Amicus Curiae Brief — American Trucking Assns., Inc. v. Browner
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No. 99- Supreme Court, U.S.
0. 99-1426 FILED
In The SEP 1] 200
AMERICAN TRUCKING gepbichaoae, I
Cross-Petitioners,
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF
THE ENVIRONMENTAL PROTECTION
AGENCY, ET AL.,
Cross-Respondents.
¢
On Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
7
BRIEF OF AMICI CURIAE ENVIRONMENTAL DEFENSE,
AMERICAN PUBLIC HEALTH ASSOCIATION, ET AL.,
ON BEHALF OF CROSS-RESPONDENTS
¢
RicHarp L. Revesz
Counsel of Record
40 Washin oon Square South
Suite 411-
New York, NY 10012
212-998-6185
Vickie PaTTON
Environmental Defense
1405 Arapahoe Avenue
Boulder, CO 80302
TABLE OF CONTENTS
Page
Bees Cl AT UCU OEE oo cc cccvcccccccccecececes iv
INTEREST OF AMICI CURIAE..................... 1
SUMMARY OF ARGUMENT.....................-. 1
tle ed ee eae ee oe ee a 3
I. CONGRESS HAS EFFECTIVELY RATIFIED
EPA’S INTERPRETATION THAT COSTS CAN-
NOT BE TAKEN INTO ACCOUNT IN SETTING
WE I Kon ds vadncudadcddcnuiccnsaescess 3
A. The Court’s Recent Decision in Brown &
Williamson Compels Upholding EPA’s Inter-
POURETIO oo cc ccnccccnccccsenvesescoccscees 3
B. EPA Has a Long-standing and Consistent
Interpretation of Section 109(b) ........... 4
C. Congress Has Legislated Against the Back-
drop of EPA’s Interpretation and Repeat-
edly Has Rejected Overturning this
UN v0 edavedesececeuccscecceses 5
1. The 1977 Amendments................ 5
2. Further Consideration in the 1980s.... 6
3. The 1990 Amendments................ 8
4. Bills to Amend Section 109(b)......... )
5. Regulatory Reform Efforts Beginning in
the 104th Congress ................... 9
6. Oversight Hearings in Connection with
the Proposal and Promulgation of the
Challenged NAAQS for Ozone and Par-
ID TE oo nvccnasdccscuscseseses 11
D. The Court Should Not Be Used to End-Run
the Political Process .............csececee; 13
II.
III.
il
TABLE OF CONTENTS - Continued
Page
THE PRINCIPLE OF STARE DECISIS CALLS
FOR FOLLOWING THE LONG-STANDING
JUDICIAL DETERMINATION THAT COSTS
CANNOT BE TAKEN INTO ACCOUNT IN SET-
TING THE NAAQS. ...cccscsccceccccsescesess
A. Ina Body of Case Law Issued Over the Past
Twenty Years, the D.C. Circuit Has Consis-
tently Held that Costs Cannot Be Taken Into
Account in Setting the NAAQS...........
B. The Principle of Stare Decisis Applies in this
ee Se
C. This Case Presents Particularly Compelling
Arguments in Favor of the Application of
Stare Deciels ...csccccccesvesscssenseeeuaee
D. A Policy Change of this Magnitude Cannot
Be Made by the Judiciary Without Seriously
Disrupting the Nation’s Efforts to Control
Aig Polbetion .....ccccccccsccsesessnnenuen
THE CHALLENGES TO EPA’S INTERPRETA-
TION OF SECTION 109(b) ARE WHOLLY
UNPERSUASIVE.. «0.0 scccccccossssccssessususen
A. The Cross-Petitioners’ Arguments Concerning
Sections 108 and 109 Are Without Merit ....
B. The Court Should Decline the Invitation to
Adopt a Cost-Benefit Canon of Statutory
Interpretation ......cccccccccsccssccscccees
1. Such a Canon Could Not Override the
Evidence of Con ional Intent or the
Deference Owed to EPA Under Chevron. .
2. The Court Must Respect the Manner in
Which Congress Has Taken Costs into
Account in the Clean Air Act.........
15
15
16
18
19
20
20
23
24
CONCLUSION
TABLE OF CONTENTS - Continued
Page
C. The Challengers Rely on a Number of Irrel-
evant Generalities and Inapposite Provi-
sions of the Clean Air Act................
D. The Challengers Fail in their Efforts to
Introduce Economic Considerations into the
Term “Public Health”
see ee eeeeeeeeeeeeeeee
26
iv
TABLE OF AUTHORITIES
Page
Cases:
American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir.
SPPPPPrrerrrrrrrrrrrrrrrrrrrrrrtri titi 16
Amex Land Co. v. Quarterman, 181 F.3d 1356 (D.C.
rr 24
API v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), cert.
denied, 455 U.S. 1034 (1982).........--.- eee ee eens 15
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .... 24
College Sav. Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666 (1999).......--..-- 23
Dickerson v. United States, 120 S. Ct. 2326 (2000)..... 18
Dickinson v. Zurko, 527 U.S. 150 (1999) .............. 18
Dunn v. CFTC, 519 U.S. 465 (1997)... .. 6... cece e eee 28
FDA v. Brown & Williamson Tobacco Corp., 120
eee: F- Vrrer 3
George E. Warren Corp. v. EPA, 159 F.3d 616 (1998),
pate on other grounds, 164 F.3d 676 (D.C. Cir.
BITE. cc onccvcccccevenccncesecccccucesscasecsosess 26
Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S.
BOP AIDDED . oc cccccccccccccccccccccncessccsccccesss 18
Hubbard v. United States, 514 U.S. 695 (1995)......... 16
Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.),
cert. denied, 449 U.S. 1042 (1980). .2, 5, 15, 16, 17, 18, 27
Lochner v. New York, 198 U.S. 45 (1905)............ 3, 23
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000)....... 26
Vv
TABLE OF AUTHORITIES - Continued
Page
Michigan Citizens for an Indep. Press v. Thornburgh,
868 F.2d 1285 (D.C. Cir.), aff'd by an equally
divided Court, 493 U.S. 38 (1989) ............2..... 24
NRDC v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en
banc) (“Vinyl Chloride”) ..........00 0.0 ccc cues 17, 27
NRDC v. EPA, 902 F.2d 962 (D.C. Cir. 1990), cert.
Gentel, GB US. WOG2 (IGP)... ccc cccccccscccces 15
NRDC v. EPA, 937 F.2d 641 (D.C. Cir. 1991)......... 26
Ober United Travel Agency, Inc. v. Department of
Labor, 135 F.3d 822 (D.C. Cir. 1998) ............... 24
Patterson v. McLean Credit Union, 491 U.S. 164
PoE <evncdenensesescocnccedekiucibinonsecks 1.17, 18
Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ....2, 16, 17
Union of Concerned Scientists v. NRC, 824 F.2d 108
Se SE Sn 6hb bak cnescnnddsedsduedestedidscue 17
United States v. Riverside Bayview Homes, Inc., 474
a Gt CE ckuchecabeutonddakadstaducdkuataudabe: 4
United States v. Ryan, 284 U.S. 167 (1931)............ 16
STATUTES:
Clean Air Act, 42 U.S.C. §§ 7401 et seq.
