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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1202

## Text

a

No. 99-1426 Supreme Court, U.S.

In The ‘SEP 1 1 2000

Supreme Court of the United States
; | CLERK”

dh,

rae —whe
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., -

Cc ross-Petitioners, =e

v. <—

CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Cross-Respondents.

+

On Writ Of Certiorari To The
United States Court Of Appeals
For The District Of Columbia Circuit

°

BRIEF OF AMICI CURIAE STATES OF CALIFORNIA,

CONNECTICUT, IOWA, MAINE, MARYLAND, NEW

MEXICO, NEW YORK, WASHINGTON, AND VERMONT
IN SUPPORT OF CROSS-RESPONDENTS

¢

Brit LockYeR
Attorney General of the

State of California
RicHarp M. FRANK
Chief Assistant Attorney General
THeopora P. BERGER
Senior Assistant Attorney General
Susan L. Dursin

(Counsel of Record)
Sean B. Hecut

uty Attorneys General

1300 I Street, Suite 125
Sacramento, CA 95814
(916) 324-5475

(Counsel Continued On Inside Cover)

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RICHARD BLUMENTHAL
Attorney General of the
State of Connecticut

55 Elm Street
Hartford, CT 06106

THomas J. MILLER
Attorney General of the
State of lowa

Hoover State Office Bldg.

Des Moines, IA 50319

ANDREW KETTERER

Attorney General of the
State of Maine

Six State House Station

Augusta, ME 04333-0006

J. JosepH CuRRAN, Jr.
Attorney General of the
State of Maryland
200 St. Paul Place
Baltimore, MD 21202

Patricia MApriD
Attorney General of the
State of New Mexico
Post Office Drawer 1508

Santa Fe, NM 87504

Euiot Sprrzer

Attorney General of the
State of New York

Preeta D. BANSAL

Solicitor General

Dante. X. SMIRLOCK

Deputy Solicitor General

The Capitol

Albany, NY 12224

WiLuiaM H. Sorreci

Attorney General of the
State of Vermont

109 State Street

Montpelier, VT 05609

CuristiINE O. GREGOIRE
Attorney General of the
State of Washington
1125 Washington

Olympia, WA 98504

Street, S.E.

TABLE OF CONTENTS

Page
INTEREST OF AMICI STATES .............05-0005. 1
SUMMARY OF ARGUMENT...............+0-00085 5
ARGUMENT .......ccccvscscccsccccscscccsescuneska 6

I.

Il.

COMPARISON OF SECTION 109(b) WITH
OTHER SECTIONS OF THE ACT SHOWS
THAT, WHERE CONGRESS INTENDED COSTS
OF COMPLIANCE TO BE TAKEN INTO
ACCOUNT, IT SAID SO AND PROVIDED
DIRECTIONS ON HOW TO DO SO. THE
ABSENCE OF SUCH DIRECTIONS IN SEC-
TION 109(b) MEANS THAT CONGRESS DID
NOT INTEND COSTS TO BE TAKEN INTO
ACCOUNT... ccccccscccscvccsccscceseuaseuns

THE TEXT, THE LEGISLATIVE HISTORY, AND
THE STRUCTURE OF THE CLEAN AIR ACT
ALL DEMONSTRATE CONCLUSIVELY THAT
CONGRESS DID NOT INTEND COSTS OF
COMPLIANCE TO BE TAKEN INTO
ACCOUNT IN SETTING THE NAAQS........

A. In Enacting the 1970 Clean Air Act, Con-
gress Understood Air Quality Standards
That Protect “Public Health” as Being Stan-
dards Set Below the Levels at Which Dem-
onstrated Health Effects Occur............

B. Requiring the Administrator to Provide
Nuts-and-Bolts Control Technology Infor-
mation to the States, and the Role of CASAC
in Evaluating the Relative Effects of Differ-
ent Control Strategies, in No Way Mandates
That the Administrator Consider Costs in
Setting the NAAQS. On the Contrary, They
Are Part of the Federal-State Partnership Set
Up by the Act.......ccccccecesceeeesecees

11

11

il

TABLE OF CONTENTS - Continued

Page

Ill. BASING THE NAAQS ON COST ESTIMATES
MADE AT THE TIME OF STANDARD SETTING
WOULD COMPROMISE THE HEALTH-PRO-
TECTIVE INTENT OF CONGRESS, SINCE
TECHNOLOGICAL AIND REGULATORY CLI-
MATE CHANGES P'ROIDUCE COST REDUC-
TIONS THAT ARE NOT FORESEEABLE WHEN
EAA AT GEE o ncevcccnrscccveccccccccccccess

CIR 6 6 cc vtietnricnsavacvcesescescccccecss

TABLE OF AUTHORITIES

Page
Cases
American Petroleum Institute v. Costle, 665 F.2d 1176
(D.C. Cir. 1981), cert. denied sub nom., American
Petroleum Institute v. Gorsuch, 455 U.S. 1034
etakancectsrcescedéeddvdnebadatshcdnatateees 12
American Textile Manufacturers Institute v. Donovan,
452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185
PO Cécubeeetonceuhgceneuncewancdnnndskbeceteees 9
Bob Jones University v. United States, 461 U.S. 574
ns onda eun casas ncceneseedeaseycauceens) ota 17
Central Bank of Denver v. First Interstate Bank of
Se SR ee 17
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ..... 6
Coalition Against Columbus Center v. City of New
York, 967 F.2d 764 (2d Cir. 1992)................... 2
Commodity Futures Trading Commission v. Schor, 478
TE «cub cndncnsenncansesodnannenase ects 17
FDA v. Brown & Williamson Tobacco Corp., ___ U.S.
eg TE aos s ccccetevesedcoensnre 11
FDIC ov. Philadelphia Gear Corp., 476 U.S. 426 (1985) .... 17
Keene Corp. v. United States, 508 U.S. 200 (1993) ..... 17

Lead Industries v. EPA, 647 F.2d 1130 (D.C. Cir.
1980), cert. denied sub nom., Lead Industries v.
ey Gm OID. BOGE CIDER. .n wc ccccccccccces: 5, 12,

Lindahl v. Office of Personnel Management, 470 U.S.
i ancnknnhs cectencesnssccoecnsconensenten

16

iv

TABLE OF AUTHORITIES - Continued

Page

Natural Resources Defense Council v. EPA, 92 F.2d

962 (D.C. Cir. 1990), cert. denied sub nom., Amert-

can Iron & Steel Institute v. EPA, 498 U.S. 1082

Ds checndcevccsevevesss nes neusnwemmiiommnned 12, 20
NRDC v. EPA, 894 F.2d 1146 (D.C. Cir. 1987) (em

TD sc ec wens 6666 a cneneee Nhe CONS 6 tkadeeneenEe 12
Pierce v. Underwood, 487 U.S. 552 (1988) ............. 17
St. Joe’s Minerals Corp. v. EPA, 449 U.S. 1042'(1980) .... 12
Staples v. United States, 511 U.S. 600 (1994).......... 17
Train v. Natural Resources Defemse Council, 421 U.S.

a's 5 ot pebennbasedhedueheveeese cosewd 21, 26
Linion Electric Co. v. Emvirommental Protection

Agency, et al., 427 U.S. 246 (1976)......... 6, 9, 15, 20
Union of Comcerned Scientists v. U.S. Nuclear Regula-

tory Commission, 824 F.2d 108 (D.C. Cir. 1987)...... 4
United States v. Riverside — Homes, Inc., 474

