or below the

lowest level at which the criteria identified adverse

health effects. Countervailing costs played no role in

_ either term, and non-health considerations played no role

in the idea of protecting human health. The evolution of

federal air pollution policy further shows a consensus

that a health-based, criteria-based standard ought to be a

national minimum standard. This consensus emerged

even prior to passage of the 1970 Act, and was never

challenged.

These conclusions are confirmed by abundant evi-

dence in a variety of settings in which the speakers and

writers had no strategic reason to dissemble regarding

the issues Cross-Petitioners raise. Indeed, they had every

reason to communicate as clearly as possible. This is

because until very late in the drafting of the 1970 Act,

countervailing costs were being amply taken into account

in federal air pollution policy, both in setting the time for

compliance, and in determining whether standards below

a health-based minimum should be set. When the 91st

Congress moved to a Clean Air Act that set fixed dead-

lines for complying with a national standard, it was too

late to alter the meanings of the terms that defined that

standard, even if anyone had tried.

A. Throughout the Evolution of Federal Air Policy,

“Criteria” Always Referred Only to the Effects

Caused by Air Pollution, Not to the Counter-

vailing Economic Costs of Controlling Air Pol-

lution.'?

The Clean Air Act of 1963 introduced the concept of

“criteria” into the federal regulatory vocabulary,

describing criteria in terms that have remained essen-

tially unchanged. It directed that the Secretary of HEW

[w]henever he determines that there is a partic-

ular air pollution agent [in the air and harmful

to health or welfare], . . . shall compile and

publish criteria reflecting accurately the latest

scientific knowledge useful in indicating the

kind and extent of such effects which may be

expected from the presence of such air pollution

agent . . . in the air in varying quantities.

§ (3)(c)(2), P.L. 88-206, 77 Stat. 392, 395.

The Act contained no explicit provisions for standard

setting. Instead, it “encouraged” municipal, State, and

interstate action to abate pollution, § 5(b), id., and it

authorized the Secretary to “recommend .. . such criteria

of air quality as in his judgment may be necessary to

protect the public health and welfare.” § 3(c)(3), id.

19 This part summarizes the evolution of federal air

pollution policy as it relates to the terms with which the NAAQS

requirements are expressed. A more detailed summary of the

development of federal policy can be found in Brief of

Respondents Massachusetts and New Jersey in Support of

Petitioners, in Browner v. Amer. Trucking Ass'n, 99-1257, at 7-19.

As Congress was considering the Air Quality Act of

1967, it heard testimony about how HEW was implement-

ing the 1963 Act. Dr. John Middleton, head of the

National Air Pollution Control Administration (NAPCA)

within HEW, and in charge of the federal air quality

efforts, testified that

air quality criteria are an expression of the sci-

entific knowledge of the relationship between

various concentrations of pollutants in the air

and their adverse effects on man, animals, vege-

tation, materials, and so forth. . . . They describe

the effects that can be expected to occur when-

ever and wherever the ambient air level of a

pollutant reaches or exceeds a specific figure for

a specific time period.?°

At the time he testified, NAPCA had just issued the first

criteria document, for sulfur oxides, so Congress had a

precise illustration of what criteria'included and what

they did not include. The sulfur oxide criteria focused

exclusively on scientific studies describing adverse effects

on health or welfare that were or might be caused by

various levels of sulfur oxide in the air. Neither it nor any

other criteria issued by EPA contained any mention of the

costs of removing pollution from the air.?!

Dr. Middleton's succinct description reflected Con-

gress’s understanding of the contents of the criteria. It

20 Air Pollution - 1967, Hearings before the Subcommittee on

Air and Water Pollution of the Senate Committee on Public Works, on

S. 780 and Related Matters Pertaining to the Prevention and Control

of Air Pollution, 90th Cong. 1st Sess 1154 (1967) (Comm. Print).

21 N.2, above, identifies the five criteria documents issued

prior to 1971.

was explicitly quoted by both House and Senate Reports

accompanying the 1967 Act,?? repeated by Dr. Middleton

in later testimony” and by the executive branch in

air quality guidance documents,** quoted in other

Congressional Reports,?5> and quoted or paraphrased in

the academic journals.°

Statutory revisions in 1967 and 1970 changed the

description of criteria cosmetically, but the core definition

never changed, and there was never any indication that

the Congress - or anyone else knowledgeable about the

development of air pollution policy - ever thought the

content of “criteria” had been changed to include eco-

nomic costs.2” Criteria continued to “define the health

22 S. Rep. 90-403 5 (1967); H. Rep.-90-728 16 (1967).

23 E.g., 1 1970 Senate Hrgs. 160, reprinted in 2 1970 Leg.

History 1000.

