Amicus Curiae Brief — Massachusetts v. EPA

ouprenie Coun, Uo

2 h f “-” FILED

Ss. AUG 3 1 2095

No. 05-1120 Paes OF THE CLERK |

In The

Supreme Court of the Anited States

®

COMMONWEALTH OF MASSACHUSETTS, e¢ al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

e

BRIEF OF FORMER EPA ADMINISTRATORS

CAROL M. BROWNER, WILLIAM K. REILLY,

DOUGLAS M. COSTLE AND RUSSELL E. TRAIN AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

a

DEBORAH A. Srvas* MICHAEL C. Davis

STANFORD LAW SCHOOL BARRY S. NEUMAN

ENVIRONMENTAL LAW CARTER LEDYARD &

CLINIC MILBURN LLP

Crown Quadrangle 1401 Eye Street, N.W.,

559 Nathan Abbott Way Suite 300

Stanford, California Washington, D.C. 20005

94305-8610 Telephone: (202) 623-5710

Telephone: (650) 725-8571 Facsimile: (202) 898-1521

Facsimile: (650) 723-4426

*Counsel of Record

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................cccesesssesseeeeeeeeeeeees i

INTERESTS OF AMICI CURIAE .........:cccceseeeeeeeeeeeenes 1

SUMMARY OF THE ARGUMENT ............cccccceeeeeeeeeees 1

TTS ccrcecteiciesaninntnvevsssnssimacsenapimacnssetnannessnelinnsees 3

I. THE CLEAN AIR ACT REQUIRES TIMELY

REGULATION OF AIR POLLUTANTS NOT

SPECIFICALLY ENUMERATED IN THE

STATUTE BASED ON THE BEST AVAILABLE

II. AMICI HAVE EACH USED THEIR AUTHORITY

UNDER THE CLEAN AIR ACT TO PROTECT

THE PUBLIC FROM NEW POLLUTANTS AND

EMERGING HEALTH THREATS .............--.2000++ 7

A. The Regulatory Phase-Out Of Lead Addi-

ee 7

B.. The Listing Of Benzene As A Hazardous

DR a een 15

C. EPA’s Acceleration Of The Phase-Out Of

Certain Ozone-Depleting Substances......... 19

D. The Establishment Of New National Am-

bient Air Quality Standards For Particu-

EET TE OO SMTA LT OT en 23

III. THE AGENCY’ DECISION NOT TO REGU-

LATE VEHICLE EMISSIONS OF POLLUTANTS

ASSOCIATED WITH CLIMATE CHANGE MIS-

READS THE CLEAN AIR ACT AND DEVIATES

PRINS DOME WBF Be vcccccccreccecccecsnscescsooseoesece 27

II crsccennismrentennssttinsettemniveninmeisannmnenenesteein 30

TABLE OF AUTHORITIES

Page

CASES

American Lung Ass’n v. EPA, 134 F.3d 388 (D.C.

EEE TIT ctucecincibndihdchibierieipapsniiidibiigubaiisiipeitddancipebmnieaniansesniis 4

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

eet: CHINE TITEL ccbdshisiissindicshiclinihemnciiatenstinnineniciapennnanitepinnninaniies 4

American Trucking Ass’ns, Inc. v. EPA, 283 F.3d

BY HIE IT csessinicerdticticlerinerindintadebeietenedecdennins 29

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)......... passim

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

Petroleum Inst., 448 U.S. 607 (1980)...............cccceeeseeeees 17

Lead Industries Ass’n, Inc. v. EPA, 647 F.2d 1130

a Sy SEIT concencerntonaniipdidocuindantiibimebinniioniinnimimmtentibinentinntes 4

Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir.

IEEE sicessesouineseceteleeiipabdnditatioeaieeniinseinmianiniuadtainaisniaiiteiilntniiceiin 12

Small Refiner Lead Phase-Down Task Force v.

