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

=~ Supreme Court, U.S.

| FILE D

991265 JAN 27 200

aE abe aebi e \

In The

Supreme Court of the United States

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AMERICAN LUNG ASSOCIATION,

Petitioner,

Vv.

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Respondents.

¢

: On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

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PETITION FOR A WRIT OF CERTIORARI

¢

Howarp I. Fox

EARTHJUSTICE LEGAL DEFENSE FUND

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for Petitioner

American Lung Association

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

OR CALL COLLECT (402) 342-2831

Axo

i

‘QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding

that the Clean Air Act provisions governing national

ambient air quality standards, and the Environmental

Protection Agency’s interpretation of those provisions,

represent an unconstitutional delegation of legislative

authority.

2. Whether the court of appeals erred in calling into

question the Environmental Protection Agency’s author-

ity to implement new, more health-protective national

ambient air quality standards for ozone.

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RULE 29.6 DISCLOSURE, AND

LIST OF PARTIES BELOW

Petitioner American Lung Association (ALA) was an

intervenor in the court of appeals. ALA has no parent

companies or nonwholly owned subsidiaries, and there is

no parent or publicly held company owning 10% or more

of ALA’s stock.

The following were parties in one or both of the two

consolidated proceedings addressed by this petition for

certiorari (American Trucking Assns. v. USEPA, D.C. Cir.

No. 97-1440 and consolidated cases; and American Truck-

ing Assns. v. USEPA, D.C. Cir. No. 97-1441 and consoli-

dated cases):

Alliance of Automobile Manufacturers (formerly

American Automobile Manufacturers Association)

American Farm Bureau Federation

American Forest & Paper Association

American Iron and Steel Institute

American Lung Association

American Petroleum Institute

American Portland Cement Alliance

American Public Power Association

American Road and Transportation Builders Association

American Trucking Associations, Inc.

Appalachian Power Company

Atlantic City Electric Company

Baltimore Gas and Electric Company

James Bassage

Burns Motor Freight, Inc.

Carolina Power & Light Company

Centerior Energy Corporation

Central and South West Services, Inc.

Central Hudson Gas & Electric Corporation .

Central Illinois Light Company

RULE 29.6 DISCLOSURE, AND

LIST OF PARTIES BELOW - Continued

Central Illinois Public Service Company

Central Power and Light Company

Chamber of Commerce of the United States

Chemical Manufacturers Association -

CINergy Corporation

Citizens for Balanced Transportation

Cleveland Electric Illuminating Company

Columbus Southern Power Company

ComEd Company

Consumers Energy Company

Dayton Power & Light Company

Delmarva Power & Light Company

Detroit Edison Company

Duke Energy Company

Duquesne Light Company

Edison Electric Institute

Equipment Manufacturers Institute

FirstEnergy Corporation (A merger of Centerior Energy

Corporation and Ohio Edison Company)

Florida Power Corporation

Garner Trucking, Inc.

Genie Trucking Line, Inc.

Gloucester Company, Inc.

Michael Gregory

Idaho Mining Association

Illinois Power Company

Indiana Michigan Power Company

Indianapolis Power & Light Company

Jacksonville Electric Authority

Judy’s Bakery, Inc.

Kansas City Power & Light Company

Kennecott Energy and Coal Company

Kennecott Holdings Corporation

Kennecott Services Company

Kentucky Power Company

iv

RULE 29.6 DISCLOSURE, AND

LIST OF PARTIES BELOW - Continued |

Kentucky Utilities Company

Louisville Gas and Electric Company

Madison Gas and Electric Company

Commonwealth of Massachusetts

David Matusow

Brian McCarthy

Meridian Gold Company

State of Michigan

Midwest Ozone Group

Minnesota Power

Monongahela Power Company

Montaup Electric Company

National Association of Home Builders

National Association of Manufacturers

National Automobile Dealers Association

National Coalition of Petroleum Retailers

National Indian Business Association

National Mining Association

National Paint and Coatings Association

National Petrochemical & Refiners Association

National Rural Electric Cooperative Association

National Small Business United |

National Stone Association ‘

Nevada Mining Association

State of New Jersey

Newmont Gold Company :

Niagara Mohawk Power Corporation

Non-Ferrous Founders’ Society |

Northern Indiana Public Service Company

Oglethorpe Power Corporation :

State of Ohio

Ohio Edison Company

Ohio Mining and Reclamation Association

Ohio Power Company

Ohio Valley Electric Corporation

Yo oe may

RULE 29.6 DISCLOSURE, AND

LIST OF PARTIES BELOW - Continued

Oklahoma Gas & Electric Company

Otter Tail Power Company

PacifiCorp

Pennsylvania Power & Light Company

Phoenix Cement Company

Plains Electric Generation & Transmission

Cooperative, Inc.

