Amicus Curiae Brief — Michigan v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-46)

Supreme Court, US

FLED

MAR 4 - 2015

Nos. 14-46, 14-47, 14-49 ! OFFICE OF THE CLERK

3n The

Supreme Court of the United States

STATE OF MICHIGAN, ET AL..,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents,

and two related cases.

On Writs of Certiorari to the

United States Court of Appeals for the

D.C. Circuit

BRIEF OF AMICUS CURIAE

CONSTITUTIONAL ACCOUNTABILITY

CENTER IN SUPPORT OF RESPONDENTS

DOUGLAS T. KENDALL

ELIZABETH B. WYDRA*

TOM DONNELLY

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18 St., NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amicus Curiae

March 4, 2015 * Counsel of Record

SNR RRR SO LL TN

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............-ccccccecceeeeeees

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

INTRODUCTION AND SUMMARY OF AR-

I. THE ORDINARY MEANING OF THE

Il.

Il.

TERM “APPROPRIATE” DOES NOT RE-

QUIRE THE CONSIDERATION OF

GI: vesensaniacemsstnnnnanscotesnntntntionmmmnctsiannes

THERE IS NOTHING IN THE VARIED

USES OF THE TERM “APPROPRIATE”

IN LEGAL CONTEXTS THAT REQUIRES

COST CONSIDERATIONS, EITHER.........

EPA’S DECISION TO EXCLUDE COM-

PLIANCE COSTS FROM ITS “APPRO-

PRIATE AND NECESSARY” DETERMI-

NATION IS REINFORCED BY THE

CAA’S TEXT AND STRUCTURE................

A. The Term “Appropriate,” When Read In

The Context Of § 7412(n)(1)(A), Does

Not Require EPA To Consider Compli-

ance Costs When Making Its “Appropri-

ate And Necessary” Determination.........

B. EPA’s Interpretation Of The Term “Ap-

propriate” Is Also Reasonable When

Read In The Context Of Other CAA Pro-

visions Addressing HAP Emissions. .......

CONCLUSION................. jaaiveainicilethiniilesiaiameeiduanetiin

(i)

14

15

17

ss

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Textile Mfrs. Inst., Inc. v. Donovan,

a es Se ccnaccomrincridicancddnanttnemnets 9,16

Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)............. 3

City of Arlington v. FCC,

Re 15

CSX Tranap., Inc. v. Easterwood,

gt |, ae 11

Davis v. Mich. Dep’t of Treasury,

— ij) i 8 ! eo 14

Edmond v. United States,

REESE et 11

Entergy Corp. v. Riverkeeper, Inc.,

SR Ee ee 14, 16

EPA v. EME Homer City Generation, L.P.,

1 Re S| Eee ee 14, 16

FDA v. Brown & Williamson Tobacco

Corp.,

REESE ES ee me ark 14, 17

Green v. Bock Laundry Mach. Co.,

i t of | a 5

Hepburn v. Griswold,

75 U.S. (8 Wall.) 603 (1869)...................002. 13

TABLE OF AUTHORITIES - cont’d

Page(s)

Katzenbach v. Morgan,

kee eee 12

Marrama v. Citizens Bank of Mass.,

EE er 1l

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819).................... 13

Nat Asa’n of Clean Air Agencies v. EPA,

489 F.3d 1221 (D.C. Cir. 2007).................. 12

Ruckelshaus v. Sierra Club,

i an snccieneninmennanemnebennns )

Russello v. United States,

TG 18

Sch. Comm. of the Town of Burlington v.

Dep’t of Educ. of Mass.,

A ania 12

Sossamon v. Texas,

8 kt RS 3, 8,915

South Carolina v. Katzenbach,

a I ce eesnmseeninmnesine 12

Util. Air Regulatory Grp. v. EPA,

es te HR rcccecsecensnccsrsconmmvaies 17

Whitman v. Am. Trucking Ass'ns,

SM ee 16, 18

IV

TABLE OF AUTHORITIES - cont’d

pele ean ae 10

I 0 I rcceeissseiincisntnsesssiesinsenen 10

VL TE * aac 11

16 U.S.C. § 410}j-4(b)(4) ....-..eccceccesseeeseesseesvess 11

LL Te | ee 11

LS FL ae ea eS ea 9

21 U.S.C. § 360d(b)(1)(B)(i) Seabidecaadepdaneeniceien 9

ee Be i vrais cicssssccininitensnrants 9

21 U.S.C. § 2223(d)(2)(A) -..--c0scceccvesseeceeseesnees 9

42 U.S.C. § 2000ce et 8€q. .....eeccecceessesseesseesvees “

42 U.S.C. § BO0DCC-B6A) «.....2..0e.ce.cessnsscessessnses 4

ecm. 19

ath... 19

ORG 6 RI nocitcestsrccsertesines 19

42 U.S.C. § 7412(C)(1).....escceccesseessessoeeseeesessees 4

42 U.S.C. § 7412(c)(9)(B)(i) -.......cee-eesseeeeeeeees 4, 20

42. U.S.C. § 7412(c)(9)(B) Gi) .......-eeseeeceeeceeeees 4, 20

GB WBA F PERIOD revccccccterstcccsscessascssiccoies 19

v

TABLE OF AUTHORITIES - cont'd

Page(s)

