Petition for Writ of Certiorari — Massachusetts v. American Trucking Assns.

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9912683 JAN 27 2000

No.

“OFFICE OF THE CLERK

In The

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS

AND THE STATE OF NEW JERSEY,

Petitioners,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, et al.,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals,

District Of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN J. FARMER

Attorney General

State of New Jersey

Howarp L. GEDULDIG

JOHN R. RENELLA

Deputy Attorneys General,

New Jersey

Richard J. Hughes Justice

Complex, 7th Floor

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

THOMAS F. REILLy

Attorney General

Commonwealth of

Massachusetts

Lisa HEINZERLING

Counsel of Record

Special Assistant Attorney

General, Massachusetts

Georgetown University

Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9115

EDWARD G. BOHLEN

Assistant Attorney

General, Massachusetts

200 Portland Street:

Boston, MA 02114

(617) 727-2200, ext. 3358

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

1) 640°

QUESTIONS PRESENTED

Sections 108 and 109 of the Clean Air Act, 42 U.S.C.

§§7408-7409, direct the Administrator of the Environmental

Protection Agency (“EPA”) to set and periodically revise

national ambient air quality standards (“NAAQS”) for a limited

subset of air pollutants, based on the latest scientific evidence

concerning the nature and magnitude of the effects of these

pollutants on public health and welfare. Sections 181 and 182

of the Act, 42 U.S.C. §§ 7511-7511f, impose specific deadlines

and requirements on those portions of the nation not in

_ compliance with the ozone NAAQS in effect when Congress

added these provisions to the Act. The questions presented are

as follows:

1. Whether the EPA Administrator’s 1997 promulgation of

revised NAAQS for particulate matter and ozone rested on an

application of Clean Air Act sections 108 and 109 that amounts

to an unconstitutional delegation of legislative authority to the

executive in violation of Art. I, § 1 of the Constitution.

2. Whether sections i81 and 182 of the Clean Air Act

permit the Administrator to promulgate a revised ozone

NAAQS but forbid her to enforce the revised standard.

PARTIES TO THE PROCEEDINGS

Petitioners, intervenors in the appeals court, are the

Commonwealth of Massachusetts and the State of New Jersey.

Respondents are the Environmental Protection Agency

(which was a respondent below): National Stone Association,

Kennecott Holdings Corporation, Kennecott Energy and Coal

Company, Kennecott Services Company, David Matusow,

Citizens for Balanced Transportation, West Virginia Chamber

of Commerce, Midwest Ozone Group, Nevada Mining

Association, Newmont Gold Company, Meridian Gold

Company, Idaho Mining Association, American Iron & Steel

Association, National Small Business United, American Farm

Bureau, Duquesne Light Company, American Trucking

Associations, American Public Power Association, Appalachian

Power Co., American Petroleum Institute, National Association

of Manufacturers, Western Fuels Association, Inc., National

Association of Home Builders, American Iron & Steel Institute,

Alliance of Automobile Manufacturers Association, National

Mining Association, American Forest & Paper Association,

Inc., National Petroleum Refiners Association, National

Petroleum Institute, Chemical Manufacturers Association, Non-

ferrous Founders’ Society, State of West Virginia, Ohio Mining

& Reclamation Association, State of Ohio, State of Michigan,

United Mine Workers of America, AFL-CIO, Small Business

Survival Committee, Equipment Manufacturers Institute,

National Paint and Coatings Association, National Small

Business United, National Automobile Dealers Association,

American Farm Bureau Federation (ali petitioners below); and

the American Lung Association, American Public Power

Association, Texas Gas Transmission Corporation, Atlantic

City Electric Company, and American Road & Transportation

Builders Association (intervenors below).

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED .............0.0cecceeee. i

PARTIES TO THE PROCEEDINGS ...........000000: ii

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CONSTITUTIONAL, STATUTORY, AND REGULATORY

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A. Statutory and Regulatory Background............... 3

1. Establishing and Revising the NAAQS........... 3

2. Implementing the NAAQS .................006- 5

B. Rulemakings on Particulate Matter and Ozone ........ 9

1. Particulate Matter....... AA eae re naepod 9

2. — Dae Ge envende Chee ete we bins eke Rees 1]

C. The Court of Appeais’ Initial Decision.............. 13

1. Delegation ...........,......, SERN PT eRe 13

2. Enforcement of Ozone Standard ................ 14

D. The Court of Appeals’ Partial Grant of Rehearing and

Denial of Rehearing En Banc .................... 16

FRR TET ES TOT CEE OUT ET eT er 16

2. Enforcement of Ozone Standard................ 16

REASONS FOR GRANTING THE PETITION ......... 17

I. THE COURT OF APPEALS’ DECISION IS

INCONSISTENT WITH THIS COURT’S RULINGS ON

THE “DELEGATION” DOCTRINE. ............... 18

Il. THE COURT OF APPEALS’ DECISION BLOCKING

ENFORCEMENT OF THE REVISED OZONE

STANDARD IS INCONSISTENT WITH THE CLEAN

AIR ACT’S LANGUAGE AND PURPOSES, AND WITH

Il. THE COURT OF APPEALS’ DECISION WARRANTS

REVIEW, NOTWITHSTANDING THE ABSENCE OF A

DIRECT CIRCUIT CONFLICT, BECAUSE OF ITS

ENORMOUS SIGNIFICANCE BOTH TO THE STATES

AND FOR THE PUBLIC HEALTH AND BECAUSE NO

SUCH CONFLICT IS POSSIBLE. ................ 25

A. The Ruling Has Great Practical Significance for the

re re pe eee Er ere 26

B. The Implications for Public Health Are Enormous. 29

C. A Direct Circuit Conflict Is Impossible. ......... 29

CI hs kb scsae eeu ecsucdeksnuaneen haces 30

TABLE OF AUTHORITIES

Cases

American Petroleum Institute v. EPA, 2000 U.S. App. LEXIS

Be Te. 5 Es OE os ch hdd cae deek es eee 28

American Power & Light Co. v. SEC, 329 U.S. 90, 105

(OU 6 ck cd oe ened thatiwecsasne rere 20

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 866 (1984) .. 25

FPA-v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944) .. 18

Lead Industries Assn v. EPA, 647 F.2d 1130 (D.C. Cir. 1980).5

Mistretta v. United States, 488 U.S. 361, 373 (1989)...... 18

National Broadcasting Co. v. United States, 319 U.S. 190

CTNIE ss cae cdkns ord okds b 1000s kek nee eee i8

State of Michigan v. EPA, No. 98-1497 (D.C. Cir. May 25,

SEE iocvs iw ak Ka cade ee Reese s cee ee eee 27

Touby v. United States, 500 U.S. 160 (1991)......... 19, 20

Union Electric Company v. EPA, 427 U.S. 246, 266 (1976) . 6

United States v. Southwestern Cable Co., 392 U.S. 157, 178

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Constitutional and Statutory Provisions

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42 U.S.C. § 7408 ........ ihe tone yhemea ea ee 3

42 U.S.C. § 740B(aN 1 MAP(B). ... 5.0... cccccnccecesaes 3

42 U.S.C. § 7408(a)(2).......... Bachan ave Conan 4,19

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42 U.S.C. § 7511(aX{1)............. ees 7, 8, 15, 24

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42 U.S.C. §§ 751 1a(b)(1), SP Li tcanvaceecsas cesses 8

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a a 27

Other Sources

Hearing on Use of Fire As a Management Tool and Its Risks

and Benefits for Forest Health and Air Quality Before the

House Comm. On Resources, 105th Con. Ist Sess., Sept. 30,

1997, Serial No. 105-45, p. 16 (statement of Carol Browner)

Memorandum from William G. Laxton, Director, Technical

Support Division, U.S. EPA, “Ozone and Carbon Monoxide

Design Value Calculations” (June 18, 1990)

(http:www.epa.gov/airprogm/oar/oaqps/greenbk/laxton. html)

SAORI ERLE Py BN EOE LEC EADS Ee eC CRT? 23

Federal Rules of Appellate Procedure and Corresponding

Circuit Rules of the District of Columbia Circuit, Rule 35(a)

(circuit rules as amended through 1-3-00)............... 3

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1-63) is reported at

175 F.3d 1027. The following orders of the court of appeals are

reported at 195 F.3d 4: the order granting in part and denying in

part petitioners’ petition for rehearing (App. 64-82); the order

denying, by a vote of 4-5 of the judges participating, EPA’s

petition for rehearing en banc (App. 83-91); and the order

denying petitioners’ petition for rehearing en banc (App. 92-93).

JURISDICTION

The judgment of the court of appeals was entered on May 14,

1999. On October 29, 1999, petitioners’ timely petition for

rehearing was granted in part and denied in part; petitioners’

timely petition for rehearing en banc was denied; and the court

denied, by a 4-5 vote of the judges participating in the decision,

EPA’s timely petition for rehearing en banc. This Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

Article I, § 1, of the Constitution provides in pertinent part

that “All legislative Powers herein granted shall be vested in a

Congress of the United States .. .”

The statutory and regulatory provisions relevant to this case

are set forth infra, App. 94-113.

STATEMENT

In 1997, EPA revised its existing air quality standards for

particulate matter (“PM”) and ozone. See National Ambient Air

Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652,

38,655 (1997) (“PM Final Rule”); National Ambient Air

Quality Standards for Ozone, 62 Fed. Reg. 38,856, 38,860

(1997) (“Ozone Final Rule”). It acted on the basis of exhaustive

scientific inquiry into the nature and magnitude of the effects of

these pollutants on human health and welfare. EPA estimated

that its revised standards together could save as many as 15,000

additional lives per year as compared to the previous standard,

and also annually prevent hundreds of thousands of additional

cases of aggravated asthma and significantly decreased lung

function. '

The D.C. Circuit held that the Clean Air Act, as applied in

these rulemakings, delegates authority to the executive in

violation of the Constitution. The court also held that section

181 of the Act, 42 U.S.C. § 7511, prevents EPA from enforcing

the revised ozone standard.

Judge Tatel dissented from the panel’s decision on the

delegation question. (App. 55.) Five judges - a majority of

those participating - voted to rehear the case en banc. (App.

84.) But because D.C. Circuit rules require that a majority of

the court’s active sitting judges vote in favor of rehearing a case

'Hearing on Use of Fire As a Management Tool and Its

Risks and Benefits for Forest Health and Air Quality Before the

House Comm. On Resources, 105th Con. Ist Sess., Sept. 30,

1997, Serial No. 105-45, p. 16 (statement of Carol Browner).

ee ee

en banc, and because two active judges did not participate in

the decision, rehearing en banc was denied.”

A. Statutory and Regulatory Background

1. Establishing and Revising the NAAQS

The Clean Air Act requires the Administrator

(“Administrator”) of EPA to establish and periodically revise

national ambient air quality standards (“NAAQS”) for a limited

subset of air pollutants. 42 U.S.C. §§ 7408-7409. These

standards identify the maximum permitted level of the regulated

pollutants in the outside air.”

NAAQS may be set only: for air pollutants that “cause or

contribute to air pollution which may reasonably be anticipated

to endanger public health or welfare” and “the presence of

which in the ambient air results from numerous or diverse

mobile or stationary sources.” 42 U.S.C. § 7408(a)(1)(A)-(B).

Thus NAAQS may be set only for widespread pollutants that

endanger public health or welfare. Today, NAAQS exist for six

Federal Rules of Appellate Procedure and

Corresponding Circuit Rules of the District of Columbia

Circuit, Rule 35(a) (circuit rules as amended through 1-3-00).

*Primary NAAQS are designed to protect the public

health. 42 U.S.C. § 7409(b)(1). Secondary standards are

designed to protect public welfare, id. § 7409(b)(2), broadly

defined to include, for example, effects on soils, crops, and

wildlife, id. § 7602(h). The primary and secondary standards at

issue here are identical. PM Final Rule, 62 Fed. Reg. at 38,683;

Ozone Final Rule, 62 Fed. Reg. at 38,877.

air pollutants: PM, sulfur dioxide, carbon monoxide, nitrogen

dioxide, ozone, and lead. See 40 C.F.R. §§ 50.4 - 50.12.

The Clean Air Act directs the Administrator to review the

NAAQS every five years. 42 U.S.C. § 7409(d)(1). Based on

this review, the Administrator may promulgate a new NAAQS,

or revise an existing one. /d. § 7409(a)(1). No new pollutant

has been regulated under the NAAQS program since 1978,

when the NAAQS for lead was issued.‘

The Clean Air Act requires extensive scientific inquiry into

the nature and severity of harm caused by an air pollutant before

a NAAQS for that pollutant can be established or revised. The

Act requires, first, that air quality “criteria” be developed for

pollutants in the NAAQS program. These criteria - which are

described in a “criteria document” prepared by the agency -

must reflect “the latest scientific knowledge” indicating the

“kind and extent of all identifiable effects on public health or

welfare.” 42 U.S.C. § 7408(a)(2).

The Act requires, in addition, that a scientific advisory

committee - known as the Clean Air Scientific Advisory

Committee, or “CASAC” - review the air quality criteria and

NAAQS. The committee must recommend to the

Administrator any new or revised NAAQS that may be

appropriate in light of the statutory requirements, and must also

describe the areas in which “additional knowledge” is required

to evaluate any NAAQS. 42 U.S.C. § 7409(d)(2)(B)-(C).

The NAAQS themselves must be “based on” the air quality

criteria. 42 U.S.C. § 7409(b)(1). They must be set at a level

which, “allowing an adequate margin of safety, are requisite to

*43 Fed. Reg. 46,246 (1978).

protect the public health.” Id. § 7409(b)(1). The Administrator

may significantly depart from the recommendations of CASAC

only if she explains why she has done so. Id. § 7607(d)(3).

EPA has consistently interpreted the Clean Air Act to require

the protection of sensitive subpopulations such as children, the

elderly, and people with respiratory problems. Lead Industries

Assoc. v. EPA, 647 F.2d 1130, 1153 (D.C. Cir. 1980).

2. Implementing the NAAQS

Once the NAAQS are established or revised, attention shifts

to achieving them. Although the Clean Air Act gives the states

the primary responsibility to implement the programs to achieve

the NAAQS, 42 U.S.C. § 7410, the statute also significantly

constrains the timing and content of the process of

implementation.

Designation: Attainment Status. Implementation begins with

the designation of areas according to whether their air quality

complies with the NAAQS. The three possible designations are

“attainment” (area meets the NAAQS), “nonattainment” (area

does not meet them), or “unclassifiable” (area’s attainment

status cannot be determined based on available information).

42 U.S.C. § 7407(d)( 1)(A)(4)-(iii).

Section 107(d) provides that areas may be designated at three

different points in time. First, areas may be designated when a

new NAAQS is established, or an existing one revised. 42

U.S.C. § 7407(d)(1). Second, areas were designated following

the 1990 Amendments to the Clean Air Act. Id. § 7407(d)(4).

Third, areas may be “redesignated” based on new information.

Id. § 7407(d)(3). For example, an attainment area may be

redesignated as nonattainment if its air quality ceases to meet

the NAAQS.

State Implementation Plans. The next step toward achieving

the NAAQS is for the states to submit state implementation

plans, or “SIPs.” 42 U.S.C. § 7410. These plans specify the

measures states will take to attain or maintain the NAAQS

within their borders. /d. § 7410(a)(1). A state may consider cost

and technological feasibility in developing its SIP; indeed, “[s]o

long as the national standards are met, the State may select

whatever mix of control devices it desires . . .” Union Electric

Company v. EPA, 427 U.S. 246, 266 (1976).

Nonattainment. Special rules apply with respect to areas

designated as nonattainment. Part D of Subtitle I sets forth

requirements for SIPs in states containing nonattainment areas.

42 U.S.C. §§ 7501-7515. Part D establishes both what is

required in the SIPs of states that contain nonattainment areas

and when it is required. Part D contains five subparts. Subpart

1 sets forth rules for nonattainment areas in general. 42 U.S.C.

§ 7501-7509a. Subparts 2-5, added to the Act in 1990, impose

new requirements on areas that were then in nonattainment for

any of the pollutants covered by the NAAQS. Id. §§ 7511-

75 14a.

Subpart 1. Under Subpart 1, after designating an area as

nonattainment under section 107(d), the Administrator may

“classify” the area, in accordance with the severity of its air

quality problem, for the purpose of setting a deadline for

attainment. 42 U.S.C. § 7502(a)(1)(A). The significance of -

classification is that nonattainment areas bearing different

classifications may be given different attainment dates.

Subpart | contains a number of specific requirements for the

SIPs in nonattainment areas. For example, these SIPs must

require “reasonable further progress” toward attaining the

NAAQS. With respect to timing, Subpart | provides that the

attainment date for areas not meeting a primary NAAQS is “as

expeditiously as practicable, but no later than 5 years from the

date such area was designated nonattainment .. .” 42 U.S.C.

§7502(a)(2)(A).

Subpart 2. Subpart 2 imposed new, more specific

requirements on areas that had not attained the ozone standard

existing in 1990, when Subpart 2 was enacted. Like Subpart |,

Subpart 2 prescribes both the general content of SIPs and the

deadlines for meeting statutory requirements and achieving the

NAAQS. The specific requirements and deadlines depend on

an area’s classification.

Section 181 of Subpart 2 provides, as its title says,

“classifications and attainment dates for 1989 nonattainment

areas.” 42 U.S.C.§ 7511. Areas “designated nonattainment for

ozone pursuant to section 7407(d)” are to be “classified at the

time of such designation, under table |, by operation of law ...”