§ 101(b)(1), 42 U.S.C. § 7401(b)(1).... 2.0... 26
ORE, BI iiss ciice ice! 20, 21
§ 108(a)(2), 42 U.S.C. § 7408(a)(2).......... 20, 21, 27
§ 108(b)(1), 42 U.S.C. § 7408(b)(1).............. 21, 23
DBE GB TBE. 6 FED ccccccccccccccccccccs 5, 15, 20
vi
TABLE OF AUTHORITIES - Continued
Page
§ 109(a)(1)(A), 42 U.S.C. § 7409%(a)(1)(A)......----- 27
§ 109(a)(1)(B), (a)(2), 42 U.S.C. § 7409(a)(1)(B),
Nc occ cada eadadebuenensnedanemaduntiin 22
§ 109(b), 42 U.S.C. § 7409(b).........-- eee eee passim
§ 109(b)(1), 42 U.S.C. § 7409(b)(1)............2 05: 20
§ 109(d), 42 U.S.C. § 7409(d)............0 2 cece eee 22
§ 109(d)(1), 42 U.S.C. § 7409(d)(1)...........00005- 19
§ 109(d)(2)(B), 42 U.S.C. § 7409(d)(2)(B) .........-- 22
Re ee
§§ 109-110, 42 U.S.C. §§ 1857c-4, 1857c-5
(amended EEE occdecscucccectscovestvesesecesoces 5
OE Oe, Osc cca vikvdiscciucicanassasun 17
§ 110(a)(1), 42 U.S.C. § 7410(a)(1)...........000 0: 22
§ 110(a)(1)-(2), 42 U.S.C. § 7410(a)(1)-(2)..........- 19
§ 111(a)(1), 42 U.S.C. § 7411(a)(1).........22-2000e 25
I OO iinccnccnosnndecnsnesions 17
§ 112(f)(1)(B), 42 U.S.C. § 7412(f)(1)(B) ......--..-. 28
§ 280, G2 UBL. § FUDD... ccccccccccccscccceses 25
§§ 160-169B, 42 U.S.C. §§ 7470-7492............005- 5
§ 165(a)(4), 42 U.S.C. § 7475(a)(4) ...... 00222 e eee 27
5 , G0 GE. 6 TID vse vcdccinesessscsscess 25
§ 172(a)(1)-(2), 42 U.S.C. § 7502(a)(1)-(2)
(amended 1990) .......cccccccccccccccccccccceccece 5
Vii
TABLE OF AUTHORITIES - Continued
Page
§ 181(a)(1), 42 U.S.C. § 7511(a)(1)............... 9, 25
§ 202(a)(3)(B)(i), 42 U.S.C. § 7521(a)(3)(B)(i) ....... 28
§ 202(a)(3)(D), 42 U.S.C. § 7521(a)(3)(D)........... 28
§ 202(i)(3)(A)(iii), 42 U.S.C. § 7521(i)(3)(A)(iii) ... . . 25
FON 4 A Rear rae toe 26
§ 211(c)(2)(A)-(B), (k)(1), 42 U.S.C. § 7545(c)(2)
Pee GUNN 0s cbenccdnasndandcssdectccencseccouds 26
S SUR, 2 UBC. © FEGRGA).... 6 cc cccccccccccccss 20
§ 307(b)(1), 42 U.S.C. § 7607(b)(1)...........00008. 15
§ 307(d)(3), 42 U.S.C. § 7607(d)(3).............0... 23
S SEA, G USL. § FEIDD).....cccccccccccccvess 28
§§ 401-416, 42 U.S.C. §§ 7651-765lo............... 25
Pub. L. 95-95, 91 Stat. 685 (1977)................05. 5
Pub. L. 97-23, 95 Stat. 139 (1981).................. 25
Pub. L. 101-549, 104 Stat. 2399 (1990) .............. 8
Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.
§ 1412(b)(1)(C), 42 U.S.C. § 300g-1(b)(1)(C) ideneens 14
__ Ficnanntreniesebaiemiitinon. ress
____ aaemebsccoatinanaintle st, recy
Vili
TABLE OF AUTHORITIES - Continued
Page
MIscCELLANEOUS:
40 C.F.R. § 51.100(0)(2) ....-. eee eee ee eee eee eees 25
36 Fed. Reg. (1971)
P. 8186.0... 6c cece eee eee eect eee e eee ene nenen sates 4
43 Fed. Reg. (1978)
P. 26,963 ......--eeeeeeees ee PETTTITITTTT TTT LL 4
P. 46,247 2... cece cece eee eee eee eee eees PRCEPOOOTe 4
44 Fed. Reg. (1979)
P. 8203... 66. e cece cece cece erent een e een eseeeeees 4
45 Fed. Reg. (1980)
P. 55,067 «2... c eee e cee ener renee teen nen en ress 4
62 Fed. Reg. (1997)
P. 38,683 2.2... cece cece eee eee e etree eee en en enenes 5
P. 38,878 0... e cece eee eee e eee eect eee neee eens 5
H.R. Rep. 95-294 (1977)... 2... c cece cece ee eeeeeeees 6, 22
S. Rep. 91-1196 (1970) .....- 0. cece cece eee ee eee enees 29
S. Rep. 100-231 (1987) ........0ccec cece eee eee e ee eees 8
S. Rep. 101-228 (1989) ......-.. cece cece reece eee reees 8
S. Rep. 104-90 (1995) ........ cece eee cere eee e ee eeees 11
136 Cong. Rec. (1990)
p. H12,885........- 0 cece cece e cece eee e eee e teen ees 8
p. H12,912-15...... 6. cece cece cere eee eee e eee e ees 8
p. H12,916....... 2. eee cece e eee eee eee ee eee nnnees 8
P. $16,896 2.2... cece cece e eee e eee cnet ee eeeeenenees 8
141 Cong. Rec. (1995)
an 5 0X) 10
ix
TABLE OF AUTHORITIES - Continued
Page
Di, CRED cccceveccerscdeedvessocssecnensesoncsesus 10
DD, TE idtccransasncaseecddconcncscensoseseesaee 10
Dy TED eo cccrcceseccdunessseavcesessetésonesenbas 10
Di TES soc ccvevescccsevesescoccvecescecooesceent 10
DR. TEED cccccccvvcccceccesccscesececcees b..+. 10
PP. TERRISe oc cccccvccccccccccccsvccecsceceeseces 10
i Fee cccccccccecccvocccesscccnseesoessconesess 11
Dy ROS bce ntencdennnsenessencensencasececsndécs 11
Clean Air Oversight: Hearings Before the Senate
Comm. on Environment and Public Works, 97th
Sy: GEE on bccoducanccocnces ceancecéeucsosescns 7
Clean Air Act Amendments: Joint Hearing Before the
Subcomms. on Oversight and Investigations, and on
Health and Environment, House Comm. on Com-
mares, TOG Comg, (IGTG)..cccdcccccccccccvcccccess y
Regulatory Reform: Hearings Before the Senate Comm.
on Governmental Affairs, 104th Cong. (1995)........ 11
Clean Air Act: Ozone and Particulate Matter Stan-
dards: Hearings Before the Senate Subcomm. on
Clean Air, Wetlands, Private Property and Nuclear
Safety and the Senate Comm. on Environment and
Public Works, 105th Cong. (1997).............4. 12, 13
EPA’s Particulate and Ozone Rulemaking: Is EPA
Above the Law?: Hearings Before the Subcomm. on
National Economic Growth, Natural Resources, and
Regulatory Affairs, House Comm. on Government
Reform and Oversight, 105th Cong. (1997)....... 12, 13
TABLE OF AUTHORITIES - Continued
Page
EPA’s Rulemakings on the National Ambient Air
Quality Standards for Particulate Matter and
Ozone: Hearing Before the Subcomm. on Commer-
cial and Administrative Law, House Comm. on the
Judiciary, 105th Cong. (1997) ............-.000ee 12,
Implementation of the Clean Air Act National Ambi-
ent Air Quality Standards (NAAQS) Revisions for
Ozone and Particulate Matter: Joint Hearing Before
the Subcomm. on Health and Environment and the
Subcomm. on Oversight and Investigations, House
Comm. on Commerce, 105th Cong. (1997)...........
Review of EPA's Proposed Ozone and Particulate Mat-
ter NAAQS Revisions: Joint Hearings Before the
Subcomm. on Health and the Environment and the
Subcomm. on Oversight and Investigations, House
Comm. on Commerce, 105th Cong. (1997)........ 12,
Clean Air Act: Review and Oversight: Hearing Before
the Subcomm. on Clean Air, Wetlands, Private
Property, and Nuclear Safety, Senate Comm. on
Environment and Public Works, 106th Cong.
SPN i deceseccccnncosrseeceaccedkcscéonseusess 13,
H.R. 9, 104th Cong., Ist Sess. (1995) .............. 9,
S. 291, 104th Cong., Ist Sess. (1995).............505.
S. 343, 104th Cong., Ist Sess. (1995)............... 9,
H.R. 3519, 104th Cong., 2d Sess. (1996) .............
H.R. 1704, 105th Cong., Ist Sess. (1997) .............
S. 981, 105th Cong., Ist Sess. (1997).............-45.
S. 1084, 105th Cong., 1st Sess. (1997).............4..
H.R. 4085, 105th Cong., 2d Sess. (1998) .............
