# Petition for Writ of Certiorari — Massachusetts v. American Trucking Assns. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1456%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 901 ## Text 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 a On Petition For A Writ Of Certiorari To The United States Court Of Appeals, District Of Columbia Circuit 7 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. il 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 DA AFUE MD 8.6 6c reece ndccntensnees Vv te cee kas aie be see kanw etek es 1 na aa ale 68 Ga aoe ok LM aoe kaw 1 CONSTITUTIONAL, STATUTORY, AND REGULATORY ig fas Ee Th) 5 ] i eta sn dn by bes Gao Ke eke cok ene ws 2 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 iV 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 Vv 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 SP kc dcndpakiveweseneeeeee cere Oe ae ee 18 Constitutional and Statutory Provisions ik Se 8 8G rrerererrrrr es errr re er rc. 13 vi MUSE CIEE... 53 acts eee 1 USE AWE uk ee 5,7, 15 9G GTR... os hi ee 5,24 GUSLOTIIENS: | oo iasecee 5 Buse. Ces... ee 5 AE USE OP v6 ovo veceuncedeasaeeae 5 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 ATUSL. CWE... So chi eee 3 SUSE CMR. oo. 5s eee 4 AER BOI is cs 3,4, 19 USE CHIE | .0.0 costes tee 3 o036 CRN. 4 BQUSC CRIME... aa 4,19 USC CTRIGOIES .... 66 ees 4 GUsC GMS. ae eee 5 GZ UDA. G PON 5+ ve cvecvnen decwesteucenaean 6 vii Se WB PP 6 vk a nbc occkadodsctecaauanas 8 a Ss Oe PI on 4 0.0 Send nntnncendnk>txaadans 8 Gy ee CEE 0 n 0-6 sb R 0 Abs ctniaenaneseas gens 8 ee TOU, Wh be ak cbans dntiapecsaseanial 6 A ts EE FE OUE 6 6.65 6408 Cece Na naae keene nenake 6 Te Se OF CRETE a oan oc vasescneesiansdeeiena 6 RUBE. Beal o cicanci TT kd dae nad boned oneness a? ee Fo bk cane cnccsvcnsteseccsecanhevad 6 42 U.S.C. § 7511(aX{1)............. ees 7, 8, 15, 24 ee eT 6 6 565k CON on Ko onens eens eee 7 OE EA, Sp PPR OMI 6 6 ovo cc cscwesnsa in ntstwcsen 7 Oe reer Te a I 6 oh. ne vcd s Sec be cuban kaen ene 8 42 U.S.C. §§ 751 1a(b)(1), SP Li tcanvaceecsas cesses 8 PI 55d oe Rin ns va > Gwk ean eesaeenee as 3 Mp APan LED 5 oe ec acdesnensccagnansse 13, 18, 30 PS EE vio cic ca cccensesviepecinagbasa’ + PE eT PE re errr rrr 9 PN 6 se ic dcsdu tage dene ¥eeebadubkcans 11 I ko ids ap vehi vcecebse ek in bunegwae 4 an dh a4 bake cb didnt ds heneeseaeeneee 1] ET eT rere re err re 9 Is 50.0.0 54405400040 4k sed haaesees 9 PUG Seccslvaderseeiwudwencea vere ‘iene 62 Fed. Reg. 38,421 : kedeeeencheetawescn shaneeaeecer 28 Ge GUE os nc deg eeseeccexesvaenon 2, 3, 10, 13 ON Es o's ce ccekee cbanceagens ay Me 1, 12, 20 EE I k's kes eee nas oe esaekdoeeualean 28 ee II sos vac n dns cdencnedeececaas errr 28 po ee. re Sendadedineeween 27 Raed ve cicgscncacwhesuedeaswlwas 27 I TIE Siw 64k gwd G AS da aes abe do akan aen 28 re I Ns oh 6 wkd os Kad a bwawaeenaceenuaas 28 64 Fed. G5 vk es Fk 4 WARREN ReaD 30 a a 27 ix 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 6 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 7 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). 8 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 9 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. 10 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. 11 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 12 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. 13 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 1a 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.) 15 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.) 16 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 17 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); 18 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. 19 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 20 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 21 “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. 22 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). 23 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. 24 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 25 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. 26 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 27 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. 28 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. § 29 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). 30 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 31 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), thi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1456%3A01. Public record. Not legal advice.