U.S.E.PA., 705 F.2d 506 (D.C. Cir. 1983) ...........00. 14, 15

Train v. Natural Resources Defense Council, 421

Be GE cictriecessvntcccicsantenignnenentes ‘ deciciniiidiaertaimmiaeeeitiiiida 3

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ............06000 3,4

Whitman v. American Trucking Ass’n, 531 U.S. 457

| sasensensanensensenensenee icihddintaiiiendianidaiiamnendia 26, 28

STATUTES

Clean Air Act, 42 U.S.C. § 740 1(D)(1)..0... cee cceceeeeeeeeeeeeeeeeees 4

CEG, © Fic teicicnsinicscctncictnitunineitniinsaninnicsanien 5

ls te Be eieitinisinciecaninitnineretiepsianininindaneniadinminaieinanaees 23

Ce Oo Pe cnicnicccsiceiiccncesinctnaiinitddintaiimniinsans —

iii

TABLE OF AUTHORITIES - Continued

Page

GERI, © PER rccscccssceceseccsvssnscccssvesesinctevstseseeiesn seo

42 U.S.C. § T521(a)(1)........ccceceeceeeeseeeeereeneees 5, 6, 7, 13, 28

GD TIBI. © Fi iccccccciccctecssnsossecsessescsnsnsvesansoseescssns 28

Cy © Fe icsteciindncecsccctsernincnectstnstinmnmeacmesensacnites 19

4B UDG. § TERRA DAD) .cccccccvecccccccescscsccvsccscccssssonsccscces 19

42 U.S.C. § 7545(c) .........0ce0ee idchanndedinteeiadlabnnislinsetindenindinetat 5

GE TIL. © TID ccsreccccctctccccsccnvessccdecnsescccsssovecsescsons 13

es 0 ects ectitteninstctciccasnconsncsseavmnmnnemnsnnsanss 15

ERIE, © Fe cettccnsccccecscestccctscnsnsacesivesnsinseieviniesinasins 5

GATE, © FI cccccstvcscensocepssccscsetrcessescnnscccsssiccctensoseste 5

GB UE IIS. © FET BI) nccccvsccccccccecccesvesessosesevsscsoscssecseses 22

Pub. L. No. 91-604, § 9(a), 84 Stat. 1676 (1970)............... 10

Pub. L. No. 91-604, § 4(a), 84 Stat. 1676 (1970)............... 17

Pub. L. No. 95-95 § 401, 91 Stat. 685 (1977) ..............000 13

RULES AND REGULATIONS

36 Fed. Reg. 1486 (Jan. 30, 1971) ........:ccccccsscessrsreeeeeereeees 10

36 Fed. Reg. 8186 (April 30, 1971)..........cccccceseceeeeeeees 23, 26

37 Fed. Reg. 3882 (Feb. 7, 1972)................sssssccccssssssesees 10

38 Fed. Reg. 1254 (Jan. 10, 1973) .........ccccsecccesseseeeeseeeees 10

38 Fed. Reg. 1258 (Jan. 10, 1973)..............:ccsercsssssessseees 10

38 Fed. Reg. 33,734 (Dec. 6, 1973) ...........ccceeecceeeees 10, 11, 12

42 Fed. Reg. 22,516 (May 3, 1977)...........ccsssssssesseeereeesseees 17

42 Fed. Reg. 29,332 (June 8, 1977) .............cccceceeseeeeees 17, 18

lv

TABLE OF AUTHORITIES ~ Continued

Page

43 Fed. Reg. 5918 (Feb. 10, 1978)............. nosentsiendioelade 16, 17

46 Fed. Reg. 1165 (Jan. 5, 1981) ...............cssssrecesseceeeseeees 18

50 Fed. Reg. 9386 (Mar. 7, 1985) .............ccccssesssssesesseveee 15

52 Fed. Reg. 24,634 (July 1, 1987) ...........ccceccceeseeeeeeeseeeees 24

54 Fed. Reg. 38,044 (Sept. 14, 1989) ...........ceeecceesceeeeteeeee 18

55 Fed. Reg. 8292 (Mar. 7, 1990) ..........csscsesssesesreresesneneens 18

58 Fed. Reg. 15,014 (Mar. 18, 1993)...........cecceeseeeeeee 21, 22

58 Fed. Reg. 65,018 (Dec. 10, 1993) .........cceeeeeeteeeeeeeeeenee 22

61 Fed. Reg. 65,638 (Dec. 13, 1996) ..............c:cceeeeseeees 24, 25

62 Fed. Reg. 38,652 (July 18, 1997)..............0..00. 23, 25, 26

65 Fed. Reg. 48,058 (Aug. 4, 2000)...........cccceeeesseceeseeeeeeee 19

68 Fed. Reg. 52,922 (Sept. 8, 2003)............ccecceeeeeeeeeeeeees 29

LEGISLATIVE HISTORY

. Bia, Bees GRRE CIID nnccccsccnsscecnscsncncssssitieniaatammdas 4

H.R. Rep. No. 95-294 (1977)........:scccssscssseceessreeeeseee 4, 14, 28

Air Pollution — 1966, Hearings on 8.3112 and

S.3400 Before a Subcomm. on Air and Water

Pollution of the Comm. on Public Works, 89th

Chatass., Te GRR. CHRD ccacccccssccescssinchincictensiesstabnmmmiaadiin 9

OTHER AUTHORITIES

Agency for Toxic Substances and Disease Registry,

Toxicological Profile for Lead, Draft for Public

Comment (Sept. 2005), available at http://www.

atsdr.cdc.gov/toxprofiles/tp13.html ............0cccee0e 8, 9, 15

TABLE OF AUTHORITIES — Continued

David Rosner & Gerald Markowitz, A ‘Gift of God’?:

The Public Health Controversy over Leaded Gaso-

line during the 1920s, 75 Am. J. Pub. Health 344

SI cenactensnanadecsnecteneseneqvenssensseqsnenseeenceevenceanneeseeascoeee

EPA, Air Quality Criteria for Particulate Matter,

Vol. II, Ch. 8, p. 88 (March 2001) ...........:cccccccceeeeeees

EPA, The Benefits and Costs of the Clean Air Act:

1970 to 1990 (Oct. 15, 1997), available at http://

Www.epa.gov/oar/SectB12............ccccscceeesseeerreeceeeeeees

EPA, Health and Environmental Effects of Particu-

late Matter (July 17, 1997), available at http://

www.epa.gov/ttn/oarpg/naaqsfin/pmhealth.html.....

EPA, Human Health Benefits of Stratospheric

Ozone Protection (April 2006), available at http://

WWW.epa.ZOv/OZOME/SCIENCE .............ceeeeceeesenereeeeeeeees

EPA, The Particulate Pollution Report: Current

Understanding of Air Quality and Emissions

Through 2003 (Dec. 2004), available at http://

www.epa.gov/airtrends/aqtrnd04/pm. htm ..............

EPA, Technology Transfer Network Air Toxics~™

Website, Lead Compounds, available at http://www.

epa.gov/ttn/ atw/hithef/lead html...

Frank Ackerman and Lisa Heinzerling, Priceless:

On Knowing the Price of Everything and the

a

Gerald Markowitz & David Rosner, “Cater to the

Children”: The Role of the Lead Industry in a

Public Health Tragedy, 1900-1955, 90 Am. J.

EEE usconsenttancsecbenesteesenscnvetaececeueovent

Page

TABLE OF AUTHORITIES — Continued

Page

Library of Congress, Congressional Research

Service, Stratospheric Ozone Depletion: Regula-

tory Issues (Nov. 1996), available at http://www.

ncseonline.org/nle/crsreports/stratospheri¢strat-1.

Ozone Layer Healing, But More Slowly Than

Hoped, Wash. Post, Aug. 19, 2006................cccccccceeeeeeeees 23

Richard Elliot Benedick, Ozone Diplomacy: New

Directions in Safeguarding the Planet (1998 ed.)......... 21

Robert V. Percival, Who’s Afraid of the Precaution-

ary Principle?, 23 Pace Envtl. L. Rev. 21 (Winter

een iieaitarietiniieetinailnnbeaiatieataactnataaltacbintasiitaininadid sdlattiacede deals 9

INTERESTS OF AMICI CURIAE

Amici’ are four former Administrators of the United

States Environmental Protection Agency (“Agency” or

“EPA”) whose service collectively spanned roughly 20 years

of the Agency’ 36-year history. Each Amici has faced

decisions whether to regulate particular air pollutants and

pollution sources under the Clean Air Act and each has an

interest in ensuring that such decisions are based on

careful consideration of the best available scientific evi-

dence, do not stray from the statutorily required factors,

and are protective of the public health and-welfare. Amici

also have an interest in ensuring that EPA continues to use

its broad authority under the Clean Air Act to address new

pollution problems as they emerge, even if some scientific

uncertainties remain. Most immediately, Amici have grave

concerns about the consequences of global climate change —

the most significant public health and environmental threat

facing EPA, the nation, and the world.

SUMMARY OF THE ARGUMENT

The Clean Air Act, like many other environmental

statutes, requires EPA to regulate certain pollutants and

pollution sources identified by Congress, as well as addi-

tional pollutants and sources not specified in the statute.

* Amici are former EPA Administrators Carol M. Browner (January

1993 to January 2001), William K. Reilly (February 1989 to January

1993), Douglas M. Costle (March 1977 to January 1981), and Russell E.

Train (September 1973 to January 1977). All parties have consented to

the filing of this brief in letters that are on file with the Clerk. Pursuant

to S. Ct. R. 37.6, counsel for Amici state that no counsel for a party

authored this brief in whole or in part and no person or entity, other

than Amici or their counsel, made a monetary contribution to the

preparation or submission of this brief.

2

Recognizing the need for an expert agency to identify, inves-

tigate and, where appropriate, regulate air pollution based

on new and changing scientific information, Congress

directed EPA to assess (and reassess when necossary) the

evolving state of such information. Based on the best avail-

able science, the Clean Air Act requires EPA to identify, and

thereafter regulate, those substances that it determines are

reasonably anticipated to endanger public health or welfare.

Scientific knowledge is not static; it changes over time

in response to new data and analysis. In order to fulfill its

statutory obligations under the Clean Air Act, EPA histori-

cally has found it necessary and appropriate to utilize new

or emerging scientific information in its decisionmaking

process, even in the face of some continued scientific

debate and uncertainty. Indeed, postponing action until

there is unanimous scientific consensus effectively would

preclude EPA from ever acting to protect the public health

because there can never be absolute scientific certainty.

Each of Amici has observed first-hand rapid changes

in scientific knowledge concerning the dangers posed by

particular pollutants. For instance, emerging scientific

data warranted immediate regulation of neurotoxic lead

additives in gasoline, carcinogenic emissions of airborne

benzene, ozone-depleting chlorofluorocarbons, and lung

function-altering fine particulate matter. In discharging

their obligation to protect the public health and welfare in

the face of these threats, Amici found essential their Clean

Air Act authority to take regulatory actions not specifically

mandated or contemplated by Congress based on develop-

ing scientific information, even in the face of some remain-

ing scientific debate.

EPA's decision not to regulate greenhouse gases based

on non-science related policy considerations and residual

scientific uncertainty undermines the bedrock principles

that have guided the Agency's implementation of the

Clean Air Act for more than three decades. Congress has

already made the policy decision to regulate dangerous

pollutants and has charged EPA with the role of applying

its considerable technical expertise to the scientific ques-

tion of whether a particular pollutant may endanger

public health or welfare. The Agency is not empowered to

subordinate science-based regulatory decisionmaking to

non-statutory policy considerations and thereby avoid

entirely the necessary regulatory decision. Such considera-

tions come into play, when authorized by the law, only in

the Agency’s choice of implementation tools to address the

underlying environmental! threat.