Se FE. © Fe cercsntsevevisevsccennvisnnianies 18

42 U.B.C. § T41ZGENSMA) .......ceccrecccreressscossees 18

GB TERE. © FED cavncccsvccccreccscsnssonceses 2,16

EE, Be ceinessicccescansenvnsoenscenvions 10

76 Fed. Reg. 24,976-01 (May 3, 2011) .......... 15

77 Fed. Reg. 9304-01 (Feb. 16, 2012)............ 2

NS 12

Ses CE, CINE, Biel UF OP ecccacesesscsicenscovsas 12

U.S. Const. amend. XIV, § 5......................... 12

U.S. Const. amend. XV, § 2.......... PRAT EE LeS 12

Books, Artic] 1 Other Authoriti

1 The Oxford English Dictionary (2d ed.

cchceditdavcintnininsennsntaicidanplnsesassusrsianennins 5, 6

Agis Salpukas, Pan Am’s Fight to Survive

on Its Own, N.Y. Times, Nov. 13, 1990,

http://www .nytimes.com/1990/11/13/busi

ness/pan-am-s-fight-to-survive-on-its-

Antonin Scalia, A Matter of Interpretation:

Federal Courts and the Law (1997)........... 5,15

vi

TABLE OF AUTHORITIES - cont’d

Page(s)

Clark D. Cunningham et al., Plain Mean-

ing and Hard Cases, 103 Yale L.J. 1561

(AIA a ae Roe SS te ene Be el

Definition of Appropriate, Merriam Web-

ster Dictionary, http:/www.merriam-

webster.com/dictionary/appropriate (last

Is SI. Gi SID etscechcsemicktentseeectcntasenes

Definition of Appropriate, Oxford Diction-

aries, http://(www.oxforddictionaries.com/

us/definition/american_english/appropria

te (last visited Mar. 3, 2015)......................

Eleanor Blau, Lisa Kirk, Cabaret Perform-

er, 62; Featured in Broadway Musicals,

N.Y. Times, Nov. 13, 1990,

http://www .nytimes.com/1990/11/13/obitu

aries/lisa-kirk-cabaret-performer-62-

featured-in-broadway-musicals.htm]........

John F. Manning, Foreword: The Means of

Constitutional Power, 128 Harv. L. Rev.

Ha PRI) MOAN TREE CS ea RN HS Nee AS NI

John F. Manning, What Divides Textualists

from Purposivists, 106 Colum. L. Rev. 70

Lawrence M. Fisher, Business People;

Businessland Names Chief Operating Of-

ficer, N.Y. Times, Nov. 14, 1990,

http://Awww.nytimes.com/1990/11/14/busi

ness/business-people-businessland-

names-chief-operating-officer. htm] ...........

13

14

Vii

TABLE OF AUTHORITIES - cont’d

Page(s)

Robin Finn, Sabatini Receives a Scare but

Stays Tough at the Finish, N.Y. Times,

Nov. 15, 1990, http:/AWwww.nytimes.com/

1990/1 1/15/sports/sabatini-receives-a-

scare-but-stays-tough-at-the-finish.htm.. 7

Webster’s Third New International Dic-

I Ci icin sretpesroncensiannssioceninis 5

1

INTEREST OF AMICUS CURIAE

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and preserve the rights and freedoms it

guarantees. We also work to ensure that courts re-

main faithful to the text, structure, and purpose of

key federal statutes like the Clean Air Act and, in

turn, protect: the authority of the elected branches to

provide national solutions to national problems—

including the pressing and pervasive problem of air

pollution, as argued in CAC’s amicus briefs last Term

in EPA v. EME Homer City Generation, L.P., 134 S.

Ct. 1584 (2014), and Utility Air Regulatory Group v.

EPA, 134 S. Ct. 2427 (2014). CAC accordingly has an

interest in this case.!

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Air Toxics Rule addresses the risks associ-

ated with the emissions of hazardous air pollutants

(HAPs) like mercrry and arsenic from coal- and oil-

fired power plants, referred to in the Clean Air Act

‘Pursuant to Supreme Court Rule 37.6, amicus curiae states

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

part, and no party or counsel for a party made a monetary con-

tribution intended to fund the preparation or submission of this

brief. No person other than amicus curiae or its counsel made a

monetary contribution to its preparation or submission. Pursu-

ant to Supreme Court Rule 37.3, all parties have granted blan-

ket consent to the filing of amicus curiae briefs in letters on file

with the Clerk of the Court.

2

(CAA) as electric utility steam generating units

(EGUs). 77 Fed. Reg. 9304-01 (Feb. 16, 2012) (2012

Final Rule); see also Am. Acad. of Pediatrics Resp’ts

Br. 4-11 (describing the related legislative and regu-

latory background and history); Fed. Resp’ts Br. 3-8

(same); Indus. Resp’ts Br. 2-4 (same); State & Local

Gov'ts Resp’ts Br. 21-24 (same). These risks include

a number of health problems, ranging from birth de-

fects to neurological disorders to cancer. Am. Acad. of

Pediatrics Resp’ts Br. 3. Furthermore, HAP emis-

sions cross state lines, therefore hampering state-

based efforts to reduce these emissions and, in turn,

address the related health and environmental risks.

State & Local Gov’ts Resp’ts Br. 11-13.

The continued validity of the Air Toxics Rule

now turns on the meaning of a single term—

“appropriate.” Before EPA may regulate HAP emis-

sions from EGUs, the CAA requires the agency to re-

lease a study of “the hazards to public health” associ-

ated with EGU HAP emissions. 42 U.S.C.