W:S. 121 (1985) ....... Lstinttiuaidtiedcnbenseedbe se 17
Western Oi! & Gas Ass'n v. Air Resources Board, 37

i sd ccd csdcdcgeosdedsncsowecceons 4
Feperai STATUTES
Cleam Air Act

§ 107(d)(5), 42 U.S.C. § 7407(d)(5)................. 16

§ 108, 42 U.S.C. § 7408.......... chan ddeeweael 13, 22

§ 106(a), 42 U.S.C. § 7408Ma)................--. 12, 20

§ 108(a}(2), 42 U.SiC. § 740B(a)(2).............. 10, 22

§ 108(6), 42 U.S.C. § 7408(b)............... 19, 21, 22

§ 108&(b)(1), 42 U.S.C. § 7408(b)(1)..............--.. 15

Vv

TABLE OF AUTHORITIES - Continued

Page
as Cs 1 Oe cevsecuerevcssesecsnsess 13, 15
Pier & USL. § FEGMa) ... nc cccccccccccsccess 20
§ 109(a)(1), 42 U.S.C. § 7409(a)(1)................. 20
§ 109(a)(1)(A), 42 U.S.C. § 7409(a)(1)(A)........... 20
§ 109(a)(2), 42 U.S.C. § 7409(a)(2)................. 20
5 MPD & UGC. © FERIR).....ccvccccccsccess 10, 16
§ 109(b)(1), 42 U.S.C. § 7409(b)(1)............. passim
Sp ey ee es © FP cc dcvcscvcccscscucsss 21
§ 109(d)(2), 42 U.S.C. § 7409(d)(2)..............60. 22
§ 109(d)(2)(A), 42 U.S.C. § 7409(d)(2)(A) .......... 23
§ 109(d)(2)(B), 42 WV S.C. § 7409(d)(2)(B) ........... 19
§ 109(d)(2)(C), 42 USC. § 7409(d)(2)(C)... 15, 21, 24, 26
§ 110(a)(1), 42 U.S.C. § 7400(aW) ............2.... 21
§ 111(a)(1), 42 U.S:C. § 7ODWeNS).................. 7
§ 112(d)(2), 42 U.S.C. § 7412(d)(2)...............4.. 8
§ 112(d)(3), 42 U.S.C. § 7412(d)(3).................. 8
5 EAD & USL. § FEIMIED.... oc cccccccccccces 8
py ee es SPU Scdncncsceovscccctecsdisess 21
Bee Se Gees OF PP ccc neddvadeccedviesovcesses 21
§§ 181, et seq., 42 U.S.C. §§ 7511, et seq............. 8
§ 182(a)(2)(A), § 751la(a)(2)(A).............. eee ee 21

vi

TABLE OF AUTHORITIES - Continued

Page
§ 182(a)(3)(B), 42 U.S.C. § 7511a(a)(3)(B)........... 21
§ 182(b)(2), 42 U.S.C. § 751la(b)(2).............4.. 21
§ 183(a), 42 U.S.C. § 7511b(a).........-- 6. ee ee eee 21
§ 183(b), (e), 42 U.S.C. §§ 7511b(b), (e)............ 29
OS BOB, GB GEG. Be ccs cciccvesssccccccesevns 21
SO SEE, GB Ge © cov cvarccnvesavoncesvescecs 28
State STATUTES
California (Cal. Health and Saf. Code § 39606)....... 2
Colorado (Colo. Rev. Stat. § 25-7-108)..... ee oe 2
See Gee I BO 0s o'diedoeeneseunsosccoscs 4
Massachusetts (Mass. Gen. Law. ch. 310, § 6.02(1))..... 2
North Carolina (N.C. Gen. Stat. § 143-215.107(b))..... 2
Pennsylvania (Pa. Stat. § 4044.2 (1999))............... 1
Wisconsin (Wis. Stat. § 285.01(9)) ..........-. 0c e eee 2
REGULATIONS
49 Fed. Reg. 6866, 6866-67 and passim (Feb. 23,
Dds ccbeedecesdedeves cach sdeces canntebibnceees 12

52 Fed. Reg. 24634, 24635 and passim (July 1, 1987) .... 12
53 Fed. Reg. 52698, 52701 and passim (Dec. 29,

Sncneramne ip nee ad enneescecedebe (hs siento cess 12
58 Fed. Reg. 13008, 13008 and passim (March 9,
SR ieeinnaninas stn inane cathe unedp ste ecceess 12

Vii

TABLE OF AUTHORITIES - Continued

Page
62 Fed. Reg. 38856, 38878 and passim (July 18,
DE ccdesbenetdesveeedsnbneeeueesebessesbedeessee3 12
New Hampshire (N.H. Code Admin. R. Env-A
TTT CPT TTT ere rrr TTT TTT TT Le 1
New Jersey (N.J. Admin. Code tit. 7, § 7:27-13.1)..... 2
Vermont (Reg. 5-301) ........cccccccccccccccscvcevess 1
Lecis-ative History
116 Conc. Rec. 32901-32902 (1970) .........0 cee eees 15
123 Conc. Rec. H8662, 95th Cong., Ist Sess.
reprinted in 1977 U.S.C.C.A.N. 1570 ...... 0.0 e eae. 27
136 Conc. Rec. $2826-01, $2835 (1990)............4.. 27
Conr. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970),
reprinted in 1970 U.S.C.C.A.N., 5374, 5381...... 26, 27
H.R. Rep. No. 294, 95th Cong., 1st Sess. 179-84
(1977), reprinted in 1977 U.S.C.C.A.N. 1258-62 ..... 22
S. Rep. No. 91-1196, 2-3 (1970) ..........ce cece eeeees 15
S. Rep. No. 101-228 (1990), reprinted in 1990
FF a oft TB Pre rT rer TT 18

OTHER AUTHORITIES

David Driesen, Should Congress Direct the EPA to
Allow Serious Harms to Public Health to Con-
tinue?: Cost-Benefit Tests and the Clean Air Act, 11
Tul. Envtl. L. J. 217, 227-231 (1998) ............5-. 25

Goodstein and Hodges, Polluted Data, The Ameri-
can Prospect, No. 35, 64, 65-66 (Nov.-Dec. 1997) .... 28

viii

TABLE OF AUTHORITIES - Continued

Page
Arnold Reitze, Mobile Source Air Pollution Control,
6 Envt’l Lawyer 309, 327 (2000)........-++-eeee0 28
Daniel Selmi, Impacts of Air Quality Regulation on
Economic Development, 13 Fall Nat. Resources &
Bowy’t S62 (1996)... cccccccccccccccvcccccccccrcccees 29
Porter and van der Linde, Toward a New Conception
of the Environment-Competitiveness Relationship, 9
Journal of Econ. Persp. 97, 101 (1995)..........+.-- 28
Michael Weisskopf, Auto-Pollution Debate Has Ring
of the Past; Despite Success, Detroit Resists, Wash- -

ington Post, March 26, 1990 .........00seeeeeeeees

1
INTEREST OF AMICI STATES

The interest of amici States in this case is real and
immediate, as real as the decision as to which industries
to control and how much in order to be able to meet a
federal standard, and as immediate as the asthma attack
that takes a child from the softball field to the hospital on
a hot summer day. As the “hands-on” partners in the
complex Federal-State partnership forged by the Clean
Air Act (“the Act” or “the CAA”), it is the States that
must devise the control strategies, develop and enforce
the permits, and pass the legislation necessary to meet
and maintain the National Ambient Air Quality Stan-
dards (“NAAQS”). It is also the States that must cope
with the health effects on their citizens that result from
air pollution, and that are most answerable to their citi-
zens for either the success or the failure of air pollution
control in this country.

Thirty years ago, the Act established the basic princi-
ple that there would be nationwide, health-based, feder-
ally-established air quality standards, and that States
would develop and enforce the plans to meet them. Since
that time, all fifty States have structured their air pollu-
tion control programs around those nationwide standards
and the plans by which States meet them. The regulatory
structures of every State are based, overall, on the Clean
Air Act’s requirement that States meet the health-based
NAAQS. Some States do not even have their own inde-
pendent air quality standards, but simply use the
NAAQS as their benchmarks.! Many States, like amicus

1 See, e.g., New Hampshire (N.H. Code Admin. R. Env-A
301.03(c) (defining ambient air quality standards as the level
“designated by the Administrator of the EPA which is judged as
necessary to protect the public health”); Vermont (Reg. 5-301
(stating that “(t]he ambient air quality standards contained in
this subchapter are based on national ambient air quality
standards, where such national standards exist”). See also
Pennsylvania (Pa. Stat. § 4044.2 (1999)) (requiring that State

2

California, set their own, more stringent, independent
standards.2 Many States set their standards, whether at
NAAQS leve! or more stringently, pursuant to State statu-
tory mandates to protect the “public health” such as the
one that the Court is asked here to interpret.> To decide at
this late date that the NAAQS have f.om the outset been
set by the wrong standard - the ineluctable result of
reversing the Court of Appeals’ decision here — would
throw into doubt and chaos the settled expectations and
the air pollution control apparatus of the entire nation.