Id. § 7511(aX(1). The classifications in table 1 range from

“marginal” to “extreme.” Id. § 7511(a)(1). These classifications

are tied to the area’s “design value,” which is measured in parts

per million (“ppm”) of ozone in the ambient air. /d. § 751 1(a)(1)

(table 1, n. *).

The design values in table | of section 181(a)(1) range from

0.121 to 0.280 and above. 42 U.S.C. § 7511(a)(1). The level

of the ozone standard in effect when section 181(a)(1) was

enacted was 0.12 ppm. Ozone Final Rule, at 38,857. Thus the

lowest of the “design values” reflected in table | of section

181(a)(1) is also the lowest ozone concentration that would

have qualified an area as nonattainment under the ozone

standard that existed in 1990.

Subpart 2’s specific requirements for SIPs are set forth in

sections 182-185B. 42 U.S.C. § 75lla-f. The requirements

escalate with each classification. See id.§ 751 la({a)-(e). All

nonattainment areas must meet the requirements set for any

areas with lower design values, plus additional, more stringent

requirements. For “marginal” areas, the SIP requirements

largely track those of Subpart 1. Jd. § 75lla(a). Areas

classified as “moderate” and above must also, for example,

measure their “baseline emissions” of ozone precursors in 1990,

and then demonstrate “reasonable further progress” - measured

according to specific percentage reductions in emissions — at

regular intervals. Jd. §§ 751 1a(b)(1), (c)-(e).

With respect to timing, section 181(a)(1) requires that

attainment of the NAAQS be achieved “as expeditiously as

practicable but not later than” the dates specified in that section.

42 U.S.C. § 7511(a)(1). These dates range from 1993 to 2010.

Id. § 7511(a)(1). States must also meet each of the SIP

requirements described above within a specified number of

years. Subpart 2 consistently specifies November 15, 1990, as

the date when the deadline “clock” for the SIP requirements

begins to run. Id. §§ 751 la(a)-(g).

Interstate Poilution. Air pollution does not respect political

boundaries. The Clean Air Act acknowledges this physical

reality in provisions that specifically target interstate air

pollution. Section 110(a)(2)(D) requires states to include

within their SIPs provisions to prevent sources within their

borders from “contribut[ing] significantly” to nonattainment in

other states. 42 U.S.C. § 7410(a)(2)(D). Section 110(k)(5)

requires EPA to call for revisions to a SIP when the SIP is

inadequate. 42 U.S.C. § 7410(k)(5). Such an action by EPA is

known as a “SIP call.” A SIP call may be based on EPA’s

finding that sources within a state are contributing significantly

to nonattainment in another state. This finding - called a

“section 126 finding” after the section of the Clean Air Act that

permits it - may be requested of EPA by any state experiencing

the ill effects of interstate pollution. 42 U.S.C. § 7426(b).

B. Rulemakings on Particulate Matter and Ozone

1. Particulate Matter

Particulate matter (“PM”) refers to a broad class of diverse

substances that exist as discrete particles over a wide range of

sizes. Particles originate from a variety of stationary and mobile

sources as well as from natural sources. EPA first promulgated

a NAAQS for PM in 1971. 36 Fed. Reg. 8186 (1971). In July

1987, EPA revised the standard, changing inter alia, the PM

indicator from total suspended particles to particulate matter

with an aerodynamic diameter of less than or equal to a nominal

ten micrometers (“PM”). 52 Fed. Reg. 24,854 (1987).

In April 1994, EPA announced its intention to develop a

revised air quality criteria document for PM. The focus of the

review was recent epidemiological evidence reporting

associations between ambient concentrations of PM and a range

of serious health effects, including effects caused by particulates

with an aerodynamic diameter far smaller than ten micrometers

(“PMio”). During the next two years, the agency held several

workshops, provided opportunities for public comment on a

draft criteria document, and sponsored CASAC review of the

document at public meetings.

On November 27, 1996, EPA announced its proposed

decision to revise the PM NAAQS. 61 Fed. Reg. 65,638

(1996). EPA proposed adding two new PM NAAQS that

measured particulates with an aerodynamic diameter less than

or equal to a nominal 2.5 micrometers (“PM2,5”). The proposal

also specified several other key parameters for the revised

standards: (1) concentration (level); (2) averaging time (the

period over which pollutant levels are averaged in measuring

compliance); and (3) form (the air quality statistic used as a

basis for determining compliance with the standard). The

Administrator described several alternative standards using

these parameters, including possible changes in the then-

existing PMjo NAAQS. 7d. at 65,662.

On July 18, 1997, EPA announced final revisions to its PM

NAAQS. 62 Fed. Reg. - 38,652 (1997). The Administrator

determined that it was appropriate to establish new annual and

24-hour NAAQS for PM255 and to revise the current 24-hour

PM\o standard.” The Administrator noted that that the agency

had undertaken an especially rigorous review and reanalysis of

existing scientific data and that recent studies provided

“evidence that serious health effects (mortality, exacerbation of

chronic disease, increased hospital admissions, etc.) are

associated with exposures to ambient levels of PM found in

contemporary U.S. urban airsheds even at concentrations below

current U.S. PM standard.” /d. at 38,655. The Administrator

further described the results of risk assessments of two cities

that, while accompanied by significant scientific uncertainty,

“found that the risk remaining after attaining the current PMjo

standards was on the order of hundreds of premature deaths

each year, hundreds to thousands of respiratory-related hospital

admissions, and tens of thousands of additional respiratory

related symptoms in children.” Jd. at 38,656.

‘For PM25, the EPA set a level of 15 g/m’ with

compliance measured based on the three-year average of the

annual artithmetic mean PM: concentrations from single or

multiple community-oriented monitors, and also set a level of

65 g/m? based on the three-year average of the 98th percentile

of 24-hour PM25 concentrations at each population-oriented

monitor within an area. For PMio, EPA changed the form of

the standard. PM Fina) Rule, 62 Fed. Reg. at 38,652.

2. Ozone

Ground-level ozone is formed as a result of chemical

reactions of volatile organic compounds, nitrogen oxides, and

oxygen in the presence of sunlight. EPA first issued a NAAQS

for ozone (or “photochemical oxidants”) in 1971. 36 Fed. Reg.

8187 (1971). The original standard specified a maximum level

of 0.08 ppm, averaged over one hour, with one exceedance

allowed per year. That standard was revised in 1979 by

increasing the allowable level to 0.12 ppm. 44 Fed. Reg. 8202

(1979).

The EPA initiated a review of the air quality criteria and

standards for ozone in August 1992. In an iterative process

involving EPA staff, CASAC, and the public, EPA developed

a criteria document on the health and welfare effects of ozone.

On November 27, 1996, EPA proposed to revise the NAAQS

for ozone. 61 Fed. Reg. 65,716. EPA proposed to replace the

one-hour, 0.12 ppm primary standard with an eight-hour, 0.08

ppm standard, with a new form for measuring compliance with

the standard. The proposal solicited comments on alternative

standards reflecting different levels, averaging times, and forms.

Id. at 65,731, 65,733.

On July 18, 1997, EPA announced final revisions to its

ozone NAAQS. 62 Fed. Reg. 38,856 (1997). The final rule set

a level of 0.08 ppm, with an averaging time of eight hours and

a form based on the 3-year average of the annual fourth-highest

daily maximum 8-hour average ozone concentrations measured

at each monitor within an area. /d. at 38,873.

In revising the ozone standard, the Administrator invoked a

large body of scientific evidence consisting of clinical,

epidemiological, and animal studies revealing the adverse

effects of ozone at levels allowed by the previous standard. 62

Fed. Reg. at 38,863-65. She cited “clear evidence from human

clinical studies” showing that the adverse effects from exposure

to ozone include “lung function decrements, respiratory

symptoms (e.g., cough, pain on deep inspiration), nonspecific

bronchial responsiveness, and biochemical indicators of

pulmonary inflammation.” /d. at 38,863. The Administrator

also cited the “numerous epidemiological studies [that] have

reported excess hospital admissions and emergency department —

visits for respiratory causes (for asthmatic individuals and the

general population) attributed primarily to ambient [ozone]

exposures, including [ozone] concentrations below the level of

the current standard, with no discernible threshold at or below

this level.” /d. at 38,864.

In setting the parameters for the revised ozone standard, the

Administrator noted that CASAC had unanimously endorsed an

eight-hour averaging period and that all CASAC members who

had expressed specific opinions on the form of the standard had

favored a form allowing multiple exceedances (as the final rule

did). 62 Fed. Reg. at 38,861, 38,869. As for the level of the

standard, the Administrator acknowledged that no one correct

policy response emerged from the scientific evidence. Id. at

38,863. In choosing between levels of 0.09, 0.08, and 0.07,

however, the Administrator placed “great weight” on the fact

that no member of CASAC had endorsed the 0.07 level, and

stressed that severity of effects decreased, and uncertainty

increased, at levels below 0.08 ppm. /d. at 38,854, 38,868. In

rejecting the 0.09 ppm level, the Administrator emphasized

that such a standard would result in many more adverse health

effects, particularly among children, than would the 0.08 ppm

level. Id. at 38,867-68.°

C. The Court of Appeals’ Initial Decision

Pursuant to section 107(b)(1) of the Clean Air Act, 42 U.S.C.

§ 7607(b)(1), numerous parties filed petitions for review of

EPA's revised standards in the D.C. Circuit.

1. Delegation

The D.C. Circuit found that EPA’s application of the Clean

Air Act in these rulemakings effected a “delegation of

legislative power” in violation of Article I, § 1, of the

Constitution. (App. 3.) The court explained that “EPA appears

to have articulated no ‘intelligible principle’ to channel its

application of the[] factors [it uses in setting NAAQS]; nor is

one apparent from the statute.” (App. 4.)

The court came to this conclusion based on its review of

EPA’s 1997 rulemakings on PM and ozone. The court found

the agency’s explanations for its rules constitutionally deficient

because they did not identify a “stopping point” for regulation.

(App. 10.) Although the court agreed that the factors EPA

considers in setting air quality standards - such as the nature

°In both rulemakings, EPA went to extraordinary

lengths to facilitate public participation: the agency established

a toll-free telephone hotline; set up a system enabling electronic

comments via the Internet; held multiple public meetings at

which over 400 citizens and organizations testified; fielded over

14,000 phone calls and over 4,000 electronic mail messages;

and held two national satellite telecasts to answer questions.

EPA also received over 50,000 written and verbal comments.

62 Fed. Reg. at 38,654; 62 Fed. Reg. at 38,858.

and severity of health effects, the size of the affected

population, and the kind of health information available and the

uncertainties surrounding it - were reasonable, it concluded that

these factors “do not themselves speak to the issue of degree.”

(App. 6.) The court also dismissed as irrelevant the exhaustive

scientific review underlying EPA’s standards. (App. 8.)

The court remanded the case to the agency rather than

overturning the pertinent statutory provisions outright. The

court acknowledged that its approach would not satisfy what it

called a “key function of non-delegation doctrine,” which is to

ensure that Congress, not the agency, exercises legislative

authority. (App. 12-13.) Indeed, the court conceded that under

its approach, “[t]he agency will make the fundamental policy

choices.” (App. 13.)

In closing, the court suggested the kinds of standards that

might pass constitutional muster after remand. Cost-benefit

analysis was the court’s first proposal, but the court

acknowledged that this option was not open to EPA given the

D.C. Circuit’s rulings interpreting the Clean Air Act to forbid

the consideration of costs. (App. 13.) Alternatively, the court

appeared to endorse the possibility of setting environmental

standards according to their effect on “quality-adjusted life-

years,” although it conceded that the Department of Health and

Human Services had determined that an approach of this sort

utilized by Oregon in the health-care context violated the

Americans with Disabilities Act. (App. 15 n. 5.)

2. Enforcement of Ozone Standard

The D.C. Circuit also addressed claims that EPA could

neither issue nor enforce a revised ozone standard. The court

found that EPA could indeed issue a revised ozone standard,

and also designate areas as nonattainment under the revised

standard. (App. 31-34.) However, the court also concluded

that EPA could not enforce a revised ozone standard “other than

in accordance with the classifications, attainment dates, and

control measures set out in Subpart 2.” (App. 31.)

In other words, with respect to the timing of the achievement

of the revised ozone standard, the court of appeals’ ruling means

that EPA may not prescribe attainment dates different from

those specified in section 181(a)(1). EPA also may not classify

a nonattainment area other than in accordance with the

requirements of section 181(a)(1). As for the means of

achieving the revised ozone NAAQS, the court of appeals

barred EPA from requiring any control measures other than

those required by Subpart 2. (App. 31.)

The court found that section 181(a)(1), 42 U.S.C. §

7511(a)(1), was unambiguous. Because section 181(a)(1) refers

to nonattainment designations made under “section 7407(d),”

the court concluded that the classifications and attainment dates

specified by section 181(a)(1) apply to areas designated as

nonattainment under any of the provisions of section 107(d).

(App. 34-35.) This meant, according to the court, that areas

designated nonattainment under section 107(d)(1), following

the revision of a NAAQS, are also governed by Subpart 2.

Having found the statute clear, the court refused to defer to

EPA’s interpretation, which allowed enforcement of the revised

standard outside of Subpart 2. (App. 37-39.)

The court suggested that any other interpretation of section

181(a)(1) would not make sense. The court appeared to endorse

the reasoning of petitioners below that “because the 1990

amendments extended the time for nonattainment areas to

comply with the 0.12 ppm ozone NAAQS, they must preclude

EPA from requiring areas to comply either more quickly or with

a more stringent ozone NAAQS.” (App. 37.)

D. The Court of Appeals’ Partial Grant of Rehearing

and Denial of Rehearing En Banc

1. Delegation

The panel voted 2-1 to deny rehearing on the question

whether the Clean Air Act as applied in the PM and ozone

rulemakings unconstitutionally delegates legislative authority

to the executive. (App. 64-82.)

The court of appeals voted 5-4 in favor of rehearing the

delegation question en banc, but rehearing en banc was

nevertheless denied. (App. 84.) Judge Silberman wrote a

dissent from the denial of rehearing en banc. (App. 85-89.)

2. Enforcement of Ozone Standard

The pane! granted rehearing in part on the question whether

the revised ozone standard could be enforced. The panel

replaced the language in its initial opinion stating that EPA

“cannot be enforced by virtue of Clean Air Act § 181(a)” (App.

53) with language stating that EPA could enforce a revised

standard “only in conformity with Subpart 2.” (App. 75.)

Judge Tatel concurred in the partial grant of rehearing. He

believed that the modified opinion left “open the possibility that

EPA can enforce the new ozone NAAQS without conflicting

with Subpart 2’s classifications and attainment dates.” (App.

76.) He found that EPA may enforce the revised standard in

’The panel also modified its opinion to clarify that

“Subpart 2 erects no bar to the EPA’s requiring compliance with

a revised secondary ozone NAAQS ‘as expeditiously as

practicable.’” (App. 74.)

areas that have attained the former ozone standard, but not in

areas that have not yet attained that standard. (App. 81.)

REASONS FOR GRANTING THE PETITION

The D.C. Circuit's constitutional ruling is inconsistent with

over six decades of decisions from this Court upholding broad

assignments of authority from the legislative to the executive

branch. In comparison with standards this Court has upheld,

the Clean Air Act is far more restrictive of agency discretion.

Nothing in this Court’s nondelegation jurisprudence sanctions

the court of appeals’ unusual approach to delegation, according

to which the agency to which u:.constitutionally broad

discretion has supposedly been granted must supply quantitative

limits for its own discretion.

In addition, in preventing EPA from enforcing its revised

ozone standard, the court of appeals ignored the clear language

of the Clean Air Act. The result is to create a bizarre regulatory

scheme that is at odds with the Act’s language and purposes. At

the very least, the court of appeals should have deferred to EPA

as to the meaning of the relevant statutory provisions.

The D.C. Circuit's decision has enormous immediate

significance for the entire country. The decision places states’

regulatory obligations in a posture of extreme uncertainty, and

has enormous implications for the public health. There is now

no NAAQS in place in most of the country for ozone. In

addition, the ruling has delayed, and partially undermined,

petitioners’ longstanding efforts to reduce interstate air

pollution that places their citizens’ health at risk.

There is no reason to wait for a circuit split to develop as to

the constitutionality of the Clean Air Act or the enforceability

of the revised ozone standard. Such a split is impossible: only

the D.C. Circuit may review nationally applicable standards

issued under the Clean Air Act. 42 U.S.C. § 7607(b)(1). Thus

immediate review in this Court is warranted.

I. THE COURT OF APPEALS’ DECISION IS

INCONSISTENT WITH THIS COURT'S RULINGS ON

THE “DELEGATION’ DOCTRINE.

The Clean Air Act establishes minimum requirements for air

quality throughout the nation. The court of appeals ruled that

this statute, as interpreted by EPA and the courts for the last

three decades, is unconstitutional as a delegation of legislative

power. In doing so, the court ignored this Court’s decisions

upholding much broader assignments of authority to

administrative agencies than the assignment made by the Clean

Air Act. The court compounded its error when it then turned to

the agency itself to enunciate an “intelligible principle” in the

form of a meta-standard to govern future rulemakings.

In holding that the Clean Air Act enunciates no “intelligible

principle” limiting agency action, the court of appeals departed

from over six decades of unbroken precedent from this Court

finding such a principle in statutes far less constraining than the

Clean Air Act. During this period, this Court has, “without

deviation,” upheld Congress’s authority to seek assistance from

administrative agencies under “broad standards.” Mistretta v.