13
xi
TABLE OF AUTHORITIES - Continued
Page
H.R. 4162, 105th Cong., 2d Sess. (1998) ............. 11
H.R. 4863, 105th Cong., 2d Sess. (1998) ............. 11
S. 2362, 106th Cong., 2d Sess. (2000)................. 9
The National Commission on Air Quality, To
Breathe Clean Air (1981)............ cece cccccccee 6, 7
Elizabeth Fee, Disease and Discovery (1987)........... 28
C.E.A. Winslow, The Cost of Sickness and the Price of
ED abides thcddsbeccuscasuies booed sada 29
12 Env’t Rep. (BNA) 835 (1981).................00000- 7
1
INTEREST OF AMICI CURIAE
Amici curiae Environmental Defense (formerly Envi-
ronmental Defense Fund), American Public Health Asso-
ciation (the oldest and largest organization of public
health professionals in the world), Clean Air Council,
East Michigan Environmental Action Council, Environ-
mental Law and Policy Center of the Midwest, Hoosier
Environmental Council, Illinois Environmental Council,
The Izaak Walton League of America, Legal Environmen-
tal Assistance Foundation, Michigan Environmental
Council, Ohio Citizen Action, The Ohio Environmental
Council, Physicians for Social Responsibility, Southern
Environmental Law Center, Tennessee Environmental
Council, and Valley Watch, are sixteen not-for-profit
membership organizations working to improve public
health and environmental quality throughout the United
States. We seek healthier air quality on behalf of our
thousands of members who live, raise families, and pro-
vide public health services in communities across the
country that have air pollution concentrations in excess of
the ozone and particulate matter standards under review
in this case.!
SUMMARY OF ARGUMENT
Congress has effectively ratified the interpretation of
the Environmental Protection Agency (EPA) that section
109(b) of the Clean Air Act precludes the consideration of
1 No counsel for any party authored this brief in whole or
in part, and no person or entity other than the amici and their
counsel made any monetary contribution to the preparation or
submission of this brief. This brief is being filed with the written
consent of the parties, and the corresponding documentation is
simultaneously being filed with the Court.
2
costs in setting the National Ambient Air Quality Stan-
dards (NAAQS). Throughout the nearly 30 years in which
the agency has consistently applied this interpretation,
both supporters and opponents have brought it repeat-
edly to Congress’ attention. Congress considered and
rejected a number of bills that would have permitted or
required costs to be taken into account in setting the
NAAQS. It also reenacted the Clean Air Act on two
occasions in which it made sweeping changes to the
statute but left section 109(b) unchanged. The cross-peti-
tioners and their supporters are attempting to win before
the Court a battle that they have lost repeatedly before
Congress.?
Moreover, the cross-petitioners seek to have the
Court depart from the long-standing and consistent judi-
cial interpretation that section 109(b) bars the consider-
ation of costs in setting the NAAQS, which was first
adopted by the D.C. Circuit in Lead Industries Ass'n v.
EPA, 647 F.2d 1130, 1148-52 (D.C. Cir.), cert. denied, 449
U.S. 1042 (1980). The principle of stare decisis applies in
this case because the D.C. Circuit has exclusive venue
over challenges under section 109(b) and has consistently
followed Lead Industries, and because Lead Industries itself
followed the interpretive framework set forth by the
Court in Union Electric Co. v. EPA, 427 U.S. 246, 256-58
(1976). The failure to apply stare decisis would create
massive additional work for EPA and the states, and
would greatly affect the settled expectations of the regu-
lated community and the public.
The statutory arguments advanced by the cross-peti-
tioners are convoluted, implausible, and without merit.
Their supporters also urge the Court to adopt a cost-
2 This brief does not review the congressional intent
expressed in the 1970 Clean Air Act because it will be discussed
at length in the briefs of other supporters of EPA’s
interpretation.
3
benefit canon of interpretation, which, in Lochner-like
fashion, would attribute to all federal legislative activity
a uniform normative goal. The application of such a
canon to the Clean Air Act would upset the carefully
crafted congressional compromise in which costs are
irrelevant to the setting of the NAAQS but highly rele-
vant to when and how the NAAQS will be attained.
Finally, the cross-petitioners advance an interpretation of
the term “public health” that is inconsistent with the
congressional understanding of this concept.
ARGUMENT
I. CONGRESS HAS EFFECTIVELY RATIFIED EPA’S
INTERPRETATION THAT COSTS CANNOT BE
TAKEN INTO ACCOUNT IN SETTING THE
NAAQS
A. The Court’s Recent Decision in Brown & Wil-
liamson Compels Upholding EPA’s Interpreta-
tion
The Court should uphold EPA’s long-standing inter-
pretation that costs cannot be taken into account in set-
ting the NAAQS. See Part I.B, infra. Only last Term, in
FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291
(2000), the Court concluded that “Congress’ tobacco-spec-
ific statutes have effectively ratified the FDA’s long-held
position that it lacks jurisdiction . . . to regulate tobacco
products.” Id. at 1307. In reaching this conclusion, the
Court noted that Congress had adopted various statutes
regulating tobacco “against the backdrop of the FDA’s
consistent and repeated statements that it lacked author-
ity” to do so. Id. at 1306-07. It also noted that over the
years “Congress considered and rejected bills that would
have granted the FDA such jurisdiction.” Id. at 1307.
As discussed in Part I.C, infra, the parallels with this
case are striking. Here, too, Congress adopted important
4
statutory provisions “against the backdrop of” a substan-
tial and consistent agency interpretation. Indeed, the 1977
and 1990 amendments to the Clean Air Act modified the
programs governing the implementation of the NAAQS
rather than change the manner in which the NAAQS are
set. EPA’s interpretation was also “brought to Congress’
attention through legislation specifically designed to sup-
plant it,” United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 137 (1985), including the proposals by industry
groups in 1977 and 1981, the regulatory reform bills that
have been introduced since 1995, and the specific bills
seeking to amend the Clean Air Act introduced in 1996
and 2000.
B. EPA Has a Long-standing and Consistent Inter-
pretation of Section 109(b)
EPA first took the position that section 109(b) bars
the consideration of costs in 1971, when it adopted the
first six NAAQS. See 36 Fed. Reg. 8186 (1971) (“[T]he
Clean Air Act .. . does not permit any factors other than
health to be taken into account in setting the primary
standards.”). The agency repeatedly has reaffirmed this
interpretation:
Section 109(b) of the Act specifies that [NAAQS]
are to be based on scientific criteria relating to
the level that should be attained to adequately
protect public health and welfare. Consider-
ations of cost of achieving those stan-
dards . . . are not germane .. ., as the words of
the Act and its legislative history clearly indi-
cate.
45 Fed. Reg. 55,067 (1980); see also 43 Fed. Reg. 26,963
(1978); id. at 46,247; 44 Fed. Reg. 8203 (1979). In the
regulatory proceedings currently under review, EPA
stated: “For more than a quarter of a century, EPA has
5
interpreted section 109 of the Act as precluding consider-
ation of . . . economic costs... ” 62 Fed. Reg. 38,683
(1997); id. at 38,878.
C. Congress Has Legislated Against the Backdrop
of EPA’s Interpretation and Repeatedly Has
Rejected Overturning this Interpretation
1. The 1977 Amendments
Congress amended the Clean Air Act extensively in
1977 (the amendments take up 111 pages in the Statutes
at Large, see Pub. L. 95-95, 91 Stat. 685, 685-796 (1977))
but left section 109(b) unchanged even though the man-
ner in which EPA set the NAAQS received sustained
congressional attention.
Perhaps the most important decision before Congress
in 1977 was how to deal with the fact that large portions
of the country had failed to meet the NAAQS even
though the 1970 statute had contemplated that the pri-
mary NAAQS would be achieved throughout the country
by 1975. See 42 U.S.C. §§ 1857c-4, 1857c-5 (amended
1977). One approach could have been to weaken the
NAAQS in areas that had trouble meeting these stan-
dards — an approach that would have required an amend-
ment of section 109(b). See Lead Industries, 647 U.S. at
1150 (discussing efforts by industry representatives to
urge Congress to “[rjevise section 109 . . . to include
allowance for the consideration of social and economic
factors in the definition of ‘health’ and ‘welfare.’ ”). Con-
gress, however, left section 109(b) unchanged and instead
extended the deadlines for achieving the standards to
1982 and, in some instances, to 1987. 42 U.S.C.
§ 7502(a)(1)-(2) (amended 1990).
Congress also debated the merits of the NAAQS in
the crafting of a program for the Prevention of Significant
Deterioration (PSD) of air quality in areas meeting the
NAAQS. See 42 U.S.C. §§ 7470-7492. Congress faced the
6
question whether areas that had better air quality than
the NAAQS would be subject to standards more stringent
than the NAAQS. Despite extensive congressional discus-
sion concerning the NAAQS, the relevant committee
reports do not suggest that the NAAQS were too strin-
gent because they were set without taking costs into
account. Quite to the contrary, the Report of the House
Committee on Interstate and Foreign Commerce found
that the NAAQS were insufficiently protective, and that it
was therefore desirable to have more stringent standards
in areas that were already meeting the NAAQS. See H.R.