ARGUMENT

I. THE CLEAN AIR ACT REQUIRES TIMELY

REGULATION OF AIR POLLUTANTS NOT

SPECIFICALLY ENUMERATED IN THE STAT-

UTE BASED ON THE BEST AVAILABLE SCI-

ENCE.

The Clean Air Act Amendments of 1970 addressed the

serious, growing, and then-unchecked problem of air

pollution.* The primary purpose of the Act is prophylactic:

“to protect and enhance the quality of the Nation’s air

resources so as to promote the public health and welfare

* See Union Elec. Co. v. EPA, 427 U.S. 246, 256 (1976) (“[T}he 1970

Amendments to the Clean Air Act were a drastic remedy to what was

perceived as a serious and otherwise uncheckable problem of air

pollution.”); Train v. Natural Resources Defense Council, 421 U.S. 60, 64

’ (1975) (disappointed with the failure of states to control air pollution

and improve air quality, “Congress reacted by taking a stick to the

States in the form of the Clean Air Amendments of 1970.”).

4

and the productive capacity of its population.” 42 U.S.C.

§ 7401(b\(1).* Because Congress recognized that little was

known about air pollution when the Act was passed, it

directed EPA to evaluate the available scientific evidence,

and collect additional data where necessary, to determine

which pollutants and pollution sources are likely to endanger

public health or welfare. Based on these “endangerment”

findings, EPA is then obligated to act preventively to mini-

mize the risk of harm to humans and the environment.’

-Congress also recognized that early regulation served

another salutary purpose, acting as a catalyst for the devel-

opment of new pollution-reducing technologies.’

* See also American Lung Ass'n v. EPA, 134 F.3d 388, 389 (D.C. Cir.

1998) (Clean Air Act was “[d)jriven by (Congress’] deep concern for

protection of the health of the American people”); Lead Industries Ass'n,

Inc. v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. den., 449 U.S. 1042

(1980) (Clean Air Act embodies a “deliberate decision by Congress to

subordinate [economic and technical feasibility] concerns to the

achievement of health goals”); S. Rep. No. 91-1196, at 2-3 (1970) (“The

Committee determined that... the health of people is more important

than the question of whether the early achievement of ambient air

quality standards protective of health is technically feasible.”).

* See, e.g., American Lung Ass’n v. EPA, 134 F.3d at 389; Lead

Industries Ass'n, Inc. v. EPA, 647 F.2d at 1155; Ethyl Corp. v. EPA, 541

F.2d 1, 13, 15, 17 (D.C. Cir.), cert. den., 426 U.S. 941 (1976); H.R. Rep.

No. 95-294, at 49 (1977) (statement in House Report accompanying

1977 amendments to the Clean Air Act that one of the legislation’s purposes

is “(t)o emphasize the preventive or precautionary nature of the act, ie., to

assure that regulatory action can effectively prevent harm before it occurs; to

emphasize the predominant value of protection of public health”).

* See Union Elec. Co. v. EPA, 427 U.S. at 269 (“Technology forcing

is a concept somewhat new to our national experience and it necessarily

entails certain risks. But Congress considered those risks in passing the

1970 Amendments and decided that the dangers posed by uncontrolled

air pollution made them worth taking.”); American Petroleum Inst. v.

Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert. den., 455 U.S. 1034

(1982) (reiterating that “the ‘technology-forcing’ requirements of the Act

were expressly designed to force regulated sources to develop pollution

(Continued on following page)

5

To achieve its objectives, the Clean Air Act provides EPA

with the necessary tools to address new pollution problems as

they arise or become recognized. Rather than attempting to

specify each particular pollutant or pollution source that EPA

must regulate, which would require frequent statutory

amendments to permit regulation of new threats, Congress

broadly defined the term “air pollutant” under the Act and

directed the Agency to use scientific evidence to identify those

pollutants and emission sources that may “endanger public

health or welfare.” See, eg., 42 U.S.C. §§ 7521(a)(1) (motor

vehicle emissions), 7545(c) (fuel additives), 7547(a) (nonroad

vehicles), 7408(a)(1) (criteria air pollutants).’

The statute’s emphasis on science-based determina-

tions has reaped enormous benefits, such as reduced

incidence of adverse human health effects, improved

visibility, and reduced damages to agricultural crops. In a

far-reaching, peer-reviewed 1997 study of the Clean Air

Act’s costs and benefits, EPA concluded that implementa-

tion of the statute had produced direct benefits of between

$5.6 and $49.4 trillion, in 1990 dollars, with a mean

estimate of $22.2 trillion, while the direct costs to the

control devices that might at the time appear to be économically or

technologically infeasible”); Ethyl Corp. v. EPA, 541 F.2d at 14 (noting

the “technology forcing” nature of the statute and Congress’ reliance on

“health-based standards” to achieve the requisite control).

* Air pollutant is defined as “any air pollution agent or combination

of such agents, including any physical, chemical, biological, radioactive

(including source material, special nuclear material, and byproduct

material) substance or matter which is emitted into or otherwise enters

ambient air.” 42 U.S.C. § 7602(g).

"In those cases where Congress specified the regulation of

particular pollutants, it nonetheless gave EPA authority to regulate

additional pollutants that endanger human health or the environment.

See, e.g., 42 U.S.C. § 7412(b\2).

6

public and private sectors of implementing the statute

were estimated at $523 billion. Thus, for the period from

1970 to 1990, the benefits of the Clean Air Act exceeded its

costs by more than 42 times. Without the Clean Air Act, 60

metropolitan areas in the U.S. would have had worse air

quality in 1990 ~— in terms of total suspended particulates

— than Moscow, Russia.’

Section 202(a)(1), the provision at issue in this case,

plainly embodies the science-based, preventive approach that

has played such a critical role in the Clean Air Act’s success.

It directs that the Administrator “shall by regulation pre-

scribe ... standards applicable to the emission of any air

pollutant from any class or classes of new motor vehicles or

new motor vehicles engines, which in his judgment cause, or

contribute to, air pollution which may reasonably be antici-

pated to endanger public health or welfare.” 42 U.S.C.

§ 7521(a)(1) (emphasis added). Thus, the only criterion in

taking the initial step toward regulation is scientific: is the

pollutant reasonably anticipated to endanger public health

or welfare? This statutory formulation reflects congressional

appreciation of EPA’s expert role in the evaluation and

interpretation of scientific evidence. Once a health-based

endangerment determination is made, the Administrator

then is directed to prescribe implementing regulations as

* See EPA, The Benefits and Costs of the Clean Air Act: 1970 to 1990,

at 55-58 (Oct. 15, 1997), available at http//www.epa.gov/oar/sect812

(visited Aug. 29, 2006). In fact, actual benefits are likely to be even

greater. For instance, the study’s monetized calculations did not include

the subjective value that individuals may place on the many benefits of

the Clean Air Act’s regulatory programs, such as 184,000 lives not cut

short by exposure to particulate matter or ten million IQ points not Jost

due to lead poisoning between 1970 and 1990. See id. at 37-38, 43-50;

Frank Ackerman and Lisa Heinzerling, Priceless: On Knowing the Price

of Everything and the Value of Nothing 102-104 (2004).

7

“necessary to permit the development and application of the

requisite technology, giving appropriate consideration to the

cost of compliance.” Jd. § 7521(a)(2).

II. AMICI HAVE EACH USED THEIR AUTHORITY

UNDER THE CLEAN AIR ACT TO PROTECT

THE PUBLIC FROM NEW POLLUTANTS AND

EMERGING HEALTH THREATS.