United States, 488 U.S. 361, 373 (1989). For example, this

Court has affirmed the Federal Communications Commission’s

authority to regulate broadcast licensing in the “public interest,”

National Broadcasting Co. v. United States, 319 U.S. 190, 225-

26 (1943), and to issue regulations “as public convenience,

interest, or necessity requires,” United States v. Southwestern

Cable Co., 392 U.S. 157, 178 (1968); the Federal Power

Commission’s authority to determine “just and reasonable”

rates, FPA v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944);

Te ee ee ee ee

and the Attorney General’s authority - even absent notice and

comment rulemaking - to designate controlled substances and

criminalize their manufacture, possession, and use, Touby v.

United States, 500 U.S. 160 (1991).

The Clean Air Act constrains agency discretion at least as

much as the statutory standards this Court has previously

upheld. First, NAAQS apply to only a handful of pollutants -

widespread pollutants (i.e., those from “numerous and diverse

sources”) that endanger public health or welfare. Thus the

territory over which EPA’s discretion may range is limited.

Second, the Act requires extensive scientific inquiry into the

nature and severity of harm caused by an air pollutant. The

development of criteria documents, identifying the “kind and

extent of all identifiable effects on public health or welfare,” 42

U.S.C. § 7408(a)(2), and the submission of the criteria

documents and NAAQS themselves to CASAC’s review, id. §

7409(d)(2)(B), ensure that NAAQS will emerge from the best

available scientific evidence.

Third, in actually setting NAAQS, EPA’s discretion is

constrained in several important ways. NAAQS must be set at

a level which, “allowing an adequate margin of safety, are

requisite to protect the public health.” 42 U.S.C. § 7409(b)(1).

The use of the term “requisite” limits EPA’s standard-setting

discretion on the low end. In addition, NAAQS must be “based

on” the air quality criteria. Id. § 7409(b)(1). These criteria

must themselves be based on the latest scientific information as

to the “kind and extent” of effects of the relevant air pollutants

on human health and welfare. Jd. § 7408(a)(2). By explicitly

focusing the scientific inquiry on the “kind and extent” of

human health effects, the Act communicates to EPA an intent

to distinguish among health effects based on their severity and

magnitude. This is just what EPA did in the rules at issue here.

See, e.g., Ozone Final Rule, 62 Fed. Reg. at 38,859, 38,860,

38,864. Moreover, the Administrator may significantly depart

from CASAC’s recommendations only if she explains why she

has done so. /d. § 7607(d)(3). In this case, when CASAC-was

able to achieve a consensus, the Administrator's actions hewed

closely to it. In setting the ozone standard, for example, the

Administrator considered ozone levels only within a range

approved by CASAC, and declined to set the standard at the

lowest end of that range in part because no member of CASAC

had endorsed such a low standard. Ozone Final Rule, 62 Fed.

Reg. at 38,861, 38,868.

Finally, the Administrator's discretion in promulgating

NAAQS is constrained by the fact that her actions are subject

to the exaciing requirements of the Administrative Procedure

Act, and are subject to judicial review for arbitrariness. This

Court has suggested that procedural requirements and the

availability of judicial review are important factors in

evaluating the propriety of Congress’s assignments of authority

to the executive branch. American Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946); Touby v. United States, 500 U.S. 160,

168-69 (1991).

Given the constraints the Clean Air Act imposes on EPA, the

Act should have unquestionably survived constitutional scrutiny

under this Court’s precedents. However, even though the court

of appeals explicitly held that the Clean Air Act does not

provide the “intelligible principle” necessary for purposes of the

delegation doctrine (App. 4), the court did not look in any detail

at what the Clean Air Act does. Instead, it examined what EPA

did, and concluded that because EPA had not identified a

precise “stopping point” for regulation, its actions were

unconstitutional. (App. 10.) Although the court of appeals did

not say so explicitly, close examination of the alternative

approaches the court endorsed reveals that the court appears to

have believed that EPA must - as a matter of constitutional

principle - quantify the point at which it will stop regulating to

protect human health. (App. 13, 15 (proposing cost-benefit

analysis and “quality-adjusted life-years” as antidotes to an

unconstitutional delegation)).

In not one of the “nondelegation” cases cited above did the

statutory standard upheld by this Court specify a precise

stopping point for achievement of desired ends such as the

public interest and justice. And in none of these cases did this

Court suggest that the agency must supply such a stopping point

if Congress does not. Allowing an agency to supply the

“intelligible principle” that this Court has required (and the

court of appeals erroneously found lacking here) is perverse in

light of the essential purpose of the nondelegation doctrine,

which is to ensure that Congress, not the agency, makes basic

policy choices. By requiring of the agency a precise stopping

point for regulation, the court below introduced a principle new

to constitutional law — that agencies must, in advance of

specific rulemakings, develop a meta-standard quantifying the

precise tradeoffs they will make among the broad purposes they

are charged to serve.

II. THE COURT OF APPEALS’ DECISION BLOCKING

ENFORCEMENT OF THE REVISED OZONE

STANDARD IS INCONSISTENT WITH THE

CLEAN AIR ACT’S LANGUAGE AND

PURPOSES, AND WITH EPA’S REASONABLE

INTERPRETATION OF THE ACT.

The court of appeals held that EPA was required to review

the ozone standard, and to revise it if appropriate, every five

years, and also to designate areas as nonattainment for ozone in

light of the revised standard. (App. 31-34.) Nevertheless, the

court held that EPA could not enforce this revised standard

“other than in accordance with the classifications, attainment

dates, and control measures set out in Subpart 2.” (App. 31.)

EPA may not, in other words, require the states to do anything

more to achieve the revised ozone NAAQS than they were

already required to do in order to achieve the former ozone

NAAQS.

In short, according to the D.C. Circuit, EPA can be required

by section 109 to promulgate a revised ozone standard

necessary to safeguard public health and welfare but the agency

is powerless to enforce that standard no matter how serious and

widespread the public health consequences of such compelled

agency inaction. Nowhere, however, does the Clean Air Act

suggest, let alone compel, a finding that Congress intended such

a perverse result.

Certainly, section 181, upon which the D.C. Circuit relied

(App. 35), reveals no indicia of such congressional intent.

*In concurring in the partial grant of rehearing, Judge

Tatel read the revised majority opinion as allowing EPA to

enforce the revised ozone standard in areas that have attained

the former standard. (App. 81.) Given the critical importance

of this issue, the panel’s failure to engage Judge Tatel’s view

creates doubt as to whether this interpretation is accurate. In

addition, the panel’s explanation for its decision not to vacate

the revised ozone standard - that the standard was not “likely to

engender costly compliance activities”in light of the court’s

holding on Subpart 2 (App. 75) - is hard to reconcile: with

Judge Tatel’s perspective on the panel’s opinion. In any event,

even if Judge Tatel’s interpretation of the panel’s opinion were

accurate, the panel’s opinion still raises enormous legal and

practical problems regarding EPA enforcement of the new

standard in areas that have not attained the former standard.

Section 181(a)(1), table 1, provides classifications and

attainment dates only for the former ozone standard, not for the

revised standard. This is clear from the language of the

provision itself. First, table 1 of section 181(a)(1) classifies

areas according to a “design value” which is measured in parts

per million (“ppm”). The lowest design value reflected in table

1 is 0.121 ppm. The range of design values in table 1 is thus

clearly keyed to the former ozone standard of 0.120 ppm. This

interpretation is reinforced by the title of section 181(a)(1),

“Classification and attainment dates for 1989 nonattainment

areas”; this language also indicates that section 181(a)(1)

specifies classifications and attainment dates only for areas in

nonattainment for the ozone standard existing in 1990.

The court’s ruling also makes a hash of section 181(a)(1)’s

language specifying the procedure for designation and

classification. According to the court, EPA must designate

areas as nonattainment (or attainment, or unclassifiable) under

the revised, eight-hour, 0.08 ppm ozone standard. (App. 33-

34.) Because section 181(a)(1) provides that classification must

occur “at the time of . . . designation,” 42 U.S.C. § 7511(a)(1),

EPA will also be required, at the same time, to classify the areas

designated as nonattainment under the revised standard.

However, section 181(a)(1) also requires that classifications be

based on the design value as calculated by the interpretation

methodology existing in November 1990. Jd. § 7511(a)(1).

This methodology looked to the ozone standard existing in

1990, not the revised ozone standard existing now.’ For this

reason, and because the court of appeals has required EPA to

*See Memorandum from William G. Laxton, Director,

Technical Support Division, U.S. EPA, “Ozone and Carbon

Monoxide Design Value Calculations” (June 18, 1990)

(http:www.epa.gov/airprogm/oar/oaqps/greenbk/laxton.html).

classify areas under the terms of section 181(a)(1), EPA’s new

classifications under the revised standard will be based on

design values calculated according to the former ozone

standard, not the revised standard. Thus, in classifying areas

under the revised standard EPA will be required to disregard the

design values it calculated in order to designate areas under that

standard. The court of appeals’ interpretation turns section

181(a)(1) into a kind of parody.

Recognizing that section 181(a)(1) specifies classifications

and attainment dates only for the ozone standard in effect in

1990 is also the only way sensibly to reconcile section 181(a)(1)

with EPA's continuing responsibility to revise the NAAQS. As

the court of appeals itself confirmed (App. 31-34), section 109

of the Clean Air Act requires EPA to review and, if appropriate,

revise the NAAQS every five years. After issuing a revised

NAAQS, EPA has two years to designate areas as attainment;

nonattainment, or unclassifiable. 42 U.S.C. § 7407(d)(1). The

review and revision of NAAQS, and the designation of areas

according to their attainment status, are resource-intensive,

time-consuming processes undertaken for a single purpose: to

achieve healthful air quality for the citizens of the country. On

the court of appeals’ interpretation of the Clean Air Act,

however, EPA's obligation to review and revise the ozone

NAAQS, and to designate areas according to their attainment

status, has no purpose other than to brand areas with the

unwelcome label “nonattainment.”

There is no warrant, in the language, structure, or history of

the Clean Air Act, for requiring EPA to engage in such a

pointless endeavor. In the Clean Air Act, Congress established

means for EPA to protect public health in light of scientific

evidence of the devastating health effects of air pollution - not

means for the agency to announce that air quality is bad but at

the same time limit EPA’s ability to mitigate it.

ee eee

The reference to “section 107(d)” in section 181(a)(1), on

which the court of appeals so heavily relied, does not support a

different conclusion. In finding that Congress's failure to refer

specifically to section 107(d)(4) (rather than to section 107(d)

as a whole), meant that EPA could not enforce the revised

ozone standard except in conformity with Subpart 2, the court

of appeals ignored all the rest of the language in Subpart 2,

which requires the opposite conclusion. The consistent

exclusive focus of Subpart 2 is the ozone NAAQS existing at

the time Congress added Subpart 2 in 1990.

At the very least, the cascade of language in Subpart 2

indicating that Subpart 2 applies only to the former, one-hour

ozone standard, combined with the absence of the single

number (4) in section 181(a)(1), creates an ambiguity that EPA

is entitled to resolve as long as it does so reasonably. Chevron

U.S.A. Inc. v. NRDC, 467 U.S. 837, 866 (1984). As set forth

above, EPA's interpretation of Subpart 2 to apply only to the

ozone standard existing in 1990 creates a sensible regulatory

regime in which EPA is not forced to revise a NAAQS, and to

designate areas according to their attainment status under the

revised NAAQS, only to be barred from taking steps to achieve

the NAAQS.

lil. THE COURT OF APPEALS’ DECISION

WARRANTS REVIEW, NOTWITHSTANDING

THE ABSENCE OF A DIRECT CIRCUIT

CONFLICT, BECAUSE OF ITS ENORMOUS

SIGNIFICANCE BOTH TO THE STATES AND

FOR THE PUBLIC HEALTH AND BECAUSE NO

SUCH CONFLICT IS POSSIBLE

Review of the court of appeals’ ruling is further warranted

because of its enormous significance to the states, including

petitioners Massachusetts and New Jersey, and to the public

health. The rules at stake in this litigation are among the single

most important national environmental standards promulgated

in over a decade. They implicate the viability of massive

regulatory programs which rely upon both the validity and

enforceability of the revised ozone and PM NAAQS. Also at

Stake are the thousands of deaths and hundreds of thousands of

illnesses that the Administrator concluded would be prevented

only by attainment of the revised NAAQS. These enormous

stakes alone would warrant this Court’s review, even without a

circuit conflict. Certainly, the absence of such a conflict should

not bar this Court’s review where, as here, the D.C. Circuit’s

exclusive jurisdiction makes the development of such a conflict

impossible. '°

A. The Ruling Has Great Practical Significance for the

States.

All states have an interest, as sovereigns, in being certain of

their rights and responsibilities under the Clean Air Act. The

D.C. Circuit's ruling has placed those rights and responsibilities

in a posture of extreme uncertainty in two respects: (1) the

ruling has delayed and undermined longstanding efforts to

reduce interstate air pollution; and (2) the former ozone

Petitioners have not sought review as to two other

issues decided below. The court held that EPA should have

considered the alleged health benefits of ozone in setting the

ozone standard, and that EPA’s choice of PMjo as an indicator

for coarse particulate matter was arbitrary and capricious.

(App. 41-50.) Unlike the court’s rulings on delegation and on

the enforceability of the revised ozone standard, these rulings

do not undermine the entire analytical framework and

implementation scheme on which the Clean Air Act depends.

standard has been revoked in most of the country and, as a

result of the D.C. Circuit's ruling on Subpart 2 of the Clean Air

Act, no enforceable standard has taken its place.

The ruling below has undermined petitioners’ longstanding

efforts to reduce the pollution that arrives inside their borders

from other states. These efforts have led to “SIP calls” from

EPA, requiring certain states to develop plans to reduce their

emissions of oxides of nitrogen (major ozone precursors) in

order to facilitate compliance with the NAAQS for ozone. See

Finding of Significant Contribution and Rulemaking for Certain

States in the Ozone Transport Assessment Group Region for

Purposes of Reducing Regional Transport of Ozone, 63 Fed.

Reg. 57,356 (Oct. 27, 1998). Petitioners’ efforts have also

resulted in “section 126 findings” from EPA, concluding that

sources from other states have “significantly contribute[d]” to

Massachusetts’ failure to attain the air quality standard for

ozone. See Findings of Significant Contribution and

Rulemaking on Section 126 Petitions for Purposes of Reducing

Interstate Ozone Transport; Final Rule, 65 Fed. Reg. 2674 (Jan.

18, 2000).

The ruling below has hindered petitioners’ efforts to reduce

interstate air pollution. As a result of the ruling, EPA scaled

back its section 126 findings that other states were significantly

contributing to the section 126 petitioners’ inability to meet

national air quality standards. See 64 Fed. Reg. 28,294-95

(tables showing broader geographic coverage under revised,

eight-hour standard than under former, one-hour standard). In

addition, the D.C. Circuit has temporarily stayed the “SIP calls”

described above. Order on Stay, State of Michigan v. EPA, No.

98-1497 (D.C. Cir.) (May 25, 1999).

In short, the D.C. Circuit's ruling has had large ripple effects

on the nation’s program for achieving clean air. In holding the

ozone standard unlawful on constitutional grounds, and in

blocking the enforcement of the ozone standard, the D.C.

Circuit has, apparently unwittingly,'' rent asunder EPA's

carefully crafted, multi-prong, multi-state attack on ozone. It

has also rendered more difficult petitioners’ efforts to protect

the health of their citizens through achievement of the NAAQS.

In addition, as a result of the ruling, there is now no

enforceable ozone standard in effect in most of the country. In

1997, in light of the promulgation of revised standards for PM

and ozone, President Clinton issued a memorandum to EPA in

which he ordered EPA to begin revoking the former standards

for ozone and PM in areas that had not exceeded those

standards for three years. 62 Fed. Reg. 38,421 (July 16, 1997).

EPA subsequently determined that the one-hour ozone standard

was no longer applicable in 2,945 of the nation’s 3,153

counties. 63 Fed. Reg. 31,014 (June 5, 1998); 63 Fed. Reg.

34,432 (July 22, 1998); 64 Fed. Reg. 30,911 (June 9, 1999).

EPA has issued a proposed rule rescinding its revocation of

the one-hour ozone standard. Rescinding Findings that the 1-

Hour Ozone Standard No Longer Applies in Certain Areas, 64

Fed. Reg. 57,424 (Oct. 25, 1999). The ultimate legal status of

EPA’s rescission of its revocation of the ozone standard has yet

to be determined. This much is certain, however: there is now

no enforceable ozone standard in place in most of the country,

and the decision below has at least cast a shadow over EPA’s

''A recent opinion written by Judge Williams asserts

that the 0.12 ppm, one-hour ozone standard “remains in place.”

American Petroleum Institute v. EPA, 2000 U.S. App. LEXIS

14 *4n. 1 (Jan. 4, 2000). However, as discussed in this section,

that standard has been revoked in most of the country.

RR aye RUE ot "

> >

LEESON ANS BLS IE NTE OAS EL DCIS ILIE ANY

7 : . °-—"

efforts to reinstate the former ozone standard. This situation

creates enormous uncertainty for the states as regulators.

This uncertainty is exacerbated by the precipitousness of the

D.C. Circuit's ruling on delegation. The court failed to consider

many nonconstitutional issues presented to it, delaying their

resolution until EPA complied with the court’s new

constitutional rule. (App. 4.) The court’s decision threatens to

turn this rulemaking into an endless, iterative process in which

the agency must seek serial judicial approval of its standards.

This places the states in the untenable position of trying to

respond to complex standards that may, or may not, be undone

by the next round of judicial review.