Rep. 95-294, at 103-28 (1977). In fact, the Report noted
that “all indicators point to the likely necessity for tight-
ening the ambient air quality standards to protect public
health.” Id. at 127. Thus, Congress retooled the air quality
management programs both for areas failing to meet the
NAAQS and for areas achieving the NAAQS, but did not
modify the provisions in section 109(b) governing how
EPA set the NAAQS.
2. Further Consideration in the 1980s
The 1977 amendments established the National Com-
mission on Air Quality, which included the leaders of the
congressional committees with oversight responsibilities
for the Clean Air Act (Sens. Hart and Stafford, and Reps.
Broyhill and Dingell). The Commission was asked to
“make an independent analysis of air pollution control
and alternative strategies for achieving the goals of the
Act.” See The National Commission on Air Quality, To
Breathe Clean Air vii (1981). In its final report, the Com-
mission made numerous recommendations for amend-
ments to Congress, but its first recommendation was to
retain the Act’s prohibition on the consideration of costs
in setting the NAAQS: “The current statutory criteria and
requirements for setting air quality standards at the levels
7
necessary to protect public health without consideration
of economic factors should remain unchanged.” Id. at 55.
The Commission’s recommendation was debated in
oversight hearings held in 1981. For example, the Busi-
ness Roundtable proposed that section 109(b) be
amended to require the Administrator “to consider the
nature and extent of the risk, attainability of the standard,
economic values, and other public interests.” Clean Air
Oversight: Hearings Before the Senate Comm. on Environment
and Public Works, 97th Cong., Part 3, at 505 (1981). George
Eads, one of the signatories of the amicus brief filed by a
group of economists in this case, harshly characterized
the setting of NAAQS without taking costs into account
as “an elaborate charade that does not serve the public
well.” Id. at 200. Senator Hart, the Commission’s Chair-
man, strongly objected to Eads’ characterization: “[W]hat
you describe as an elaborate charade was the product of
very extensive deliberation on the part of the Congress of
1970, received almost 3 years of deliberation on the part
of the Congress that acted in 1977, was reviewed for
almost 3 years by the National Commission on Air Qual-
ity and was sustained by that Commission.” Id. at 214.
Similarly, Senator Chafee expressed misgivings about
the “insertion of an added element, namely consideration
of the cost-benefit test.” Id. at 212. A number of other
Senators indicated that costs could not be taken into
account in setting the primary NAAOS. See, e.g., id. at 202
(Sen. Stafford); id. at 209 (Sen. Gorton).
Later in 1981, in connection with possible amend-
ments to the Clean Air Act, the Senate Committee on
Environment and Public Works unanimously agreed in a
straw vote not to change the manner in which the pri-
mary standards were set. See 12 Env’t Rep. (BNA) 835
(1981). An industry group supported this outcome, not-
ing that “primary standards should continue to be based
8
on health factors,” though it urged that “economic fac-
tors” should be made relevant to the secondary stan-
dards. See id. at 766. This group included representatives
of the U.S. Chamber of Commerce and the National Asso-
ciation of Manufacturers, which now urge the Court to
hold that costs must be taken into account in setting the
primary standards.
3. The 1990 Amendments
In 1990, as in 1977, Congress left section 109(b)
unchanged despite statutory amendments that take up
314 pages in the Statutes at Large. See Pub. L. 101-549,
104 Stat. 2399, 2399-2712 (1990). Both the floor debates
and the congressional reports, however, discussed the
prohibition on considering costs in setting the primary
NAAQS. See, e.g., 136 Cong. Rec. H12,885 (daily ed. Oct.
26, 1990) (Rep. Swift) (“They are not cost-benefit stan-
dards. They are absolute standards.”); 136 Cong. Rec.
$16,896 (daily ed. Oct. 27, 1990) (Sen. Moynihan) (“The
cost of meeting these standards was not to be consid-
ered.”); S. Rep. 101-228, at 5 (1989) (“ ‘{[P]rimary’ ambient
air quality standards limit the maximum allowable con-
centration of each criteria pollutant . . . without regard to
the economic or technical feasibility of attainment.”); see
also S. Rep. 100-231, at 251 (1987) (referring to disal-
lowance of cost considerations under section 109(b)). One
opponent of the proposed amendments, Representative
Dannemeyer, introduced into the Congressional Record a
study complaining that “benefits and costs” could not be
taken into account in setting the NAAQS. 136 Cong. Rec.
H12,916 (daily ed. Oct. 26, 1990); see id. at H12,912-15.
Moreover, in 1990, Congress again faced the problem
of how to deal with areas that had not met the NAAQS.
As in 1977, the 1990 Congress could have weakened the
NAAQS in order to make attainment easier but chose to
leave unchanged the method for setting the NAAQS and
9
instead to extend the attainment deadlines. See, e.g., 42
U.S.C. § 7511(a)(1).
4. Bills to Amend Section 109(b)
In hearings held in 1995, Mary Nichols, EPA’s Assis-
tant Administrator for Air and Radiation, testified that
“the Clean Air Act has always required the EPA not to
take costs into consideration when setting the national
ambient air quality standards.” Clean Air Act Amendments:
Joint Hearing Before the Subcomms. on Oversight and Investi-
gations, and on Health and Environment, House Comm. on
Commerce, 104th Cong., at 126 (1995). Representative Bar-
ton then introduced the Clean Air Act Amendments of
1996, which would have required that “the incremental
costs” of the NAAQS must not exceed their “incremental
benefits.” See H.R. 3519, 104th Cong., 2d Sess. § 13 (1996).
The Barton bill was never reported out of committee.
In the 106th Congress, Senator Voinovich introduced
the Air Quality Standard Improvement Act of 2000,
which would require EPA to consider cost-benefit anal-
ysis in setting the NAAQS. See S. 2362, 106th Cong., 2d
Sess. (2000). That bill has not been reported out of com-
mittee. Thus, the specific legislative initiatives to amend
the manner in which the NAAQS are established under
section 109(b) have been unsuccessful.
5. Regulatory Reform Efforts Beginning in the
104th Congress
Section 109(b)’s prohibition on the consideration of
costs was the subject of extensive congressional attention
in the debates over regulatory reform bills that would
have required cost-benefit analysis for many federal reg-
ulations. In the 104th Congress, there were two principal
vehicles for these efforts: H.R. 9, 104th Cong., 1st Sess.
(1995) and S. 343, 104th Cong., Ist Sess. (1995). See also S.
291, 104th Cong., Ist Sess. (1995).
10
During the House debates on an earlier version of
H.R. 9, for example, Representative Beilenson com-
plained:
Particularly troubling is the fact that the bill’s
decision criteria for issuing rules would super-
cede such requirements in existing health,
safety, and environmental laws. By applying
these new requirements to such laws as the
Clean Air... Act[ ], this legislation threatens to
overturn the important health protections citi-
zens have under those laws.
141 Cong. Rec. H2235 (daily ed. Feb. 27, 1995). Similarly,
Representative Brown noted that “the bill over-
rides . . . provisions of existing law,” including the Clean
Air Act. Id. at H2241.
Representative Boehlert offered an amendment, with
bipartisan support, to restrict the bill’s reach: “Nothing in
this Act shall be construed to modify any statutory stan-
dard or requirement .. . ” id. at H2357 (daily ed. Feb. 28,
1995), and members noted its impact on the Clean Air
Act, see id. at H2361 (Rep. Morella); id. at H2364 (Rep.
Waxman). The amendment was defeated and the bill
passed the House, id. at H2365-66, 2638-39, but was never
voted on by the Senate.
In the Senate, a number of Senators on the Commit-
tee on the Judiciary complained about the impact of S.
343 on statutes such as the Clean Air Act:
S. 343 contains what has been called a “super-
mandate.” It creates supplementary decisional
criteria for every agency action that permits the
cost factors to trump safety factors in statutes in
which Congress intended that safety should be
the primary consideration. Without acknowl-
edgment, the bill’s supplementary decisional
criteria effectively would amend the carefully
considered criteria now in place in such land-
mark laws as . . . the Clean Air Act...
11
S. Rep. 104-90, at 135 (1995) (additional views of Senators
Biden, Kennedy, Leahy, Simon, Kohl, and Feingold); see
also id. at 130, 136. Witnesses in committee hearings
raised similar complaints. See, e.g., Regulatory Reform:
Hearings Before the Senate Comm. on Governmental Affairs,
104th Cong., at 495 (1995).