During their 20 years of service as EPA Administra-

tors, Amici observed three essential guiding principles in

administering the Clean Air Act:

(1) The Act confers broad authority on EPA to

regulate pollutants and pollutant sources

not specifically enumerated in the statute;

(2) EPA’s decision whether to regulate specific

pollutants and pollutant sources must be

based on the best available scientific evi-

dence concerning the likely impact on hu-

man health and welfare; and

(3) Given the unacceptably high health and envi-

ronmental costs of waiting for perfect informa-

tion, absolute scientific certainty concerning

all aspects of a pollutant’s impacts is not a

necessary prerequisite to regulation.

The four major Clean Air Act regulatory decisions de-

scribed below exemplify how adherence to these funda-

mental principles has meaningfully informed EPA's

judgment over the last 30 years.

A. The Regulatory Phase-Out Of Lead Additives

In Gasoline.

One of the most remarkable regulatory success stories

began during the Clean Air Act’s earliest days under

Administrator Russell Train, when EPA took on the

serious public health threat posed by lead emissions from

motor vehicles. In the face of some scientific uncertainty

and over the strong objections of industry, the Administra-

tor nevertheless acted under his new statutory authority

to protect the health of urban populations, particularly

vulnerable young children, from the potentially devastat-

ing effects of airborne lead. In doing 30, he set a course for

future regulatory decisionmaking under the Clean Air Act

that was later ratified by Congress and has since proven

critical to fulfilling the statute’s public health mission.

Human exposure to elemental lead, which performs no

useful function in the body, can have life-altering conse-

quences. Absorbed through either inhalation or ingestion,

lead’s damage is cumulative. Chronic exposure to low levels

can adversely affect blood pressure, kidney function, and the

central nervous system, particularly in children, who can

suffer impaired cognitive development and functioning,

reduced growth, altered behavior and fine motor function,

and permanent neurological damage. At higher levels of

exposure, lead can cause low sperm count, spontaneous

abortions, low fetal birth weight, and slowed post-natal

neurobehavioral development, as well as kidney damage,

brain damage, and even death by lead poisoning.”

Ambient lead levels increased rapidly in the wake of

industrialization. The early twentieth century witnessed the

most dramatic rise, in large part as a result of General

Motor’s discovery in 1921 that tetraethyl lead could enhance

* See generally EPA, Technology Transfer Network Air Toxics Website,

Lead Compounds, available at http://www.epa.gov/ttn/atw/hltheflead.

html (visited on Aug. 29, 2006); Agency for Toxic Substances and

Disease Registry, Toxicological Profile for Lead, Draft for Public

Comment (Sept. 2005) (hereinafter “ATSDR Lead Profile”), available at

http://www.atsdr.cde.gov/toxprofiles/tp13.html (visited Aug. 29, 2006).

9

gasoline combustion and avoid engine “knock.” General

Motors soon joined forces with Standard Oil of New Jersey to

form the Ethy] Corporation for the purpose of marketing this

new lead additive for gasoline, which quickly became the

industry standard.” By the 1970’s, the combustion of leaded

gasoline was responsible for roughly 90 percent of anthropo-

genic lead emissions to the atmosphere. Ethyl Corp. v. EPA,

541 F.2d at 8; ATSDR Lead Profile at 277.

The question facing public health officials was whether

this airborne lead was a significant contributing source of

observed elevated human lead levels. For decades the

automotive and lead additive industries denied the existence

of any health effects from their products, claiming that

human exposure resulted primarily from ingestion of leaded

paint and from industrial facilities.'’ Although concern about

the neurological effects of lead exposure on children contin-

ued to mount,” uncertainty about the source of such expo-

sure remained. For instance, in 1966 Senate hearings on the

issue, Ethyl Corporation representatives and university

scientists presented conflicting testimony on the causal

relationship between airborne lead and elevated lead levels

in human populations. See Air Pollution —- 1966, Hearings on

S.3112 and 8.3400 Before a Subcomm. on Air and Water

*° See generally David Rosner & Gerald Markowitz, A ‘Gift of God’?:

The Public Health Controversy over Leaded Gasoline during the 1920s,

75 Am. J. Pub. Health 344 (1985).

" See Robert V. Percival, Who's Afraid of the Precautionary

Principle?, 23 Pace Envtl. L. Rev. 21 (Winter 2005-06) and sources cited

therein for a more detailed explanation of the industry's arguments.

" See Gerald Markowitz & David Rosner, “Cater to the Children”:

The Role of the Lead Industry in a Public Health Tragedy, 1900-1955, 90

Am. J. Pub. Health 36, 44 (2000).

10

Pollution of the Comm. on Public Works, 89th Cong., 2nd

Sess. (1966).

Passage of the Clean Air Act Amendments in 1970

provided the newly-formed EPA with the tools required to

confront airborne lead, although the statute nowhere specifi-

cally addressed this pollutant. In addition to directing

specific reductions in particular motor vehicle pollutants

under section 202(b)(I)(A), Congress also authorized EPA to

control or reduce any fuel additive whose emission products

“will endanger the public health or welfare” under section

211(c1)(A). Pub. L. No. 91-604, § 9(a), 84 Stat. 1676, 1698

(1970). Shortly after adoption of the legislation, EPA began

evaluating controls on leaded gasoline. See 36 Fed. Reg. 1486

(Jan. 30, 1971).° Over the next two years, the Agency twice

proposed a schedule to reduce the maximum amount of lead

allowed in gasoline pursuant to its “endangerment” author-

ity in section 211(c)1A), over the vigorous objections of

industry. 37 Fed. Reg. 3882 (Feb. 7, 1972); 38 Fed. Reg. 1258

(Jan. 10, 1973).

* EPA was concerned about two distinct problems: (1) the incom-

patibility of lead with catalytic converter emission control systems that

industry had developed to address other air pollution from motor

vehicle engines and (2) the human health effects of ubiquitous lead

exposure. Ethyl Corp. v. EPA, 541 F.2d at 9-10. The Agency ultimately

addressed these disparate concerns in two different rulemakings.

“ Concurrent with this proposal, EPA adopted final regulations

mandating the availability of lead-free gasoline for cars with catalytic

converters, pursuant to section 211(c1\(B), in order to address

concerns about lead fouling of these emission systems. 38 Fed. Reg.

1254 (Jan. 10, 1973). In the subsequent adoption of separate regula-

tions for lead additive content pursuant to its separate section

211(cX1XA) “endangerment” authority, the Agency recognized that

“based on public health consideration, it was considered necessary to

propose a reduction in the lead content of leaded gasoline as well.” 38

Fed. Reg. 33,734 (Dec. 6, 1973).

11

Despite the continuing controversy and the incompletely

settled science, Administrator Train acted swiftly after his

appointment to adopt final health-based standards designed

to reduce lead levels in gasoline by 60-65 percent over the

next five years. 38 Fed. Reg. 33,734, 33,734-41 (Dec. 6, 1973).

This regulation embodied two important principles that have

continued to undergird EPA’s Clean Air Act regulatory

decisions over the subsequent decades. First, the Adminis-

trator used his broad statutory authority and public health

mandate to regulate a pollutant that he believed posed

substantial danger to the public, even without any specific

statutory direction to do so. Second, the decision to regulate

was based on the best available science — and only the

science — notwithstanding lingering questions about the

correlation between airborne lead and elevated lead levels in

human populations. See id. at 33,735-37.

Of particular note is EPA’s approach to the question of

scientific uncertainty — and the courts’ and Congress’

subsequent embrace of that approach. In response to

industry comments on the proposed rule, EPA acknowl-

edged the existence of other, potentially significant sources

of environmental lead (lead paint, smelters, etc.) and the

less-than-definitive conclusions in the scientific literature

on the role of airborne lead in human exposure. 38 Fed.

Reg. at 33,735-37. Yet the Administrator did not await the

final scientific resolution of these issues before acting. He

believed he was empowered, required even, to implement

the statute’s overarching public health directive and

endangerment standards by regulating lead.