B. The Implications for Public Health Are Enormous.

In 1997, EPA found that the existing standards for PM and

ozone were inadequate to protect the public health. Indeed, it

concluded that if the existing standards were left in place, as

many as 15,000 people would die prematurely, and hundreds of

thousands more would fall ill, experience respiratory problems,

miss work or school, and/or be admitted to the hospital, every

year. These factual findings were reached after multiple

exchanges between EPA and CASAC regarding the latest

scientific evidence of the public health effects of PM and ozone.

Because the court of appeals struck down the NAAQS and

never disputed these factual findings, the enormous public

health consequences of that ruling cannot now be gainsaid.

C. A Direct Circuit Conflict Is Impossible.

The absence of a direct circuit conflict does not counsel

against this Court’s review. Judicial review of nationally

applicable regulations promulgated under the Clean Air Act is

available exclusively in the D.C. Circuit. 42 U.S.C. §

7607(b)(1). Thus a circuit split will never develop as to the

constitutional and statutory questions presented here. Unless

this Court grants review of the D.C. Circuit’s decision, a panel

opinion of just two judges - which a majority of the judges

participating in the decision whether to rehear the case en banc

believed sufficiently problematic to warrant en banc review -

will govern the validity and enforceability of the national air

quality program.

If allowed to stand, the two-judge ruling on delegation will

control not only EPA’s standards for PM and ozone, but also its

standards for the other air pollutants regulated by NAAQS. The

agency is just now in the process of reworking its standard for

sulfur dioxide.'? Given the monumental amount of time and

resources involved in reviewing and revising NAAQS, this

Court's immediate review is warranted to prevent EPA's

standard-setting process from taking place under a cloud of

constitutional doubt.

In reaching the question of delegation, two judges held

invalid EPA’s administration of what is perhaps the nation’s

premier environmental program on the basis of a perfunctory,

one-sentence argument in two parties’ briefs. This Court’s

review is warranted in order to give the constitutional question,

and the Clean Air Act itself, the careful hearing they deserve.

CONCLUSION

The petition for a writ of certiorari should be granted.

'2Statement of Regulatory and Deregulatory Priorities,

64 Fed. Reg. 64,023, 64,030 (Nov. 22, 1999).

Respectfully submitted.

JOHN J. FARMER

Attorney General

State of New Jersey

Howarp L. GeDuLpDIG

JOHN R. RENELLA

Deputy Attorneys General,

New Jersey

Richard J. Hughes Justice

Complex, 7th Floor

P.O. Box 093

Trenton, NJ 08625

(609) 633-8109, 984-5612

THomMaAsS F. REeILty

Attorney General

Commonwealth of

Massachusetts

Lisa HEINZERLING

Counsel of Record

Special Assistant Attorney

General, Massachusetts

Georgetown University

Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9115

Epwarp G. BOHLEN

Assistant Attorney

General, Massachusetts

200 Portland Street

Boston, MA 02114

(617) 727-2200, ext. 3358

App. 1

No. 97-1440

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Petitioners

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Intervenors

Consolidated with

Nos. 97-1546, 97-1548, 97-1551, 97-1552, 97-1553,

97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567,

97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579,

97-1583, 97-1583, 97-1586, 97-1587, 97-1588, 97-1592,

97-1594, 97-1596, 97-1597, 97-1598

No. 97-1441

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Petitioners

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Intervenors

Consolidated with

App. 2

Nos. 97-1502, 97-1505, 97-1508, 97-1509, 97-1510,

97-1512, 97-1513, 97-1514, 97-1518, 97-1519, 97-1526,

97-1531, 97-1539, 97-1566, 97-1568, 97-1570, 97-1572,

97-1575, 97-1584, 97-1589, 97-1591, 97-1595, 97-1619

On Petitions for Review of an Order of the

Environmental Protection Agency

United States Court of Appeals,

District of Columbia Circuit

Argued December 17, 1998.

Decided May 14, 1999.

Before WILLIAMS, GINSBURG, and TATEL, Circuit

Judges. TATEL, Circuit Judge, concurring in part and

dissenting in part.

* Judge Williams wrote Parts I and II1.B; Judge Ginsburg wrote

Parts II, II].A, and IV.D; Judge Tatel wrote Parts IV.A-C.

PER CURIAM:

Introduction

The Clean Air Act requires EPA to promulgate and

periodically revise national ambient air quality standards

("NAAQS") for each air pollutant identified by the agency as

meeting certain statutory criteria. See Clean Air Act §§ 108-09,

42 U.S.C. §§ 7408-09. For each pollutant, EPA sets a "primary

standard"~a concentration level "requisite to protect the public

health” with an "adequate margin of safety"--and a "secondary

standard"--a level “requisite to protect the public welfare." Id.

§ 7409(b).

App. 3

In July 1997 EPA issued final rules revising the primary

and secondary NAAQS for particulate matter ("PM") and

ozone. See National Ambient Air Quality Standards for

Particulate Matter, 62 Fed. Reg. 38,652 (1997) ("PM Final

Rule"); National Ambient Air Quality Standards for Ozone, 62

Fed. Reg. 38,856 (1997) ("Ozone Final Rule"). Numerous

petitions for review have been filed for each rule.

In Part I we find that the construction of the Clean Air

Act on which EPA relied in promulgating the NAAQS at issue

here effects an unconstitutional delegation of legislative power.

See U.S. Const. art. I, § 1 ("All legislative powers herein

granted shal! be vested in a Congress of the United States.").

We remand the cases for EPA to develop a construction of the

act that satisfies this constitutional requirement.

In Part II we reject the following claims: that § 109(d)

of the Act allows EPA to consider costs; that EPA should have

considered the environmental damage likely to result from the

NAAQS' financial impact on the Abandoned Mine Reclamation

Fund; that the NAAQS revisions violated the National

Environmental Policy Act ("NEPA"), Unfunded Mandates

Reform Act ("UMRA"), and Regulatory Flexibility Act

("RFA").

In Part III we decide two ozone-specific statutory issues,

holding that the 1990 revisions to the Clean Air Act limit EPA's

ability to enforce new ozone NAAQS and that EPA cannot

ignore the possible health benefits of ozone.

Finally, in Part IV we resolve various challenges to the

PM NAAQS. We agree with petitioners that EPA's choice of

PM,, as the indicator for coarse particulate matter was arbitrary

and capricious; we reject petitioners’ claims that EPA must treat

PM,,, as a "new pollutant," that EPA must identify a biological

App. 4

mechanism explaining PM's harmful effects, and that the Clean

Air Act requires secondary NAAQS to be set at levels that

eliminate all adverse visibility effects.

The remaining issues cannot be resolved until such time

as EPA may develop a constitutional construction of the act

(and, if appropriate, modify the disputed NAAQS in accordance

with that construction).

I. Delegation

Certain "Small Business Petitioners" argue in each case

that EPA has construed §§ 108 & 109 of the Clean Air Act so

loosely as to render them unconstitutional delegations of

legislative power. We agree. Although the factors EPA uses in

determining the degree of public health concern associated with

different levels of ozone and PM are reasonable, EPA appears

to have articulated no "intelligible principle" to channel its

application of these factors; nor is one apparent from the

statute. The nondelegation doctrine requires such a principle.

See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394,

409, 72 L. Ed. 624, 48 S. Ct. 348 (1928). Here it is as though

Congress commanded EPA to select “big guys," and EPA

announced that it would evaluate candidates based on height

and weight, but revealed no cut-off point. The announcement,

though sensible in what it does say, is fatally incomplete. The

reasonable person responds, "How tall? How heavy?"

EPA regards ozone definitely, and PM likely, as

nonthreshold pollutants, i.e., ones that have some possibility of

some adverse health impact (however slight) at any exposure

level above zero. See Ozone Final Rule, 62 Fed. Reg. at

38,863/3 ("Nor does it seem possible, in the Administrator's

judgment, to identify [an ozone concentration] level at which it

can be concluded with confidence that no ‘adverse’ effects are

App. 5

likely to occur."); National Ambient Air Quality Standards for

Ozone and Particulate Matter, 61 Fed. Reg. 65,637, 65,651/3

(1996) (proposed rule) ("The single most important factor

influencing the uncertainty associated with the risk estimates is

whether or not a threshold concentration exists below which

PM-associated health risks are not likely to occur."). For

convenience, we refer to both as non-threshold pollutants; the

indeterminacy of PM's status does not affect EPA's analysis, or

ours.

Thus the only concentration for ozone and PM that is

utterly risk-free, in the sense of direct health impacts, is zero.

Section 109(b)(1) says that EPA must set each standard at the

level “requisite to protect the public health" with an "adequate

margin of safety." 42 U.S.C. § 7409(b)(1). These are also the

criteria by which EPA must determine whether a revision to

existing NAAQS is appropriate. See 42 U.S.C. § 7409(d)(1)

(EPA shall "promulgate such new standards as may be

appropriate in accordance with ... [ § 7409(b)]"); see also nifra

Part II.A. For EPA to pick any non-zero level it must explain

the degree of imperfection permitted. The factors that EPA has

elected to examine for this purpose in themselves pose no

inherent nondelegation problem. But what EPA lacks is any

determinate criterion for drawing lines. It has failed to state

intelligibly how much is too much.

We begin with the criteria EPA has announced for

assessing health effects in setting the NAAQS for non-threshold

pollutants.' They are “the nature and severity of the health

'Technically, EPA describes the criteria as used only for

setting the "adequate margin of safety.” There might be thought

to be a separate step in which EPA determines what standard

would protect public health without any margin of safety, and

that step might be governed by different criteria. But EPA did

App. 6

effects involved, the size of the sensitive population(s) at risk,

the types of health infurmation available, and the kind and

degree of uncertainties that must be addressed." Ozone Final

Rule, 62 Fed. Reg. at 38,883/2; EPA, "Review of the National

Ambient Air Quality Standards for Particulate Matter: Policy

Assessment of Scientific and Technical Information: OAQPS

Staff Paper," at II]-2 (July 1996) ("PM Staff Paper") (listing

same factors). Although these criteria, so stated, are a bit vague,

they do focus the inquiry on pollution's effects on public health.

And most of the vagueness in the abstract formulation melts

away as EPA applies the criteria: EPA basically considers

severity of effect, certainty of effect, and size of population

affected. These criteria, long ago approved by the judiciary, see

Lead Industries Ass'n v. EPA, 208 U.S. App. D.C. 1, 647 F.2d

1130, 1161 (D.C. Cir. 1980) ("Lead Industries"), do not

themselves speak to the issue of degree.

Read in light of these factors, EPA's explanations for its

decisions amount to assertions that a less stringent standard

would allow the relevant pollutant to inflict a greater quantum

of harm on public health, and that a more stringent standard

would result in less harm. Such arguments only support the

intuitive proposition that more pollution will not benefit public

health, not that keeping pollution at or below any particular

level is "requisite" or not requisite to "protect the public health"

with an “adequate margin of safety," the formula set out by §

109(b)(1).

Consider EPA's defense of the 0.08 ppm level of the

ozone NAAQS. EPA explains that its choice is superior to

not use such a process, and it need not. See NRDC v. EPA, 284

U.S. App. D.C. 136, 902 F.2d 963, 973 (D.C. Cir. 1990). Thus,

the criteria mentioned in the text govern the whole

standard-setting process.

App. 7

retaining the existing level, 0.09 ppm, because more people are

exposed to more serious effects at 0.09 than at 0.08. See Ozone

Final Rule, 62 Fed. Reg. at 38,868/1. In defending the decision

not to go down to 0.07, EPA never contradicts the intuitive

proposition, confirmed by data in its Staff Paper, that reducing

the standard to that level would bring about comparable

changes. See EPA, "Review of National Ambient Air Quality

Standards for Ozone: Assessment of Scientific and Technical

Information: OAQPS Staff Paper," at 156 (June 1996) ("Ozone

Staff Paper"). Instead, it gives three other reasons. The principal

substantive one is based on the criteria just discussed:

The most certain O,-related effects, while judged to be

adverse, are transient and reversible (particularly at O,

exposures below 0.08 ppm), and the more serious

effects with greater immediate and potential long-term

impacts on health are less certain, both as to the

percentage of individuals exposed to various

concentrations who are likely to experience such effects

and as to the long-term medical significance of these

effects.

Ozone Final Rule, 62 Fed. Reg. at 38,868/2.

In other words, effects are less certain and less severe at

lower levels of exposure. This seems to be nothing more than

a statement that lower exposure levels are associated with lower

risk to public health. The dissent argues that in setting the

standard at 0.08, EPA relied on evidence that health effects

occurring below that level are "transient and reversible,"

Dissent at 5, evidently assuming that those at higher levels are

not. But the EPA language quoted above does not make the

categorical distinction the dissent says it does, and it is far from

apparent that any health effects existing above the level are

permanent or irreversible.

App. 8

In addition to the assertion quoted above, EPA cited the

consensus of the Clean Air Scientific Advisory Committee

("CASAC") that the standard should not be set below 0.08.

That body gave no specific reasons for its recommendations, so

the appeal to its authority, also made in defense of other

standards in the PM Final Rule, see PM Final Rule, 62 Fed.

Reg. at 38,677/2 (daily fine PM standard); id. at 38,678/3

(annual coarse PM standard); id. at 38,679/1 (daily coarse PM

standard), adds no enlightenment. The dissent stresses the

undisputed eminence of CASAC's members, Dissent at 4, but

the question whether EPA acted pursuant to lawfully delegated

authority is not a scientific one. Nothing in what CASAC says

helps us discern an intelligible principle derived by EPA from

the Clean Air Act.

Finally, EPA argued that a 0.07 standard would be

“closer to peak background levels that infrequently occur in

some areas due to nonanthropogenic sources of O, precursors,

and thus more likely to be inappropriately targeted in some

areas on such sources." Ozone Final Rule, 62 Fed. Reg. at

38,868/3. But a 0.08 level, of course, is also closer to these peak

levels than 0.09.

The dissent notes that a single background observation

fell between 0.07 and 0.08, and says that EPA's decision

"ensured that if a region surpasses the ozone standard, it will do

so because of controllable human activity, not uncontrollable

natural levels of ozone." Dissent at 6. EPA's language, coupled

with the data on background ozone levels, may add up to a

backhanded way of saying that, given the national character of

the NAAQS, it is inappropriate to set a standard below a level

that can be achieved throughout the country without action

affirmatively extracting chemicals from nature. That may well

be a sound reading of the statute, but EPA has not explicitly

adopted it.

App. 9

EPA frequently defends a decision not to set a standard

at a lower level on the basis that there is greater uncertainty that

health effects exist at lower levels than the level of the standard.

See Ozone Final Rule, 62 Fed. Reg. at 38,868/2; PM Final

Rule, 62 Fed. Reg. at 38,676/3 (annual fine PM standard); id.

at 38,677/2 (daily fine PM standard). And such an argument is

likely implicit in its defense of the coarse PM standards. See

PM Final Rule, 62 Fed. Reg. at 38,678/3- 79/1. The dissent's

defense of the fine particulate matter standard cites exactly such

a justification. See Dissent at 6 ("The Agency explained that

‘there is generally greatest statistical confidence in observed

associations ... for levels at and above the mean concentration

[in certain studies]' *) (emphasis added in dissent). But the

increasing-uncertainty argument is helpful only if some

principle reveals how much uncertainty is too much. None

does.

The arguments EPA offers here show only that EPA is

applying the stated factors and that larger public health narms

(including increased probability of such harms) are, as

expected, associated with higher poliutant concentrations. The

principle EPA invokes for each increment in stringency (such

as for adopting the annual coarse particulate matter standard

that it chose here)--that it is "possible, but not certain" that

health effects exist at that level, see PM Final Rule, 62 Fed.

Reg. at 38,678/3 ? --could as easily, for any non-threshold

EPA did cite qualitative evidence for further support

for its annual standard, and argued that the evidence "does not

provide evidence of effects below the range of 40-50 Sg/m3,”

the standaru level. PM Final Rule, 62 Fed. Reg. at 38,678/3.

The referenced document, however, bears no indication that the

qualitative evidence demonstrates effects at the level of the

standard, either. See EPA, "Air Quality Criteria for Particulate

Matter," at 13-79 (April 1996).

App. 10

pollutant, justify a standard of zero. The same indeterminacy

prevails in EPA's decisions not to pick a still more stringent

level. For example, EPA's reasons for not lowering the ozone

standard from 0.08 to 0.07 ppm--that "the more serious effects

... are less certain" at the lower levels and that the lower levels

are "closer to peak background levels," see Ozone Final Rule,

62 Fed. Reg. at 38,868/2--could also be employed to justify a

refusal to reduce levels below those associated with London's

"Killer Fog" of 1952. In that calamity, very high PM levels (up

to 2,500 Sg/m3) are believed to have led to 4,000 excess deaths

in a week.’ Thus, the agency rightly recognizes that the

question is one of degree, but offers no intelligible principle by

which to identify a stopping point.

The latitude EPA claims here seems even broader than

that OSHA asserted in International Union, UAW v. OSHA

("Lockout/Tagout I"), 291 U.S. App. D.C. 51, 938 F.2d 1310,

1317 (D.C. Cir. 1991), which was to set a standard that would

reduce a substantial risk and that was not infeasible. In that

case, OSHA thought itself free either to "do nothing at all" or

to "require precautions that take the industry to the brink of

ruin,” with "all positions in between ... evidently equally valid."

Id. Here, EPA's freedom of movement between the poles is

equally unconstrained, but the poles are even farther apart--the

maximum stringency would send industry not just to the brink

of ruin but hurtling over it, while the minimum stringency may

be close to doing nothing at all.