In response to these concerns, the Senate amended
the bill with bipartisan support to eliminate the super-
mandate, by providing: “Nothing in this section shall be
construed to override any statutory requirement, includ-
ing health, safety, and environmental requirements.” 141
Cong. Rec. $9695 (daily ed. July 11, 1995). The bill as
amended failed to survive a cloture vote. See id. at
$10,399.3
6. Oversight Hearings in Connection with the
Proposal and Promulgation of the Chal-
lenged NAAQS for Ozone and Particulate
Matter
Following EPA’s proposal of the NAAQS for ozone
and particulate matter (PM) that are at issue in this case,
Congress held a number of oversight hearings on the
Clean Air Act in which EPA officials highlighted EPA’s
practice of not considering costs when setting the
NAAQS. For example, Carol Browner, the EPA Adminis-
trator, stated in both Senate and House hearings that
“[t]hroughout the 25-year history of the Clean Air
Act . . . [closts of meeting the standards and related
factors have never been considered in setting the national
3 A number of bills requiring cost-benefit analyses of
significant federal regulations were introduced in the 105th and
106th Congresses, but none reached either the House or Senate
floor for a vote. See, e.g., H.R. 1704, 105th Cong., 1st Sess. (1997);
H.R. 4085, 105th Cong., 2d Sess. (1998); H.R. 4162, 105th Cong.,
2d Sess. (1998); H.R. 4863, 105th Cong., 2d Sess. (1998); S. 981,
105th Cong., Ist Sess. (1997).
12
ambient air quality standards themselves.” Clean Air Act:
Ozone and Particulate Matter Standards: Hearings Before the
Senate Subcomm. on Clean Air, Wetlands, Private Property
and Nuclear Safety and the Senate Comm. on Environment
and Public Works, 105th Cong., Part 1, at 282 (1997) [1997
Senate Environment Hearings]; EPA’s Particulate Matter and
Ozone Rulemaking: Is EPA Above the Law?: Hearings Before
the Subcomm. on National Economic Growth, Natural
Resources, and Regulatory Affairs, House Comm. on Govern-
ment Reform and Oversight, 105th Cong., at 380 (1997)
{1997 House Government Reform Hearings]; see Implementa-
tion of the Clean Air Act National Ambient Air Quality
Standards (NAAQS) Revisions for Ozone and Particulate
Matter: Joint Hearing Before the Subcomm. on Health and
Environment and the Subcomm. on Oversight and Investiga-
tions, House Comm. on Commerce, 105th Cong., at 21 (1997).
EPA Deputy Administrator Fred Hansen testified
that “Congress directed EPA to set what are known as
‘primary standards’ to protect public health without con-
sideration of cost.” EPA’s Rulemakings on the National
Ambient Air Quality Standards for Particulate Matter and
Ozone: Hearing Before the Subcomm. on Commercial and
Administrative Law, House Comm. on the Judiciary, 105th
Cong., at 22 (1997) [1997 Senate Judiciary Hearings).
Similarly, Mary Nichols, EPA’s Assistant Administra-
tor for Air and Radiation, testified that EPA’s practice of
not taking costs into account in setting the NAAQS had
been followed “through six Presidential administrations
and 14 Congresses.” 1997 Senate Environment Hearings,
Part 2, at 203; Review of EPA’s Proposed Ozone and Particu-
late Matter NAAQS Revisions: Joint Hearings Before the Sub-
comm. on Health and the Environment and the Subcomm. on
Oversight and Investigations, House Comm. on Commerce,
105th Cong., Part 1, at 160 (1997) [1997 House Commerce
Hearings}.
Witnesses supporting and opposing the revised
ozone and PM standards testified that the Clean Air Act
13
required the NAAQS to be set without taking costs into
account. See, e.g., 1997 Senate Judiciary Hearings, at 68
(“These standards must be established by relying on
health based criteria only; that is very specific in the
Clean Air Act”); 1997 House Commerce Hearings, Part 1, at
53 (“[I]t is unfortunate that the Clean Air Act prohibits
the consideration of cost in setting the standard.”); 1997
Senate Environment Hearings, Part 2, at 162 (“EPA inter-
prets the Clean Air Act to prohibit the consideration of
costs in setting NAAQS.”); 1997 House Government Reform
Hearings at 284 (“As required by Congress, EPA is to
set . . . the ozone and PM standards at levels that are
protective of the public health without basing its decision
on the costs of complying with those standards.”).
Moreover, members of Congress acknowledged that
under the law costs could not be taken into account in
setting the NAAQS. See, e.g., 1997 House Commerce Hear-
ings, Part 2, at 260 (“The law says that EPA must set
standards based solely upon human health consider-
ations.”) (Rep. Pallone). In the end, a bill that would have
reinstated the previous ozone and PM standards did not
reach the Senate floor for a vote. S. 1084, 105th Cong., 1st
Sess. (1997).
D. The Court Should Not Be Used to End-Run the
Political Process
There currently is dissension in Congress on the role
that costs should play in setting the NAAQS. The variety
of views are illustrated by a recent subcommittee hearing
that marked the beginning of a new effort to reauthorize
the Clean Air Act. See Clean Air Act: Review and Oversight:
Hearing Before the Subcomm. on Clean Air, Wetlands, Private
Property, and Nuclear Safety, Senate Comm. on Environment
and Public Works, 106th Cong. (1999). Senator Inhofe com-
plained that the Clean Air Act “is chasing after pennies of
benefits for dollars in costs through its failure to identify
14
the most cost-effective risks.” Id. at 2. Senator Voinovich
announced that he would introduce a bill requiring the
use of cost-benefit analysis under section 109(b). Id. at 3.
In contrast, Senator Baucus stated: “[D]eveloping
clean air standards does not lend itself easily to cost-
benefit analysis . . . | challenge anyone to put a dollars
and cents value on a child’s reduced IQ due to exposure
to lead.” Id. at 6. Senator Lieberman expressed “words of
caution on the issue of applying cost-benefit analysis to
the Clean Air Act” and spoke critically of telling “the
public that we can’t let them know whether the air is
clean enough to breathe because the standard doesn’t
meet a cost-benefit test.” Id. at 8-9.
Perhaps the proponents of cost-benefit analysis even-
tually will prevail before Congress as they did in 1996
with respect to the amendments of the Safe Drinking
Water Act (SDWA). See 42 U.S.C. § 300g-1(b)(4)(C),
(6)(A). But if advocates of cost-benefit analysis do prevail
in Congress it is likely to be as part of a package in which
some of the competing concerns of other interests also are
addressed, as was the case under the SDWA. See id.
§ 300g-1(b)(1)(C) (requiring EPA to take account of the
interests of sensitive subgroups); id. § 300g-3(c)(4)
(requiring the provision of information to consumers).
The cross-petitioners and various amici are seeking to
win a victory from the Court that they have not been able
to achieve in Congress despite extensive efforts over two
decades. See Part I.C, supra. They are also trying to obtain
this victory in a manner that does not require any com-
peting compromises, as invariably would occur in the
give-and-take of the legislative process. So are some Sen-
ators who have so far been unsuccessful at obtaining the
passage of the legislation that they favor: two of the four
senators who co-sponsored the recent Senate bill that
would require cost-benefit analysis in the setting of the
NAAQS, see Part I.C.4, supra, and two of the leading
advocates of the failed regulatory reform bills in the
15
104th Congress, see Part I.C.5, supra. See Am. Br. of Sen.
Inhofe et al. 5-17; Am. Br. of Sen. Hatch and Rep. Bliley.
Were they to prevail here they would be denying the
public a full and fair consideration of the host of political,
technical and intellectual issues that must be aired and
resolved in this policy debate: an airing and resolution
that only Congress can provide. The Court should not
allow itself to be used for such an end-run around the
political process.
Il. THE PRINCIPLE OF STARE DECISIS CALLS FOR
FOLLOWING THE LONG-STANDING JUDICIAL
DETERMINATION THAT COSTS CANNOT BE
TAKEN INTO ACCOUNT IN SETTING THE
NAAQS
A. In a Body of Case Law Issued Over the Past
Twenty Years, the D.C. Circuit Has Consis-
tently Held that Costs Cannot Be Taken Into
Account in Setting the NAAQS
EPA’s interpretation that costs cannot be taken into
account in setting the NAAQS was first affirmed by the
D.C. Circuit in 1980. See Lead Industries, 647 F.2d at 1148
(“[T]he statute and its legislative history make clear that
economic considerations play no part in the promulga-
tion of ambient air quality standards under Section
109.”).