No one challenged EPA’s broad authority to regulate new

pollutants under section 211(cX1)(A), but industry argued

strenuously that EPA had failed to show “consistently strong

correlations” between air lead levels and blood lead levels, 38

12

Fed. Reg. at 33,734, and ultimately filed suit challenging the

new rule. It argued that the “will endanger” language of

section 211 required proof of actual harm rather than simply

“a significant risk of harm.” See Ethyl Corp. v. EPA, 541 F.2d

at 12. The D.C. Circuit Court of Appeals rejected industry's

contention, reasoning by analogy to the Eighth Circuit's

interpretation of a similar provision under the Clean Water

Act in Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975),

and holding that the very structure of the Clean Air Act

“would seem to demand that regulatory action precede, and,

optimally, prevent, the perceived threat.” Jd. at 13, 17 (empha-

sis in original). The court explained why the harm at issue

need not be inevitable and why its full extent need not be

understood in all the particulars:

Questions involving the environment are particu-

larly prone to uncertainty. Technological man has

altered his world in ways never before experi-

enced or anticipated. The health effects of such

alterations are often unknown, sometimes un-

knowable. While a concerned Congress has

passed legislation providing for protection of the

public health against gross environmental modi-

fications, the regulators entrusted with the en-

forcement of such laws have not thereby been

endowed with a prescience that removes all

doubt from their decisionmaking. ... Sometimes,

of course, relatively certain proof of danger or

harm from such modifications can be readily

found. But, more commonly, “reasonable medical

concerns” and theory long precede certainty. Yet

the statutes and common sense demand regula-

tory action to prevent harm, even if the regulator

is less than certain that harm is otherwise inevi-

table.

nn

13

Ethyl Corp. v. EPA, 541 F.2d at 2425 (internal citations

omitted). This conclusion, the en banc majority noted,”

“follows not only from the language of Section 211(c)(1A) and

its legislative history, but from the nature of the Administra-

tor’s charge: to protect the public from danger.” Jd. at 24."

The Ethyl Corp. decision is significant for another

reason. In it, the court held that the Clean Air Act does not

allow EPA to make (or fail to make) endangerment deter-

minations based on policy considerations unrelated to

public health and welfare: “Congress [has not) left the

Administrator free to set policy on his own terms. To the

contrary, the policy guidelines are largely set, both in the

statutory term ‘will endanger’ and in the relationship of

that term to other section of the Clean Air Act.” Id. at 29.

In amending the Clean Air Act in 1977, Congress

explicitly endorsed Ethyl Corp’s reasoning. Prior to 1977,

sections 202(a)(1) and 211(c)(1) required EPA to regulate

pollution that “will endanger” public health or welfare. In

1977, Congress amended these provisions to require EPA

to regulate pollutants that “may reasonably be anticipated

to endanger public health or welfare.” 42 U.S.C.

§§ 7521(a(1) and 7545(c)(1) (emphasis added) (amended

by Pub. L. No. 95-95 § 401, 91 Stat. 685, 791 (1977)). The

drafters of this provision specifically noted their intent to

* The en banc Gecision reversed a prior three-judge panel decision

which, by a 2 to 1 vote, had invalidated the rule, in part on the grounds that

the Administrator “must find that the lead from auto emissions by itself or

alone contributes a measurable increment of lead to the human body, and

that this measurable increment causes a significant health hazard.” Ethyl

Corp. v. EPA, No. 73-2205, slip op. at 8 (D.C. Cir. Jan. 28, 1975).

* The logic of Ethyl Corp. is directly relevant here because, as the

court noted, the “threshold determination” of endangerment under

section 211 is identical to the threshold endangerment determination

under section 202. 541 F.2d at 16.

14

“support the views expressed” in Ethyl Corp. H.R. Rep. No.

95-294, at 49 (1977). In particular, the amendment was

intended “to emphasize the predominant value of protection

of public health,” and “the Administrator's duty to assess

risks rather than wait for proof of actual harm.” Jd. at 49, 51.

The statutory changes reflected congressional “awareness of

the uncertainties and limitations in the data which will be

available to the Administrator in the foreseeable future to

enable him to execute his rulemaking duties under this act.”

Id. at 50. Thus, section 202(a)(1) was rewritten explicitly to

endorse the approach that Administrator Train followed in

the lead additive rulemaking.”

The epilogue to the lead additive rulemaking story is

both telling and heartening. As lead in gasoline declined

between 1976 and 1980, a comprehensive study by the

Centers for Disease Control (“CDC”) showed that mean

blood lead levels declined “in virtual lockstep” with this

phase-down, leading the D.C. Circuit Court of Appeals to

conclude in 1983 that “[g]asoline lead correlates strongly

with blood lead levels.” Small Refiner Lead Phase-Down

Task Force v. U.S.E.PA., 705 F.2d 506, 527-28 (D.C. Cir.

1983) (including graph of the study results). Other studies

showed that when leaded gasoline use peaked sharply

each summer, blood lead levels peaked sharply in paraliel,

likewise confirming the correlation between the two. Id. at

528. Most gratifying, the percentage of very young chil-

dren (six months to five years in age) with clinical lead

poisoning also dropped precipitously during the four-year

study period, highlighting the regulations’ tangible effects

The House Report on the bill noted that the same basic formula

~ “may reasonably be anticipated to endanger” - was deliberately

written into several different sections of the statute, including sections

108, 111, 112, 202, 211, and 231. H.R. Rep. No. 95-294, at 50.

15

on the most vulnerable members of our society. Jd. at 529.

As one CDC official summarized, “as we have removed

lead from gasoline, we have also removed lead from

ourselves and our children.” Jd. at 527-28.

In fulfilling its statutory responsibilities to address

preventively new threats as they arise, EPA also furthered

the nation’s scientific understanding of a public health

crisis and its solutions. The epidemiological evidence that

accumulated after the initial phase-down of lead additives

prompted EPA to adopt a further phase-down, see 50 Fed.

Reg. 9386 (Mar. 7, 1985), and ultimately spurred Congress

to ban leaded gasoline altogether in the 1990 amendments

to the Clean Air Act. 42 U.S.C. § 7545(n) (prohibiting the

sale of leaded gasoline after December 31, 1995). As a

result, ambient airborne lead concentrations in the United

States declined by 97 percent between the beginning of the

phase-down in 1976 and the full phase-out in 1995,

ATSDR Lead Profile at 302, and over roughly the same

period, mean blood lead levels across the nation dropped

by almost 80 percent. ATSDR Lead Profile at 326.

B. The Listing Of Benzene As A Hazardous

Air Pollutant.

This same preventive, science-based approach to regula-

tory decisionmaking was carried forward by the next EPA

Administrator. Shortly after his appointment in 1977,

Administrator Douglas Costle took the first, critical step in

regulating environmental exposure to benzene by listing the

chemical as a “hazardous air pollutant” under the Clean Air

Act. The Administrator’s decision was based exclusively on

the emerging scientific evidence that benzene may be a

human carcinogen, at least at higher exposure levels. Un-

surprisingly, this action was opposed by industry. But the

16

listing decision set the stage for further study and analysis of

both stationary and mobile sources of ambient benzene and

was the first necessary step in the development of the

benzene standards that exist today.

Benzene is a volatile organic compound used in the

manufacture of such items as detergents, pesticides, sol-

vents, and paint removers and also is a constituent of gaso-

line. It first came into significant industrial use as a solvent

in the rubber industry just prior to World War I. 43 Fed. Reg.

5918 (Feb. 10, 1978). Greatly increased quantities of benzene

were produced during the war, resulting in more widespread

use of the compound in the decades that followed. Jd. By the

mid-1970’s, annual U.S. production of benzene was 11 billion”

pounds and “rapidly expanding.” Jd.