In Lockout/Tagout I certain special conditions that have

justified an exceptionally relaxed application of the

nondeiegation doctrine were absent, 938 F.2d at 1317-18, and

they are equally absent here. The standards in question affect

3See W.P.D. Logan, "Mortality in the London Fog

Incident, 1952," The Lancet, Feb. 4, 1953, at 336-38.

—sceiiiistinmaiaeadiiiiheadia tiateaeaiiaiai eae

App. 11

the whole economy, requiring a "more precise" delegation than

would otherwise be the case, see A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 553, 79 L. Ed. 1570, 55

S. Ct. 837 (1935). No "special theories" justifying vague

delegation such as the war powers of the President or the

sovereign attributes of the delegatee have been or could be

asserted. Nor is there some inherent characteristic of the field

that bars development of a far more determinate basis for

decision. (This is not to deny that there are difficulties; we

consider some below.)

EPA cites prior decisions of this Court holding that

when there is uncertainty about the health effects of

concentrations of a particular pollutant within a particular

range, EPA may use its discretion to make the "policy

judgment" to set the standards at one point within the relevant

range rather than another. NRDC v. EPA, 284 U.S. App. D.C.

136, 902 F.2d 962, 969 (D.C. Cir. 1990); American Petroleum

Inst. v. Costle, 214 U.S. App. D.C. 358, 665 F.2d 1176, 1185

(D.C. Cir. 1981); Lead Industries, 647 F.2d at 1161 (D.C. Cir.

1980). We agree. But none of those panels addressed the claim

of undue delegation that we face here, and accordingly had no

occasion to ask EPA for coherence (for a "principle," to use the

classic term) in making its "policy judgment." The latter phrase

is not, after all, a self-sufficient justification for every refusal to

define limits.

It was suggested at oral argument that EPA's vision of

its discretion in application of § 109(b)(1) is no broader than

that asserted by OSHA after a remand by this court and upheld

by this court in International Union, UAW v. OSHA

("Lockout/Tagout II"), 308 U.S. App. D.C. 368, 37 F.3d 665

(D.C. Cir. 1994). But there, in fact, OSHA allowed itself to set

only standards falling somewhere between maximum feasible

stringency and some "moderate" departure from that level. 37

App. 12

F.3d at 669. As our prior discussion should have indicated, here

EPA's formulation of its policy judgment leaves it free to pick

any point between zero and a hair below the concentrations

yielding London's Killer Fog.

The dissent argues that a nondelegation challenge

similar to this one was rejected in South Terminal Corp. v.

EPA, 504 F.2d 646 (Ist Cir. 1974), and cites that case's

language that "the rationality of the means can be tested against

goals capable of fairly precise definition in the language of

science," id. at 677. See Dissent at 2. But the action challenged

in South Terminal was EPA's adoption of a plan for ending or

preventing violations in Boston of already-established NAAQS,

not its promulgation of the NAAQS themselves. Thus, it seems

likely that the "means" were the plan's provisions--e.g., a

prohibition on most new parking in the city, see 504 F.2d at

671, and the "fairly precisely defined" goals were the NAAQS

themselves.

Where (as here) statutory language and an existing

agency interpretation involve an unconstitutional delegation of

power, but an interpretation without the constitutional weakness

is or may be available, our response is not to strike down the

statute but to give the agency an opportunity to extract a

determinate standard on its own. Lockout/Tagout I, 938 F.2d

at 1313. Doing so serves at least two of three basic rationales

. for the nondelegation doctrine. If the agency develops

determinate, binding standards for itself, it is less likely to

exercise the delegated authority arbitrarily. See Amalgamated

Meat Cutters v. Connally, 337 F. Supp. 737, 758-59 (D.D.C.

1971) (Leventhal, J., for three-judge panel). And such standards

enhance the likelihood that meaningful judicial review will

prove feasible. See id. at 759. A remand of this sort of course

does not serve the third key function of non-delegation doctrine,

to “ensure[ ] to the extent consistent with orderly governmental

TL TR OR

App. 13

administration that important choices of social policy are made

by Congress, the branch of our Government most responsive to

the popular will," Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst., 448 U.S. 607, 685, 65 L. Ed. 2d

1010, 100 S. Ct. 2844 (1980) ("Benzene") (Rehnquist, J.,

concurring). The agency will make the fundamental policy

choices. But the remand does ensure that the courts not hold

unconstitutional a statute that an agency, with the application of

its special expertise, could salvage. In any event, we do not read

current Supreme Court cases as applying the strong form of the

nondelegation doctrine voiced in Justice Rehnquist's

concurrence. See Mistretta v. United States, 488 U.S. 361,

377-79, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989).

What sorts of “intelligible principles" might EPA adopt?

Cost-benefit analysis, mentioned as a possibility in

Lockout/Tagout I, 938 F.2d at 1319-21, is not available under

decisions of this court. Our cases read § 109(b)(1) as barring

EPA from considering any factor other than “health effects

relating to pollutants in the air." NRDC, 902 F.2d at 973; see

also Lead Industries, 647 F.2d at 1148; American Lung Ass'n

v. EPA, 328 U.S. App. D.C. 232, 134 F.3d 388, 389 (D.C. Cir.

1998); American Petroleum Inst., 665 F.2d at 1185 (echoing the

same themes).

In theory, EPA could make its criterion the eradication

of any hint of direct health risk. This approach is certainly

determinate enough, but it appears that it would require the

agency to set the permissible levels of both pollutants here at

zero. No party here appears to advocate this solution, and EPA

appears to show no inclination to adopt it.‘

‘A zero-risk policy might seem to imply

de-industrialization, but in fact even that seems inadequate to

the task (and even if the calculus is confined to direct risks from

App. 14

EPA's past behavior suggests some readiness to adopt

standards that leave non-zero residual risk. For example, it has

employed commonly used clinical criteria to determine what

qualifies as an adverse health effect. See Ozone Staff Paper at

59-60 (using American Thoracic Society standards to determine

threshold for "adverse health effect" from ozone). On the issue

of likelihood, for some purposes it might be appropriate to use

standards drawn from other areas of the law, such as the

familiar "more probable than not" criterion.

Of course a one-size-fits-all criterion of probability

would make little sense. There is no reason why the same

probability should govern assessments of a risk of thousands of

deaths as against risks of a handful of people suffering

momentary shortness of breath. More generally, all the relevant

variables seem to range continuously from high to low: the

possible effects of pollutants vary from death to trivialities, and

the size of the affected population, the probability of an effect,

and the associated uncertainty range from "large" numbers of

persons with point estimates of high probability, to small

pollutants, as opposed to risks from the concomitant poverty).

First, PM (at least) results from almost all combustion, so only

total prohibition of fire or universal application of some

heretofore unknown control technology would reduce manmade

emissions to zero. See PM Staff Paper at IV-1. Second, the

combustion associated with pastoral life appears to be rather

deadly. See World Bank, World Development Report 1992:

Development and the Environment 52 (1992) (noting that

"biomass" fuels (i.e., wood, straw, or dung) are often the only

fuels that "poor households, mostly in rural areas" can obtain or

afford, and that indoor smoke from biomass burning

"contributes to acute respiratory infections that cause an

estimated 4 million deaths annually among infants and

children.").

App. 15

numbers and vague ranges of probability. This does not seem

insurmountable. Everyday life compels us all to make decisions

balancing remote but severe harms against a probability

distribution of benefits; people decide whether to proceed with

an operation that carries a 1/1000 possibility of death, and

(simplifying) a 90% chance of cure and a 10% chance of no

effect, and a certainty of some short-term pain and nuisance. To

be sure, all that requires is a go/no-go decision, while a serious

effort at coherence under § 109(b)(1) would need to be more

comprehensive. For example, a range of ailments short of death

might need to be assigned weights. Nonetheless, an agency

wielding the power over American life possessed by EPA

should be capable of developing the rough equivalent of a

generic unit of harm that takes into account population affected,

severity and probability. Possible building blocks for such a

principled structure might be found in the approach Oregon

used in devising its health plan for the poor. In determining

what conditions would be eligible for treatment under its

version of Medicaid, Oregon ranked treatments by the amount

of improvement in "Quality Adjusted Life Years" provided by

each treatment, divided by the cost of the treatment.’ Here, of

‘The "quality" of various health states was determined

by poll, and medical professionals determined the probabilities

and durations of various health states with and without the

treatment in question.

Oregon was twice forced to revise its system because

the United States Department of Healti: & Human Services

determined that the original proposal and a revision violated the

Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213.

The reason given for this determination was that both versions

undervalued the lives of persons with disabilities: The original

plan measured quality of life according to the attitudes of the

general population rather than the attitudes of persons with

App. 16

disabilities. See HHS, “Analysis Under the Americans with

Disabilities Act (( ADA’) of the Oregon Reform Demonstration"

(Aug. 3, 1992), reprinted in 9 Issues in L. & Med. 397, 410,

410 (1994). The revised plan ranked treatments leaving the

patient in a "symptomatic" state lower than those leaving the

patient asymptomatic, and certain disabling conditions were >

considered “symptoms.” See Letter from Timothy B. Flanagan,

Assistant Attorney General, to Susan K. Zagame, Acting

General Counsel, HHS (Jan. 19, 1993), reprinted in 9 Issues in

L. & Med. 397, 418, 421 (1994). The Department's

determination was extensively criticized when issued. See

Maxwell J. Mehlman et al., "When Do Health Care Decisions

Discriminate Against Persons with Disabilities?" 22 J. Of

Health Politics, Policy & L. 1385, 1390 (1997) (HHS's

“decision provoked a storm of disbelief and denunciation").

We take no position on whether HHS's view was

correct, or if the underlying norm also governs EPA's decisions

under § 109(b)(1). An affirmative answer, however, would not

seem to preclude use of some of Oregon's approach. The first

step would be giving appropriate weight to the views of persons

with disabilities. The second might be measuring the

seriousness of a pollution-induced health effect by the absolute

level of well-being that the effect brings about, not by the

decrease in level that the effect causes. In other words, if the

maximum well-being level is 100 and the average asthmatic

whose asthma constitutes a disability has a well-being of 80 in

the absence of air pollution (according to a measure that

appropriately considers asthmatics’ own assessments of their

condition), then a response to air pollution that reduces the

asthmatics’ well-being to 70 could be counted as an effect of

magnitude 30 (the difference from full health), rather than 10

(the difference from the level without the pollution). That

approach would ensure that effects on persons with disabilities

App. 17

course, EPA may not consider cost, and indeed may weil find

a completely different method for securing reasonable

coherence. Alternatively, if EPA concludes that there is no

principle available, it can so report to the Congress, along with

such rationales as it has for the levels it chose, and seek

legislation ratifying its choice.

We have discussed only the primary standards. Because

the secondary standards are at least in part based on those, see

Ozone Final Rule, 62 Fed. Reg. at 38,875/3-76/1; PM Final

Rule, 62 Fed. Reg. at 38,680/3, we also remand the cases to the

agency with regard to the secondary standards as well, for

further consideration in light of this opinion.

II. Other General Claims

The petitioners and amici contend that the EPA

erroneously failed to consider a host of factors in revising the

PM and ozone NAAQS. We reject each of these claims in turn.

A. Consideration of Cost in Revising Standards

As this court long ago made clear, in setting NAAQS

under § 109(b) of the Clean Air Act, the EPA is not permitted

to consider the cost of implementing those standards. See Lead

Industries, 647 F.2d at 1148 (D.C. Cir. 1980); see also NRDC,

902 F.2d at 973 (following Lead Industries in reviewing

particulate matter NAAQS); American Petroleum Inst., 665

F.2d at 1185 (same, in reviewing ozone NAAQS). The

petitioners make four unsuccessful attempts to distinguish Lead

Industries and its progeny.

were not underestimated, even in the broad sense of that term

apparently adopted by HHS.

App. 18

First, the petitioners claim that in Lead Industries we

held only that the Clean Air Act does not compel the EPA to

consider the costs of implementation in setting a NAAQS; on

the contrary, we held that the Act precludes the EPA from

doing so. See Lead Industries, 647 F.2d at 1148 ("the statute

and its legislative history make clear that economic

considerations play no part in the promulgation of [NAAQS]").

Second, that we decided Lead Industries prior to the

Supreme Court's decision in Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) does

not, as the petitioners suggest, require us to revisit the earlier

case. The Lead Industries decision was made in Chevron step

one terms, see id., as the post-Chevron progeny of Lead

Industries have made clear. See NRDC, 902 F.2d at 973

("Consideration of costs ... would be flatly inconsistent with the

statute, legislative history and case law on this point"); NRDC

v. EPA, 263 U.S. App. D.C. 166, 824 F.2d 1146, 1158-59 (D.C.

Cir. 1987) (in banc) ("Vinyl Chloride") ("Statute on its face

does not allow consideration of technological or economic

feasibility.... Congress considered the alternatives and chose to

close down sources or even industries rather than to allow risks

to health").

Third, though the petitioners are correct that in Lead

Industries we interpreted § 109(b), which governs the setting of

NAAQS, and not § 109(d), which governs the revising of

NAAQS, we can discern no legally relevant difference in the

two sections that would make Lead Industries inapplicable to §

109(d). Section 109(d)(1) directs the EPA to:

complete a thorough review of the criteria published

under section 7408 of this title and the [NAAQS]

promulgated under this section and [to] make such

revisions in such criteria and standards and promulgate

App. 19

such new standards as may be appropriate in accordance

with section 7408 of this title and subsection (b) of this

section.

42 U.S.C. § 7409(d\(1). The petitioners contend that

consideration of costs is one pertinent factor in determining

whether revision of a NAAQS is “appropriate,” but this

argument ignores the clause immediately following

“appropriate,” which incorporates § 109(b) and thereby

affirmatively precludes consideration of costs in revising

NAAQS. Section 108(b), 42 U.S.C. § 7408(b), does require the

EPA to provide the States with information on the cost of

implementing NAAQS, but the reference to § 108 does not

permit consideration of costs in setting NAA S because it

clearly relates back to the requirement that the EPA "make ...

revisions in ["the criteria published under section 7408"] ... as

may be appropriate." And insofar as the air quality criteria do

apply to the setting of NAAQS, they do so through § 109(b),

which (again) precludes the consideration of costs and which is

explicitly incorporated into § 109(d)(1). See id. § 7409(b)\(1)

(primary NAAQS to be "based on [the air quality] criteria"

issued under § 108).

Fourth, the petitioners point to § 109(d)(2), which

creates the CASAC and requires it to advise the EPA about,

among other things, "any adverse public health, welfare, social,

economic, or energy effects which may result from various

strategies for attainment and maintenance of such [NAAQS]."

Id. § 7409(d)(2)(C\(iv). Why, ask the petitioners, would the

CASAC be required to advise the EPA about these matters if

the EPA were not then supposed to consider its advice in the

course of revising the NAAQS? As above, however, the

petitioners overlook that § 109(d)(1) directs the EPA to review

and to revise, as appropriate, the air quality standards issued

under § 108 as well as the NAAQS promulgated under §

App. 20

109(b). The advice required in § 109(d)(2)(C){iv) is pertinent

only to the EPA's duty under § 108 to provide the States with

control strategy information.

B. Environmental Consequences of Implementing NAAQS

The State Petitioners argue that the EPA erred in failing

"to consider the environmental consequences resulting from the

financial impact of the [revised PM, , and ozone NAAQS] on

the federal Abandoned Mine Reclamation Fund Act." This

argument is squarely foreclosed by our decision in NRDC. In

reviewing the EPA's previous revision of the PM NAAQS, we

rejected the argument that the EPA "erred in refusing to

consider the health consequences of unemployment in

determining the primary [NAAQS] for particulate matter" and

held that "it is only health effects relating to pollutants in the air

that EPA may consider." 902 F.2d at 972-73 (emphasis in

original). Unlike the positive health venefits of ozone that we

hold (in Part III.B, below) the EPA must consider, any

detrimental health efiects resulting from the financial impact

upon the mine fund, like the health consequences of

unemployment, are traceable to the cost of complying with the

revised PM,, and ozone NAAQS and not to the presence of

those pollutants in the air.

C. The National Environmental Policy Act

In challenging both the revised PM,, and ozone

NAAQS, the State Petitioners also argue that the EPA failed to

comply with certain requirements of the NEPA. The petitioners

recognize that the Congress has exempted all actions under the

Clean Air Act, including the setting of NAAQS, from the

central requirement of the NEPA, namely, the preparation of an

Environmental Impact Statement. Compare 42 U.S.C. §

4332(2\(C)-(D) (agency must prepare EIS in all "major Federal

“ App. 21

actions significantly affecting the quality of the human

environment"), with 15 U.S.C. § 793(c)(1) ("No action taken

under the Clean Air Act shall be deemed a major Federal action

significantly affecting the quality of the human environment

within the meaning of the [NEPA]"). Nonetheless, they suggest

that the EPA is required to complete the functional equivalent

of an EIS and also to comply with other requirements in the

NEPA, see 42 U.S.C. § 4332(2)(B), (E), (G). State Petitioners’

PM Brief at 20; State Petitioners' Ozone Brief at 19. We reject

each of these suggestions.

First, the State Petitioners contend that this court has

"recognized that the [CAA], properly construed, requires the

functional equivalent of a NEPA impact statement,’ "_ id.

(quoting Portland Cement Ass'n v. Ruckelshaus, 158 U.S. App.

D.C. 308, 486 F.2d 375, 384 (1973)). Our decision in Portland

Cement, however, actually construed only "section 111 of the

Clean Air Act." By replacing these words with "[CAA]" in their

briefs, the petitioners misrepresent our interpretation of a single

section of the Clean Air Act, dealing with emission standards

for stationary sources, as an interpretation of the entire Act.