§ 7412(m)(1)(A). Once this public health study is

complete, EPA must “consider{] [its] results” and

then “regulate” EGUs “if the Admunistraior finds

such regulation is appropriate and necessary.” Id.

While EPA interprets the term “appropriate” as di-

recting the agency to weigh the health and environ-

mental risks associated with EGU HAP emissions, 77

Fed. Reg. 9304-01, 9362-9363, 9366 (Feb. 16, 2012)

(2012 Final Rule), Petitioners claim that this term

carries with it a separate (and specific) congressional

command.

In Petitioners’ view, this “broad and encom-

passing” term does not merely permit, but actually

“compel/s],” EPA to consider compliance costs before

making the threshold decision to regulate EGU HA?

emissions. Util. Air Regulatory Grp. Pet’rs Br. 23

3

argument and agrees in full with Respondents’ inter-

pretation of 42 U.S.C. § 7412(n)(1)(A), we write sepa-

rately to provide an extensive analysis of the mean-

der Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 US. 837 (1984), Petitioners’ chal-

lenge must fail.

ation of costs. Instead, as this Court has explained,

the term itself ig “open-ended,” “ambiguous,” and “in-

herently context-dependent,” Sossamon v. Texas, 131

S. Ct. 1651, 1659 (2011). The same is true of its us-

age in statutes and in other legal contexts, which is

quite varied—sometimes contemplating cost consid-

erations and sometimes not. It is little wonder that,

in the legal context, the term “appropriate” is often

used to delegate broad discretion to a specified

agent—whether through constitutional grants of au-

thority to Congress or statutory grants of authority to

specific officers, agencies, or courts.

Finally, the text of § 7412(m)(1)(A) and the

CAA’s structure confirm that EPA’s interpretation of

the term “appropriate” is, to echo the D.C. Circuit,

“clearly permissible.” Nat’ Mining Ass’n Pet’rs App.

25a-26a. Section 7412(n)(1)(A) is silent on the issue

of costs, even as the CAA explicitly requires EPA to

sions standards for regulated sources of HAP emis-

sions, including EGUs. Importantly, the CAA also

4

excludes cost considerations from other key HAP-

related regulatory decisions, including (1) the deci-

sion to regulate HAP emissions from all sources other

than EGUs, 42 U.S.C. § 7412(c)(1), and (2) the deci-

sion to remove sources of HAP emissions—including

EGUs—from the list of regulated sources, id.

§ 7412(c)(9)(B)i), Gi). Therefore, Petitioners’ ap-

proach creates an asymmetry, requiring cost consid-

erations when deciding whether to regulate EGUs—

even as EPA may not take costs into account when

determining whether to regulate HAP emissions from

other sources or when deciding whether to remove a

source of HAP emissions (including EGUs) from the

list of regulated sources.

Under Chevron, EPA is given broad discretion

to interpret ambiguous statutory language. There-

fore, this Court must defer to EPA’s reasonable inter-

pretation of § 7412(n)(1)(A) unless it concludes that

the CAA unambiguously instructed the EPA to con-

sider costs before concluding that it was “appropriate”

to regulate EGU HAP emissions. Given the flexibil-

ity of the term “appropriate,” § 7412(n)(1)(A)’s silence

on the issue of costs, and strong contextual evidence

supporting EPA’s interpretation of this key provision,

it was “clearly permissible” for EPA to exclude cost

considerations from its threshold decision to regulate

EGU HAP emissions.

ARGUMENT

Nothing in the text of § 7412(n)(1)(A) required

EPA to consider costs when making its “appropriate

and necessary” determination. Nevertheless, Peti-

tioners give decisive weight to the term “appropri-

ate”"—arguing that this term required EPA to consid-

er compliance costs when making this threshold de-

5

termination. The term “appropriate” cannot bear the

weight that Petitioners give it.

I. THE ORDINARY MEANING OF THE TERM

“APPROPRIATE” DOES NOT REQUIRE

THE CONSIDERATION OF COSTS.

Generally speaking, when interpreting statu-

tory text, this Court assigns it the meaning “a rea-

sonable person would gather from the text of the

law,” Antonin Scalia, A Matter of Interpretation: Fed-

eral Courts and the Law 17 (1997)—the reading that

is “most in accord with context and ordinary usage,”

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528-

29 (1989) (Scalia, J., concurring in the judgment); see

also Clark D. Cunningham et al., Plain Meaning and

Hard Cases, 103 Yale L.J. 1561, 1590 (1994) (“{T]he

normal presumption in statutory interpretation

[is] that Congress intended the ordinary meaning

of the words used.”). When Congress amended the

CAA in 1990 and added the key provision at issue in

this case, the term “appropriate” carried the same or-

dinary meaning that it does today.

When someone describes someone or some-

thing as “appropriate’—then as now—the speaker

ordinarily means that the person, object, or action be-

ing described is “specially suitable,” “fit,” or “proper”

for a given circumstance. See 1 The Oxford English

Dictionary 586 (2d ed. 1989) (defining “appropriate”

as “[s]pecially fitted or suitable, proper”); Webster's

Third New International Dictionary 106 (1986) (de-

fining “appropriate” as “specially suitable: fit, prop-

er’).