The D.C. Circuit, which has exclusive venue over the
review of NAAQS, see 42 U.S.C. § 7607(b)(1), reaffirmed
Lead Industries in cases reviewing various NAAQS. See
API v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert.
denied, 455 U.S. 1034 (1982) (“API’s argument that the
Administrator erred in not considering attainability and
cost justifications for the ozone standards was specifically
rejected in the Lead Industries case.”); NRDC v. EPA, 902
F.2d 962, 973 (D.C. Cir. 1990), cert. denied, 498 U.S. 1082
(1991) (“Under § 109 . . . the Administrator may not
16
consider cost and technological feasibility.”); see also
American Lung Assn v. EPA, 134 F.3d 388, 389 (D.C. Cir.
1998) (NAAOS must be set “without reference to cost or
technological feasibility”). The court below thus simply
followed a long line of consistent precedent in holding
that “in setting NAAQS under § 109(b) of the Clean Air
Act, the EPA is not permitted to consider the cost of
implementing those standards.” Pet. App. 19a.
B. The Principle of Stare Decisis Applies in this
Case
As Justice Stevens observed in a recent plurality
opinion joined by Justices Ginsburg and Breyer, the prin-
ciple of stare decisis comes into play when the Court
confronts a clear body of law fashioned by the courts of
appeals. See Hubbard v. United States, 514 U.S. 695, 712-13
(1995) (plurality opinion); see also United States v. Ryan,
284 U.S. 167, 174 (1931) (“[W]e should hesitate to set
aside, at this late date, the uniform construction giv-
en... by the lower federal courts... ”). Justice Stevens
noted that following precedents of the lower courts
“serves ... one of the central purposes of stare decisis:
promoting ‘stability and certainty in the law.’ ” Hubbard,
514 U.S. at 713 n.13.
This case presents an even more compelling claim for
stare decisis than Hubbard because here following the long-
standing and consistent lower court approach does not
require overruling a prior Supreme Court precedent.
Thus, the concerns about invoking stare decisis expressed
by the three dissenting Justices in Hubbard are not present
here. See id. at 721 (Rehnquist, C.J., joined by O’Connor
and Souter, JJ., dissenting).
Quite to the contrary, Lead Industries followed the
Court’s own approach to the interpretation of the Clean
Air Act. In Union Electric Co., 427 U.S. at 253-54, the
petitioners argued that EPA was required to consider
17
economic and technological feasibility in deciding
whether to approve State Implementation Plans (SIPs)
under section 110 of the Clean Air Act. The Court held
that EPA could not rely on factors other than those listed
in section 110(a)(2). Id. at 257. Similarly, the D.C. Circuit
in Lead Industries held that, in setting the NAAQS, EPA
could not rely on factors other than those set forth in
section 109(b). Moreover, the Court in Union Electric
stated that, under the Clean Air Act, “[w]here Congress
intended the Administrator to be concerned about eco-
nomic and technological infeasibility, it expressly so pro-
vided.” Id. at 257 n.5. Relying on Union Electric, the D.C.
Circuit used nearly identical language in Lead Industries.
See 647 F.2d at 1148-49 & n.37. Other opinions have
recognized the close links between the interpretive
approaches of the two cases. See, e.g., NRDC v. EPA, 824
F.2d 1146, 1158-59 (D.C. Cir. 1987) (en banc opinion by
Bork, J.) (“Vinyl Chloride”); Union of Concerned Scientists v.
NRC, 824 F.2d 108, 114-15 (D.C. Cir. 1987).
None of the special circumstances that might justify a
departure from a stare decisis approach are present here.
In particular, no “intervening development of the law”
has “removed or weakened the conceptual underpinnings
from the prior decision.” Patterson v. McLean Credit Union,
491 U.S. 164, 173 (1989). The continuing vitality of Lead
Industries is underscored by the D.C. Circuit’s reliance on
this case in interpreting other statutory provisions. See
Union of Concerned Scientists, 824 F.2d at 114 (relying on
Lead Industries and Union Electric to hold that “economic
costs” may not be considered under provision of the
Atomic Energy Act); Vinyl Chloride, 824 F.2d at 1158-59
(en banc opinion by Bork, J.) (analyzing implications of
Lead Industries and Union Electric for the interpretation of
section 112 of the Clean Air Act). There is no merit in the
cross-petitioners’ suggestion that subsequent decisions of
the Court “negate the premises on which Lead Industries is
predicated,” as none of the cases on which they rely deal
18
with the Clean Air Act, the consideration of costs under
environmental statutes, the use of cost-benefit analysis,
or are otherwise relevant. Cross-Pet. Br. 28, 31-32.
Moreover, this case does not raise the issue that led
the Court to reject stare decisis in Dickinson v. Zurko, 527
U.S. 150 (1999), over the dissent of three Justices, see id. at
171 (Rehnquist, C.J., joined by Kennedy and Ginsburg, JJ.,
dissenting). The Court’s concern in Zurko was that
because the Federal Circuit’s standard of review over
decisions of the Patent and Trademark Office was differ-
ent from the standard under the Administrative Pro-
cedure Act (APA), applying stare decisis would make it
too easy for other agencies to depart from the require-
ments of the APA. See id. at 162. In this case, following
the Lead Industries approach would not have a negative
impact on other statutes.
C. This Case Presents Particularly Compelling
Arguments in Favor of the Application of Stare
Decisis
In Patterson, 491 U.S. at 172, the Court emphasized
that “the burden borne by the party advocating the aban-
donment of an established precedent is greater where the
Court is asked to overrule a point of statutory construc-
tion,” as is the case here. Even in constitutional cases,
where the possibility of congressional correction is
absent, “the principles of stare decisis weigh heavily
against overruling” precedents. Dickerson v. United States,
120 S. Ct. 2326, 2336 (2000).
The principle of stare decisis has particular force
where abandoning precedent “would dislodge settled
rights and expectations.” Hilton v. South Carolina Pub. Rys.
Comm'n, 502 U.S. 197, 202 (1991). Departing from Lead
Industries would do far more than simply set aside the
revisions to the NAAQS for ozone and PM that were
challenged below. It could also mean that all the other
19
NAAQS would have to be revised at the time of their
five-year review, see 42 U.S.C. § 7409(d)(1), even if no
new information arose concerning the adverse health
effects of the respective contaminants.
In turn, such revisions of the NAAQS would give rise
to the need for states to submit new SIPs and, conse-
quently, to impose new limitations on their stationary
sources. See 42 U.S.C. § 7410(a)(1)-(2). Furthermore, thirty
years of settled air quality management policies in com-
munities across the country would be called into ques-
tion.
The result would be massive additional work for EPA
and the states. The change in interpretation also would
greatly affect the settled expectations of the regulated
community and the public. Investments in pollution con-
trol equipment could be rendered worthless by changes
in the standards. In sum, the factors that call for a height-
ened application of the principle of stare decisis are pre-
sent here.
D. A Policy Change of this Magnitude Cannot be
Made by the Judiciary Without Seriously Dis-
rupting the Nation’s Efforts to Control Air Pol-
lution
The dislocations that would come from failing to
follow stare decisis underscore why policy changes of the
magnitude proposed by the cross-petitioners ought to be
made, if at all, by Congress and not by the judiciary. If
Congress were to decide that costs should be taken into
account in setting the NAAQS, it could establish rules
ensuring an orderly transition to a new regime. For exam-
ple, Congress might decide, as it did in its 1996 amend-
ments to the SDWA, to require cost-benefit analysis only
if EPA seeks to strengthen standards. See 42 U.S.C.
§ 300g-1(b)(3)-(6), (9)). Thus, the transition to the use of
cost-benefit analysis did not affect the existing standards.
20
The judiciary, unlike Congress, does not have the
flexibility to fashion finely textured rules of this sort. Its
only available instrument - a judicial reinterpretation of
section 109(b) - is overly blunt, and would lead to consid-
erable disarray in the implementation of the Clean Air
Act.
Ill. THE CHALLENGES TO EPA’S INTERPRETATION
OF SECTION 109(b) ARE WHOLLY UNPERSUA-
SIVE
A. The Cross-Petitioners’ Arguments Concerning
Sections 108 and 109 Are Without Merit
First, the cross-petitioners note that the criteria pub-
lished pursuant to section 108(a)(2) must contain infor-
mation not only concerning public health, but also
concerning public welfare. See 42 U.S.C. § 7408(a)(2).