The noncarcinogenic health effects of inhaled benzene,

including a variety of blood disorders, have been recog-

nized since 1900. See 43 Fed. Reg. 5920-25. Various other

studies have linked benzene to chromosomal abnormalities

and leukemia, a cancer of the white blood cells, since at

least the 1930’s. Jd. at 5925-33. This Court summarized

the state of scientific knowledge in the mid-1970’s:

As early as 1928, some health experts theorized

that there might also be a connection between ben-

zene in the workplace and leukemia. In the late

1960’s and early 1970’s a number of epidemiologi-

cal studies were published indicating that workers

exposed to high concentrations of benzene were

subject to significantly increased risk of leukemia.

In a 1974 report recommending a permanent stan-

dard for benzene, the National Institute for Occu-

pational Safety and Health (NIOSH), OSHA's

research arm, noted that these studies raised the

“distinct possibility” that benzene caused leuke-

mia.... NIOSH suggested that further studies

were necessary to determine conclusively whether

—

17

there was a link between benzene and leukemia

and, if so, what exposure levels were dangerous.

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

Inst., 448 U.S. 607, 618 (1980) (citations omitted).

New studies published between 1974 and 1976 con-

tinued to suggest a possible causal link between leukemia

and high (workplace) levels of benzene exposure. Jd. In

response to these studies, the Occupational Safety and

Health Administration (“OSHA”) established an emer-

gency temporary workplace standard for benzene in 1977.

42 Fed. Reg. 22,516, 22,517 (May 3, 1977). In promulgat-

ing a permanent occupational exposure standard for

benzene the following year, the Secretary of Labor recog-

nized that, even with respect to acute workplace exposure,

the health effects and epidemiological studies left some

scientific questions unanswered. See, e.g., 43 Fed. Reg. at

5929.

Nevertheless, EPA Administrator Costle stepped

forward to protect the broader public’s health under his

Clean Air Act authority. Just over a month after issuance

_ of OSHA's emergency occupational exposure standard,

EPA formally listed benzene as a “hazardous air pollutant”

under then-section 112(b)(1)(A) of the Act. 42 Fed. Reg.

29,332 (June 8, 1977). When this listing was made, the

language of section 112 was similar to the language of

section 202(a)(1), with the endangerment-type criteria for

determining which pollutants to regulate embedded in the

definition of a “hazardous air pollutant” as “an air pollutant

to which no ambient air quality standard is applicable and

which in the judgment of the Administrator may cause, or

contribute to, an increase in mortality or an increase in

serious irreversible, or incapacitating reversible, illness.”

Pub. L. 91-604, § 4(a), 84 Stat. 1676, 1685 (1970).

18

Based on OSHA's scientific data and analysis, Admin-

istrator Costle determined that benzene met the health-

based criteria of section 112, even though virtually all of

the studies involved acute workplace exposure, not more

diffuse ambient exposure. EPA acknowledged that “ambi-

ent air exposures are at levels substantially lower than

those to which affected workers were exposed.” 42 Fed.

Reg. at 29,332. But noting that 260 million pounds of

benzene were emitted to the air in the United States every

year, the Administrator concluded that he had the author-

ity to make an endangerment finding because “there is

reason to believe that ambient exposures may constitute a

cancer risk and should be reduced.” Jd. (emphasis added).

EPA plainly saw its decision to regulate as a two-step

process. First, the Agency made its endangerment-type

finding based on the best available science. The second

and later step was the issuance of implementing regula-

tions to control various benzene sources. Jd. at 29,333

(inviting public comment and initiating a “careful evalua-

tion” of available control technologies and associated

risks). EPA was under no illusions that this second step

would be easy, alluding in the listing decision to its past

difficulties in developing control technologies for the

previously listed hazardous air pollutant vinyl chloride. Jd.

That prescient concern,” however, did not impede the

*“ In 1981, after an evaluation of benzene risks, EPA proposed

regulations for fugitive emission sources in the petroleum refining and

chemical manufacturing industries. 46 Fed. Reg. 1165 (Jan. 5, 1981).

Following protracted litigation over the hazardous air pollutant

program, a final benzene emissions rule for storage units at coke by-

product recovery plants was finally promulgated in 1989. 54 Fed. Reg.

38,044 (Sept. 14, 1989). Six months later, EPA issued final rules for

benzene waste and benzene transfer operations. 55 Fed. Reg. 8292

(Mar. 7, 1990).

19

Administrator from meeting his statutory obligations to

regulate benzene, even in the face of uncertainty about the

health risks associated with environmental exposure.

EPA’s public health-protective approach has proven

far-sighted. In the 1990 Clean Air Act Amendments,

Congress revised section 112 to designate a specific list of

hazardous air pollutants, including benzene. 42 U.S.C.

§ 7412(b). At the same time, Congress provided EPA with

new direction to study mobile source-related air toxics and

to promulgate regulations to control hazardous air pollut-

ants from motor vehicles. 42 U.S.C. § 7521(1)(1)-(2). Ben-

zene has become one of the primary foci of this new

program, in part due to its toxicity and in part because it

makes up roughly 70 percent of gaseous toxics from these

sources. See 65 Fed. Reg. 48,058, 48,077 (Aug. 4, 2000).

Had Administrator Costle failed to fulfill his statutory

responsibility to regulate benzene due to its potential

health impacts, EPA could not have moved forward with

its slow-but-steady progress in protecting the public from

this carcinogen.

C. EPA’s Acceleration Of The Phase-Out Of

Certain Ozone-Depleting Substances.

Administrator William Reilly’s aggressive action to

accelerate the phase-out for certain ozone-depleting

substances provides yet another example of how EPA has

successfully fulfilled its Clean Air Act responsibility to

address rapidly developing scientific data about a poten-

tial public health disaster. The story of the Administrator’s

action on ozone depletion is especially salient here because

it illustrates how the Agency has utilized its public health

mandate under the Clean Air Act to tackle a global pollu-

tion problem by providing international leadership.

20

Stratospheric ozone protects the biosphere frum poten-

tially damaging doses of ultraviolet (“UV”) radiation, which

can induce a variety of serious health effects, primarily te the

skin, eyes and immune system. Skin effects include sunburn,

aging of the skin and various forms of skin cancer including

melanoma, the deadliest form of skin cancer that causes

more than 7,000 deaths annually in the United States. UV

radiation also causes cataracts and cancer of the cornea.

Sunlight exposure reduces immunological defenses, imped-

ing resistance to infectious diseases and skin tumors and

diminishing the effectiveness of vaccines. In addition to its

adverse health impacts, UV exposure can also damage

ecological and agricultural systems by, for example, abetting

the formation of photochemical smog, lowering the immunity

of vegetation to pest infestation, and disrupting nutrient

cycles and killing fish.”

In 1974, two scientists from the University of Califor-

nia published a paper in which they hypothesized that the

ozone layer could be threatened with destruction from a

family of chemicals known as_ chlorofluorocarbons

(“CFCs”). These chemicals were used in numerous indus-

trial applications including aerosol propellants, foam

blowing, air conditioning and solvents, and were particu-

larly attractive because they had been thought to pose

insignificant environmental risks. In 1985, spurred by the

1974 paper, two British scientists studying springtime

ozone levels in the stratosphere over Antarctica published

startling new findings: Seasonal ozone loss had sharply

accelerated to the point where a “hole” of significantly

* See generally EPA, Human Health Benefits of Stratospheric

Ozone Protection (April 2006), available at http://www.epa.gov/ozone/

science (visited Aug. 29, 2006).

———-=-—- ——

21

decreased ozone levels in the stratosphere had grown to

cover an area the size of the United States. By 1987, the

international community had negotiated the Montreal

Protocol, which required all signatories to freeze and then

reduce the production and consumption of a specific set of

ozone-depleting substances.”