24 HEW, National Air Pollution Control Administration,

Guidelines for the Development of Air Quality Standards and

Implementation Plans 4 (1969) (“HEW Guidelines”).

25 Air Quality Criteria, Staff Report for the Subcommittee on

Air and Water Pollution, Senate Committee on Public Works, 90th

Cong. Ist Sess. 2-3 (1968) (Comm. Print).

26 See, e.g., Robert Martin and Lloyd Symington, A Guide to

the Air Quality Act of 1967, 33 Law & Contemp. Prob. 239, 251-52

(Spring, 1968); Note, The Air Quality Act of 1967, 54 lowa L. Rev.

115, 126 (1968).

27 In 1967, the criteria were to reflect “the kind and extent

of all identifiable effects on health and welfare which may be

expected from the presence of an air pollutant . . . in the ambient

air, in varying quantities.” § 107(b)(1), P.L. 90-148, 81 Stat., 485,

491. Both the House and Senate Reports accompanying the 1967

Air Quality Act explicitly employed Dr. Middleton’s definition,

see n.22, above, and in 1968 a staff report of Senator Muskie’s

subcommittee stated that the 1967 Act had “reaffirmed” the

and welfare considerations that must be taken into

account in the development of standards and regulations.

Economic and technical considerations have a place in the

pattern of control activity but not in the development of

criteria.” 28

B. Throughout the Evolution of Federal Air Policy,

“Protection of the Public Health” Was Under-

stood to Require an Exclusively Health-Based,

Criteria-Based Level of Air Quality.

In 1967, Congress for the first time provided direc-

tion to the States as to what kind of air quality standards

they ought to develop, providing that the Secretary of

HEW was to approve state standards that were “consis-

tent with the criteria and the recommended control tech-

niques.” § 108(c)(1), P.L. 90-148, 81 Stat. 485, 492.

Subsequently, HEW issued guidelines describing what

standards it would find acceptable, stating that “it is the

intent of the Air Quality Act . . . to provide for the

attainment throughout every air quality control region of

1963 Act’s call for criteria development. n.25, above, at 2. In

1970, the criteria also were to reflect “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.” § 108(a)(2), P.L. 91-604, 84 Stat. 1676,

1678. The 1970 Act explicitly ratified the criteria that HEW had

already issued under the 1967 Act as forming the basis for

national standards, § 109(a)(1)(A), id. at 1679, demonstrating

that Congress thought it was not making any material change in

the required content of the criteria.

28 H.Rep. 90-728 16 (1967).

air quality which, at a minimum, is adequate for the protec-

tion of the public health,”?9 essentially the same language

that Congress would later use to describe the NAAQS.

As states began submitting standards and plans to

HEW for approval, it became evident that HEW under-

stood “adequate for the protection of the public health”

to mean levels at or below the level identified by the

criteria as the lowest at which HEW concluded adverse

health effects had been shown. Dr. Middleton explained

how HEW was implementing the 1967 Act:

Let’s take the example of the standards being

adopted for sulfur oxides. The standard being

adopted by the States which are acceptable to

the Secretary are less than 0.04 parts per million

(p.p.m.) as an annual average. Most states are

coming up with air quality standards that are

0.03 p.p.m. or smaller... *}

According to the criteria document, 0.04 p.p.m. was the

point where “the health effects begin.”%

29 HEW Guidelines 17 (emphasis added).

30 The core of the definition of “criteria” in the 1967 Act

contains the same phraseology as the primary and secondary

NAAQS in the 1970 Act. § 107(b)(1), P.L. 90-148, 81 Stat. 485, 491

(Secretary shall issue criteria “as in his judgment may be

requisite for the protection of the public health and welfare”).

31 1970 Senate Hrgs. 1492, reprinted in 2 1970 Leg. History

1187 (1970).

32 1970 Senate Hrgs. 1500, reprinted in 2 1970 Leg. History

1195 (1970).

Costs and technological feasibility played roles in the

local debates over whether to adopt standards more strin-

gent than the required federal minimum (a number of

states did indeed adopt more stringent standards) and in

the determination of a “reasonable” compliance time,3%

but costs and technological feasibility played no role in

setting the minimum health-protective air quality levels.

In 1970, both the Congress and the Nixon Adminis-

tration concluded that further statutory reforms were

needed to strengthen the federal law. The Administration

initiated the idea of national ambient air quality stan-

dards, sending Congress language that would require the

Secretary to “publish . . . proposed regulations establish-

ing nationally applicable standards of air quality for any

pollutant or combination of pollutants which [the Secre-

tary] determines endanger or may endanger the public

health or welfare and with respect to which criteria have

33 The 1967 Act required whatever levels the states

established to be achieved “within a reasonable time.” 42 U.S.C.