Then, they point out that public welfare is defined in the
statute to include effects “on economic values and on
personal comfort and well-being.” Id. § 7602(h). From
this, they conclude that economic values must be taken
into account in setting the primary NAAQS. See Cross-
Pet. Br. 37-39.
The flaw with this argument is that it is the second-
ary NAAQS - not the primary NAAQS - that are set to
protect against adverse effects on public welfare. The
definition of public welfare is irrelevant to the setting of
the primary standards, which must “protect the public
health.” 42 U.S.C. § 7409(b)(1).
Second, the cross-petitioners argue that just because
the primary NAAQS must be “based on” the air quality
criteria promulgated under section 108, see 42 U.S.C.
§ 7409(b)(1), does not mean that they must be based only
on the criteria. Cross-Pet. Br. 39. For the cross-petitioners
to prevail, however, the statute would have to say that
the NAAQS must be based on factors other than those
21
included in the criteria, and, more particularly, that they
must be based on the costs of compliance. Without that,
the cross-petitioners do not have an affirmative counter-
weight to the clear meaning of the 1970 legislation, the
congressional reaffirmation of EPA’s interpretation, the
doctrine of stare decisis, or the deference owed to the
long-standing administrative construction.
Third, the cross-petitioners take issue with EPA’s
view that the section 108 “criteria” are compilations of
scientific information about a pollutant’s adverse health
effects. Cross-Pet. Br. 39. The dictionary definition on
which cross-petitioners rely cannot override the statutory
command that “[aJir quality criteria for an air pollutant
shall accurately reflect the latest scientific knowledge
useful in indicating the kind and extent of all identifiable
effects on public health or welfare.” 42 U.S.C.
§ 7408(a)(2).
Fourth, the cross-petitioners argue that the NAAQS
cannot be set solely by reference to the criteria because
the agency is commanded to consider the comments sub-
mitted in the rulemaking. Cross-Pet. Br. 39-40. But there is
no plausible scenario under which the requirement that
the agency consider comments could modify the stan-
dards defined in the statute for the setting of the NAAQS.
Fifth, the cross-petitioners focus on section 108(b)(1),
which requires the Administrator to provide states with
information about air pollution control techniques,
including “data relating to the cost of installation and
operation, energy requirements, emission reduction bene-
fits, and environmental impact of the emission control
technology.” 42 U.S.C. § 7408(b)(1). The cross-petitioners
argue that the statute requires the Administrator to pro-
vide this information so that states can “criticize EPA’s
consideration of compliance costs in NAAQS standard
setting proceedings,” rather than so that they can begin
22
preparing their strategies for attaining the NAAQS.
Cross-Pet. Br. 40.
The only evidence that the cross-petitioners adduce
for this bizarre proposition is that the states receive this
information “at least three or four years” before “they
begin planning compliance with a revised NAAQS.” Id.
The statute, however, does not contemplate such an
extended time frame. Indeed, EPA must issue the infor-
mation “simultaneously” with the publication of pro-
posed NAAQS, and must promulgate final NAAQS no
later than 90 days after the proposal. See 42 U.S.C.
§ 7409(a)(1)(B), (a)(2). The states must submit SIPs for
EPA's approval within 3 years of the promulgation of the
NAAQS, and before this submission they must provide
“reasonable notice” and conduct “public hearings.” Id.
§ 7410(a)(1). So, under the statutory time frame, states
must “begin planning” for their SIPs soon after the
NAAQS are promulgated.
Sixth, the cross-petitioners find support for the view
that NAAQS must take into account economic consider-
ations in section 109(d), which sets forth the role of the
Clean Air Scientific Advisory Committee (CASAC).
Cross-Pet. Br. 41. CASAC’s principal function is to review
at five-year intervals the criteria and NAAQS for the
various pollutants. See 42 U.S.C. § 7409(d)(2)(B). But
CASAC also is required to advise the Administrator on a
number of other matters, including on “any adverse
public health, welfare, social, economic, or energy
effects which may result from various strategies for
attainment and maintenance of such [NAAQS].” Id.
§ 7409(d)(2)(C)(iv). The legislative history explains the
purpose of this provision: “[T]his advice may be of inter-
est and assistance to the States and to Congress in fash-
ioning future legislation.” H.R. No. 95-294, at 183 (1977).
The cross-petitioners insist, nonetheless, that this
cannot in fact be the purpose of section 109(d) because
the information on compliance costs is given to the
23
Administrator and not to the states. The cross-petitioners
overlook, however, that EPA has a statutory obligation
under section 108(b)(1) to provide such information to the
states. See 42 U.S.C. § 7408(b)(1).
The cross-petitioners attempt to bolster their argu-
ment by referring to section 307(d)(3), which requires
EPA, when it proposes a NAAQS, to “provide a reference
to any pertinent findings, recommendations, and com-
ments” by CASAC, and to explain the reasons for impor-
tant departures from these recommendations. Id.
§ 7607(d)(3). But the statute makes clear that this obliga-
tion attaches only to “pertinent” CASAC materials. The
advice under section 109(d)(2)(C)(iv) is simply not “perti-
nent” to the setting of the NAAQS.
B. The Court Should Decline the Invitation to
Adopt a Cost-Benefit Canon of Statutory Inter-
pretation
Amicus General Electric urges the Court to adopt an
interpretive canon that would attribute to all federal leg-
islative activity a uniform normative goal: cost-benefit
analysis. Cf. College Sav. Bank v. Florida Prepaid Postsecond-
ary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (“We had
always thought that the distinctive feature of Lochner,
nicely captured in Justice Holmes’ dissenting remark
about “Mr. Herbert Spencer’s Social Statics,’ was that it
sought to impose a particular economic philosophy upon
the Constitution.”). The Court is asked to take this course
of action despite the deep divisions that cost-benefit anal-
ysis engenders in the political process. See Parts I.C.5,
1.D, supra. Regardless of what the Court might think of
such a “Lochner for the administrative state,” this case
provides a poor vehicle for considering the question.
24
1. Such a Canon Could Not Override the Evi-
dence of Congressional Intent or the Defer-
ence Owed to EPA Under Chevron
The cost-benefit canon is irrelevant to the disposition
of this case. The canon cannot override the clear meaning
of the 1970 legislation, the congressional reaffirmation of
EPA’s interpretation, or the doctrine of stare decisis. More-
over, the Court’s endorsement of the cost-benefit canon
could have no impact on the disposition of this case
because “policy oriented canons of statutory construc-
tion” cannot trump the Chevron deference owed to EPA’s
interpretation. Ober United Travel Agency, Inc. v. Depart-
ment of Labor, 135 F.3d 822, 825 (D.C. Cir. 1998); see Amex
Land Co. v. Quarterman, 181 F.3d 1356, 1362 (D.C. Cir.
1999) (“canons that embody a policy choice and should
not be employed by a reviewing court at Chevron step I or
II”); Michigan Citizens for an Indep. Press v. Thornburgh, 868
F.2d 1285, 1292-93 (D.C. Cir.), aff'd by an equally divided
Court, 493 U.S. 38 (1989) (same).
2. The Court Must Respect the Manner in
Which Congress Has Taken Costs into
Account in the Clean Air Act
A cost-benefit canon has no role to play under the
Clean Air Act, where Congress paid close attention to
where and how costs should be considered and traded off
against health benefits. The NAAQS are aggregate mea-
sures of the permissible concentration of pollutants in the
ambient air, which do not directly constrain the activities
of any polluter. Costs are directly relevant, however, to
when and how the NAAQS will be met through the
regulation of individual polluters. For example, the fed-
eral emission limitations are highly sensitive to the costs
imposed on regulated firms. The New Source Perfor-
mance Standards (NSPS), which apply to new stationary
sources, must “tak[e] into account the costs of achieving
25
[the] reduction.” 42 U.S.C. § 7411(a)(1). The Best Avail-
able Control Technology (BACT) standards, which apply
to large new sources in areas meeting the NAAQS, must
“tak[e] into account energy, environmental, and economic
impacts and other costs.” Id. § 7479(3). Reasonably Avail-
able Control Technology (RACT) standards, which apply
to existing sources in areas out of compliance with the
NAAQS, must take into account “[t]he social, environ-
mental, and economic impact of such controls.” 40 C.F.R.
§ 51.100(0)(2). Similarly, in determining whether to pre-
scribe more stringent standards for mobile sources, the
Administrator must consider whether further emission
reductions would be “cost-effective.” 42 U.S.C.