Petitioners are, no doubt, correct that the term

“appropriate” is sometimes used to describe objects or

actions that take costs into account. For instance, a

businessperson may speak of taking “decisive action”

6

to “reduce expenses to appropriate levels.” Lawrence

M. Fisher, Business People; Businessland Names

Chief Operating Officer, N.Y. Times, Nov. 14, 1990,

http:/Awww.nytimes.com/1990/11/14/business/busines

8-people-businessland-names-chief-operating-

officer.html (emphasis added) (quoting Edward R.

Simon Jr., President and Chief Operating Officer of

Businessland Inc.). Or, an observer may praise an

airline’s decision to replace its fleet of large, expen-

sive airplanes with smaller, “more fuel-efficient”

models—models that are “more appropriate” for ser-

vicing a certain market. Agis Salpukas, Pan Am’s

Fight to Survive on Its Own, N.Y. Times, Nov. 13,

1990, http:/Awww.nytimes.com/1990/11/13/business/

pan-am-s-fight-to-survive-on-its-own.html (emphasis

added). In each case, cost is one of the factors driving

the evaluative judgment that a given action is “ap-

propriate” in that set of circumstances. However, the

term “appropriate” may also be used in situations

that do not involve the weighing of costs.

For instance, the Anima Christi may be an

“appropriate” prayer for an occasion of “great solem-

nity.” See 1 The Oxford English Dictionary, supra, at

586. Red wine may be an “appropriate” pairing for a

hearty steak. See Definition of Appropriate, Merriam

Webster Dictionary, http://www.merriam-webster.com

/dictionary/appropriate (last visited Mar. 3, 2015). A

romantic movie may be an “appropriate” selection for

a Valentine's Day date. See id. And a sprinkle of

cinnamon may be an “appropriate” additive for a

warm drink on a cold evening. See Definition of Ap-

propriate, Oxford Dictionaries, http://www.oxford

dictionaries.com/us/definition/american_english/

appropriate (last visited Mar. 3, 2015).

In the end, the term “appropriate” is quite

adaptable and may be used to describe anything from

7

a tennis star’s timing to a cabaret singer's gestures.

See Robin Finn, Sabatini Receives a Scare but Stays

Tough at the Finish, N.Y. Times, Nov. 15, 1990,

http://(www.nytimes.com/1990/11/15/sports/sabatini-

receives-a-scare-but-stays-tough-at-the-finish html

(“[A]Jithough she wasn’t overjoyed with her serve, the

16-year-old Yugoslav chose appropriate moments—at

set point in the first set and match point in the se-

cond—to launch her aces.”) (emphasis added); Elea-

nor Blau, Lisa Kirk, Cabaret Performer, 62; Featured

in Broadway Musicals, N.Y. Times, Nov. 13, 1990,

http://www .nytimes.com/1990/1 1/13/obituaries/lisa-

kirk-cabaret-performer-62-featured-in-broadway-

musicals.htm! (“I practiced a song before a mirror

and framed it in what I considered appropriate ges-

tures.”) (emphasis added). There is nothing inherent

in the ordinary meaning of the term “appropriate”

that requires cost considerations. Instead, when an

ordinary speaker determines that something or

someone is “appropriate,” that determination is driv-

en by factors relevant to that set of circumstances

and that speaker's own sense of what is most im-

portant—whether that is cost, flavor, gravity, style,

or something else entirely.

Il. THERE IS NOTHING IN THE VARIED US-

ES OF THE TERM “APPROPRIATE” IN

LEGAL CONTEXTS THAT REQUIRES

COST CONSIDERATIONS, EITHER.

The term “appropriate” is familiar to both

Congress and the courts. Congress has used it in

numerous statutes—including in several provisions of

the CAA—and, of course, the term “appropriate” also

appears in the U.S. Constitution. Use of this term in

legal sources generally matches its use in ordinary

conversation. Namely, its meaning is varied and con-

textual. Indeed, given its multifaceted use in the

8

U.S. Code and the U.S. Constitution, it is little won-

der that, when either Congress or the Constitution

delegates authority to a given agent, the term “ap-

propriate” sometimes contemplates cost considera-

tions and sometimes not. Most notably, the term it-

self traditionally signals delegation of broad discre-

tion to a designated agent—whether that is Congress,

the courts, 2 specific officer, or an expert agency.

Tais Court recently examined the meaning of

the term “appropriate” in detail. In Sossamon v. Tex-

as, 131 S. Ct. 1651 (2011), the question was whether

the States, by accepting federal funds, consented to

waive their sovereign immunity to damage suits un-

der the Religious Land Use and Institutionalized

Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. The

key statutory provision at issue included the term

“appropriate”: “A person may assert a violation of

[RLUIPA] as a claim or defense in a judicial proceed-

ing and obtain appropriate relief against a govern-

ment.” 42 U.S.C. § 2000cc-2(a) (emphasis added).

In rejecting the argument that the States had

waived immunity to damage suits based on the ac-

ceptance of federal funds and the text of this provi-

sion, this Court stressed the flexibility of the term

“appropriate.” Relying on dictionary definitions simi-

lar to those examined in Part I, supra, this Court un-

surprisingly concluded that the term “appropriate” is

“open-ended,” “ambiguous,” and “inherently context-

dependent.” Sossamon, 131 S. Ct. at 1659. There-

fore, this Court held that “the phrase ‘appropriate re-

lief is not so free from ambiguity that we may

conclude that the States, by receiving federal funds,

have unequivocally expressed intent to waive their

9

sovereign immunity to suits for damages.” Jd. at

1660.?