§ 1857d(c) (1964 & Supp. III (1964-67)). “The implementation

plan must assure achieving the standards of air quality within a

reasonable time, as economic and technological feasibility

permit.” Robert Martin and Lloyd Symington, A Guide to the

Air Quality Act of 1967, 33 Law & Contemp. Prob. 239, 256

(Spring, 1968).

been issued... “* Even this language, despite being

much vaguer than the language ultimately enacted, was

understood as setting health-based minimum standards,

based on the criteria. Under Secretary of HEW John Vene-

man explained how the administration’s standards would

work:

[Let me] give an example so that maybe we can

make it clear. For exainple, in the criteria that

were established for sulfur oxides, the minimum

identifiable human health effect occurs at a level

of 0.04 ppm. Now, in establishing a national air

quality standard, it would be below that. It

would not be above that. Now, what we are

suggesting is that you do not set standards just

at the point of minimum impact or effect on

human health. They have to be below that. We

are suggesting that if a state or an area within a

state, even the intrastate regions, wants to

reduce that even below the national standard,

they would have the prerogative.*

This statement of the administration’s position draws a

simple and direct connection between criteria and the

national standard. The level of 0.04 ppm in the criteria

document rested exclusively on medical evidence of health

effects caused by sulfur oxides at that concentration.

34 On the Senate side, the Administration proposal was S.

3466. In the House, it was H.R. 15848. See § 107(a), S. 3466,

reprinted in 2 1970 Leg. History 1483; H.R. 15848, reprinted in Air

Pollution Control and Solid Wastes Recycling, Hearings Before

the Subcommittee on Public Health and Welfare of the House

Committee on Interstate and Foreign Commerce, 91st Cong. 1st and

2nd Sess. 177 (Serial No. 91-49, 1970).

35 1970 Senate Hrgs. 159, reprinted in 2 Leg. History 999.

Even industry spokespersons shared the conception

of the national standard as directly derived from the

exclusively health-based criteria. For instance, Fred E.

Tucker, Manager, Pollution Control and Services for the

National Steel Corp., testified in support of the Adminis-

tration’s call for national standards: “We simply feel that

the adoption of the air quality criteria papers presented

[by HEW] to date as standards would speed up the

implementation of air quality control. . . . We have air

quality criteria documents available today . . . [There is

no objection on my part as an industry representative to

see those criteria adopted as national standards imme-

diately.” 1970 Senate Hrgs. 245-246.

Mr. Tucker spoke of adopting the criteria as standards.

He did not advocate writing national standards only after

weighing countervailing factors against the criteria’s

findings on adverse health effects. He simply urged the

federal government to take the criteria’s numerical levels

for adverse health effects, and make those levels legally

binding.*

so they had no reason to be duplicitous about it. At the time,

they were reeling from a series of regional standard-settings in

which states had acceded to public demand and adopted

standards even lower than the HEW recommendations. See 1970

Senate Hrgs. 240-41 (Tucker testifying to several states adopting

standards lower than the federally acceptable levels). They

hoped that national standards, together with the elimination of

public hearings at the regional level (which had become a venue

for citizen agitation for stringent standards) would make it

more likely that states would adopt the national standards.

C. Although There Was Debate Over Fixed Dead-

lines for Compliance, No One Doubted That

the 1970 Primary NAAQS Would Be Exclusively

Health-Based.

The Administration’s proposal for national health-

based standards gained industry support because the

Administration bill continued to provide a “reasonable

time” for compliance, and this provided ample room for

arguments based on technological feasibility and cost. As

Senator Pete Domenici (R-NM) would note later, the 1970

Act “basically [has] two working parts, standards and

deadlines.”3”7 So long as deadlines could be “reasonable”

in light of costs, health-based standards were acceptable

to industry and to the Administration.

The House passed its version of the 1970 Act on June

10, 1970, defining the Secretary’s national standards

obligation in terms materially identical to the Adminis-

tration’s proposal, and also allowing a “reasonable time”

for compliance.** On the Senate side, though, hearings

37 Pete V. Domenici, The Clean Air Act Amendments:

Balancing the Imponderables, reprinted in Senate Committee on

Environment and Public Works, 6 A Legislative History of the

Clean Air Act Amendments of 1977, 96th Cong. 2nd Sess. 4508

(1978).

38 H.R. 17255 Sec. 2 and 4 (adding 107(e)(1) and

108(c)(1)(C)(i) to the Air Quality Act), reprinted in 1 1970 Leg.