§ 7521(i)(3)(A)(iii). In other parts of the statute, Congress
has deliberately employed cost-reducing strategies, such
as the emissions allowance and trading program to
address acid rain. 42 U.S.C. §§ 7651-7651o.
Furthermore, in its amendments to the Clean Air Act,
Congress has shown a keen interest in avoiding excessive
economic dislocations. Most importantly, while the 1970
Clean Air Act contemplated that the NAAQS for all pol-
lutants would be met, nationwide, by around 1975, Con-
gress extended the attainment deadlines in the 1977 and
1990 amendments. See Part I.C.1, I1.C.3. For ozone, for
example, the NAAQS do not need to be met in certain
parts of the country until 2010. See 42 U.S.C. § 7511(a)(1).
In addition, Congress has provided more targeted relief
in a variety of instances. See, e.g., Pub. L. 97-23, § 2, 95
Stat. 139, 139 (1981) (extending compliance deadlines for
iron and steel facilities); 42 U.S.C. § 7419 (providing
waiver for copper smelters in 1977).
The Clean Air Act accordingly consists of a carefully
crafted congressional compromise in which costs are
irrelevant to the setting of the NAAQS but highly rele-
vant to when and how the NAAQS will be attained. The
application of a cost-benefit canon would impermissibly
upset this compromise.
26
C. The Challengers Rely on a Number of Irrele-
vant Generalities and Inapposite Provisions of
the Clean Air Act
As indicated in the preceding section, costs do play
an important role in determining how the NAAQS will be
implimented. It is therefore not surprising that the chal-
lengers to EPA’s interpretation can find concern in the
Act’s preamble, 42 U.S.C. § 7401(b)(1), for “the produc-
tive capacity of the population.” See Appalachian Power
Br. 29, 33, 35, 37, 45; see also id. at 29 (citing legislative
history concerning the overall purpose of the 1977
amendments). But such generalities are irrelevant to the
analysis of section 109(b).
The cross-petitioners and their supporters also rely
on a number of cases that are inapposite to the interpreta-
tion of section 109(b). See Cross-Pet. Br. 45-47. For exam-
ple, Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), deals
with programs designed to implement the NAAQS, not
with the provisions governing the establishment of the
NAAQS. The question in Michigan v. EPA was whether
the emission reductions necessary to meet the NAAQS
had to be made by upwind or downwind sources. The
D.C. Circuit upheld EPA’s approach of allocating the
resulting pollution control burden in a manner that
reduced the aggregate costs of compliance. See id. at
674-78. Other cases involve the interpretation of statutory
provisions that require the consideration of costs. George
E. Warren Corp. v. EPA, 159 F.3d 616 (1998), amended on
other grounds, 164 F.3d 676 (D.C. Cir. 1999), involves the
regulation of certain gasoline under section 211 - a provi-
sion in which costs play an integral role. See 42 U.S.C.
§ 7545(c)(2)(A)-(B), (k)(1). NRDC v. EPA, 937 F.2d 641
(D.C. Cir. 1991), concerns the setting of standards for
major emitting facilities in areas that have attained com-
pliance with the NAAQS. These standards are set by
27
reference to BACT, 42 U.S.C. § 7475(a)(4), which must
take costs into account.*
D. The Challengers Fail in their Efforts to Intro-
duce Economic Considerations into the Term
“Public Health”
Having repeatedly failed in legislative attempts to
require that economic concerns be taken into account in
setting the NAAQS, see Part I.C, supra, the cross-peti-
tioners and their supporters now claim that the term
“public health” in section 109(b) always required the
consideration of costs. Cross-Pet. Br. 33-36; Am Br. of
General Electric 14-15; Am. Br. of Sen. Hatch et al. 6-7. In
making this implausible assertion, they rely principally
on a 1951 book, which they assert was the “authoritative
public health definition available to the 1970 Congress,”
Cross-Pet Br. 34, and on a presentation at a Harvard
faculty meeting. Am. Br. of Sen. Hatch et al. 7, n.8.
The meaning of “public health” must be determined
in light of the statutory context in which it is used.
Section 109(b) directs EPA to establish standards requisite
to protect public health on the basis of air quality “crite-
ria.” The exclusive subject of these criteria is scientific
information related to adverse health effects, not eco-
nomic considerations. 42 U.S.C. § 7408(a)(2); Part III.A,
supra. When Congress enacted the 1970 Clean Air Act, it
prescribed that the NAAQS for the five pollutants for
which criteria had already been prepared be proposed
within 30 days of the Act’s passage, id. § 7409(a)(1)(A),
leaving no time for revising the criteria. In doing so,
Congress was aware of the purely health-based content of
# Cross-petitioners’ reliance on Vinyl Chloride, 824 F.2d at
1146, is similarly misplaced, since that case did not cast any
doubt on Lead Industries’ interpretation of section 109(b). See id.
at 1157-59; Part II.B, supra.
28
these five criteria. See Am. Br. of Clean Air Trust and Sen.
Stafford 15-18.
Further, if the term “public health” encompassed eco-
nomics, Congress would not have deemed it necessary in
the Clean Air Act to repeatedly describe public health
and economic concerns as distinct concepts. For example,
the Clean Air Act authorizes EPA to issue regulations
establishing emission standards for heavy-duty vehicles
based on their pollution’s effects “on the public health
and welfare, and taking costs into account.” 42 U.S.C.
§ 7521(a)(3)(B)(i); see id. § 7521(a)(3)(D) (controlling emis-
sions resulting from rebuilding engines that may “endan-
ger public health or welfare taking costs into account”).
Likewise, the statutory provisions governing CASAC pro-
vide for advice regarding “adverse public health, welfare,
social, economic, or energy effects” of pollution control
strategies. Id. § 7409(d)(2)(C)(iv); see id. § 7412(f)(1)(B)
(report on the “public health significance” of certain risks
and the “costs of reducing such risks”); id. § 7612(b)
(report on “the economic, public health, and environmen-
tal benefits” of compliance efforts). These statutory dis-
tinctions between public health and economic
considerations would have been unnecessary had Con-
gress believed that economics was subsumed within the
meaning of “public health.” See Dunn v. CFTC, 519 U.S.
465, 472 (1997) (legislative enactments should not be con-
strued to render their provisions mere surplusage).
It appears that Congress employed the term “public
health” in the Clean Air Act for the purpose of distin-
guishing the health of populations, which is the concern
of “public health,” from the health of individuals, which
is the concern of clinical medicine. See Elizabeth Fee,
Disease and Discovery 2 (1987) (“Public health is oriented
toward the analysis of the determinants of health and
disease on a population basis, while medicine is oriented
29
toward individual patients.”). Indeed, the legislative his-
tory stresses that the purpose of the NAAQS is to protect
particularly sensitive populations, not particularly sensi-
tive individuals. S. Rep. No. 91-1196, at 10 (1970).
Even the 1951 book upon which the cross-petitioners
rely so heavily does not support their argument. Cross-
Pet. Br. 34-35. It states that “[p]ublic health is the science
and the art of preventing disease, prolonging life, and
promoting physical health and efficiency.” C.E.A. Wins-
low, The Cost of Sickness and the Price of Health 28 (1951).
By “efficiency,” Winslow means personal fulfillment, not
economic efficiency, as evidenced by his discussion of the
“aim of raising the general level of vigour, efficiency, and
satisfaction by a more positive physiological approach.”
Id. at 31.
Winslow distinguishes between the meaning of pub-
lic health and the means to achieve its ends: “The promo-
tion of the health of the peoples of the world is basically a
moral — not an economic — issue. The means of approach-
ing that objective are, however, practical ones, which
involve financial considerations.” Id. at 72. The Clean Air
Act employs a directly analogous approach: The setting
of the NAAQS does not permit economic tradeoffs but
the strategies for attaining the NAAQS require such
tradeoffs. See Part III.B.2, supra.
For more than two decades, there have been elabo-
rate congressional deliberations about whether to amend
the Clean Air Act and require economic factors to be
taken into account in setting the NAAQS. Part I.C, supra.
The cross-petitioners and their supporters implausibly
suggest that none of this discussion was really necessary
because tradeoffs between health and economic concerns
were required by the term “public health” in section
109(b). Their strained arguments lack merit.
30
CONCLUSION
For the foregoing reasons the judgment of the D.C.
Circuit with respect to the consideration of costs under
section 109(b) of the Clean Air Act should be affirmed.
Respectfully submitted,
RicHARD L. Revesz
Counsel of Record
Vickit PATTON
ANN BreEwSsTER WEEKS
Counsel for Amici Curiae
Environmental Defense,
American Public Health
Association, et al.
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.