Reinforcing the flexibility of the term “appro-

priate” in the legal context, Congress has used the

specific phrase “appropriate and necessary”—the very

formulation used in § 7412(n)(1)(A)}—in a variety of

contexts, ranging from the Secretary of Agriculture's

decision to permit concession sales at the National

Arboretum, 20 U.S.C. § 196(a)(2), to the Secretary of

Health and Human Services’ findings supporting new

performance standards for devices, 21 U.S.C.

§ 360d(b)(1)(B)(i), to the information that various cab-

inet secretaries must provide the President about

“significant foreign narcotics traffickers,” 21 U.S.C.

§ 1903(a). These statutory provisions are often struc-

tured in such a way that the phrase “appropriate and

necessary” is oriented toward a certain goal—often

phrased as “appropriate and necessary to X.” See,

e.g., 21 U.S.C. § 360d(b)(1)(B)G@) (“A notice of proposed

rulemaking for the establishment of a perfor-

mance standard for a device shall. set forth a find-

ing with supporting justification that the perfor-

mance standard is appropriate and necessary to pro-

vide reasonable assurance of the safety and effective-

ness of the device.”) (emphasis added); 21 U.S.C.

§ 2223(d)(2)(A) (“{[T]he Secretary shall designate

high-risk foods for which. additional recordkeeping

2 In other contexts, this Court has provided similar readings

of the term “appropriate.” See, e.g., Ruckelshaus v. Sierra Club,

463 U.S. 680, 683 (1983) (‘It is difficult to draw any meaningful

guidance from [the provision’s] use of the word ‘appropriate,

which means only ‘specially suitable: fit, proper.”) (emphasis

added) (quoting Webster’s Third International Dictionary); Am.

Textile Mfre. Inst., Inc. v. Donovan, 452 U.S. 490 (1981) (declin-

ing the invitation to decide whether the phrase “reasonably nec-

essary and appropriate” generally required the use of cost-

benefit analysis).

10

requirements are appropriate and necessary to

protect the public health.”) (emphasis added).

As with the ordinary use of the term “appro-

priate,” sometimes these provisions contemplate cost

considerations. For instance, one such provision calls

on the Department of Defense’s Board of Actuaries to

“review valuations of the Departmentfs] Military Re-

tirement Fund. .and submit. a report on the sta-

tus of that Fund, including such recommendations for

modifications to the funding or amortization as

the Board considers appropriate and necessary to

maintain that Fund on a sound actuarial basis.” 10

U.S.C. § 183(c)(1) (emphasis added). However, at

other times, congressional use of the phrase “appro-

priate and necessary” plainly does not contemplate

cost considerations. For instance, Congress used the

phrase “appropriate and necessary” in the context of

flight safety, permitting “the Under Secretary [of

Transportation for Security]” to “authorize members

of [a] flight deck crew on any aircraft providing air

transportation to carry a less-than-lethal weap-

on” if she “determines that it is appropriate and

necessary and would effectively serve the public in-

terest in avoiding air piracy.” 49 U.S.C. § 44903(i)(1)

(emphasis added). In the end, these examples con-

firm that, as with ordinary use of the term “appropri-

ate,” its use in statutory materials is, as this Court

explained, similarly “open-ended” and “context-

dependent.”

5 The U.S. Code also contains several) provisions using the

phrase “necessary and appropriate.” See Fed. Resp’ts Br. 43

(noting that there are hundreds of provisions in the U.S. Code

that use the phrase “appropriate and necessary” or “necessary

and appropriate”). Much like the phrase “appropriate and nec-

essary,” this phrase is used in a variety of contexts, many of

which do not contemplate cost considerations. See, e.g., 7 U.S.C.

11

Finally, given this flexibility, this Court has of-

ten interpreted the term “appropriate” as delegating

broad authority to a designated agent—whether that

is Congress, the courts, an officer, or an expert agen-

cy. See, e.g., Marrama v. Citizens Bank of Mass., 549

U.S. 365, 375 n.12, 374-75 (2007) (reading a provision

that provides bankruptcy courts with the authority to

“issue any order, process, or judgment that is neces-

sary or appropriate” (quoting 11 U.S.C. § 105(a)) as

granting such courts “broad authority”) (emphasis

added); Edmond v. United States, 520 U.S. 651, 656

(1997) (construing a provision that gives the Secre-

tary of Transportation the power to “promulgate such

regulations and orders as he deems appropriate”

(quoting 14 U.S.C. § 633) as providing the Secretary

with “broad authority over the Coast Guard”) (em-

phasis added); CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 662 (1993) (reading a provision that gives

the Secretary of Transportation the authority to “pre-

scribe, as necessary, appropriate rules, regulations,

orders, and standards for all areas of railroad safety”

§ 6918(c)(3) (authorizing the Secretary of Agriculture to “dele-

gate to the Assistant Secretary . responsibility for . ensur-

ing that necessary and appropriate civil righta components are

properly incorporated into all strategic planning initiatives”); 14

U.S.C. § 182(a) (instructing the Secretary to “take such action as

may be necessary and appropriate to insure that female individ-

uals shall be eligible for appointment and admission to the

Coast Guard Academy”); 16 U.S.C. § 410jj-4(b)(4) (authorizing

the Secretary to “stabilize and rehabilitate structures” at the

Kalaupapa National Historical Park “only to the extent neces-

sary and appropriate to interpret adequately the nationally sig-

nificant historical features and events of the [Kalaupapa] set-

tlement for the benefit of the public”); 18 U.S.C. § 39A(d) (per-

mitting the “Attorney General, in consultation with the Secre-

tary of Transportation” to create such exceptions to the crime of

aiming a laser pointer at an aircraft “by regulation, . as may

be necessary and appropriate”).