Even if the petitioners were correct, however, Portland Cement

predated, and is now superseded by, the statutory exemption in

15 U.S.C. § 793(c)(1), which the Congress added in 1974.

Second, the State Petitioners contend that a provision of

the NEPA “requires that EPA weigh ‘economic considerations.’

" The section to which the petitioners refer reads as follows:

"all agencies of the Federal Government shall ... identify and

develop methods and procedures ... which will insure that

presently unquantified environmental amenities and values may

be given appropriate consideration in decisionmaking along

with economic and technical considerations." 42 U.S.C. §

4332(2)(B). Even if this section is properly read generally to

require an agency to consider implementation costs, § 109(d){1)

App. 22

specifically prohibits the EPA from doing so. And the NEPA

provides that it shall not "in any way affect the specific

statutcry obligations of any Federal agency ... to comply with

criteria or standards of environmental quality." 42 U.S.C. §

4334(1). Therefore, § 4332(2)(B) cannot require the EPA to

disregard the prohibition in § 109(d)(1) upon the consideration

of costs in setting NAAQS.

The State Petitioners’ remaining arguments--that the

EPA failed to comply with two other sections of the

NEPA--fare little better. Section 4332(2)(E) requires federal

agencies to "study, develop, and describe appropriate

alternatives to recommended courses of action in any proposal

which involves unresolved conflicts concerning alternative uses

of available resources." As with § 4332(2)(B), insofar as §

4332(2)(E) can be read to require the EPA to consider the costs

of implementing NAAQS when revising those standards,

contrary to the prohibition in § 109(d)(1), § 4334(1) prevents it

from having any effect.

If, on the other hand, § 4332(2)(E) is understood in the

context of the Clean Air Act to require the EPA merely to

discuss implementation alternatives, then it, like the similar §

4332(2)G) with which the petitioners also claim the EPA failed

to comply, is the functional equivalent of § 108(b)(1). That

section requires the EPA to provide the States with, among

other things, "such data as are available on available technology

and alternative methods of prevention and control of air

pollution." As we recognize with regard to the requirement that

the agency prepare an EIS, “compliance with NEPA's ...

requirements has not been considered necessary when the

agency's organic legislation mandates procedures for

considering the environment that are ‘functional equivalents’ of

the [NEPA's] process." Izaak Walton League of Am. v. Marsh,

210 U.S. App. D.C. 233, 655 F.2d 346, 367 n.51 (1981). The

App. 23

rationale for the functional equivalence doctrine is the

well-established principle that a "general statutory rule usually

does not govern unless there is no more specific rule." Green v.

Bock Laundry Mach. Co., 490 U.S. 504, 524, 104 L. Ed. 2d

557, 109 S. Ct. 1981 (1989); see also Alabama ex rel.

Siegelman v. EPA, 911 F.2d 499, 504-05 (11th Cir. 1990)

(citing cases). The NEPA is the general statute requiring

agencies to consider environmental harms, whereas the Clean

Air Act is the more specific and its equivalent provisions apply

in place of those in the NEPA. See Portland Cement, 486 F.2d

at 386 (finding functional equivalence when more specific

statute strikes "workable balance between some of the

advantages and disadvantages of full application of NEPA").

Our analysis of the petitioners' contentions leads us to

conclude that nothing in the NEPA requires the EPA in setting

NAAQS to consider or to discuss matters that the Clean Air Act

does not already permit or require.

D. The Unfunded Mandates Reform Act

The State Petitioners in the particulate matter case and

Congressman Bliley in the ozone case both contend that the

EPA is required by the Unfunded Mandates Reform Act, 2

U.S.C. § 1501 et seq., to prepare a Regulatory Impact Statement

(RIS) when setting a NAAQS, see id. § 1532, and to choose the

least burdensome from a range of alternative permissible

NAAQS, see id. § 1535. Even if the petitioners and the amicus

are correct regarding the interaction of the UMRA and the

CAA--a point the EPA strongly contests-we can provide them

with no relief. See id. § 1571(a)(3) ("The inadequacy or failure

to prepare [a RIS] ... shall not be used as a basis for staying,

enjoining, invalidating or otherwise affecting [an] agency

rule"); id. § 1571(b) ("Except as provided in [ § 1571(a), which

does not mention § 1535,] ... any compliance or noncompliance

App. 24

with the provisions of this chapter ... shall not be subject to

judicial review; and no provision of this chapter shall be

construed to [be] ... enforceable by any person in any ... judicial

action").

The State Petitioners, recognizing the limitations upon

judicial review in § 1571, contend that the EPA's failure to

prepare a RIS can nonetheless render the NAAQS arbitrary and

capricious, see 42 U.S.C. § 7607(d)(9), relying upon Thompson

v. Clark, 239 U.S. App. D.C. 179, 741 F.2d 401 (D.C. Cir.

1984). In that case, we interpreted a statute that, like the

UMRA, both specified that the RIS be included in the record

for judicial review and precluded judicial review of an agency's

compliance with the RIS requirement. We held that a

"reviewing court will consider the contents of the [RIS], along

with the rest of the record, in assessing not the agency's

compliance with the [requirement to prepare the RIS], but the

validity of the rule under other provisions of law." 741 F.2d at

405. No information in a RIS, however, could lead us to

conclude that the EPA improperly set the PM and ozone

NAAQS; the only information such a statement would add to

the rulemaking record for a NAAQS would pertain to the costs

of implementation, see 2 U.S.C. § 1532(a), and the EPA is

precluded from considering those costs in setting a NAAQS.

Accordingly, the failure to prepare a RIS does not render the

NAAQS arbitrary and capricious.

E. The Regulatory Flexibility Act

In both the ozone and particulate matter cases, the Small

Business Petitioners argue that the EPA improperly certified

that the revised NAAQS would not have a significant impact

upon a substantial number of small entities. The Regulatory

Flexibility Act, 5 U.S.C. § 601 et seq., as amended in 1996 by

the Small Business Regulatory Enforcement Fairness Act, Pub.

App. 25

L. No. 104-121, tit. II, 110 Stat. 857-74 ("SBREFA"), requires

an agency, when engaging in notice and comment rulemaking,

to "prepare and make available for public comment an initial

regulatory flexibility analysis... [that] describes the impact of

the proposed rule on small entities," 5 U.S.C. § 603(a),

including small businesses, small organizations, and small

governmental jurisdictions, see id. § 601(6). When

promulgating a final rule, an agency must describe "the steps ...

taken to minimize the significant economic impact on small

entities." Id. § 604(a)(S). According to the petitioners, if the

EPA had complied with the RFA, it would likely have

promulgated less stringent PM and ozone NAAQS than those

actually chosen, which would have reduced the burden upon

small entities.

A regulatory flexibility analysis is not required,

however, if the agency "certifies that the rule will not, if

promulgated, have a significant economic impact on a

substantial number of small entities." Id. § 605(b). Further, the

SBREFA made no change in the requirement that a regulatory

flexibility analysis conducted pursuant to the RFA include

estimates of "the number of small entities to which the

proposed rule will apply" and of "the classes of small entities

which will be subject to the requirement." 5 U.S.C. §

603(b)(3)-(4). We have consistently interpreted the RFA, based

upon these sections, to impose no obligation upon an agency

"to conduct a small entity impact analysis of effects on entities

which it does not regulate." Motor & Equip._Mfrs. Ass'n v.

Nichols, 330 U.S. App. D.C. 1, 142 F.3d 449, 467 & n.18

(1998).

The EPA certified that its revised NAAQS will "not

have a significant economic impact on small entities within the

meaning of the RFA." PM Final Rule, 62 Fed. Reg. at 38,702/2;

Ozone Final Rule, 62 Fed. Reg. at 38,887/2-3. According to the

App. 26

EPA, the NAAQS themselves impose no regulations upon

small entities. Instead, the several States regulate small entities

through the state implementation plans (SIPs) that they are

required by the Clean Air Act to develop. See 42 U.S.C. §

7410. Because the NAAQS therefore regulate small entities

only indirectly--that is, insofar as they affect the planning

decisions of the States--the EPA concluded that small entities

are not "subject to the proposed regulation." See Mid-Tex Elec.

Coop., Inc. v. FERC, 249 U.S. App. D.C. 64, 773 F.2d 327, 342

(D.C. Cir. 1985); see also 773 F.2d at 343 ("Congress did not

intend to require that every agency consider every indirect

effect that any regulation might have on small businesses in any

stratum of the national economy.").

The EPA's description of the relationship between

NAAQS, SIPs, and small entities strikes us as incontestable.

The States have broad discretion in determining the manner in

which they will achieve compliance with the NAAQS. The

EPA "is required to approve a state plan which provides for the

timely attainment and subsequent maintenance of ambient air

standards” and cannot reject a SIP based upon its view of "the

wisdom of a State's choices of emission limitations," Train v.

NRDC, 421 U.S. 60, 79, 95 S. Ct. 1470, 43 L. Ed. 2d 731

(1975) (emphasis in original), or of the technological

infeasibility of the plan. See Union Elec. Co. v. EPA, 427 U.S.

246, 265, 49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976). Therefore,

a State may, if it chooses, avoid imposing upon small entities

any of the burdens of complying with a revised NAAQS. Only

if a State does not submit a SIP that complies with § 110, 42

U.S.C. § 7410, must the EPA adopt an implementation plan of

its own, which would require the EPA to decide what burdens

small entities should bear. The agency has stated, however, that

it will do a regulatory flexibility analysis before adopting an

implementation plan of its own, as it did in 1994 when

proposing such a plan for Los Angeles. See Ozone Final Rule,

App. 27

62 Fed. Reg. at 38,891/1; PM Final Rule, 62 Fed. Reg. at

38,705/3.

The responses of the Small Business Petitioners do not

persuade us to reject the EPA's argument or to deviate from our

holdings in Mid-Tex and its progeny. First, the Small Business

Petitioners contend that we must defer to the Small Business

Administration's interpretation of the Act, as expressed in a

letter to the EPA from the SBA's Chief Counsel for Advocacy,

that the NAAQS do impose requirements upon small entities.

The SBA, however, neither administers nor has any

policymaking role under the RFA; at most its role is advisory.

See, e.g., 5 U.S.C. §§ 601(3), 602(b), 603(a), 605(b), 609(b)(1),

612. Therefore, we do not defer to the SBA's interpretation of

the RFA. See Scheduled Airlines Traffic Offices, Inc. v.

Department of Defense, 318 U.S. App. D.C. 347, 87 F.3d 1356,

1361 (D.C. Cir. 1996) (no Chevron deference owed to agency

interpretation of statute it does not administer). Nor do we defer

to the EPA's interpretation of the RFA, for it does not

administer the Act either. We do, however, find the EPA's

interpretation of the statute persuasive.

Second, the Small Business Petitioners argue that the

EPA cannot claim both that the NAAQS will have no effect

upon small entities and that it will have positive health effects.

Clearly, however, the EPA can maintain that the NAAQS will

have health effects because the Clean Air Act empowers the

agency to ensure that such benefits accrue; and it can maintain

that the NAAQS will not directly affect small entities because

it has no authority (short of imposing its own implementation

plan upon a non-complying state) to impose any burdens upon

such entities.

Third, the Small Business Petitioners attempt to

distinguish the possible effects upon small entities in this case

App. 28

from the indirect effects that, as we found in Mid-Tex, are not

within the contemplation of the RFA. But Mid-Tex is not so

easily distinguished. The petitioners in that case argued that the

RFA required the FERC to consider economic effects not only

upon regulated industries but also upon the small entities that

are their wholesale customers, even though the customers were

not directly regulated by the FERC. We rejected that argument,

finding a "clear indication" in the language of § 603 that the

RFA is “limited to small entities subject to the proposed

regulation." Mid-Tex, 773 F.2d at 342; see also Motor & Equip.

Mfrs. Ass'n, 142 F.3d at 467 n.18 ("The RFA itself

distinguishes between small entities subject to an agency rule,

to which its requirements apply, and those not subject to the

rule, to which the requirements do not apply."); United

Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (1996)

(regulatory flexibility analysis provision applies only to "small

entities that are subject to the requirements of the rule")

(emphasis in original). That the Clean Air Act requires the

States to submit SIPs that will achieve compliance with the

NAAQS does not, in view of the States’ nearly complete

discretion to determine which entities will bear the burdens of

a revised NAAQS, make such small entities as the SIPs may

regulate any more subject to the EPA's regulation than were the

wholesalers in Mid-Tex subject to regulation by the FERC.

Finally, the Small Business Petitioners suggest that the

Congress in enacting the SBREFA overruled our prior

interpretation of the RFA in Mid-Tex and its progeny. The

SBREFA made a number of changes in the RFA, but it did not

change anything in § 603 upon which we relied in Mid- Tex.

And although the Congress made a slight modification in §

605(b), we do not understand it to alter our analysis in

Mid-Tex. Prior to 1996, § 605(b) required an agency to provide

"a succinct statement explaining the reasons" for its

certification that the promulgated rule would not have a

App. 29

significant economic impact upon small entities. That section

now requires "a statement providing the factual basis for such

certification.” Our decision in Mid-Tex contemplates that an

agency may justify its certification under the RFA upon the

"factual basis" that the rule does not directly regulate any

small entities. Nothing in the change to § 605(b) suggests that

basis for certification is no longer permissible. (Indeed, the

section of the statute amending § 605(b) is labeled "Technical

and Conforming Amendments," see SBREFA § 243, 110

Stat. at 866.) We therefore conclude that the EPA properly

certified that its NAAQS would not have a significant impact

upon a substantial number of small entities.

III. Ozone

A. Subpart 2 and the Revised Ozone Standard

In 1990 the Congress substantially revised the Clean

Air Act by, among other things, adding specific enforcement

provisions for carbon monoxide, particulate matter, sulfur

oxides, nitrogen dioxide, lead, and as pertinent here, ozone.

Previously, the Act required that all areas of the country not

attaining the primary ozone standard, no matter how far from

attainment, come into compliance "as expeditiously as

practicable but not later than December 31, 1987." 42 U.S.C.

§ 7502 (1988). Many areas had not attained the primary

ozone NAAQS by that date; some were still a long way from

doing so. The Congress responded to the continued ozone

problem by enacting a new enforcement scheme, which it

codified as Subpart 2 of Part D of the Clean Air Act, 42

U.S.C. §§ 7511-7511f, redesignating the original provisions

as Subpart 1.

Subpart 2 requires the EPA to classify nonattainment

areas based upon their design value, which is a rough measure

of whether an area complies with the 0.12 ppm, 1-hour primary

App. 30 )

ozone standard.® A table in Subpart 2, set out here in the

margin,’ establishes classifications ranging from marginal to

Ng ee

*More specifically, the design value is the fourth-highest |

daily maximum ozone concentration in an ‘area over three |

consecutive years for which there are sufficient data. If that ;

value is less than or equal to 0.12 ppm, then an area will have

only three expected values above that level and it will be in

attainment with the ozone NAAQS. See EPA, The Clean Air

Act Ozone Design Value Study: Final Report 1-1 to 1-22

(1994) (filed pursuant to 42 U.S.C. § 7511b(g), which required

the EPA to conduct "a study of whether the [existing design

value] methodology ... provides a reasonable indicator of the

ozone air quality of ozone nonattainment areas"; the EPA

concluded it did).

ERI TES: Re te See 5 aes gr th

’This table appears in Clean Air Act § 181(a)(1), 42

U.S.C. § 7511(aX(1):

TABLE |

Area Class Design Value [ppm] Primary Standard Attainment Date

Marginal . . . 0.121 up to 0.138 . . . . 3 years after November 15, 1990

Moderate . . .0.138 up to 0.160... 6 years after November 15, 1990

Serious .. . . 0.160 up to 0.180... 9 years after November 15, 1990 3

Severe... .. 0.180 up to 0.280... . 15 years after November 15, 1990 4

Extreme ...0.280 and above ... . 20 years after November 15, 1990

The Severe Area category is later subdivided, creating a sixth

classification for ozone nonattainment areas. See id. §

7511(aX(2) (“Notwithstanding table 1, [for] a severe area with

a 1988 ozone design value between 0.190 and 0.280 ppm, the

App. 31

extreme, and provides an attainment date for each class. See id.

§ 7511(a)(1)-(2). Subpart 2 also specifies, for each class of

nonattainment areas, both measures that the States must take to

reduce emissions of the chemicals that are precursors of ozone

and information that the States must report to the EPA. See id.

§ 751 1a. In short, Subpart 2 is the Congress's comprehensive

plan for reducing ozone levels throughout the country.

The State and Non-State Petitioners, along with

Congressman Bliley appearing as an amicus curiae, argue that

Subpart 2 precludes the EPA from revising the primary and

secondary ozone NAAQS. We reject this argument (in Part

III.A.1) insofar as it pertains to the EPA's continued ability to

promulgate a revised ozone NAAQS or to designate areas as

not in attainment with a revised NAAQS. We agree (in Part

III.A.2) with those petitioners, however, insofar as they

maintain, based upon the text and structure of Subparts | and 2,

that the EPA is precluded from enforcing a revised primary

ozone NAAQS other than in accordance with the

classifications, attainment dates, and control measures set out

in Subpart 2. Further, we conclude (in Part III.A.3) that the

EPA ay not require a State to comply with a revised

secondary ozone NAAQS in any area that has yet to attain the

0.12 ppm primary standard.

1. The EPA's Power to Revise the Ozone

NAAQS and Designate Areas as Nonattainment

The 1990 amendments did not alter the section of the

Clean Air Act that provides for setting and revising primary and

secondary NAAQS. See 42 U.S.C. § 7409. The Administrator,

therefore, still must "at five-year intervals [from December 31,

1980] ... complete a thorough review of ... the [NAAQS]

attainment date shall be 17 years ... after November 15, 1990").