A point that is often overlooked but that is critical for
understanding the Act is that no NAAQS is directly
enforceable. Coalition Against Columbus Center v. City of
New York, 967 F.2d 764, 769-71 (2d Cir. 1992). A NAAQS
becomes enforceable only when a State turns that
NAAQS into a control strategy, regulations, and actual,
enforceable permits and restrictions. It is virtually impos-
sible to overstate the detail and extent of the laws, regula-
tions, permits, and decisions that have been based upon
the NAAQS, and that are embodied in the State Imple-
mentation Plans (“SIPs”) to meet and maintain the
NAAQS that the States prepare and submit to the United
States Environmental Protection Agency (“EPA”).

standards be “no more stringent” than federal standards, with
the result that the State standards necessarily are identical to the
federal standards).

2 See, e.g., California (Cal. Health and Saf. Code § 39606);
Colorado (Colo. Rev. Stat. § 25-7-108) (setting non-federal
standard for visibility); North Carolina (N.C. Gen. Stat.
§ 143-215.107(b)).

3 See, e.g., Massachusetts (Mass. Gen. Law. ch. 310,
§ 6.02(1)); New Jersey (N.J. Admin. Code tit. 7, § 7:27-13.1);
Wisconsin (Wis. Stat. § 285.01(9)).

4 While California is not a typical State, in physical size, in
population, or in the tenacity of its air pollution problems, the
size of California’s SIP gives an idea of the magnitude of the
regulatory edifice that rests on the NAAQS. The last complete

3

A SIP begins with establishing the many separate air
quality control regions or planning areas with a State;
planning by separate areas is necessary because the mete-
orology, topography and type of pollutant sources vary
by region. Using California as an example of a large State,
it has fifteen different air quality planning areas and
thirty-five air districts for which air quality planning is
done. Colorado, as an example of a smaller State, has
thirteen air quality control regions, but does separate
planning for its five nonattainment areas for carbon
monoxide, seven nonattainment areas for particulate mat-
ter, and one nonattainment area for ozone. Each area has
a separate control strategy for each pollutant, since differ-
ent regions will have varying problems with, and goals
for, different pollutants (e.g., urban areas will probably
have to focus on ozone reduction or particulate emissions
from trucks and cars, while rural areas may be more
concerned with preserving visibility). Each control strat-
egy within each region must be embodied in rules and
regulations directed at each of the six pollutants covered
by a NAAQS, and some pollutants require statewide reg-
ulations as well (e.g., automotive emissions standards for
California and the Northwest States). Finally, permits
must be issued for individual sources that govern their
day-to-day operation. The NAAQS and the SIPs designed
to meet them, permeate every county, city, borough, and
town in every State, and have been forged only through
extensive and often painful technical and policy choices.

Should the Court reverse the decision below, every
SIP and all its component parts may be cast into doubt.
The SIPs are focused on attainment and maintenance of
the NAAQS; if the Court decides that EPA has always

SIP filed by California with EPA, not counting amendments that
are filed as needed, was filed in 1994; that SIP filled twenty-six
banker's boxes. Not included in those twenty-six boxes were
regulations aimed solely at enforcing those air quality standards ~
set by California that are more stringent than required to meet
the NAAQS. |

4

misunderstood how the NAAQS are to be set, every SIP
could be open to challenge. It is not fanciful to expect that
industry petitions will flood EPA, and thence the courts,
seeking to overturn each and every NAAQS, as well as
every regulation, rule, and permit based on those
NAAQS. What is now a solid and comprehensive regula-
tory structure could suddenly become a house of cards,
ready to topple, with every rule and every permit poten-
tially in doubt.

Further, State air quality standards might similarly be
cast into doubt. As set out, supra, many States rely princi-
pally on the NAAQS to define air quality and do not set
independent air quality standards, or rely on statutory
language identical to that found in the relevant section of
the Act to set their standards. Those States would sud-
denly find themselves without an authoritative basis for
their air pollution programs. Some States set their own
air quality standards, but base them on health protection,
following what has always been perceived as the model
of the Clean Air Act.5 These States can anticipate that
their independent state standards will be next in line for
an industry challenge, should the Court accept industry’s
invitation to establish a court-made rule that air quality
standards cannot rationally be set without consideration
of compliance costs. The States would face the front-line
problems of protecting the health of their citizens from
the very real dangers of air pollution while the Congress
and EPA scrambled to respond to such a rule, whether
with new legislation, new NAAQS, or both. The setting of
a NAAQS is a lengthy process now; it would be more so
if the basis for each of the NAAQS had to be reevaluated,
and that new basis inevitably litigated. Reevaluation of

5 See, e.g., Western Oil & Gas Ass’n v. Air Resources Board, 37
Cal.3d 502, 516-19 (1984) (holding that California’s Air
Resources Board is not to consider costs in setting ambient air
quality standards, and citing, inter alia, the federal Clean Air Act
and federal case law similarly construing the NAAQS, as
authority for its conclusion).

5

the basis for setting the NAAQS could cause this country
to drift for many years with literally no national plan for
ensuring air quality, before new NAAQS could be set,
new rules for meeting them developed, new SIPs drafted,
and permits crafted all over again.

Meanwhile, States would have the continuing
responsibility for ensuring that their residents breathe
healthy, safe air. The health of their residents and the
integrity of their air pollution regulatory schemes com-
prise the interest of amici States.

SUMMARY OF ARGUMENT

Industry Cross-Petitioners and their amici, partic-
ularly amicus General Electric, have issued to the Court a
stunningly frank and open invitation to legislate. They
plainly and forthrightly ask the Court to rewrite thirty
years of unanimous interpretation of the Clean Air Act by
courts, by the agency charged with administering it, and
—- most important - by Congress. Cross-Petitioners and
their amici seek to replace the health-protective philoso-
phy upon which the NAAQS have always been based, as
interpreted in Lead Industries v. EPA, 647 F.2d 1130 (D.C.
Cir. 1980), cert. denied sub nom., Lead Industries v. EPA, 449
U.S. 1042 (1980), with the current cost-based, monetized
philosophy they think Congress should have employed to
attack the problem of air pollution.

Petitioners’ argument rests solely on a tortured, out-
of-context reading of one or two phrases in the Act,
together with a plethora of articles and arguments by
certain contemporary economists and theoreticians who
seek to rewrite the Act to conform to their own cost-
benefit preferences for public policy. By contrast, the
relevant portion of the decision below rests on straight-
forward language in the Act, copious legislative history,
internal structural evidence in the Act, and decades of
consistent and unbroken interpretation by both the
agency responsible for administering the Act and the
courts charged with interpreting it. The text and structure

6

of the Clean Air Act demonstrate that, where Congress
intended costs to be taken into account, it said so explic-
itly, and gave precise and detailed instructions as to how
to do so. The total absence of any such provision or
directions demonstrates that Congress did not intend
costs to be considered in the setting of the national stan-
dards. Further, Congress intended the Act to force tech-
nology, making it difficult to rationally predict costs.

Amici States believe that this is an apt case for the
application of a Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837
(1984), step one, analysis: Congress has spoken to this
question directly, and where Congress has so spoken, the
courts are bound to carry out Congress’ expressed intent.
To hold for industry here would be to go back not just
thirty years to before Congress passed the Act, but to
return to pre-Chevron days; industry here asks the Court
to impose its own conception of public policy upon stat-
utes, regardless of the intent of the democratically elected
Congress.

ARGUMENT
I.