Potomac Edison Company

Potomac Electric Power Company

PP&L Resources

Public Service Company of New Mexico

Public Service Company of Oklahoma

Richard Romero

Salt River Project Agricultural Improvement

and Power District

Small Business Survival Committee

South Carolina Electric & Gas Company

Southern Company ‘

Southwestern Electric Power Company

Tampa Electric Company

Texas Gas Transmission Corporation

Toledo Edison Company

Union Electric Company

United Mine Workers of America, AFL-CIO

United States Environmental Protection Agency

Virginia Power

West Penn Power Company

West Texas Utilities Company

West Virginia Chamber of Commerce

State of West Virginia

Western Fuels Association

Wisconsin Electric Power Company

vi

TABLE OF CONTENTS

Page

CITATIONS TO DECISIONS ENTERED IN THE—

CAGE ona ccccacbuccscsengeansdeduesstsasesueeees 1

BASIS FOR JURISDICTION IN THIS COURT....... 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THIS CASE...... 2

STATEMENT OF THE CAGE, ..60scvesccessoccccuss 2

Particulate WONG o.oo c's cccccscewasvencseccasence 3

Pe eer ee yee cerecneceecccesceuce 7

Proceedings Below... oc ccccsccccccsscncnecccans 14

REASONS FOR GRANTING THE WRIT ........... 15

I. THIS CASE PRESENTS A PUBLIC HEALTH

ISSUE OF THE FOREMOST IMPORTANCE.... 15

II. THE COURT OF APPEALS’ NONDELEGATION

RULING CONFLICTS WITH PRIOR RULINGS

OF THIS COURT, AS WELL AS OF AT LEAST

ONE COTES CMRAIES 6008 c dina dissccendease 18

Ill. THE COURT OF APPEALS’ RULING CON-

CERNING IMPLEMENTATION OF THE

OZONE NAAQS PRESENTS AN IMPORTANT

QUESTION THAT WAS ERRONEOUSLY

DECIDED BELOW, AND SHOULD BE

REVIEWED BY THES GCUADEE «oo 6 .0e ciccencecs 21

A. The Court of Appeals’ Subpart 2 Ruling

Creates Uncertainty Concerning EPA’s

Authority to Implement the New Eight-

Niger Cheomit PER Ae << os hnex cctnchsasuves 22

B. The Court of Appeals’ Subpart 2 Ruling is

TONGS. 5 noes cnasecussecueeasevesqearqes 24

COPPICTAISIS 6 vein n cc Fi Gd sdiekscedunden bo seecauen 27

Vii

TABLE OF AUTHORITIES

Page

Cases

American Textile Mfrs. Institute v. Donovan, 452 U.S.

Ns OS his A0adas Chae dbdnk eon deepencanecs 19, 20

American Trucking Assns. v. USEPA, 175 F.3d 1027

Se: GU NINE Clinch 38d chen kh erecdi dels Weds Wasdoan 1

American Trucking Assns. v. USEPA, 195 F.3d 4

ae ee NK hb Aas 4564 pekcs’ou cchbueaetexuaawes 1

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

Ge Se: OU Sac Sade ace mnweecedendacouens seesess 7

Chevron, U.S.A. v. Natural Resources Defense Coun-

Oe eS ee errr er re 20, 21

General Motors Corp. v. United States, 496 U.S. 530

SU s bch edu waeassndAnueesudeeeecheaneeueaaueeuas 15

Industrial Union Dept., AFL-CIO v. American Petro-

hemume Eeeet., SEB US. GO CUGBDD «onic cc ccccccssccess 19

].W. Hampton, Jr. & Co. v. United States, 276 U.S.

HO A <0 kedunsdcedskrGubencehesibestsccewenns 14

Lead Industries Assn. v. EPA, 647 F.2d 1130 (D.C.