The ink had barely dried on the Montreal Protocol when

significant new scientific analyses indicated that strato-

spheric ozone depletion was occurring at a more rapid rate

than previously believed. Studies indicated significant

- stratospheric ozone decreases in winter, and, for the first

time, also in spring and summer in both the northern and

southern hemispheres. There also was concern that a spring-

time ozone “hole” might now appear in the Arctic. See 58 Fed.

Reg. 15,014, 15,015-16 (Mar. 18, 1993).

Responding directly to this new information, former

President George H.W. Bush, at the recommendation of

EPA Administrator Reilly, announced in February 1992

that the United States would take action to phase out

production of certain ozone-depleting substances on a

more expedited basis than the Montreal Protocol then

mandated.” EPA immediately began work on a rulemak-

ing to implement this announcement. Significantly, this

rulemaking was undertaken in part pursuant to certain

*® See generally Richard Elliot Benedick, Ozone Diplomacy: New

Directions in Safeguarding the Planet (1998 ed.).

* Although the Montreal Protocol was revised in 1990 to require a

phase-out of ozone-depleting substances by 2000 (or in some cases

by 2005), President Bush announced that the United States would

require a complete phase-out by January 1, 1996. Library of Congress,

Congressional Research Service, Stratospheric Ozone Depletion: Regula-

_tory Issues (Nov. 1996), available at http//www.ncseonline.org/nle/crsreports/

stratospheric/strat-1.cfmm (visited Aug. 29, 2006).

22

provisions of the 1990 Clean Air Act Amendments, which

directed EPA to promulgate a more aggressive schedule than

otherwise required for phasing out the production and

consumption of certain ozone-depleting substances if, “based

on an assessment of credible current scientific information

... regarding harmful effects on the stratospheric ozone

layer associated with [such substances], the Administrator

determines that such more stringent schedule may be

necessary to protect human health and the environment

against such effects.” 42 U.S.C. § 7671e(a)(1).

EPA’s efforts to implement President Bush’s an-

nounced schedule culminated in Administrator Reilly's

signing of a proposed rule in January 1993,” and the

Agency promulgated a final rule later that year. 58 Fed.

Reg. 65,018 (Dec. 10, 1993). Moreover, in the interim, the

Montreal Protocol signatories met again in the fall of 1992

and agreed to amend the international treaty to adopt the

more aggressive phase-out schedules that had been

announced by the United States. See id. at 65,020-21.

Here again, the Agency’s authority (and responsibil-

ity) to take regulatory action based on newly emerging and

credible scientific evidence, despite some remaining

uncertainties, proved to be a critical tool in fulfilling its

mission to protect human health and the environment.

EPA utilized its broad protective authority under the

Clean Air Act to lead the world in addressing an air

pollution problem of global consequence when the statu-

tory “endangerment” criterion was satisfied.

The postscript to EPA’s proactive efforts on ozone-

depleting substances is also instructive. Within the past

“ The proposal was published two months later. 58 Fed. Reg.

15,014 (Mar. 18, 1993).

23

several weeks, the World Meteorological Organization and

the United Nations Environment Program have reported

that the Earth’s ozone layer is on the mend and, while

recovering more slowly than experts had originally hoped,

should be fully recovered within the next sixty years.”

D. The Establishment Of New National Am-

bient Air Quality Standards For Particu-

late Matter. :

EPA's three-decade struggle to protect the public from the

hazards of particulate air pollution, culminating in the

development during Administrator Carol Browner’s tenure of

a national standard for the most dangerous fine particulate

matter, provides one last example of the Agency's use of its

Clean Air Act regulatory responsibility to respond to emerging

scientific information, without specific direction from Con-

gress, and to do so based exclusively on the available science.

The Clean Air Act Amendments of 1970 did not specifically

list particulate matter“ as a pollutant for which a national

ambient air quality standard (“NAAQS”) was required. Based

on the scientific evidence available at that time, however, EPA

used its general authority under section 109 of the Act, 42

U.S.C. § 7409, to establish a NAAQS for total suspended

particles, which included particles as large as 45 micrometers.

See 36 Fed. Reg. 8186 (Apr. 30, 1971). Subsequent advances in

* Ozone Layer Healing, But More Slowly Than Hoped, Wash. Post,

Aug. 19, 2006, at A03.

* Particulate matter (“PM”) is a complex mixture of small particles

and liquid droplets made up of a number of components, including acids

(such as nitrates and sulfates), organic compounds, metals, soil, and

dust particles. It originates from a variety of anthropogenic stationary

and mobile sources, as well as from natural sources. See 62 Fed. Reg.

38,652, 38,653 (July 18, 1997).

24

scientific knowledge revealed that smaller particles were

the most dangerous to human health because they have

the greatest potential to enter the lungs, potentially

causing serious heart and lung problems. Accordingly, in

1987, EPA responded again by establishing a new NAAQS

for particulate matter sized 10 micrometers or smaller

(“PM,,”). See 52 Fed. Reg. 24,634 (July 1, 1987).

Subsequent epidemiological studies suggested the

existence of “serious health effects (mortality, exacerbation of

chronic disease, increased hospital admissions, etc.) associated

with exposures to ambient levels of PM found in contemporary

U.S. urban airsheds even at concentrations below” the 10

micrometer size. 61 Fed. Reg. 65,638, 65,641 (Dec. 13, 1996)

(emphasis added). In particular, the science indicated that

very fine particles — those 2.5 micrometers in size or smaller

(“PM ,.”) — were more likely to penetrate deeply into the lungs

and contribute significantly to adverse health effects, includ-

ing premature mortality; aggravation of respiratory and

cardiovascular disease, changes in lung function and in-

creased respiratory symptoms, changes to lung tissues and

structure, and altered respiratory defense mechanisms. /d.

Sensitive subpopulations, such as those with respiratory and

cardiovascular disease, the elderly, children, and asthmatic

individuals, are at greatest risk. Jd. at 65,644.

Responding to the science, EPA proposed a new

NAAQS for PM,, 61 Fed. Reg. at 65,649 (explaining the

emergence of new epidemiological data on the impacts to

sensitive subpopulations). Further regulatory action was

imperative based on:

(1) Health effects information, and alternative

views on the appropriate interpretation and use of

the information, as the basis for judgments about

the risks to public health presented by population

éxposures to ambient PM; (2) insights gained from

25

a quantitative risk assessment conducted to pro-

vide a broader perspective for judgments about

protecting public health from the risks associated

with PM exposures; and (3) specific conclusions re-

garding the need for revisions to the current stan-

dards and the elements of PM standards (i.e.,

indicator, averaging time, form, and level) that,

taken together,, would be appropriate to protect

public health with an adequate margin of safety.

Id. at 65,641.

At the same time, however, Administrator Browner

explicitly acknowledged, in the preamble to the final rule,

the existence of residual uncertainty about the causal

connection between PM,, in ambient air and adverse

impacts to public health:

As with virtually any policy-relevant scientific re-

search, there is uncertainty in the characterization

of health effects attributable to exposure to ambi-

ent PM.... While significant uncertainties exist,

the review of the health effects information has

been thorough and deliberate. In the judgment of

the Administrator, this intensive evaluation of the

scientific evidence has provided an adequate basis

for regulatory decision making at this time.

62 Fed. Reg. 38,652, 38,655 (July 18, 1997).* Thus, EPA

carried out its Clean Air Act responsibilities precisely as

* For instance, scientists disagreed whether a new NAAQS was

required to regulate all forms of PM,, or whether EPA should delay the

setting of the standard until more information about the types of

particles that deserve regulation was known. In 1996, many of the

studies recognized that PM,, that is rich in either biologically active

material or in various metals was likely to be more harmful than PM,,

which has little or no biologic or metallic content. See, e.g., EPA, Air

Quality Criteria for Particulate Matter, Vol. II, Ch. 8, p. 88 (March

2001). Nonetheless, EPA Administrator Browner chose to err on the side

(Continued on following page)

i

Congress intended, exercising its technical judgment to

review the relevant science and making an endangerment

determination based only on the science, even in the face

of some residual uncertainty.