12

(quoting 45 U.S.C. § 431(a)) as delegating to the Sec-

retary “broad powers”) (emphasis added); Sch. Comm.

of the Town of Burlington v. Dep” of Educ. of Mass.,

471 U.S. 359, 369 (1985) (interpreting a provision

that directs the relevant court to “grant such relief as

[it] determines is appropriate” (quoting 20 U.S.C.

§ 1415) as “confer[ring] broad discretion on th[at]

court”) (emphasis added); see also Natl Ass'n of Clean

Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir.

2007) (construing the EPA Administrator’s discretion

under CAA § 231(a)(3) to “issue regulations” pertain-

ing to aircraft fuel “with such modifications as he

deems appropriate” (quoting 42 U.S.C. § 7571(a)(3))

as “both explicit and extraordinarily broad”) (empha-

sis added).

Perhaps most notably, this Court has long in-

terpreted the term “appropriate” as granting Con-

gress considerable discretion under several provisions

of the U.S. Constitution. One such example is found

in the three Amendments ratified in the wake of the

Civil War, each of which contains an Enforcement

Clause providing Congress with the explicit authority

to “enforce” each Amendment “by appropriate legisla-

tion.” U.S. Const. amend. XIII § 2; U.S. Const.

amend. XIV § 5; U.S. Const. amend. XV § 2.

This Court has long interpreted these Clauses

as providing Congress with the same broad discretion

that it has to carry out other provisions of the Consti-

tution under the Necessary and Proper Clause, U.S.

Const. art. I, § 8, cl. 18. See, e.g., Katzenbach v. Mor-

gan, 384 U.S. 641, 650 (1966) (“By including s 5 the

draftsmen sought to grant to Congress, by a specific

provision applicable to the Fourteenth Amendment,

the same broad powers expressed in the Necessary

and Proper Clause ”); South Carolina uv.

Katzenbach, 383 U.S. 301, 326 (1966) (granting defer-

13

ence to Congress's use of the Fifteenth Amendment’s

Enforcement Clause); Hepburn v. Griswold, 75 U.S.

(8 Wall.) 603, 614-15 (1869) (declaring that “[ijt must

be taken then as finally settled that the words” of

the Necessary and Proper Clause are “equivalent” to

the term “appropriate”), overruled in part by Legal

Tender Cases, 79 U.S. (12 Wall.) 457 (1870).

Under this authority, Congress has broad lati-

tude to employ legislative means naturally related to

the lawful objects or ends of the federal government—

policy judgments to which this Court has said defer-

ence must be given. See McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legit-

imate, let it be within the scope of the constitution,

and all means which are appropriate, which are

plainly adapted to that end, which are not prohibited,

but consistent with the letter and spirit of the consti-

tution, are constitutional.”) (emphasis added); see also

Johr F. Manning, Foreword: The Means of Constitu-

tional Power, 128 Harv. L. Rev. 1, 53 (2014) (“[T]he

phrase ‘necessary and proper’ constitutes the kind of

‘empty standard’ one usually associates with delega-

tion.”).

Because the term “appropriate” is “open-ended”

and “inherently context-dependent,” the use of that

term in § 7412(n)(1)(A) cannot, by itself, require EPA

to consider costs when determining whether to sub-

ject EGU emissions to regulation under the CAA’s

HAP regime. It rather calls for consideration of the

statutory context which, as demonstrated in Part III,

infra, firmly supports EPA’s decision to exclude cost

considerations from its “appropriate and necessary”

determination.

14

fil. EPA’S DECISION TO EXCLUDE COMPLI-

ANCE COSTS FROM ITS “APPROPRIATE

AND NECESSARY” DETERMINATION IS

REINFORCED BY THE CAA’S TEXT AND

STRUCTURE.

The ordinary meaning of the term “appropri-

ate” does not require the consideration of costs. How-

ever, statutory terms “cannot be construed in a vacu-

um.” Davis v. Mich. Dep't of Treasury, 489 U.S. 803,

809 (1989). As this Court has long recognized, “the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.” FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000); see also John F. Manning,

What Divides Textualists from Purposivists, 106 Col-

um. L. Rev. 70, 75 (2006) (“[T]he meaning of statutory

language (like all language) depends wholly on con-

text.”).

Here, not only is EPA’s interpretation of

§ 7412(n)(1)(A) consistent with the ordinary meaning

of the term “appropriate,” but it is also reinforced by

the CAA’s text and structure. At the very least,

EPA’s interpretation of this critical provision is, as

the D.C. Circuit concluded, “clearly permissible.”

Under Chevron, the relevant question is al-

ways whether EPA’s reading is “a reasonable inter-

pretation of the statute—not necessarily the only

possible interpretation, nor even the interpretation

deemed most reasonable by the courts.” Entergy

Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009);

see also EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584, 1603 (2014) (noting that this Court

“routinely accord{s} dispositive effect to an agency's

reasonable interpretation of ambiguous statutory

language”). In challenging EPA’s interpretation here,

Petitioners deviate from this well-established princi-

15

ple, seeking to “transfer[]. interpretive decisions—

archetypal Chevron questions, about how best to con-

strue an ambiguous term .—from an agencl[y] that

administer[s] the statute[] to [a] federal court.” City

of Arlington v. FEC, 133 S. Ct. 1863, 1873 (2013)

(quoting Ford Motor Credit Co. v. Milhollin, 444 U.S.