COMPARISON OF SECTION 109(b) WITH OTHER
SECTIONS OF THE ACT SHOWS THAT, WHERE
CONGRESS INTENDED COSTS OF COMPLIANCE TO
BE TAKEN INTO ACCOUNT, IT SAID SO AND PRO-
VIDED DIRECTIONS ON HOW TO DO SO. THE
ABSENCE OF SUCH DIRECTIONS IN SECTION 109(b)
MEANS THAT CONGRESS DID NOT INTEND COSTS
TO BE TAKEN INTO ACCOUNT

In Union Electric Co. v. Environmental Protection
Agency, et al., 427 U.S. 246, 256, n. 5 (1976), the Court held
that a comparison between different sections of the Act
could illuminate the intent of Congress as to consider-
ation of costs or feasibility. Such a comparison is very
enlightening here. Comparison between Section 109(b)(1)
and other sections of the Act shows that, where Congress

7

did intend costs to be taken into account, it not only said
so explicitly, but gave specific, fairly comprehensive
instructions to the Administrator as to how to do so. The
absence of any instructions, let alone any that resemble
the detailed ones found in other provisions of the Act,
shows convincingly that Congress did not intend compli-
ance costs to be among the factors the Administrator
considers when setting the NAAQS.

Two examples suffice. When it ordered EPA to set
standards of air pollution control performance for new
major stationary sources of emissions (the New Source
Performance Standards, or NSPS), Congress required EPA
to set standards:

“which reflect{ ] the degree of emission limita-

tion achievable through the application of the

best system of emission reduction which (taking

into account the cost of achieving such reduction and

any nonair quality health and environmental impact

and energy requirement) the Administrator deter-

mines has been adequately demonstrated.”

CAA Section 111(a)(1), 42 U.S.C. § 7411(a)(1) (emphasis
added). Thus, the Administrator must determine that a
technology has been demonstrated, and is not simply
theoretical, before requiring it, and must consider the
monetary costs of compliance, must consider collateral
health and environmental harms and benefits, and must
consider any effects on energy. Section 111 also contains
directions from Congress to the Administrator on how to
set priorities for establishing new NSPS standards, when
work rules could be used instead of a standard of emis-
sions control, and how and when to waive the NSPS in
order to allow new technology to be demonstrated. The
factors to be considered by the agency under Section 111,
and the instructions as to how that agency should con-
sider these factors when making rules, are comprehen-
sive, wide-ranging, and thorough.

Similarly, when Congress overhauled the Act in the
1990 Amendments, it set up a new approach to control of
hazardous air pollutants, and was extremely careful to

8

provide the Administrator with precise directions as to
when and how she should consider costs. Section
112(d)(2), for example, provides in pertinent part:

“Emissions standards promulgated under this

subsection and applicable to new or existing

sources of hazardous air pollutants shall require

the maximum degree of reduction in emissions

of the hazardous air pollutants subject to this

section (including a prohibition on emissions,

where achievable) that the Administrator, taking

into consideration the cost of achieving such

emission reduction, and any non-air quality

health and environmental impacts and energy

requirements, determines is achievable for new

or existing sources... . ”
CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2). Section 112(d)(3)
gives additional, extremely explicit directions as to what
reduction technology may be considered achievable,
including percentages of sources and timetables. Con-
gress specified that:

“The maximum degree of reduction in emissions

that is deemed achievable for new sources in a

category or subcategory shall not be less strin-

gent than the emission control that is achieved

in practice by the best controlled similar source,

as determined by the Administrator... . ”
CAA § 112(d)(3), 42 U.S.C. § 7412(d)(3). Section 112(d)(3)
goes on to provide in almost minute detail what stan-
dards the Administrator must set, what percentage of
sources must have achieved a given level of emissions
reduction by a given time before that degree of control
will be considered achievable, and how many sources
must have achieved a given level of emissions reduction
before the Administrator may set such level as a standard
under Section 112, all factors that clearly go to cost and
feasibility of compliance. See also Part D, Subpart 2, 42
U.S.C. §§ 7511, et seq., where Congress itself did the
balancing and comprehensively listed control measures
that States must adopt for nonattainment areas, according

9

to the degree of severity of the nonattainment problem in
each category of area.

Moreover, in Section 112(f)(2), Congress directly
spoke to the issue of balancing health risks from hazard-
ous air pollutants and costs of compliance, ordering the
Administrator to set further hazardous pollutant emis-
sions standards under specified circumstances. Section
112(f)(2) requires EPA to adopt these emissions stan-
dards:

“if promulgation of such standards is required
in order to provide an ample margin of safety to
protect public health and welfare in accordance
with this section (as in effect before November
15, 1990), or to prevent, taking into consideration
costs, energy, safety, and other relevant factors, an
adverse environmental effect. Emission stan-
dards promulgated under this subsection shall
provide an ample margin of safety to protect
public health in accordance with this section (as
in effect before November 15, 1990), unless the
Administrator determines that a more stringent
standard is necessary to prevent, taking into con-
sideration costs, energy, safety, and other relevant
factors, an adverse environmental effect... . ”

CAA § 112(f)(2), 42 U.S.C. § 7412(f)(2) (emphasis added).

These remarkably detailed Sections show that, where
Congress intended for costs to be considered, it expressed
that intent so as to leave no doubt.® This is not the case in
Section 109(b)(1). While Cross-Petitioners spin elaborate

© Cf. Union of Concerned Scientists v. U.S. Nuclear Regulatory
Commission, 824 F.2d 108, 114-115 (D.C. Cir. 1987) (“[W)hen
Congress desired agencies to consider economic costs, it knew
how to say so, see American Textile Manufacturers Institute v.
Donovan, 452 U.S. 490, 510, 101 S.Ct. 2478, 2491, 69 L.Ed.2d 185
(1980); presumably, when Congress desired to permit agencies
to consider economic costs, it knew how to say so as well, see
Union Electric, 427 U.S. at 257 n. 5, 96 S.Ct. at 2525 n. 5.”).

10

theories about how costs of compliance could be consid-
ered in setting the NAAQS, Brief of Cross-Petitioners
American Trucking Associations, et al. (“Cross-Pet. Brf.”)
at 32-33, examination of the statute shows that Congress
did not provide any such direction whatever. Given the
central position in the clean air scheme of the Act that the
NAAQS enjoy, affecting every place and every person in
the country, it makes no sense that Congress would have
so glaringly omitted directions on how to take costs into
account there, while simultaneously providing such
meticulous directions in far less central portions of the
Act that do not necessarily affect all places and all people.
The omission can mean only that Congress did not intend
for compliance costs to be taken into account when set-
ting the NAAQS.

A parsing of the text of Section 109 confirms this
reading. Section 109(b) provides for the issuance of pri-
mary NAAQS only for pollutants for which air quality
criteria have been issued. Section 108 provides that these
air quality criteria “shall accurately reflect the latest sci-
entific knowledge useful in indicating the kind and extent
of all identifiable effects on public health or welfare
which may be expected from the presence of such pollu-
tants in the ambient air, in varying quantities.” CAA
§ 108(a)(2), 42 U.S.C. § 7408(a)(2). Section 109(b) requires
that NAAQS must be “based on such criteria” together
with what the Administrator deems an “adequate margin
of safety . . . requisite to protect the public health.” CAA
§ 109(b), 42 U.S.C. § 7409(b). But while the criteria contain
detailed, carefully and comprehensively vetted and
reviewed scientific and health data and studies, Congress
did not order them to contain - and they do not contain -
any information about costs. No consideration of costs
could possibly be based on the criteria, since data on such
costs are simply not there. |

Congress was not chary with its instructions as to
taking costs into account when that was what Congress
intended. The utter lack of such guidance in Section 109(b)
shows that Congress did not intend it as to the setting of

11

the NAAQS. As the Court recently noted, “Congress
could not have intended to delegate a decision of such
economic and political significance . . . in so cryptic a
fashion.” FDA v. Brown & Williamson Tobacco Corp.,
U.S. __, 120 S.Ct. 1291, 1315 (2000).

THE TEXT, THE LEGISLATIVE HISTORY, AND THE
STRUCTURE OF THE CLEAN AIR ACT ALL DEMON-
STRATE CONCLUSIVELY THAT CONGRESS DID

NOT INTEND COSTS OF COMPLIANCE TO BE |

TAKEN INTO ACCOUNT IN SETTING THE NAAQS

Industry argues that the text, structure, and legisla-
tive history of the Act all support the view that costs of
compliance should be taken into account in setting the
NAAQS. On the contrary, each of these factors shows that
Congress understood and intended that the NAAQS
would be set solely on the basis of protection of health,
not costs of compliance.