Rl SEE denne dn boaedeb knee ede emaeenenen ek aed 18

Mistretta v. United States, 488 U.S. 361 (1989)..... 18, 19

Train v. Natural Resources Defense Council, 421 U.S.

tt Bee oe RAK NSE dee eee en ane 15

United States v. Henry, 136 F.3d 12 (1st Cir. 1998) .... 21

CONSTITUTION AND STATUTES

United States Constitution, Article I, § 1............. 2

UAE 6 WE ie. as oes soe eae ee 1

Vili

TABLE OF AUTHORITIES - Continued

Page

Clean Air Act § 108, 42 U.S.C. § 7408....... 2, 4, 14, 18

Clean Air Act § 109, 42 U.S.C. § 7409........... passim

Clean Air Act § 172, 42 U.S.C. § 7502..... 2, 24, 25, 26

Clean Air Act § 181, 42 U.S.C. § 7511......... 2, 22, 25

Clean Air Act § 307, 42 U.S.C. § 7607............... 14

REGULATIONS

ee RTs ka dvcduckcesdyieeeende sain nonnren ie

ee i on ais bona ke cukaXeniasdaanaisscavanes 2

Oe ee EE oad shee ea dasa eekiey ccketeuaeaes 2

LEGISLATIVE History

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977)...... 18

H.R. Rep. No. 490, 101st Cong., 2d Sess. (1990) ...... 7

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970)........ 18

116 Cong. Rec. 42381 (December 18, 1970) .......... 15

FEDERAL REGISTER

36 Fed. Res. SIR6 {April SO, 1971) 2.6.6... ccc ceesee 7

44 Fed. Reg. 8202 (February 8, 1979)............... ee

S2 Fem. Hee. DACRE Caley 1, WIG). once ce cescenas 3, 4

58 Fed. Reg. 13008 (March 9, 1993) .................. 7

61 Fed. Reg. 65716 (December 13, 1996).......... 12, 16

ix

TABLE OF AUTHORITIES - Continued

62 Fed. Reg. 38652 (July 18, 1997)............... L2a¢

62 Fed. Reg. 38856 (July 18, 1997)............... passim

GLOSSARY OF ABBREVIATIONS

ALA American Lung Association

CAA Clean Air Act

CASAC Clean Air Scientific Advisory Committee

CD Criteria Document

COPD chronic obstructive pulmonary disease

EPA Environmental Protection Agency

NAAQS national ambient air quality standard

OSHA Occupational Safety and Health Act

PM2.5 particles less than or equal to 2.5 microns in

diameter

PM 10 particles less than or equal to 10 microns in

diameter

PM particulate matter

ppm parts per million

RIA Regulatory Impact Analysis

RTC Response to Comments

SP Staff Paper

Ce ee yesh or

CITATIONS TO DECISIONS ENTERED IN THE CASE

The decision of the court of appeals is published at

American Trucking Assns. v. USEPA, 175 F.3d 1027 (D.C.

Cir. 1999), App. 1,1 rehearing granted in part, denied in part,

195 F.3d 4 (D.C. Cir. 1999), App. 64. The agency rules

reviewed by the court of appeals are published at 62 Fed.

Reg. 38652 (July 18, 1997), and 62 Fed. Reg. 38856 (July

18, 1997).

BASIS FOR JURISDICTION IN THIS COURT

The date the judgment or order sought to be

reviewed was entered. The D.C. Circuit’s judgment or

order sought to be reviewed was entered on May 14,

1999, App. 1, and rehearing was granted in part and

denied in part on October 29, 1999. App. 64.

The date of any order respecting rehearing. Rehear-

ing was granted in part and denied in part on October 29,

1999. Rehearing en banc was denied that same date, with

five of the nine participating judges veting for rehearing.

The statutory provision conferring certiorari juris-

diction on this Court. 28 U.S.C. § 1254.

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1 Appendix citations refer to the appendix filed by the

Commonwealth of Massachusetts and the State of New Jersey

with their petition for certiorari.

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THIS CASE

Constitution. U.S. Const., Art. I, § 1.

Statutes. Clean Air Act §§ 108, 109, 172, and 181, 42

U.S.C. §§ 7408, 7409, 7502, and 7511.

Regulations. 40 C.F.R. §§ 50.7, 50.9 and 50.10.

(The full text of these provisions is set out in the

appendix to the petition of the Commonwealth of Massa-

chusetts and the State of New Jersey.)