555, 568 (1980)). Nothing in the CAA’s text and

structure requires this Court to take up Petitioners’

invitation.

A. The Term “Appropriate,” When Read In

The Context Of § 7412(n){1)(A), Does Not

Require EPA To Consider Compliance

Costs When Making Its “Appropriate

And Necessary” Determination.

When interpreting statutory language, “con-

text is everything.” Scalia, supra, at 37. And, when

the term “appropriate” is read in the context of

§ 7412(n)(1)(A), EPA’s decision to exclude cost consid-

erations from its “appropriate and necessary” deter-

mination is perfectly reasonable.

To begin, the text of § 7412(n)(1)(A) offers no

explicit guidance to EPA as to which factors it must

weigh in making its “appropriate” determination.

The term “appropriate” itself is defined nowhere in

the statute. And, as discussed in Part II, supra, the

term itself is “open-ended,” “ambiguous,” and “inher-

ently context-dependent,” Sossamon, 131 S. Ct. at

1659—the perfect candidate for judicial deference to

an expert agency's judgment under Chevron.

Furthermore, the term “costs” does not appear

anywhere in § 7412(n)(1)(A) either. And, as EPA was

well aware when promulgating its final rule here, 76

Fed. Reg. 24,976-01, 24,989 (May 3, 2011), this Court

has been reluctant to read cost requirements into

congressional silence—at times even prohibiting EPA

16

from taking compliance costs into account when ad-

ministering the CAA. See Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 467 (2001) (preventing EPA

from considering costs when setting national ambient

air quality standards); see also EME Homer City Gen-

eration, L.P., 134 S. Ct. at 1604 (“Under Chevron we

read Congress’ silence as a delegation of authority to

EPA to select from among reasonable options.”); En-

tergy Corp., 556 U.S. at 222 (“It is eminently reason-

able to conclude that [congressional] silence is meant

to convey nothing more than a refusal to tie the agen-

cys hands as to whether cost-benefit analysis should

be used, and if so to what degree.”); Am. Textile Mfrs.

Inst., Inc., 452 U.S. at 510-12 (concluding that it was

not reasonable for the Secretary of Labor to read

broad language—including the term “appropriate”—

as importing a cost-benefit test into a regulatory

scheme when the relevant statute already included a

specific “feasibility”-based standard that would effec-

tively be overridden by a cost-benefit approach).

Finally, the primary contextual evidence in

§ 7412(n)(1)(A) itself points not toward cost consider-

ations, but instead toward concerns about possible

risks to public health. Under the 1990 Amendments,

Congress instructed EPA to “perform a study of the

hazards to public health reasonably anticipated to

occur as a result of [HAP emissions from EGUs].” 42

U.S.C. § 7412(n)(1)(A). From there, Congress provid-

ed EPA with the following statutory command: EPA

“shall regulate [HAP emissions] under this section, if

the Administrator finds such regulation is appropri-

ate and necessary after considering the results of the

study required by this subparagraph.” Id. (emphases

added).

Given the plain meaning of the term “appro-

priate,” it is reasonable to read the challenged provi-

17

sion as follows: EPA shall regulate HAP emissions

under this section if the Administrator finds such

regulation is “suitable” (or “fitting”) after considering

the results of a study examining the public health

risks associated with HAP emissions from EGUs.

EPA read this language as requiring it to “consider”

the results of this statutorily required study and,

based on those results, as well as related environ-

mental risks, determine whether regulation of EGU

emissions was “appropriate.” While the language of §

7412(n)(1)(A) perhaps could be read to allow EPA to

account for compliance costs when making this

threshold determination—and that proposition is

surely contestable, given some of the contextual evi-

dence discussed in Section [I.B, infra—that certainly

is not the only reasonable interpretation of the statu-

tory text. Furthermore, given the specific congres-

sional directive to conduct a public health study, it

was “clearly permissible” for EPA to exclude cost con-

siderations from this initial inquiry. At the very

least, this reasonable interpretation of § 7412(n)(1)(A)

is entitled to deference under Chevron.

B. EPA’s Interpretation Of The Term “Ap-

propriate” Is Also Reasonable When

Read In The Context Of Other CAA Pro-

visions Addressing HAP Emissions.

While the text of § 7412(n)(1)(A) alone supports

EPA’s reading of the term “appropriate,” this Court

“should not confine itself to examining a particular

statutory provision in isolation.” Brown & William-

son Tobacco Corp., 529 U.S. at 132. Instead, it must

“account for both ‘the specific context in which

language is used’ and ‘the broader context of the

statute as a whole.” Util. Air Regulatory Grp. v.

EPA, 134 S. Ct. 2427, 2442 (2014) (quoting Robinson

uv. Shell Oil Co., 519 U.S. 337, 341 (1997)).

18

Importantly, EPA’s interpretation of

§ 7412(n)(1)(A) is bolstered by contextual evidence

within other provisions of the CAA addressing HAP

emissions, including key provisions that explicitly in-

clude cost considerations. See Am. Trucking Ass’ns,

531 U.S. at 467 (refusing “to find implicit in ambigu-

ous sections of the CAA an authorization to consider

costs that has elsewhere, and so often, been expressly

granted”); Russello v. United States, 464 U.S. 16, 23

(1983) (“[W]here Congress includes particular lan-

guage in one section of a statute but omits it in an-

other section of the same Act, it is generally pre-

sumed that Congress acts intentionally in the

disparate inclusion or exclusion.”) (quoting United

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972)).