A. In Enacting the 1970 Clean Air Act, Congress
Understood Air Quality Standards That Protect
“Public Health” as Being Standards Set Below
the Levels at Which Demonstrated Health
Effects Occur

Congress’ directions as to how the primary NAAQS
were to be set are short. Section 109(b)(1) provides:

“National primary ambient air quality stan-
dards, prescribed under subsection (a) of this
section shall be ambient air quality standards
the attainment and maintenance of which in the
judgment of the Administrator, based on such
criteria and aHowing an adequate margin of
safety, are requisite to protect the public health.
Such primary standards may be revised in the
same manner as promulgated.”

12

CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1). Since the Act was
passed, the EPA Administrator has interpreted this Sec-
tion to require that the primary NAAQS be set solely on
the basis of health effects information.” Courts have also
interpreted the Section in the same way.* Most impor-
tantly, Congress has explicitly and impliedly reaffirmed
that it intended the NAAQS to be set on the basis of
health.

Cross-Petitioners and their industry amici seek to
reverse this long-standing, consistent, virtually unani-
mous interpretation of Section 109. Instead, they attempt
to find evidence that has somehow eluded the courts and
the Administrator for thirty years that Congress intended
the primary NAAQS to be set taking cost of compliance,
and societal costs, into account. Cross-Petitioners first cite
the requirement in Section 109(b)(1) that the primary
NAAQS must be set based on the air quality criteria
documents prepared pursuant to Section 108(a), and
established at levels “allowing an adequate margin of
safety, [that] are requisite to protect the public health.”
CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1).

As Cross-Petitioners correctly point out, the Act itself
does not define the term “public health.” (Cross-Pet. Brf.
at 33-34.) Because there is no statutory definition of the

7 See, e.g., 49 Fed. Reg. 6866, 6866-67 and passim (Feb. 23,
1984); 52 Fed. Reg. 24634, 24635 and passim (July 1, 1987); 53 Fed.
Reg. 52698, 52701 and passim (Dec. 29, 1988); 58 Fed. Reg. 13008,
13008 and passim (March 9, 1993); 62 Fed. Reg. 38856, 38878 and
passim (July 18, 1997).

8 Natural Resources Defense Council v. EPA, 902 F.2d 962
(D.C. Cir. 1990), cert. denied sub nom., American Iron & Steel
Institute v. EPA, 498 U.S. 1082 (1991); American Petroleum
Institute v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), cert. denied sub
nom., American Petroleum Institute v. Gorsuch, 455 U.S. 1034
(1984); Lead Industries v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert.
denied sub nom., Lead Industries v. EPA, 449 U.S. 1042 (1980) and
St. Joe's Minerals Corp. v. EPA, 449 U.S. 1042 (1980); see also NRDC
v. EPA, 894 F.2d 1146 (D.C. Cir. 1987) (en banc).

13

term, Cross-Petitioners concoct one to suit their liking, a
definition that includes the overall effects of regulation
on the standard of living of the population in general.
They cite as support what they characterize as “[t}he
authoritative public health definition” in C.E.A. Wins-
low’s The Cost of Sickness and the Price of Health, which
they contend defines “public health” as including the
effect that regulatory controls may have on the popula-
tion’s “standards of living.” Id. Cross-Petitioners argue
that Winslow, as well as subsequent “scholarly literature”
articles, establish that “public health” was a term of art
encompassing economic factors at the time the 1970 Act
was enacted, and that Congress must have used it with
the Winslow definition in mind.

The premise of this argument is pure fiction: Wins-
low was writing primarily about the horrific effects of
communicable diseases such as tuberculosis on the “stan-
dards of living” of populations, and in that context, it is
clear that he championed health and welfare policies that
would improve standards of living by eradicating disease
and allowing people to remain healthy. Nothing in the
quotation provided by Cross-Petitioners supports their
implication that Winslow feared that promotion of health
and eradication of disease would lower standards of liv-
ing if left unchecked by consideration of the costs of such
efforts. Moreover, Cross-Petitioners do not even try to
show that anyone in the public health field interpreted
Winslow’s work in that way at any time in the two
decades that elapsed between its publication and the
adoption of the 1970 CAA by Congress, or indeed that
such an opinion was ever held or voiced by any public
health scholars or policymakers during that period.®

9 See also Brief of Amicus Curiae Environmental Defense and
American Public Health Association, on Behalf of Cross-
Respondents, at 27-29 (demonstrating that Cross-Petitioners’
definition has been taken out of context and that, taken in its
entirety, it does not support Cross-Petitioners’ argument).

14

More fundamentally, Cross-Petitioners’ argument,
even if it might be relevant to establishing what the
public health community meant by “public health” in
1970, would still prove nothing whatever about what
Congress meant by that term. Cross-Petitioners advance
not a single scrap, not a scintilla, of evidence that Con-
gress ever read the Winslow work, or that the committees
preparing the Clean Air Act in any way accepted any
definition of “public health” that contemplated consider-
ation of compliance costs, or even knew about such a
definition. Cross-Petitioners say nothing as to whether
Congress intended the term to have the meaning in the
Act that Cross-Petitioners argue it had in the public
health field. Indeed, the fact that Congress chose in 1968
to take the regulatory apparatus for controlling air pollu-
tion out of the Public Health Service, where it originally
had been, and move it to a new National Air Pollution
Control Administration (“NAPCA”) in the Consumer
Protection and Environmental Health Service of the
Department of Health, Education and Welfare’ is evi-
dence that, if anything, Congress thought that air pollu-
tion control should not be contained within the
traditional public health regulatory framework, but be
part of environmental protection. The eventual Congres-
sional ratification of President Nixon’s decision to fold
NAPCA into the new Environmental Protection Agency
lends weight to such a conclusion.

As to the literature to which Cross-Petitioners refer
the Court, the articles they cite at pages 35-36, partic-
ularly in the lengthy note 1, were written twenty to thirty
years after the 1970 Clean Air Act was enacted. Cross-Pet.
Brf at 35-36, n. 1, 36 in text. They do not constitute
evidence of what the 1970 Congress actually read, knew,
considered, or meant.

10 CHarces O. Jones, CLEAN Air: THE Pouicies AND Pourrics OF
PoLLuTION Controt 111 (1975).

15

On the other hand, there is considerable evidence as
to what that 1970 Congress actually did know and con-
sider. In Union Electric Co., 247 U.S. 246, at 258-259, the
Court determined the intent of Congress as to whether
the Administrator may consider the costs of the strategy
chosen by a State in its SIP, by quoting the manager of the
Senate bill, Senator Muskie, who explained the bill’s
intent as follows:

“**“The first responsibility of Congress is not
the making of technological or economic judg-
ments — or even to be limited by what is or
appears to be technologically or economically
feasible. Our responsibility is to establish what
the public interest requires to protect the health
of persons. This may mean that people and
industries will be asked to do what seems to be
impossible at the present time.” ’ 116 Cong. Rec.
32901-32902 (1970).” (Emphasis added.)

Id. Union Electric went on to quote the Senate Committee
Report:

“In the Committee discussions, considerable
concern was expressed regarding the use of the
concept of technical feasibility as the basis of
ambient air standards. The Committee deter-
mined that 1) the health of people is more impor-
tant than the question of whether the early
achievement of ambient air quality standards
protective of health is technically feasible; and
2) the growth of pollution load in many areas,
even with application of available technology,
would still be deleterious to public health.’ ”

S. Rep. No. 91-1196, 2-3 (1970) (emphasis added), quoted
at 247 U.S. 259. These quotes show not only that Congress
very explicitly intended for pretection of health to trump
technological feasibility and cost, they also show that
Congress, and the Senate manager of the bill, used the
terms “health of persons,” “health of people,” and “pub-
lic health” interchangeably, rather than using “public

16

health” as the narrow term of art for which Cross-Peti-
tioners and their amici argue.