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STATEMENT OF THE CASE

Acting pursuant to its duty to set national ambient

air quality standards (NAAQS) that “protect the public

health” with “an adequate margin of safety,” Clean Air

Act § 109(b)(1), 42 U.S.C. § 7409(b)(1), the Environmental

Protection Agency (EPA) has promulgated revised

NAAQS for particulate matter (most importantly, for fine

particles) and ozone. 62 Fed. Reg. 38711-12 (July 18,

1997), JA(PM) 61-62; 62 Fed. Reg. 38894-95 (July 18, 1997),

JA(O) 39-40.2 With respect to particulate matter, EPA esti-

mates that 3,000-15,000 deaths, 6,000-10,000 hospital

admissions for respiratory and cardiopulmonary causes,

tens of thousands of cases of respiratory illness, and

millions of days of missed work and restricted activity

will be prevented each year just by partial attainment of

2 In accordance with Rule 12.7, the present petition cites the

joint appendices compiled in the court of appeals. The PM joint

appendix is cited as JA(PM), and the ozone joint appendix as

JA(O). ,

the new standards. Regulatory Impact Analysis (RIA)

12-43, JA(PM) 3486. With respect to ozone, EPA has esti-

mated that its new standards will each year prevent tens

of thousands of occurrences of health effects including

respiratory symptoms (such as pain on breathing), reduc-

tions in lung function, and asthma attacks (including

hospital admissions and emergency room visits). 62 Fed.

Reg. 38865 /2-3, JA(O) 10; id. 38868/1, JA(O) 13. It is these

standards that the court of appeals has remanded.

Particulate matter. Particulate matter (PM) is a ubi-

quitous pollutant, consisting of fine particles produced

largely by combustion or other high-temperature proc-

esses, and coarse particles mostly generated from

mechanical processes through crushing and grinding.

Criteria Document (CD) 3-145, JA(PM) 548; Staff Paper

(SP) IV-3a, JA(PM) 1920. Over the years the public health

significance of smaller particles has received increasing

recognition. The original PM NAAQS promulgated in

1971 regulated particles up to 25 to 45 microns in diame-

ter, 52 Fed. Reg. 24635/3 (July 1, 1987), JA(PM) 209, but

EPA in 1987 promulgated revised NAAQS that addressed

particles up to 10 microns in diameter (“PM10”). Id.

24663-64, JA(PM) 237-38. In 1997 EPA promulgated the

PM NAAQS at issue here, which include a new NAAQS

addressing “fine” particles, defined as those 2.5 microns

in diameter or less. 40 C.F.R. § 50.7(a)(1).

These NAAQS were promulgated following a

detailed and thorough review conducted by EPA pur-

suant to its statutory obligation to review and (as appro-

priate) revise NAAQS at no more than five-year intervals.

CAA § 109(d). As required by the Act, EPA’s review of

the PM NAAQS involved presenting a comprehensive

review and assessment of the state of the science regard-

ing particulate matter and its health and environmental

effects in a “criteria” document, which was reviewed by a

special scientific advisory committee (the Clean Air Sci-

entific Advisory Committee, or CASAC). See CAA

§§ 109(d); 108(a)(2). According to the final chapter of the

Criteria Document, described by CASAC as the “best

ever example of a true integrative summary of the state of

knowledge about the health effects of airborne PM,” Let-

ter of March 15, 1996 from George T. Wolff to Carol M.

Browner at 2, JA(PM) 3150,

the extensive PM epidemiologic database that

has evolved during the past several decades

. includes recent studies providing evidence

that serious health effects (mortality, exacerba-

tion of chronic disease, increased hospital

admissions, etc.) are associated with exposures

to ambient levels of PM found in contemporary

U.S. urban air sheds even at concentrations below

current U.S. PM standards.

CD 13-1, JA(PM) 1779 (emphasis added). In sharp con-

trast to the “small” number of studies available in the

1987 PM review, 52 Fed. Reg. 24641/1, JA(PM) 215, and to

other NAAQS reviews that have based standard-setting

on a single study, 44 Fed. Reg. 8202/3 (February 8, 1979),

JA(O) 3480 (noting that 1971 predecessor to the ozone

standard was based on a single study), the studies relied

on in the 1997 PM review include “over 80” addressing

short-term exposures, of which “[o]ver 60... have found

consistent, positive, significant associations between

short-term PM levels and mortality and morbidity end-

points.” SP V-54, JA(PM) 2011. Accord, id. V-61a, JA(PM)

2026 (listing additional statistically significant studies

addressing long-term exposures). Significantly, when EPA

plotted the results of the short-term exposure studies on a

map, it concluded: “Although the highest PM-10 concen-

trations in the U.S. are in the West, most of the results in

North America are from eastern communities, at PM-10

concentrations that are generally below those permitted by

the current standards.” Id. front cover caption, JA(PM) 1900

(emphasis added).