App. 32 ,

promulgated under this section and ... make such revisions in

such ... standards ... as may be appropriate." Id. § 7409(d)(1).

The Second Circuit held that this section continues to "set[ ]

forth a bright-line rule for agency action," American Lung

Ass'n v. Reilly, 962 F.2d 258, 263 (1992), and we agree.

Nothing in the Act modifies this "bright-line rule” or otherwise

makes it inapplicable to revision of the ozone NAAQS. ;

To the extent that the 1990 amendments shed any light

upon this question, they suggest that the EPA retains its

authority to revise the ozone NAAQS. For example, if the EPA

relaxes a NAAQS after enactment of the 1990 amendments,

then "the Administrator shall ... promulgate requirements

applicable to all areas which have not attained that [relaxed]

standard as of the date of such relaxation.... [which] shall

provide for controls ... not less stringent than the controls

applicable to areas designated nonattainment before such

relaxation." 42 U.S.C. § 7502(e). Although two other

subsections of § 172 are expressly made inapplicable to the

ozone regulations in Subpart 2, see id. § 7502(a)(1)(C),

(aX(2\(D), this so-called anti-backsliding provision contains no

such exemption. Accordingly, as the EPA notes, this section

specifically contemplates that the agency may relax its ozone

NAAQS and, therefore, necessarily implies that it retains the

authority to revise that NAAQS. Tellingly, neither the

petitioners nor the amicus reply to this point.

o- a a ee Oe te

Bik te ee 5 tee ee ee ae i! Dn er > ti 6) ad,

The petitioners and amicus raise two other arguments to

support their position that the EPA cannot alter the ozone

NAAQS without the approval of the Congress. We reject both

in short order.

First, the Non-State Petitioners contend that Subpart 2

renders revision of the ozone NAAQS “inappropriate” within

the meaning of § 109(d)(1), which provides the EPA shall

App. 33

"make such revisions in such ... standards ... as may be

appropriate." 42 U.S.C. § 7409(d\(1). This argument, however,

pointedly ignores the text immediately following the word

"appropriate," which specifies that appropriateness is to be

determined "in accordance with section 7408 ... and [ §

7409(b)]" (and which, as we read it, means exclusively in

accord with those sections). See, e.g., American Methyl Corp.

v. EPA, 242 U.S. App. D.C. 148, 749 F.2d 826, 835-36 (D.C.

Cir. 1984). Because Subpart 2 is neither listed in § 109(d\(1)

nor incorporated by reference in either § 108, id. § 7408, or §

109(b), it cannot render revision of the ozone NAAQS

inappropriate.

Second, the State Petitioners and Congressman Bliley

argue, based upon the classification table in § 181(a)(1), id. §

7511(aX(1), that Subpart 2 codified the 0.12 ppm ozone

NAAQS and, therefore, only the Congress can promulgate a

revised NAAQS. Yet not all areas designated nonattainment for

ozone will have design values of 0.121 ppm or higher. In fact,

this was true of areas designated nonattainment for ozone as a

result of the 1990 amendments, see Ozone Final Rule, 62 Fed.

Reg. at 38,884/3, at least in part because of the stringent criteria

in the Clean Air Act for changing the designation of an area to

attainment from nonattainment. See 42 U.S.C.

7407(d\(3E iii) (redesignation permissible only if area's

attainment of NAAQS "is due to permanent and enforceable

reductions in emissions"). In short, although the numbers in the

classification table are based upon the 0.12 ppm ozone

NAAQS, they are neither equivalent to nor a codification of the

NAAQS.

Not only does the EPA, as we conclude above, retain

authority to promulgate a revised ozone NAAQS; the agency is

still required, "in no case later than 2 years from the date of

promulgation" of a revised NAAQS, to designate areas as

App. 34

attainment, nonattainment, or unclassifiable under that

NAAQS. Id. § 7407(d)(1)(B). Although the 1990 amendments

extended by roughly 18 months the maximum time between

promulgation of a revised NAAQS and_- designation of

nonattainment areas under that NAAQS, see 42 U.S.C. §

7407(d)(1)-(2) (1988), they made no substantive change in the

EPA's authority to designate areas as nonattainment under a

revised NAAQS. Therefore, we hold that the EPA retains the

power to designate areas as nonattainment under a revised

ozone NAAQS.

2. The EPA's Power to Enforce the Revised

Ozone Standard

That the enactment of Subpart 2 does not alter the EPA's

authority to revise the ozone NAAQS or to designate areas as

nonattainment for ozone does not, however, compel the

conclusion that Subpart 2 has no effect upon the EPA's

authority to enforce a revised primary ozone NAAQS. (We

consider the enforcement of secondary ozone NAAQS in Part

III.A.3, below.) In fact, the text and structure of Subparts 1 and

2 suggest precisely the opposite conclusion. After designating

an area as nonattainment under a NAAQS, the EPA normally

looks to Subpart 1 for authority to "classify the area for the

purpose of applying an attainment date." 42 U.S.C. §

7502(a)(1)-(2). The cited provisions, however, do not apply

“with respect to nonattainment areas for which classifications

{and attainment dates] are specifically provided under other

provisions of [Part D of Subchapter | of the Clean Air Act}."

Id. § 7502(a(1)(C), (aX2)(D).

The EPA argues that Subpart 2 specifically provides

classifications and attainment dates only for nonattainment

designations under the 0.12 ppm ozone NAAQS. The State and

Non-State Petitioners counter that Subpart 2 specifically

TERE RED ELS OEE REELED IIE CII I Re

“ Ares te ee ree

App. 35

provides classifications and dates for all areas designated

nonattainment under any ozone NAAQS. We agree with the

petitioners.

The pertinent provision of Subpart 2 reads as follows:

(a) Classification and attainment dates for 1989

nonattainment areas. -- (1) Each area designated non-

attainment for ozone pursuant to section 7407(d) of this

title shall be classified at the time of such designation,

under table 1, by operation of law, as a Marginal Area,

a Moderate Area, a Serious Area, a Severe Area, or an

Extreme Area....

Id. § 7511(aX(1). As the petitioners note, § 107(d), 42 U.S.C. §

7407(d), specifies three different times at which an area can be

designated "nonattainment for ozone": immediately following

enactment of the 1990 amendments, id. § 7407(d)(4); after the

EPA revises the ozone NAAQS, id. § 7407(d)(1); and when an

area that was in attainment, either when the Congress enacted

the 1990 amendments or when the EPA promulgated a revised

ozone NAAQS, later ceases to comply, id. § 7407(d)(3). The

petitioners conclude from the general reference to § 107(d) that

the classifications and attainment dates in Subpart 2 apply to

areas designated under §§ 107(d)(1), (3), and (4). The EPA

gamely responds that the reference to § 107(d) includes only

subsection (4), but we do not defer to the agency's interpretation

because we find that the Congress has spoken on the "precise

question at issue" and we "must give effect to the

unambiguously expressed intent of Congress." Chevron U. S.

A. Inc., 467 U.S. 837, 842-43 & n.9, 104 S. Ct. 2778, 81 L. Ed.

2d 694 (1984). We canvass the two reasons that lead us to this

conclusion before returning to the EPA's argument.

App. 36

First, the reference to § 107(d) in § 181(a)(1) appears to

have been purposeful and not the drafting error that the EPA's

interpretation implies. The Congress considered but did not

adopt bills that clearly would have limited the reach of Subpart

2 to nonattainment designations made immediately following

enactment of the 1990 amendments. The Senate bill contained

a version of Subpart 2 that classified only those areas

designated nonattainment for ozone under its equivalent of §

107(d)(4). See S. 1630, 101st Cong. §§ 101, 107, reprinted in

III Legislative History of the Clean Air Act Amendments of

1990, at 4124-25, 4195 [hereinafter 1990 Legislative History].

The version of Subpart 2 in the House bill, as originally

introduced, similarly referred only to designations made under

its equivalent of § 107(d)(4). See H.R. 3030, 101st Cong. §§

101(a), 103, reprinted in II 1990 Legislative History, at

3748-49, 3795-96. The House committee, however, replaced

the specific reference to what is now § 107(d)(4) with a general

reference to § 107(d). See H.R. Rep. No. 101-490, at 3-6, 17

(1990), reprinted in II 1990 Legislative History, at 3027-30,

3041. The Conference committee then reported the text of the

House bill rather than that of the Senate. See H.R. Rep. No.

101-952, at 335 (1990), reprinted in I 1990 Legislative History,

at 1785.

Second, our conclusion that the Congress intentionally

referred to § 107(d) as a whole is supported by a comparison of

Subparts 1 and 2. The Congress enacted Subpart 2 because of

the failure of the controls in Subpart 1 to bring areas into

attainment with the 0.12 ppm standard in the allotted time. See

H.R. Rep. No. 101-490, at 145-50, reprinted in II 1990

Legislative History, at 3169-74. Rather than continue treating

all ozone nonattainment areas alike, the Congress allowed the

various areas between 3 and 20 years to attain the ozone

NAAQS, depending upon the extent of the area's ozone

problem. See id. at 146-47 ("In 1977, Congress tried to waive

2D PRI Eg 94

App. 37

[sic] a ‘magic wand' and command that all nonattainment areas

[for ozone] will meet the applicable [NAAQS].... by December

31, 1987. ... [That] date[ ] has come and gone and it is clear that

... we had no ‘magic’ solutions."), reprinted in II 1990

Legislative History, at 3170-71. As the petitioners argue,

because the 1990 amendments extended the time for

nonattainment areas to comply with the 0.12 ppm ozone

NAAQS, they must preclude the EPA from requiring areas to

comply either more quickly or with a more stringent ozone

NAAQS.

Subpart | requires compliance with a primary NAAQS

"as expeditiously as practicable, but no later than 5 years from

the date such area was designated nonattainment." 42 U.S.C. §

7502(aX2)(A). All nonattainment areas would have until 2012

to comply with the revised ozone NAAQS if the EPA and the

States were to take the full time authorized in Subpart 1 for

making attainment designations and the EPA were to approve

every possible extension for each area. See id. §§

7407(d\(1(A)-(B), 7502(aX(2)(A), (C). Such wide discretion is

inconsistent, however, with Subpart 2, in which the Congress

stripped the EPA of discretion to decide which ozone

nonattainment areas should receive more time to reach

attainment (with two limited exceptions nut relevant here, see

id. § 7511(a)(4), (5)). Moreover, under § 181(a) of Subpart 2,

Los Angeles, the nation's only Extreme Area, has until 2010 to

attain the 0.12 ppm ozone NAAQS, and the possibility of

extending that deadline until 2012. That Los Angeles should

also have to attain a more stringent ozone standard by that same

year, if not earlier, clearly runs counter to the comprehensive

enforcement scheme enacted in Subpart 2.

The EPA offers two arguments against this

interpretation of Subparts 1 and 2. First, the EPA contends that

a recent statute confirms its power to designate nonattainment

App. 38

areas under the revised ozone standard. See Pub. L. No.

105-178, § 6103(a), 112 Stat. 465 (1998) (extending time to

two years from one year for governor to submit proposed

designation under 0.08 ppm ozone NAAQS). That statute also

specifically states, however, that "nothing in section[ ] ... 6103

shali be construed by the Administrator of Environmental

Protection Agency or any court ... to affect any pending

litigation or to be a ratification of the ozone ... standard{ }." Id.

§ 6104. Further, even if the EPA were correct that § 6103

confirms the agency's power to designate areas under a revised

ozone NAAQS, that power was never in doubt, as we

concluded above. Indeed, § 6104 simply does not bear upon the

question we address here: whether Subpart 1 or Subpart 2

provides the applicable enforcement mechanisms for an area

designated nonattainment under a revised ozone NAAQS.

Second, the EPA argues that read in context the

reference to § 107(d) in § 181(a){1) relates only to designations

made under § 107(d)(4). Because the table in § 181(a)(1)

classifies areas based upon a design value that roughly

measures attainment of the 0.12 ppm ozone NAAQS, the EPA

contends that the nonattainment designations referenced in §

181(a)(1) are only those designations made under the 0.12 ppm

ozone NAAQS. This explanation, however, does not square

with either the Congress's decision not to refer to § 107(d)(4)

specifically or the long-term nature of the attainment scheme

enacted in Subpart 2; on the EPA's interpretation, that scheme

would have been stillborn had the EPA revised the ozone

NAAQS immediately after the Congress enacted the 1990

amendments.

The EPA points next to § 181(b)(1), which specifies the

attainment dates for areas that met the 0.12 ppm standard when

the Congress enacted the 1990 amendments but that later cease

to comply. That section, however, applies only to areas

App. 39

designated under § 107(d)(3) that previously were "designated

attainment or unclassifiable for ozone under section

[107(d)(4)]." That § 181(b)(1) provides special rules for such

areas, but not for areas designated under § 107(d)(3) that had

previously been designated attainment for ozone or

unclassifiable under § 107(d)(1), does not support the EPA's

argument that the phrase in § 181(a)(1) "designated

nonattainment for ozone pursuant to section 107(d)" denotes

only those designations made under § 107(d)(4). If anything,

the specification of § 107(d)(4) in § 181(b)(1) makes its

absence from § 181(a)(1) all the more striking.

The final bit of context to which the EPA points is the

title of § 181(a): "Classification and attainment dates for 1989

nonattainment areas." Because the title specifies "1989

nonattainment areas," we are told, § 181(a) must refer only to

nonattainment designations made immediately after enactment

of the 1990 amendments, that is, designations made under §

107(d)(4). Although "the title of a statute or section can aid in

resolving an ambiguity in the legislation's text," INS v.

National Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189,

116 L. Ed. 2d 546, 112 S. Ct. 551 (1991), a title cannot be

allowed to create an ambiguity in the first place. See Maguire

v. Commissioner of Internal Revenue, 313 U.S. 1, 9, 61 S. Ct.

789, 85 L. Ed. 1149 (1941) ("The title of an act will not limit

the plain meaning of the text."). The text of § 181(a) clearly

encompasses nonattainment designations made under all

subsections of § 107(d). There simply is no ambiguity in need

of resolution by reference to the title of the section.

In sum, § 181(a) "specifically provides" for

classifications and attainment dates for areas designated

nonattainment for ozone pursuant to § 107(d)(1). Accordingly,

Subpart 2, not Subpart 1, provides the classifications and

attainme:.t dates for any areas designated nonattainment under

App. 40

a revised primary ozone NAAQS, see 42 U.S.C. §

7502(aX(1(C), (aX2)\(D), and the EPA must enforce any revised

primary ozone NAAQS under Subpart 2.

3. The Secondary Ozone NAAQS

The Non-State Petitioners briefly contend that our

conclusion that Subpart 2 provides the classifications and

attainment dates for areas designated nonattainment under a

revised primary ozone NAAQS is equally applicable to the

enforcement of a revised secondary ozone NAAQS. We find it

impossible to conclude, however, that Subpart 2 "specifically

provides" for classifications and attainment dates for areas

designated nonattainment with a revised secondary ozone

NAAQS; § 181(a)(1) expressly refers only to primary NAAQS

and Subpart 2 not once mentions secondary NAAQS. Further,

attainment dates in Subpart | for secondary standards are less

stringent than for primary standards, making comparison with

the more lenient dates in Subpart 2 less troubling. Compare id.

§ 7502(a)(2)\(B) (attainment of secondary NAAQS "shall be ...

achieved as expeditiously as practicable after the date such area

was designated nonattainment"), with id. § 7502(a\(2)(A)

(attainment of primary NAAQS "shall be ... achieved as

expeditiously as practicable, but no later than 5 years from the

date such area was designated nonattainment"). Nonetheless,

we understand Subpart 2 to codify the Congress's judgment as

to what is "as expeditiously as practicable" in reducing an area's

level of ozone. Consequently, the EPA is precluded from

requiring any steps toward compliance with a revised secondary

ozone NAAQS prior to an area's attainment of the 0.12 ppm

standard. In areas that meet the 0.12 ppm standard, however,

Subpart 2 erects no bar to the EPA's requiring compliance with

a revised secondary ozone NAAQS "as expeditiously as

practicable."

OL Rigs Lite ca FER Se es RE LT OER OS de 1

App. 41

B. Ozone's Health Benefits

Petitioners presented evidence that according to them

shows the health benefits of tropospheric ozone as a shield from

the harmful effects of the sun's ultraviolet rays--including

cataracts and both melanoma and nonmelanoma skin cancers.

In estimating the effects of ozone concentrations, EPA

explicitly disregarded these alleged benefits.

EPA explained its decision first as a matter of statutory

interpretation. Under the Clean Air Act, EPA's ambient

standards for any pollutant are to be "based on [the] criteria"

that EPA has published for that pollutant. 42 U.S.C. §

7409(b)(1) & (2). The "criteria," in turn, are to "reflect the latest

scientific knowledge useful in indicating the kind and extent of

all identifiable effects on public health or welfare which may be

expected from the presence of such pollutant in the ambient air,

in varying quantities." Id. § 7408(a)(2). The reference to "all

identifiable effects" would seem on its face to include

beneficent effects.

EPA attempts to avoid this straightforward reading in

several ways. First, it points to the term "such pollutant,"

arguing that the statute requires it to focus exclusively on the

characteristics that make the substance a "pollutant." But the

phrase "pollutant" is simply a label used to identify a substance

to be listed and controlled by the statute. While it is perfectly

true that a substance known to be utterly without adverse effects

could not make it onto the list, this fact of nomenclature does

not visibly manifest a congressional intent to. banish

consideration of whole classes of “identifiable effects."