In 1990, Congress enacted a change to the Act that
constitutes an implicit ratification of the Lead Industries
interpretation of Section 109(b). The 1990 Amendments
enacted Section 107(d)(5), which authorized the Adminis-
trator to order the States to designate air quality regions
as being in or out of attainment with “the national ambi-
ent air quality standard for lead in effect as of November

15, 1990....” That standard is, of course, the one upheld.

in Lead Industries. The designation process, when a region
is designated as nonattainment for a standard, begins the
entire SIP process as to that region and that pollutant.
Congress would hardly have authorized EPA to start this
process, which requires the development of control strat-
egies, regulations, and so forth, with regard to the lead
standard if it considered that the lead standard had been
wrongly set. Congress made very extensive revisions to
the Act in 1990, specifying in considerable detail what it
did and did not want SIPs to contain. It is inconceivable
that Congress enacted this provision, referring to a partic-
ular standard (“the national ambient air quality standard
for lead in effect as of November 15, 1990”), rather than a
more general reference to the NAAQS, without knowing
what that lead standard was, and without knowing the
D.C. Circuit decision that had affirmed that standard.
This is direct evidence that Congress spoke to the particu-
lar question at issue here, namely, the validity of the Lead
Industries decision and the standard it affirmed, and dem-
onstrated its approval.

Besides this statutory provision, the legislative his-
tory of the 1990 Amendments also endorses the view
embodied in Lead Industries. While it is the purview of the
courts, and not a later legislature, to interpret a statute,
the views of a later Congress as to the meaning of a
statutory provision can be considered at least as evidence

17

of what that later Congress intended.'! Here, the 101st
Congress, second session, in enacting the 1990 amend-
ments to the Act without changing Section 109(b)(1), did
not simply leave Section 109 in place and remain silent

11 See, e.g., Staples v. United States, 511 U.S. 600, 636 (1994)
(“[w]hen Congress reenacts statutory language that has been
given a consistent judicial construction, we often adhere to that
construction in interpreting the reenacted statutory language”
(citing Lorillard v. Pons, 434 U.S. 575, 580-81 (1978)); Central Bank
of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 185
(1994) (citing Lorillard); Keene Corp. v. United States, 508 U.S. 200,
212 (1993) (citing Lorillard); Pierce v. Underwood, 487 U.S. 552, 567
(1988) (citing Lorillard); United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 137 (1985) (“Although we are chary of
attributing significance to Congress’ failure to act, a refusal by
Congress to overrule an agency’s construction of legislation is at
least some evidence of the reasonableness of that
construction ...” (citing Bob Jones University v. United States, 461
U.S. 574, 601-602 (1983)); Lindahl v. Office of Personnel
Management, 470 U.S. 768, 782, n.15 (1984) (“Congress is
presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when
it reenacts a statute without change [citations omitted]. So too,
where, as here, Congress adopts a new law incorporating
sections of a prior law, Congress normally can be presumed to
have had knowledge of the interpretation given to the
incorporated law, at least insofar as it affects the new statute”);
Id., 470 U.S. 768 at 803 (White, dissenting) (“I do not suggest that
Congress’ inaction in the face of an authoritative statutory
interpretation brought to its attention is never probative of the
proper interpretation of the statute”); Commodity Futures Trading
Commission v. Schor, 478 U.S. 833, 846 (1985) (“It is well
established that when Congress revisits a statute giving rise to a
longstanding administrative interpretation without pertinent
change, the ‘congressional failure to revise or repeal the
agency’s interpretation is persuasive evidence that the
interpretation is the one intended by Congress.’” [Citations
omitted.]); FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 427
(1985) (same).

18

about it, Congress affirmatively expressed its interpreta-
tion of the correct basis for the primary NAAQS: |

“As defined in the Act, “primary” ambient air
quality standards limit the maximum allowable
concentration of each criteria pollutant to the
level that ‘protects the public health’ with an
‘adequate margin of safety’, without regard to the
economic or technical feasibility of attainment. This
means identifying through research the lowest
level at which health effects are observed and apply-
ing a margin of safety to arrive at the ambient
standard.”

S. Rep. No. 101-228, reprinted in 1990 U.S.C.C.A.N. 3385,
3391 (emphasis added). The 101st Congress stated that it
viewed a standard that protects public health, as the term
was used in the Act, as meaning a standard based on
health effects with an additional margin of safety to make
the standard even more protective. There is no hint of the
definition of “public health” as a term of art encompass-
ing overall economic welfare, and certainly no intent
expressed by the 101st Congress that costs of meeting a
primary standard were to be a part of the basis for setting
that standard; the legislative history is unequivocally to
the contrary.

Cross-Petitioners have advanced only speculation
and surmise as to the meaning of the phrase “public
health” as their textual support for their position. The
overwhelming weight of both text and legislative history
is to the contrary, and supports Cross-Respondent here.

19

B. Requiring the Administrator to Provide Nuts-
and-Bolts Control Technology Information to
the States, and the Role of CASAC in Evaluat-
ing the Relative Effects of Different Control
Strategies, In No Way Mandates That the
Administrator Consider Costs in Setting the
NAAQS. On the Contrary, They Are Part of the
Federal-State Partnership Set Up by the Act.

Industry makes two other purportedly “textual”
arguments, contending that two other provisions of the
Act require consideration of costs: First, that Section
108(b), which requires that the Administrator give control
technology information to the States; and second, that
Section 109(d)(2)(B), which requires that the Clean Air
Scientific Advisory Committee (“CASAC”) advise the
Administrator as to strategic considerations for achieving
the NAAQS, somehow also requires the Administrator to
consider costs in setting the NAAQS. Both arguments are
wrong.

Section 108(b) calls solely for the Administrator to
“issue to the States and appropriate air pollution control
agencies information on air pollution control techniques,”
including data on cost of installation and energy and
environmental effects of a proposed NAAQS at the same
tim: that the Administrator proposes it. CAA § 108(b), 42
U.S.C. § 7408(b) (emphasis added). Section 109(d)(2)(C)
requires that the Administrator appoint the CASAC to
advise her regarding new NAAQS, and especially about
the “adverse public health, welfare, social, economic or
energy effects which may result from various strategies
for attainment of such national ambient air quality stan-
dards.” CAA § 109(d)(2)(C), 42 U.S.C. § 7409(d)(2)(C).
Neither of these provisions mandates that the Adminis-
trator consider costs in setting the NAAQS; rather, both
should be read in the context of the federal-State partner-
ship created by the Act.

Each of these provisions lies outside of Section
109(b)(1), which is the only Section that explicitly sets

20

out the basis upon which the NAAQS are to be set. As the
Court held in Union Electric, 246 U.S. 246 at 257, where
Congress sets out a definitive list of factors upon which
the Administrator is to make a decision under the Act,
the Administrator is limited to that list. (“The mandatory
‘shall’ makes it quite clear that the Administrator is not
to be concerned with factors other than those speci-
fied. ...”) Id. Here, Congress did specify the factors the
Administrator is to consider, and the information
required under Sections 108(b) and 109(d)(2) is not
among them. Further, it is not reasonable to read “crite-
ria” as referring to anything other than the Section 108(a)
criteria documents. Subsection (a) speaks, in 109(a)(1)(A),
of national ambient air quality standards “for which air
quality criteria have been issued” before December 1,
1970, and 109(a)(2) refers to national standards being
adopted “with respect to any air pollutant tor which air
quality criteria are issued after December 31, 1970.” CAA
§ 109(a)(1)(A), 42 U.S.C. § 7409(a)(1)(A). Section 109(a)’s
references to ambient air quality standards for which air
quality criteria have been issued cannot be read as any-
thing other than a plain reference to the air quality crite-
ria documents that are issued under Section 108, without
doing violence to the meaning of both Sections. More-
over, Section 109(b)(1) directs the Administrator to base
the national primary and secondary air quality standards,
“prescribed under subsection (a) of this section,” on
“such criteria.” CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1).
This Section can be read only as referring to the Section
108(a) air quality criteria, the only “criteria” relevant to
section 109 and the only criteria that are “issued” under
the Act. “Criteria” in this context is a term of art under
the Act, and is used as such in Sections 109(a)(1) and
109(b). Natural Resources Defense Council v. EPA, 902 F.2d
962, 967, 973 (D.C. Cir. 1990), cert. denied sub nom., Ameri-
can Iron & Steel Institute v. EPA, 498 U.S. 1082 (1991).