To begin, once EPA determines that it is “ap-

propriate and necessary” to regulate EGU HAP emis-

sions under § 7412(n)(1)(A), the agency must set

emissions standards. And this decision turns, in

part, on cost considerations—both implicitly and ex-

plicitly.

EPA must set standards that “require the max-

imum degree of reduction in [HAP] emissions” that

the agency concludes is “achievable” after weighing

several factors, including energy requirements, cer-

tain health and environmental effects, and costs. 42

U.S.C. § 7412(d)(1), (2). For existing sources, the

CAA sets an emissions “floor” based on the average

emission reductions achieved by the best-performing

12% of existing sources. Id. § 7412(d)(3)(A). These

floor standards take compliance costs into considera-

tion implicitly by setting a statutory minimum based

upon what existing sources have already been able to

achieve under current market conditions. More im-

portant, to go beyond this statutory floor—in other

19

words, to impose more restrictive standards—the

CAA explicitly requires EPA to “tak/e] into considera-

tion the cost of achieving such emission reduction,” id.

§ 7412(d)(2)—an explicit mention of cost found no-

where in § 7412(n)(1)(A). See also Fed. Resp’ts Br. 35

n.10 (listing dozens of CAA provisions—both within

Section 7412 and elsewhere—that explicitly direct

EPA to consider costs when taking a given regulatory

action); State & Local Gov’ts Resp’ts Br. 20 (similar).

EPA’s treatment of EGUs in the final rule—

namely, delaying the consideration of costs until set-

ting emissions standards—is also consistent with

other key features of the CAA’s regime for addressing

HAP emissions. For instance, consider the CAA’s

framework for deciding which HAPs warrant regula-

tion. In the CAA itself, Congress lists 189 HAPs that

EPA must regulate. 42 U.S.C. § 7412(b)(1). Fur-

thermore, Congress directs EPA to “periodically re-

view thfis] list . and, where appropriate, revise

such list by rule, adding pollutants which present, or

may present, a threat of adverse human health

effects . or adverse environmental effects.” Id.

§ 7412(b)(2) (emphasis added). Cost plays no role in

these listing decisions, even as one of the key provi-

sions uses the term “appropriate.”

Or, consider the CAA’s requirements for de-

termining which sources of HAP emissions other than

EGUs are worthy of regulation. The CAA bases this

determination on each source’s annual emissions,

with those sources emitting either 10 tons per year of

any single HAP or 25 tons per year of any combina-

tion of HAPs subject to regulation. Id. § 7412(a)(1).

Again, cost plays no role in this determination.

Finally, consider the CAA’s framework for de-

termining whether a source of HAP emissions—

including EGUs—should be removed from the list of

20

regulated sources. EPA is to base these decisions on

risks ic public health and the environment, not costs.

Id. § 7412(c)(9)(B){i), (ii). For instance, for HAPs as-

sociated with cancer risks, EPA may delete sources of

such pollutants from the list only if “no source in the

category emits such pollutants in quantities

which may cause a lifetime risk of cancer greater

than one in one million to the individual in the popu-

lation who is most exposed to [such] emissions.” Id.

§ 7412(c)(9)(B)(i). For HAPs associated with health

risks other than cancer, EPA may delete sources of

those pollutants from the list only if “emissions from

no source in the category exceed a level which is

adequate to protect public health with an ample mar-

gin of safety and no adverse environmental effect wil]

result from emissions from any source.” Id.

§ 7412(c)(9)(B)(ii). Once again, cost plays no role in

this determination.

In the end, Petitioners envision a scheme that

would strictly regulate all sources of HAP emissions

based exclusively on health and environmental risks

except for what statutorily required studies have

shown are among the largest emitters of those sub-

stances—EGUs—which would be exempt from regu-

lation if such regulations were deemed too costly. See

Am. Acad. of Pediatrics Resp’ts Br. 10 (noting that

EGUs account for 50% of total U.S. mercury emis-

sions); State & Local Gov’ts Resp’ts Br. 1 (stating that

EGUs are “the largest source of [HAP] pollution in

the Nation”); Indus. Resp’ts Br. 1 (explaining that

EGUs are “by far the largest source of mercury and

certain other hazardous air pollutants”). Neither the

ordinary meaning of the term “appropriate” nor the

CAA’s text and structure require this perverse result.

Furthermore, strong contextual evidence—both with-

in § 7412(n)(1)(A) itself and in related CAA provi-

21

sions—reinforce the D.C. Circuit’s conclusion below

that EPA’s decision to exclude cost considerations

when making its initial “appropriate and necessary”

determination was reasonable and, therefore, ought

to receive deference under Chevron.

CONCLUSION

EPA’s reading of § 7412(n)(1)(A) is a reasona-

ble and valid interpretation of the CAA, and, there-

fore, this Court should affirm the lower court’s deci-

sion upholding EPA’s Air Toxics Rule.

Respectfully submitted,

DOUGLAS T. KENDALL

ELIZABETH B. WYDRA*

TOM DONNELLY

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18” St., NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amicus Curiae

March 4, 2015 * Counsel of Record