History 911, 914. The only difference between the

Administration proposal and H.R. 17255 as passed by the House

was that the House bill retained the requirement that criteria

had to have been issued before standards could be, whereas the

Administration proposal dropped that requirement. See S. 3466,

Sec. 6, amending § 107(a) of the Air Quality Act, reprinted in 2

1970 Leg. History 1482-83.

and committee meetings progressed through the summer

and fall of 1970. There, the idea of fixed deadlines devel-

oped momentum. A “standard” without a definite attain-

ment date came to be seen as no improvement over

current law.*? Despite continuing Administration

advocacy for a reasonable compliance time,*° the Senate

3% See, e.g, Senator Eagleton’s comments to Dr. Middleton,

who presented the Administration position:

This is where I get hung up on a national standard. If

indeed it is national, for all 50 States, then it would

seem to me that it ought to be attainable within a

reasonably foreseeable period of time, applied

nationwide, with no exceptions, or then in truth it is

not a national standard, and we are right back where

we are... . You [Dr. Middleton] and I disagree. You

say there is a benefit to be gained by telling the public

that we have a national standard which you say is

really a national goal . . . I just don’t see a national

standard that is a national standard, unless you set

specific target dates, is really helping to achieve

anything, beyond what you are presently doing . . .

1970 Senate Hrgs. 1512, reprinted in 2 1970 Leg. History 1207.

*# Appearing before the Muskie Subcommittee after

Veneman, Dr. Middleton continued to advocate the reasonable

time idea: “So I make the plea that you consider the things that

will bring about clean air rather than setting a date when this

must be achieved, because the State capability, the fuel

resources available, the state of the art of control techniques, the

existence of natural or synthetic gas pipeline transmission

systems, the Federal Power Commission's policy on using fuels

environmental improvement [sic], and other factors have a

bearing on compliance dates. Taking care of these things would

allow clean air to be attained in a timely and realistic manner,

rather than saying that, by some specific state, you have to do

it.” 1970 Senate Hrgs. 1501-02, reprinted in 2 1970 Leg. History

1196-1197.

25.

bill required that national standards had to be met within

a statutory deadline of three years.*!

Now industry and the Administration had reason to

object, not over the issuance of a health-based national

standard, but over substituting a fixed compliance date

for a flexible one. Newly appointed HEW Secretary Elliot

Richardson urged the Conference Committee to return

compliance flexibility to the Act by providing him with

an open-ended authority to extend the deadlines when

“adequate control technology is not available and is not

likely to be available.” Letter from Secretary Richardson

to Senator Randolph, Nov. 17, 1970, reprinted in 1 1970

Leg. History 211, 215.4

The Congress’s “new philosophy” prevailed. The

Conference reported a bill devoid of any connection

between setting the primary NAAQS and considerations

of costs and technological feasibility. The Administration

41 S. 4358, § 111(2)(A), reprinted in 1 1970 Leg. History 544. S.

4358 also provided for the possibility that a three judge federal

court, upon petition from the Governor, and upon making

specific findings, could extend the period for a year. Additional

one year extensions were possible, upon the filing of a new

petition each time. § 111(f), reprinted in 1 1970 Leg. History

550-553. In the final legislation, this was changed to a maximum

two year extension if “the necessary technology or other

alternatives are not available. ...” § 110(e)(1)(A), P.L. 91-604, 84

Stat. 1676, 1682.

42 See also, Letter of J.E. Swearingen, Std. Oil of Indiana, to

Senator Jennings Randolph, Aug. 27, 1970 (opposing three year

compliance time), 1 1970 Leg. History 782-83; Letter of James D.

Kittelton to Richard Grundy, Committee on Public Works Staff

Member, Aug. 26, 1970, 1 1970 Leg. History 716 (three year limit

is “unreasonably short.”).

and industry were undoubtedly disappointed in this out-

come, but disappointment about the fixed deadlines can-

not alter the significant and universal agreement reflected

in the testimony of Under Secretary Veneman, Dr. Mid-

dleton and Mr. Tucker that the national minimum stan-

dard - now codified in the primary NAAQS - would be

set at a health-based, criteria-based level.*

Subsequent to passage of the 1970 Act, the health-

based, criteria-based nature of the primary NAAQS has

since been confirmed numerous times, of which we will

only provide a few examples. Of course, EPA has always

said that its primary NAAQS responsibilities were lim-

ited to health considerations.*

* Confirming that the debate over compliance time had not

altered the definition of the NAAQS, the description that Dr.

Middleton gave of the primary NAAQS after their enactment

was equivalent to the description he used prior to passage in

explaining the administration’s concept of national standards.