Since Congress has itseif listed the factors upon
which the NAAQS are to be based, and these factors do

21

not include Sections 108(b) or 109(d), Congress did not
intend the Administrator to consider those factors.

Beyond these textual arguments, Section 108(b) and
Section 109(d) can only be correctly understood in the
context of the federal-State partnership that permeates
the Act. Having made the decision to assign to the States
the difficult decisions about what control strategies to
adopt, and how to carry them out, Congress concomi-
tantly decided to give the States all the help it could.
Congress authorized monetary grants to the States to
assist them, CAA § 175, 42 U.S.C. § 7505, and was
extremely liberal in mandating the supplying of informa-
tion and technical assistance to the States. The Act is
filled with requirements that EPA provide technical infor-
mation and assistance to the States in their formidable
task of actually crafting the plans that will clean the air.
See, e.g., CAA §§ 178, 182(a)(2)(A), 182(a)(3)(B), 182(b)(2),
183(a), 190, 42 U.S.C. §§ 7508, 7511a(a)(2)(A),
7511a(a)(3)(B), 7511a(b)(2), 7511b(a), 7513b.

Plainly, Congress perceived the enormity of the task
it was assigning to the States, and gave them every tool
and bit of information it could to assist them in that task.
The 1970 Act allowed only 30 to 90 days for the Adminis-
trator to adopt the first NAAQS, and gave the States only
three short years beyond that time (or a shorter period, at
the Administrator’s discretion), to develop, adopt, and
submit the first SIPs, an astonishingly short time for such
a massive undertaking. CAA § 110(a)(1), 42 U.S.C.
§ 7410(a)(1). The Court early on recognized that “Con-
gress imposed upon the States a comprehensive planning
task of the first magnitude which was to be accomplished
in a relatively short time” when it passed the 1970 Act.
Train v. Natural Resources Defense Council, 421 U.S. 60, 68
(1975). It is in this light that Sections 108(b) and
109(d)(2)(C) must be seen. Section 108(b) requires the
Administrator, when issuing the criteria documents upon
which NAAQS will be based, simultaneously to give to

22

the States information about air pollution control technol-
ogy, energy requirements, cost, and other technical infor-
mation. CAA § 108(b), 42 U.S.C. § 7408(b). The provision
of this nuts-and-bolts information was intended by Con-
gress to assist the States in starting to devise their control
strategies and their SIPs. Cross-Petitioners cavalierly
assert that reading Section 108(b) as mandating provision
of information to the States for any purpose other than
commenting on a proposed NAAQS (e.g., to provide it to
them to assist in SIP planning) would be “inexplicably
premature.” Cross-Pet. Brf. at 40. Amici States can only
observe that Cross-Petitioners have never tried to draft a
SIP if they think this is a short time. The Section 108(b)
advice is not premature: it now precedes the highly com-
plex SIP by four to five years, and it was absolutely
imperative in 1970 when the Section was enacted and
States had only three years.

Similarly, the advice that Section 109(d)(2)(C) man-
dates CASAC to give to the Administrator as to the
relative effects of “various strategies,” CAA § 109(d)(2)(C),
42 U.S.C. § 7409(d)(2)(C) (emphasis added), to attain a
specific NAAQS, can only be correctly understood as part
of this federal-State partnership. The information is given
to the Administrator so that she may serve as a central
clearinghouse, passing that information in turn to the
States, and to make the Administrator aware of what
additional technical guidance and assistance the States
might need as they chose the strategies that only they are
authorized to choose to meet the NAAQS.

Cross-Petitioners argue that because CASAC must
advise the Administrator about social and economic
effects of strategies to meet the NAAQS, the Administra-
tor must add such effects to the list of factors set out in
Section 109(b)(1) as the basis for the NAAQS. To accept
this argument, the Court must conclude that Congress
intended to add to the apparently exclusive list of factors

23

in Section 109(b)(1) without so stating, either in the text
or the legislative history.'?

The Court would also have to conclude that Congress
chose an extraordinarily inept method to obtain the
intended result. Section 109(d)(2)(A) specifies that
CASAC is a scientific review committee, not a cost-benefit
review committee or an economics review committee. The
legislative history supports that limitation, as the House
report states:

“Since the main function of the scientific review

committee is to assess the health and environmen-

tal effects of ambient air pollution, it is anticipated

that all seven members would be selected on the

basis of their special expertise in the fields of

environmental toxicology, epidemiology and/or
clinical medicine, or in the fields of environmen-

tal or ecological systems.”

H.R. Rep. No. 294, 95th Cong., Ist Sess. 179-84 (1977),
reprinted in 1977 U.S.C.C.A.N. 1258-62 (emphasis added).
Section 109(d)(2) particularly specifies that CASAC
should include at least one member of the National Acad-
emy of Sciences, one physician, and one person repre-
senting State air pollution control agencies. Had Congress
actually intended CASAC to provide information and
advice to the Administrator on the costs of removing air
pollution from the air, it would presumably have directed
that specialists in costs and economic effects at least be
represented on the committee. It did not. On the contrary,
as Congress “anticipated that all seven members would
be selected on the basis of their special expertise in the

12 Rather, the language quoted from the House Report
explicitly says that CASAC is to assess the health and
environmental effects of air pollution “in the ambient air.” This
echoes the language of Section 108(a)(2) requiring the criteria
documents to indicate the health or welfare effects that may be
expected “from the presence of such pollutants in the ambient
air.” It is the effects of pollution, not pollution control, that
CASAC is primarily to address.

24

fields of environmental toxicology, epidemiology and/or
clinical medicine, or in the fields of environmental or
ecological systems,” it can fairly be said that Congress
intended that none of the seven members be an economics
specialist. While one member of CASAC should be a State
air pollution control official, the mere presence on
CASAC of a State air pollution control official would be a
singularly obtuse method for Congress to express an
intent to require the Administrator to take costs into
account in setting the NAAQS.

Viewed within the federal-State partnership,
CASAC’s role in providing information and advice on
various strategies to meet the NAAQS becomes obvious:
it is to gather information on possible control strategies,
evaluate it, and pass it on to the States, via the Adminis-
trator (it would make little sense for CASAC to try to
furnish it directly to the fifty States severally, rather than
using EPA’s established lines of communication to the
States). The key is Section 109(d)(2)(C)’s emphasis on
strategies to meet proposed NAAQS. Within the split of
responsibilities set up by the Act, the Administrator can-
not, herself, choose those strategies. Information on the
comparative effects of different strategies could not guide
her in setting a NAAQS, since she could not know which
strategy any given State might actually choose among the
various strategies about which CASAC had given advice.
The entities to which such information is most useful are
the States themselves. Just as the Administrator is
required to give States a wide variety of information and
assistance under various parts of the Act. so in Section
109(d)(2)(C) Congress made one more provision for sup-
plying information that could assist the States in their
assigned role in the federal-State partnership. It in no
way indicates any intention by Congress that the NAAQS
themselves be based on costs.

25
Ill.

BASING THE NAAQS ON COST ESTIMATES MADE
AT THE TIME OF STANDARD SETTING WOULD
COMPROMISE THE HEALTH-PROTECTIVE INTENT
OF CONGRESS, SINCE TECHNOLOGICAL AND REG-
ULATORY CLIMATE CHANGES PRODUCE COST
REDUCTIONS THAT ARE NOT FORESEEABLE WHEN
NAAQS ARE SET

Besides the textual and legislative history consider-
ations set forth above, there is another, very practical,
reason why the NAAQS should not be set taking costs of
compliance into account: the Administrator cannot pre-
dict with any accuracy in advance what the costs of
compliance will be. Attempts to do so could well over-
state costs and tend to support standards that are not
stringent enough to accomplish Congress’ intent to pro-
tect the public health.

The first reason that the Administrator cannot predict
costs in advance is that, as stated supra, the NAAQS are
not self-executing. There is no plan to meet them, there
are no costs to compute, no one can know what technol-
ogy will really be required of what industries, until the
States devise and draft their SIPs and the SIPs go through
the Act’s approval process. At the time a NAAQS is set,
the Administrator could only guess at how fifty different
States would choose to meet that NAAQS, and then make
estimates based on guesses, projected into an uncertain
future, of what those inchoate and unpredictable SIPs
might cost to carry out.