As indicated, these PM-associated health effects

include mortality, i.e., death, largely from respiratory and

cardiovascular causes. SP V-58, JA(PM) 2019. In addition,

the studies documented associations between particulate

matter and exacerbation of emphysema and chronic bron-

chitis (which collectively are known as “chronic obstruc-

tive pulmonary disease”),> as well as pneumonia and

cardiovascular disease. Id. V-20, 21 and 32, JA(PM) 1974,

1976, and 1989. These exacerbations can be serious

enough to lead the affected individuals to visit the emer-

gency room, and to lead attending physicians to order

that they be admitted to the hospital. CD 13-30, JA(PM):

1808. Persons specially at risk from these effects include

those over 65 years of age, as well as those below that age

who have acute or chronic respiratory disease and/or

cardiovascular disease, or who are current or former

smokers. CD 13-92 to 13-94, JA(PM) 1870-72.

Having noted these effects, EPA found that fine parti-

cles — which differ in size, chemical composition and

origin from coarse particles, SP IV-4 to IV-8, JA(PM)

3 COPD is “the most common pulmonary cause of death,

the fourth leading cause of death overall, . . . and a major cause

of disability.” SP V-33, JA(PM) 1990.

1921-27 - were the appropriate indicator: “the fine parti-

cle studies consistently find positive, significant associa-

tions between fine particle levels and mortality and

morbidity endpoints, with over 20 studies conducted in a

number of geographic locations throughout the world,

including the US, Canada, and Europe.” SP V-76, JA(PM)

2047 (footnote omitted). Indeed, considering a study that

compared the fine and coarse fractions, EPA found “clear

evidence that fine particles are more likely to be responsi-

ble for the numerous observed associations between

PM10 and mortality.” SP V-64, JA(PM) 2031. Accord, id.

V-67, JA(PM) 2037 (the 24-city study “provides clear evi-

dence of an effect of fine particles that is independent of

coarse fraction particles”).

Considering these factors, and the near-unanimous

recommendation of CASAC - including all four of the

committee’s epidemiologists - that a fine particle stan-

dard was warranted, Letter of June 13, 1996 from George

T. Wolff to Carol M. Browner at Table 1, JA(PM) 3165,

EPA opted to promulgate NAAQS for fine particles, mea-

sured as PM2.5. 62 Fed. Reg. 38711/3, JA(PM) 61 (setting

annual standard at 15 ng/m3, and 24-hour standard at 65

ug/m3). The levels of the final standards are well within

—- indeed, “toward the middle portion of” - the range

recommended by a majority of CASAC panelists.

Response to Comments (RTC) 29, JA(PM) 268. EPA esti-

mated that 3,000-15,000 deaths, 6,000-10,000 hospital

admissions for respiratory and cardiopulmonary causes,

tens of thousands of cases of respiratory illness, and

millions of days of missed work and restricted activity

will be prevented each year just by partial attainment of

the new standards. RIA 12-43, JA(PM) 3486.

Ozone. Like particulate matter, ozone is a wide-

spread pollutant occurring in numerous regions of the

United States. The primary ingredient in what is known

as “smog,” it is formed when two precursor pollutants

(volatile organic compounds and nitrogen oxides) react to

sunlight. American Petroleum Institute v. Costle, 665 F.2d

1176, 1181 (D.C. Cir. 1981); H.R. Rep. No. 490, 101st

Cong., 2d Sess. 202 (1990).

Prior to 1997, the ozone NAAQS had focused on

short-term concentrations measured over a one-hour

averaging time. 36 Fed. Reg. 8187/3 (April 30, 1971),

JA(O) 3540 (setting NAAQS at 0.08 ppm averaged over

one hour); 44 Fed. Reg. 8220/3 (February 8, 1979), JA(O)

3498 (setting NAAQS at 0.12 ppm averaged over one

hour). Subsequently, concern was raised by CASAC and

others that “even in areas which do not repeatedly exceed

the ozone standard, ozone concentrations can remain

close to 0.12 ppm for several hours per day for extended

periods of time in summer. There was concern based on

recent controlled human exposure, epidemiology and tox-

icology studies, that such prolonged exposures could

result in increased respiratory impairment.” 58 Fed. Reg.