The Agency’ consistent and exclusive reliance on

science to establish the NAAQS for PM,, was unanimously

upheld in Whitman v. American Trucking Ass’ns, 531 U.S.

457, 469 (2001), where this Court rejected industry's conten-

tion that economic costs may be considered in making the

determination as to which pollutants to regulate.”

The Clean Air Act did not identify PM,, as a pollutant

of concern. Instead, EPA scientists determined from the

scientific literature that fine particles were likely endan-

gering public health and welfare, and the Administrator

responded using the tools provided by Congress under the

Clean Air Act. As a result of EPA’s actions, urban air

quality has already improved significantly in just a few

years,” and it is expected that the new PM,, standards

will save 15,000 lives each year.”

of public health and regulate all forms of PM,, rather than delay the

setting of the standard until further information on the composition and

toxicological effects of PM,, became available. 62 Fed. Reg. at 38,665-67.

** It is worth noting that in the Agency’s very first round of NAAQS

rulemakings in 1971 for a variety of air pollutants, public commenters

objected to the proposed NAAQS based on concerns relating to the

“feasibility of implementing the proposed standards.” In response to

those objections, EPA stated that determining which pollutants to

regulate “does not permit any factors other than health to be taken into

account.” 36 Fed. Reg. at 8186.

” EPA, The Particulate Pollution Report: Current Understanding of

Air Quality and Emissions Through 2003, at 1 (Dec. 2004), available at

http:/Awww.epa gov/airtrends/aqtrnd04/pm.html (visited on Aug. 29, 2006).

** See EPA, Health and Environmental Effects of Particulate Matter

(July 17, 1997), available at http://www.epa.gov/ttn/oarpg/naagqsfin/

pmhealth. html] (visited on Aug. 29, 2006).

27

Ill. THE AGENCY’S DECISION NOT TO REGULATE

VEHICLE EMISSIONS OF POLLUTANTS ASSO-

CIATED WITH CLIMATE CHANGE MISREADS

THE CLEAN AIR ACT AND DEVIATES FROM

PAST PRACTICE.

EPA's 2003 decision not to regulate vehicle emissions of

pollutants that contribute to climate change represents a

fundamental misunderstanding of its responsibilities under

the Clean Air Act and a troubling rejection of the bedrock

principles that have been so instrumental in the statute’s

successful implementation. In refusing to regulate vehicle

emissions of those air pollutants, EPA construed its authority

in a manner that is both too narrow and too broad.

On the one hand, EPA too narrowly construed its

authority insofar as it believed that it could not act in the

absence of a specific congressional directive. This construc-

tion of its authority turns the statute on its head and is at

odds with EPA’s past practice. As the above examples

show, it is precisely those emerging threats with greatest

potential to harm human health and welfare that EPA

ought to regulate under the expansive authority provided

in the Clean Air Act. Many of the Agency’s and our nation’s

finest chapters have been written when it has kept faith

with those fundamental principles.

On the other hand, EPA’s construction of its authority

was too broad in that it refused to regulate greenhouse

gases because it “disagreed” with the Clean Air Act’s

regulatory scheme. Amici have never understood the

exercise of the Administrator’s judgment to be unbounded

by the language of the law. As EPA successfully argued in

this Court just five years ago, Congress has already made

the policy judgment that public health considerations

alone should drive the decision to regulate any particular

28

air pollutant. Whitman v. American Trucking, 531 U.S. at

465-72. The Agency’s job is to apply this policy direction to

specific instances; EPA does not have discretion to refuse

to regulate based on factors that Congress has prohibited

it from considering. Id. at 467. See also Ethyl Corp. v. EPA,

541 F.2d at 20 (“Sections 108 and 202 are mandatory in

their terms; under both sections the Administrator ‘shall’

regulate if ‘in his judgment’ the pollutants warrant regula-

tion. ... By contrast, section 211 is permissive; the Admin-

istrator ‘may’ regulate if emissions ‘will endanger the

public health.’”).”

The 2003 decision also misapprehends the historic

and proper role of scientific uncertainty in EPA regulatory

decisions under the Clean Air Act. As the Ethyl Corp. court

recognized, and as Congress subsequently reiterated,

scientific uncertainty is inherent in such decisions and,

therefore, unavoidable. The 1977 Clean Air Act Amend-

ments, which revised the language of section 202(a)(1)

from “will endanger” to “may reasonably be anticipated to

endanger,” were expressly intended to acknowledge and

accommodate “the limitations on research resources and

the fact that decisionmaking about the risks to public

health from air pollution falls on ‘the frontiers of scientific

and medical knowledge.’” H.R. Rep. No. 95-294, at 50.

* That is not to say that other factors, such as economic impacts

and technological feasibility, are entirely irrelevant. As the Court

explained, Congress directed EPA to consider other factors at the

implementation - as opposed to the threshold determination — stage.

Whitman v. American Trucking, 531 U.S. at 467. This two-step ap-

proach is evident in section 202(a), as well. Under subsection 202(a)(1),

the Administrator “shall” make the health-based endangerment

determination. 42 U.S.C. § 7521(a)(1). Then, in implementing regula-

tions under subsection 202(aX2), EPA may consider such factors as

requisite technology and costs of compliance. Jd. § 7521(a)(2).

29

In its decision on the petition in this case, EPA relied

upon the National Research Council’s statement that “a

casual linkage between the buildup of greenhouse gases in

the atmosphere and the observed climate changes during the

20th century cannot be unequivocally established.” 68 Fed.

Reg. 52,922, 52,930 (Sept. 8, 2003) (emphasis added). In

other words, EPA demanded unequivocal proof of a causal

link between greenhouse gases and global climate change

before an “endangerment” finding is made. “Such a rule

would compel EPA to leave hazardous pollutants unregu-

lated unless and until it completely understands every risk

they pose, thus thwarting the Clean Air Act’s requirement

that the Agency err on the side of caution.” American Truck-

ing Ass’ns, Inc. v. EPA, 283 F.3d 355, 370 (D.C. Cir. 2002)

(upholding PM,, and ozone NAAQSs on remand from this

Court). Indeed, had such a flawed approach been followed by

EPA in the past, Amici would not have been able to protect

the public health and the most vulnerable members of our

society from the hazards of leaded gasoline, airborne ben-

zene, ozone-depleting CFCs, and particulate matter.

For the past 35 years, our nation has been exception-

ally well-served by the system of environmental protection

laws put into place by Congress. We have led the world in

securing a safe and healthy environment for our citizens,

and for the generations to come. The sense of stability and

well-being that these efforts have instilled, together with

their accompanying economic benefits, have been enor-

mous. While some may wish to stray from the Clean Air

Act’s successful path under the significant challenge posed

by global climate change, the power to do so resides with

Congress, not the Agency. Unless and until Congress elects

to rewrite the Clean Air Act, EPA’s proper role is to apply

its technical expertise to the emerging science and, on that

30

basis alone, make an endangerment determination, one

way or the other.

CONCLUSION

The decision of the D.C. Circuit should be reversed for

the reasons explained above.

Dated: August 31, 2006

Respectfully submitted,

DEBORAH A. Srvas*

STANFORD LAW SCHOOL

ENVIRONMENTAL LAW CLINIC

Crown Quadrangle

559 Nathan Abbott Way

Stanford, California 94305

(650) 723-0325

MICHAEL C. Davis

BaRRY S. NEUMAN

CARTER LEDYARD & MILBURN LLP

1401 Eye Street, N.W., Suite 300

Washington, D.C. 20005

(202) 623-5710

*Counsel of Record