The second reason is that, even where it initially
appears that the technology and its costs are known in
advance, they very often are not and cannot be gauged
with any reliability..5 The history of the Clean Air Act,

13 See David Driesen, Should Congress Direct the EPA to
Allow Serious Harms to Public Health to Continue?: Cost-Benefit
Tests and the Clean Air Act, 11 Tul. Envtl. L. J. 217, 227-231 (1998).

26

and other environmental statutes, has proven that costs
of compliance are inherently unknown and unknowable
in advance, because technology changes.

It is virtually certain that the adverse health effects of
air pollution will not change. The human lungs, heart,
and other organs will continue to react to air pollution as
they have done in the past, in the ways demonstrated in
the health studies that have made up the criteria docu-
ments. If anything, our advancing scientific understand-
ing of these health effects may show more effects, and
more subtle effects, from air pollution in the future than
those of which we now know. On the other hand, it is
virtually certain that the technology available to meet the
NAAQS will change, will become more effective and
cheaper over time. Such was the clear intent of Congress,
and such has been the history of the Clean Air Act over
thirty years.

The Court has recognized “the technology-forcing
character of the [1970] Amendments.” Train v. Natural
Resources Defense Council, 421 U.S. at 91. That Congress
intended the Act to force technology appears in the legis-
lative history. For example, the 1970 Conference Report
says of automotive emissions standards:

“The House bill did not amend the provisions of

existing law relating to the establishment of

standards for new motor vehicles. The Sena.
amendment deleted the requirements that such
standards be based on a test of technical and
economic feasibility, and provided statutory
standards for passenger cars and required that
such standards be achieved by a date cer-
tain. . . . The conference substitute follows sub-
stantially the Senate amendments. . . . The
effective date of the standards is to depend on

the period necessary to develop the requisite

technology giving appropriate consideration to

the cost of complying by that date.”

Conr. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970),
reprinted in 1970 U.S.C.C.A.N. 5374, 5381. The emissions

ae ee

27

standards themselves for passenger cars were to be set to
achieve a level of emissions reduction specified in the
statute itself, and need not be based on technical fea-
sibility or cost; cost was to be taken in account only in
determining the final deadline. Id. The statutory stan-
dards set by the 1970 Act were formidable: a 90% reduc-
tion in some pollutants from the 1970 emission levels by
1975.

However, the commitment of the Congress in the Act
to force technology went beyond the automotive industry.
As Senator Muskie stated in introducing the bill that
would become the 1970 Clean Air Act:

“The first responsibility of Congress is not the
making of technological or economic judgments
or even to be limited by what is or appears to be
technologically or economically feasible. Our
responsibility is to establish what the public
interest requires to protect the health of persons.
This may mean that people and industries will
be asked to do what seems to be impossible at
the present time. But if health is to be protected,
these challenges must be met. I am convinced
they can be met.”

Remarks of Senator Muskie, quoted by Senator Kerry in
136 Conc. Rec. $2826-01, $2835 (1990). The Conference
Report for the 1977 amendments reiterated the theme:

First, and foremost, protection of the public
health remains the paramount purpose and
value under the Act. Consideration of costs,
energy, and technology is expressly authorized
or required in many sections of the bill, but the
overriding commitment of the 1977 Act (just as
the 1970 legislation) is to the protection of pub-
lic health. Second, this year’s legislation retains
and even strengthens the technology forcing and
technology encouraging goals of the 1970 Act.

123 Conc. Rec. H8662, 95th Cong., 1st Sess., reprinted in
1977 U.S.C.C.A.N. 1570 (emphasis added).

28

The 1970 automobile emissions standards are per-
haps the most convincing example of the success of this
technology-forcing strategy. While auto manufacturers
denounced the 1970 Act’s requirement of a 90% reduction
in emissions by 1975,'* predicting compliance costs of a
magnitude that would “do irreparable damage to the U.S.
economy,” the emissions reduction mandate of the Act
forced the development of the catalytic converter, and
standards that had been considered impossible to meet
were met, if a little late,15 and without the economic harm
that industry had predicted. One noted authority on the
Clean Air Act has stated flatly that in the 1980s, “motor
vehicles were designed around the applicable emissions
limits.” 16

There are similar well known examples, such as the
cost of meeting regulations to reduce usage of ozone-
depleting chlorofluorocarbons. Raytheon originally
asserted that it simply could not find replacements for
these solvents in cleaning electronic circuit boards at any
cost; however, under the press of legal requirements,
Raytheon found a replacement that not only lowered pro-
duction costs, but increased consistency of product qual-
ity.!7 In the field of occupational health, such situations
have been common.!® Experience has shown that the
costs of compliance cannot be predicted in advance

14 Michael Weisskopf, Auto-Pollution Debate Has Ring of the
Past; Despite Success, Detroit Resists, Washington Post, March 26,
1990.

15 CAA § 211, 42 U.S.C. § 7545.

16 Arnold Reitze, Mobile Source Air Pollution Control, 6
Envt’l Lawyer 309, 327 (2000).

17 Porter and van der Linde, Toward a New Conception of the
Environment-Competitiveness Relationship, 9 Journal of Econ.
Persp. 97, 101 (1995).

18 See Goodstein and Hodges, Polluted Data, The American
Prospect, No. 35, 64-66 (Nov.-Dec. 1997).

29

because technology will change in response to the level of
stringency the standards impose.

Third, costs of meeting health-based NAAQS also
cannot be predicted because technology is not‘the only
thing that develops and evolves under the pressure of
legal mandates to meet health-based NAAQS. The regula-
tory climate itself changes, as regulators turn to control of
sources that have not traditionally been controlled, but
whose pollution contributions are significant percentage
amounts of the total pollutant load. The 1990 Clean Air
Act Amendments reflects such a change in the regulatory
climate: recognizing the need for additional pollution
reductions to meet the NAAOS in nonattainment areas,
Congress for the first time ordered the Administrator to
develop control technique guidance documents for
sources whose control was not anticipated when the first
NAAQS were adopted, including paints and coatings,
solvents, and consumer products. CAA §§ 183(b), (e), 42
U.S.C. §§ 7511b(b), (e).1? While States are not obliged to
use these control options, the mere fact that they are now
considered options opens the potential for reduction in
overall costs of meeting the NAAQS.

Control of additional source categories potentially
offers State regulators a way to reduce emissions without
requiring large, traditionally regulated industries to
develop yet more costly techniques to remove very small
increments of remaining pollution. Since it is usually the
first pollution controls applied that procure the largest
emissions reduction for the cheapest price, the discovery
of new source categories whose emissions could be cut
back can reduce the overall costs of attaining the NAAQS.

19 In the South Coast Air Quality Management District in
California, which includes the Los Angeles area, controls have
been enacted on pleasure boats, airport ground vehicles, and
bakeries, all sources whose control was not anticipated even a
few years before. Daniel Selmi, Impacts of Air Quality Regulation
on Economic Development, 13 Fall Nat. Resources & Env’t 382
(1998).

30

Such changes in the regulatory climate, in the perception
of whv and what can and should be regulated, cannot
always be foreseen when health-based standards are
adopted, but can reduce costs of compliance in ways not
expected or accounted for in cost estimates made before
the shift in the regulatory climate occurs.

CONCLUSION

Amici States respectfully ask the Court to affirm the
decision below in its holding that the Administrator may
not consider costs of compliance in setting NAAQS,
thereby also affirming the expressed intent of Congress to
make this nation’s air clean and safe to breathe.

Respectfully submitted,

Bit. Lockyer
Attorney General of the
State of California

RICHARD BLUMENTHAL
Attorney General of the
State of Connecticut

THomas J. MILLER
Attorney General of the
State of Iowa

ANDREW KETTERER
Attorney General of the
State of Maine

J]. Josep CurRRAN, Jr.
Attorney General of the
State of Maryland

Patricia MADRID
Attorney General of the
State of New Mexico

Euiot Sprrzer
Attorney General of the
State of New York

WILuiAM H. Sorreti
Attorney General of the
State of Vermont

CurIsTINE O. GREGOIRE
Attorney General of the
State of Washington

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0357%3A36. Public record. Not legal advice.