EPA also relies on the fact that two of the three

specified considerations under § 108(a)(2)'s general mandate

refer to “adverse effects":

App. 42

The criteria for an air pollutant, to the extent

practicable, shall include information on-- (A) those

variable factors (including atmospheric conditions)

which of themselves or in combination with other

factors may alter the effects on public health or welfare

of such air pollutant; (B) the types of air pollutants

which, when present in the atmosphere, may interact

with such pollutant to produce an adverse effect on

public health or welfare; and (C) any known or

anticipated adverse effects on welfare. Id. § 7408(a)(2)

(emphasis added).

EPA's argument would be of uncertain force even if all three

types of effects specifically required to be considered were

spoken of as "adverse effects"; there is no reason to read

"adverse" back into the "all identifiable effects" of § 108(a)(2).

But as one of the three specified classes refers to "effects"

unmodified, id. § 7408(a)(2)(A), we can reject EPA's argument

without even reaching that issue. That Congress qualified

"effects" in clauses (B) an’ (C) with "adverse" seems only to

strengthen the supposition that in (A)--and in the general

mandate--it intended to cover all health or welfare effects.

Therefore if petitioners’ contentions are right, clause (A) applies

to ozone: the presence of ultraviolet radiation at various levels

“alters the effects [of ozone] on public health or welfare" by

making them on the whole less malign--perhaps even

beneficial.

EPA next argues that Title VI of the Clean Air Act, id.

§§ 7671-7671q, which mandates certain measures to preserve

stratospheric ozone, represents a complete consideration of

ozone's beneficial role as a UV shield. Petitioners’ claim,

however, is that ground-level (tropospheric) ozone--the subject

of this rule--has a UV-screening function independent of the

App. 43

ozone higher in the atmosphere. EPA points to nothing in the

statute that purports to address tropospheric ozone.

Finally, EPA directs us towards legislative history from

the 1970 and 1990 Clean Air Act Amendments. The “all

identifiable effects" language, however, dates to the 1967

Amendments. Legislative history from the 1970 and 1990

Congresses cannot be "an authoritative interpretation of what

the [1967] statute meant," because it is "the function of the

courts and not the Legislature, much less a Committee of one

House of the Legislature, to say what an enacted statute

means." Pierce v. Underwood, 487 U.S. 552, 566, 101 L. Ed.

2d 490, 108 S. Ct. 2541 (1988).

Under Chevron, we defer to an agency's interpretation

of a statute if "the statute is silent or ambiguous with respect to

the specific issue" and "the agency's answer is based on a

permissible construction of the statute." 467 U.S. at 843. We

find no such ambiguity in this case. Further, EPA's

interpretation fails even the reasonableness standard of

Chevron's second part: it seems bizarre that a statute intended

to improve human health would, as EPA claimed at argument,

lock the agency into looking at only one half of a substance's

health effects in determining the maximum level for that

substance. At oral argument even EPA counsel seemed

reluctant to claim that the statute justified disregard of the

beneficent effects of a pollutant bearing directly on the health

symptoms that accounted for its being thought a pollutant at all

(suppose, for example, a chemical that both impedes and

enhances breathing, depending on the person or circumstances);

he also seemed unable to distinguish that case from the one

here--where the chemical evidently impedes breathing but

provides defense against various cancers.

App. 44

Legally, then, EPA must consider positive identifiable

effects of a pollutant's presence in the ambient air in

formulating air quality criteria under § 108 and NAAQS under

§ 109. EPA's other arguments are technical, and are of two

sorts: those that allegedly show petitioners’ studies to be fatally

flawed and those that allegedly show specific inflation of

results in these studies. We need only consider the first sort, for

EPA chose to give the studies no weight at all.

Petitioners rely primarily on studies by Lutter and

Cupitt. EPA found that these could be ignored because the

marginal benefits are difficult, if not impossible, to quantify

reliably and because there is "no convincing basis for

concluding that any such effects ... would be significant." But

these are not the criteria by which EPA assesses adverse health

effects. It does not rigorously or uniformly demand either

quantifiability, see, e.g., Ozone Final Rule, 62 Fed. Reg. at

38,860/3 (admitting that “quantitative risk estimates could not.

be developed" for certain adverse effects of ozone on which

EPA regulated); EPA Ozone Brief at 48 (defending

consideration of various effects that "played an important role

in the Administrator's final decision" despite absence of

quantification: "EPA did not estimate the risk for such effects

because ‘information [was] too limited to develop quantitative

estimates,'--not because there is doubt the effects occur.")

(alteration and emphasis in original) (citation omitted), or any

specific level of significance. As we can see no reason for

imposing a higher information threshold for beneficent effects

than for maleficent ones, we have no basis for affirming EPA's

decision to disregard the studies.

As we said above, we are remanding to EPA to

formulate adequate decision criteria for its ordinary object of

analysis-ill effects. We leave it to the agency on remand to

determine whether, using the same approach as it does for

App. 45

those, tropospheric ozone has a beneficent effect, and if so, then

to assess ozone's net adverse health effect by whatever criteria

it adopts.

IV. Particulate Matter

A. PM as Coarse Particle Indicator

We now turn to petitioners’ challenges to the Agency's

regulation of coarse particulate pollution. Both the 1987.

NAAQS and the proposed standards regulate all particles with

diameters under 10 micrometers, signified by the indicator

PMio. The PM, spectrum includes both coarse and fine

particles. While the main distinction between coarse and fine

particles is the process by which they are produced, EPA and

epidemiologists who study the health effects of particulate

pollution identify coarse and fine particles through rough

approximations of those particles' diameters. Coarse particles,

which become airborne usually from the crushing and grinding

of solids, generally have diameters between 2.5 and 10

micrometers and can thus be identified by the indicator PM, _ s.

Fine particles, indicated in these new NAAQS by PM, , come

mainly from combustion or gases and generally have diameters

of 2.5 micrometers or less.

Despite EPA's conclusion that coarse and fine particles

pose independent and distinct threats to public health, the

Agency chose not to adopt an indicator, such as PM,,.,;, that

would measure only the coarse fraction of PM; . Petitioners

make two arguments: that there is no scientific basis for

regulating coarse particles at all, and that even if there were,

retention of the PM,,. indicator simultaneously with the

establishment of the new fine particle indicator is unsupported

by evidence in the record and arbitrary and capricious. We

agree with this latter argument.

App. 46

Beginning with petitioners’ first challenge, we think the

record contains sufficient evidence to justify the Agency's

decision to regulate coarse particulate pollution. While the

relationship between PM,, pollution and adverse health effects

justifying the 1987 NAAOS was well-established, see NRDC

v. EPA, 284 U.S. App. D.C. 136, 902 F.2d 962, 967-68 (D.C.

Cir. 1990), two studies contained in the record of these

proceedings concentrated specifically on the health effects

caused by the coarse fraction of PM,, pollution. See Mary Ellen

Gordian et al., "Particulate Air Pollution and Respiratory

Disease in Anchorage, Alaska," 104 Envtl. Health Persp. 290

(1996) (studying volcanic ash); Brockton J. Hefflin et al.,

"Surveillance for Dust Storms and Respiratory Diseases in

Washington State, 1991," 49 Archives of Envtl. Health 170

(1994) (studying fugitive dust). In addition, the record contains

at least nine multivariate analyses finding statistically

significant relationships with health effects for both PM, , and

PM, suggesting that the portion of PM, _ pollution

unaccounted for by PM, , (i.e., coarse particles) explains some

of the observed adverse health effects. In other words, because

regression analysis holds the PM,, component constant, the

PM, effect recognized in these equations actually evidences

results from coarse particulate pollution. To be sure, petitioners

have pointed to some evidence to the contrary. But given that

our review is limited to "ascertaining that the choices made by

the Administrator were reasonable and supported by the

record," and does not include "judging the merits of competing

expert views," Lead Industries, 647 F.2d at 1160, we find ample

support for EPA's decision to regulate coarse particulate

pollution above the 1987 levels.

Having found independent health consequences from

coarse particulate pollution, EPA nevertheless decided to

regulate the coarse fraction of PM, indirectly, using PMjo

(which includes both coarse and fine PM) as a "surrogate for

OF RUSS SEBEL TIES GA PLILEIT ELE ESI. LALLA COLLEGES DEG ELIE EAE

App. 47

coarse fraction particles." PM Final Rule, 62 Fed. Reg. at

38,668/2. While recognizing that PM,,., would have served as

a satisfactory coarse particle indicator, EPA offers three

justifications for its decision to use PM,, instead: (1) Both the

Gordian and Hefflin studies used PM,o, not PM,,.,,;, as the

variable in their models, (2) the PM, standards will work in

conjunction with the PM, , standards by regulating the portion

of particulate pollution not regulated by the PM,, standards,

and (3) a nationwide monitoring program for PM,, already

exists. We find none of these explanations persuasive.

As to the first argument, while acknowledging that the

indicator used in the studies captures both coarse and fine

particles, EPA nevertheless maintains that PM,, is an effective

indicator for the regulation of coarse particulate pollution.

"Adopting the indicator used in the studies," the Agency says,

“increases the likelihood that the level selected will result in the

health protections predicted." But as EPA's own staff paper

suggests, PM,, is "inherently confounded" by the presence of

PM, ; particles, meaning that any regulation of PM,, poliution

will include both coarse and fine particles. See PM Staff Paper

at V-59. Using PM, as the coarse particle indicator, instead of

PMyo.25, Will thus regulate more than just the coarse fraction of

PM), and the amount of coarse particulate pollution permitted

will depend (quite arbitrarily) on the amount of PM, ; pollution

in the air. For example, assuming the 50 microgram annual

PM yo level adopted by the Agency and a region with an annual

PM,, pollution level of 15 micrograms, the PM,, indicator

would prohibit coarse particulate (PM,.,;) pollution from

exceeding 35 micrograms. But in an area with only 5

micrograms of PM,, pollution, the NAAQS would permit

coarse particulate pollution to reach as high as 45 micrograms.

EPA's second argument--that the PM,, standard will

work in conjunction with the PM, , standard--suffers from the

App. 48

same deficiency. Accepting EPA's finding of "profound

physicochemical differences" between coarse and fine PM, PM

Staff Paper at V-59, such that each requires independent

regulation, we cannot discern exactly how a PM,, standard,

instead of a PM,,., standard, will work alongside a PM,,

standard to regulate only the coarse fraction of PM,>. EPA

provides no explanation to aid us in understanding its decision.

In fact, as the example above indicates, it is the very presence

of a separate PM, standard that makes retention of the PM,,

indicator arbitrary and capricious. Far from working in

conjunction to regulate coarse particles, PM,, and PM,,

indicators, when used together, lead to "double regulation" of

the PM, , component of PM, and potential underregulation of

the PM,..; component since the amount of PM,,.. , permitted

will always depend on the amount of PM, , in the air.

EPA's finai argument is pragmatic. It maintains that

PM,, is a better indicator than PM,,.., for coarse particulate

pollution because a nationwide monitoring program for PM,

already exists. But as EPA acknowledges elsewhere in its brief,

NRDC bars EPA from considering factors unrelated to public

health in setting air quality standards. Echoing our decision in

Vinyl Chloride, NRDC held that "the Administrator may not

consider cost and technological feasibility in determining what

is ‘safe’; such a determination ‘must be based solely upon the

risk to health.' " NRDC, 902 F.2d at 973 (quoting "Vinyl

Chloride", 263 U.S. App. D.C. 166, 824 F.2d 1146, 1166 (D.C.

Cir. 1990) (in banc)); see also American Petroleum Inst. v.

Costle, 214 U.S. App. D.C. 358, 665 F.2d 1176, 1185 (D.C.

Cir. 1981); Lead Industries, 647 F.2d at 1148-55. The

administrative convenience of using PM,. cannot justify

choosing an indicator poorly matched to the relevant pollution

agent.

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App. 49

In view of our conclusion that PM,) amounts to an

arbitrary indicator for coarse particle pollution, we need not

address petitioners’ separate challenge to the PM, levels or

secondary standards. We note, however, that whatever levels

the Agency ultimately selects for coarse particle pollution will

need to comply with the requirements set forth in Part I of this

opinion.

B. Fine Particles as "New Pollutant"

The Attorneys General of Ohio, Michigan, and West

Virginia ("state petitioners") argue that EPA is regulating PM, ,

for the first time. Because they consider PM,, to be a "new

pollutant," they argue that § 108 of the Clean Air Act requires

EPA to coriduct further research on PM,,'s health effects before

listing it as a pollutant, to issue an air quality criteria document

reflecting the latest science on the health effects of the

pollutant, and to assist states by developing "data relating to the

cost of installation and operation, energy requirements,

emission reduction benefits, and environmental impact of the

emission control technology." 42 U.S.C. § 7408(b)(1).

Although EPA never responds to this argument, five

northeastern states (as respondent intervenors and amici) do.

Pointing out that previous NAAQS have always included PM, ,,

these attorneys general support the EPA's decision not to list

PM, separately as a new pollutant. We agree.

The state petitioners cannot escape the fact that the

original standards for particulate pollution using Total

Suspended Particulates (TSP) as indicator, as well as the 1987

NAAQS that used PM, , included by definition every particle

2.5 micrometers and smaller. Moreover, in some areas fine

particles often dominate PM,» pollution. See PM Staff Paper at

V-63. By refining the NAAQS to focus on smaller particles that

App. 50

EPA found posed distinct threats to public health, EPA has

done with these regulations exactly what we held it could do in

1987 when it made the change from Total Suspended

Particulates to PM, 9. See NRDC, 902 F.2d at 965-66. EPA's

decision to update the NAAQS to focus on PM,, merely

continues a trend based on evolving science. It does not violate

the provisions of § 108 of the Clean Air Act.

C. Failure to Identify a Biological Mechanism for Particulate

Pollution's Relationship to Adverse Health Effects

Also challenging the establishment of a fine particle

standard, non-state petitioners argue that EPA failed to explain

the biological mechanism through which particulate pollution

causes adverse health effects. Even if epidemiological studies

show robust statistical relationships between pollution and

health effects, they say, the absence of proof of causation-i.e.,

how particles actually interact with cells and organs to cause

sickness and death--is fatal to the standard. We disagree.

To begin with, the statute itself requires no such proof.

The Administrator may regulate air pollutants "emissions of

which, in his judgment, cause or contribute to air pollution

which may reasonably be anticipated to endanger public health

or welfare." 42 U.S.C. § 7408(a)(1)(A) (1994) (emphasis

added). Moreover, this court has never required the type of

explanation petitioners seek from EPA. In fact, we have

expressly held that EPA's decision to adopt and set air quality

standards need only be based on "reasonable extrapolations

from some reliable evidence." NRDC v. Thomas, 256 U.S.

App. D.C. 310, 805 F.2d 410, 432 (D.C. Cir. 1986). Indeed,

were we to accept petitioners’ view, EPA (or any agency for

that matter) would be powerless to act whenever it first

recognizes clear trends of mortality or morbidity in areas

dominated by a particular pathogen.

App. 51

The numerous epidemiological studies appearing in this

record, some of which EPA also used to support the 1987

NAAQS, easily satisfy the standard articulated in the statute

and emphasized repeatedly in decisions of this court. Covering

diverse geographic locations with widely varying mixes of air

pollution, the studies found statistically significant relationships

between air-borne particulates signified by a variety of

indicators and adverse health effects. Given EPA's statutory

mandate to establish standards based on "the latest scientific

knowledge," 42 U.S.C. §§ 7408(a)(2), 7409(d), the growing

empirical evidence demonstrating a relationship between fine

particle pollution and adverse health effects amply justifies

establishment of new fine particle standards.

D. Visibility Effects

The Environmental Petitioners challenge the EPA's

decision to set the secondary PM, , NAAQS at levels equivalent

to the primary NAAQS. According to the petitioners, the EPA's

failure to set the secondary NAAQS at more stringent levels

will result in "adverse visibility impacts" in parts of the country.

In view of our conclusion in Part I, above, that the EPA has not

adequately explained the principles upon which it relied in

setting the levels in the NAAQS for PM, we need not reach the

main thrust of the petitioners’ challenge to the secondary

NAAQS. On the other hand, the Environmental Petitioners

have also raised a question of statutory interpretation, the

resolution of which should assist the EPA if it revisits its

decision to set the secondary PM, , NAAQS.

In the PM Final Rule, the EPA decided "to address the

welfare effects of PM on visibility by setting secondary

standards identical to the suite of PM,, primary standards, in

conjunction with the establishment of a regional haze program

under § 169A of the Act." PM Final Rule, 62 Fed. Reg. at

App. 52

38,679/3. Section 169A "declares as a national goal the

prevention ... and the remedying of any ... impairment of

visibility in mandatory class | Federal areas ... resulting from

manmade air pollution." 42 U.S.C. § 7491. Mandatory class I

areas include all international parks, and national parks and

wiiderness areas of a certain size. See 42 U.S.C. § 7472(a). The

EPA concluded that reduction of PM, , levels in class I areas

would benefit the surrounding areas as well because "the same

haze that degrades visibility within or looking out from a

national park also degrades visibility outside it." PM Final

Rule, 62 Fed. Reg. at 38,682/1.

The Environmental! Petitioners argue that § 109(b)(2),

42 U.S.C. § 7409(b)(2), requires the EPA to set secondary

NAAQS at a level sufficient to eliminate all adverse visibility

effects and that it leaves the EPA no discretion to decide that

some visibility impairment is better remedied through another

program. This argument must be wrong. For, as the EPA

argues, the Congress required the EPA to implement a regional

haze program specifically in order to address a

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