Compare, John Middleton, Planning Against Air Pollution, 59

American Scientist 188, 189 (1971) (“These standards will be

based on the criteria documents . . . To protect the public health,

there will be national primary ambient air quality standards

which will define how clean the air must be in order to be

healthy to breathe.”) with 1970 Senate Hrgs. 1512-13 (Middleton

testifying that “setting a national air quality standard is a

further step . . . declaring as a matter of national policy, that air

quality in all places must be uniformly protective of health.”),

reprinted in 2 1970 Leg. History 1206-07.

# EPA’s first administrator, William Ruckelshaus,

summarized the law when he issued the first NAAQS, less than

4 months after the 1970 Amendments were enacted: “the Clean

Air Act does not permit any factors other than health to be taken

into account” in setting the NAAQS. 36 Fed. Reg. 8186 (1971).

Later in the 1970s, the provisions of the Act came

under heavy pressure because they were indeed proving

hard to comply with fully, and also because the country

was suffering through recession and energy shortages.

Congress extensively debated changes in the law and

eventually made a number of mid-course corrections.

During the thorough review that proceded the 1977

Amendments,

the major challenge directed at the Act during

the .. . oversight hearings [was] one dealing

with the fundamental purpose of the law: to

protect public health and welfare. At issue [was]

whether the effects on public health of air pollu-

tants should continue to represent the sole crite-

rion for standard setting, . . . or whether, in view

of events that occurred in the past 3 years, other

elements that greatly affect national life and

well being should now be included as valid

criteria when standards are set and imple-

mented.45

In explaining the legislative changes proposed by the

Senate Environmental and Public Works Committee that

had emerged from this review, Senator Domenici empha-

sized “one area of the law that the Committee refused to

45 Congressional Research Service, A Summary of Clean

Air Act Oversight Hearings, March 19, 20, April 20-24, 29-30,

May 1, 13, 15, 20-21, 1975 at 5 (June 13, 1975), reprinted in

Implementation of the Clean Air Act - 1975, Part I, Hearings of

the Subcommittee on Environmental Pollution of the Senate

Committee on Public Works, 94th Cong. 1st Sess. 5 (Serial No. 94-

H10 1975).

alter. This was the national primary and secondary ambi-

ent air quality standards. These standards and the protec-

tion they offer to the public health and welfare are the

linchpin of the Act.”# Looking back on the 1970 Act in

1981, Senator Robert Stafford (R-VT), chairman of the

Senate Environment and Public Works Committee,

opened an oversight hearing by referring to the primary

NAAQS as “health standards” that should continue in

force as initially intended in 1970.47 Overall, the primary

NAAQS policy has been reviewed many times, always

with the same results.

Also in 1981, a blue ribbon commission created by

Congress in 1977 to undertake a thorough review of

federal air policy returned its report to the Congress. It

first conclusion was that “[t}he current statutory criteria

and requirements for setting air quality standards at

the levels necessary to protect public health without

46 Pete V. Domenici, n.37, above, at 4507. He went on to

note that “this left the deadlines as the major variable around

which to structure [the Environment and Public Works

Committee’s] compromises.” Id.

47 Clean Air Act Oversight - Part 3, Hearings Before the

Senate Committee on Environment and Public Works, 97th Cong. 1st

Sess. 191 (Serial No. 97-H12, 1981) (remarks of Senator Stafford).

consideration of economic factors should remain

unchanged.”#* And so they have.*?

CONCLUSION

The decision of the Court of Appeals that EPA may

only consider health effects when issuing the primary

NAAQS should be affirmed.

Respectfully submitted,

CHRISTOPHER H. SCHROEDER

Counsel of Record

46 Green Mill Lane

Durham, NC 27707

(919) 613-7096

Counsel for Amici Curiae

Clean Air Trust and

Senator Robert Stafford

September 11, 2000

48 National Commission on Air Quality, To Breathe Clean Air

55 (1981). Even Edwin Dodd, chairman of Owens Illinois and

the industry representative on the Commission, agreed that the

primary NAAQS were health-based and that this was a sound

premise for the Act. Id., at 320 (Supplemental Statement of

Edwin Dodd) (“The Clean Air Act is built on a basis of NAAQS.

The primary standards are set on the basis of protection of

public health without consideration of economic factors. I can

agree with this premise if it is clearly understood that in

developing the various clean air programs necessary to meet

these health standards, other goals of our society and economic

practicality are considered in the implementation process.”)).

49 The briefs of Cross-Respondent American Lung

Association and of amici curiae Environmental Defense, et al.

provide additional-post-enactment confirmation that the

primary NAAQS are exclusively health- and criteria-based.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.