13018/2 (March 9, 1993), JA(O) 3459.

Several years after CASAC’s observation, having

compiled a revised criteria document addressing these

and other studies, EPA noted that human experimental

data documented health effects resulting from 6- to

8-hour exposures to ozone levels as low as 0.08 ppm:

Based on a significant body of information

available since the last review, there is now clear

evidence from human clinical studies that O3

effects of concern are associated with the 6- to

8-hour exposures tested. . . . This includes evi-

dence of the following statistically significant

responses at 6- to 8-hour exposures to the lowest”

concentration evaluated, 0.08 ppm O3, at moderate

exertion: lung function decrements, respiratory

symptoms (e.g., cough, pain on deep inspira-

tion), nonspecific bronchial responsiveness, and

biochemical indicators of pulmonary inflamma-

tion.

62 Fed. Reg. 38863-64, JA(O) 8-9 (emphasis added). See

also id. 38872/1, JA(O) 17 (“the bulk of the human health

effects evidence supporting a decision on an appropriate

O3 standard is based on coatrolled human exposure

studies that relate known O3 exposures directly to

responses in individuals”); 38865/1, JA(O) 10 (noting that

“field . . . and epidemiological studies” confirmed the

results of the clinical studies: “effects were seen not only -

from controlled exposures to 0.08 ppm, but also in ambi-

ent environments in which 8-hour average O3 concentra-

tions ranged from above to below the 0.08 ppm level”).

Those most at risk from these effects are people who

are active outdoors - e.g., “active children and outdoor

workers who regularly engage in outdoor activities.” 62

Fed. Reg. 38859/3, JA(O) 4. In contrast to the studies

underlying the prior NAAQS, which measured effects

based on heavy exertion, the newer studies showed

health effects under moderate exertion - a matter of

concern because “[m]Joderate exertion levels are more

frequently experienced by individuals than heavy exer-

tion levels.” Id.

In addition to outdoor exertion, other factors increas-

ing risk of harm from ozone exposure include respiratory

Se a MET ro eM eRe ME ee

impairments such as asthma: “[t]he magnitude of indi-

vidual changes can become more important in persons

with impaired respiratory systems (e.g., asthmatics) who

already have reduced baseline lung function.” CD 9-26,

JA(O) 1767. EPA heard vivid testimony concerning the

effects of ozone on asthmatics:

When I was four years old, I was playing out-

side on a really hot day and I started wheezing

and my lungs started tightening up. So I came in

and told my mom.

We went to the doctor the next day and the

doctor said I had asthma. The worst thing about

having an asthma attack is that it almost feels

like you are going to die because your lungs

close up and it is really hard to breathe.

The last two summers have been really bad

for me. On days when the ozone is bad, I can’t

even go outside to play.

IV-F-84a at 168-69, JA(O) 3394-95 (ten-year-old Bethany

Myles of Chicago).

When there are ozone warnings, I can’t be out of

the air-conditioning. If I do go outside, I have an

asthma attack. An asthma attack feels like I am

suffocating. No one should have to feel this way.

Id. at 39, JA(O) 3389 (ten-year-old Jeff Damitz of Chi-

cago). EPA estimated that twelve million Americans — one

in twenty - are asthmatic. SP 39, JA(O) 1849.

Non-asthmatics likewise are at risk if they happen to

be among those who are more sensitive to ozone: “[t]here

is a large range of physiological responses among

humans, with at least a 10-fold difference between the

most and least responsive individuals.” CD 9-4, JA(QO)

10

1744. See McDonnell (1991), II-I-316, at 149, JA(O) 2775 (in

laboratory study at 0.08 ppm, lung function decrements

were as high as 37.9%); RTC 81 ¥ 5, JA(O) 161 (at 0.08

ppm, 10% of subjects had lung function decrements

>20%). EPA heard testimony from these sensitive individ-

uals as well:

We had at least 26 days this summer of

“unhealthful” ground level ozone under the ME

[Maine] standard of .08 ppm. That's a big part of

our summer, a very big part. This ground level

ozone is a real problem, a serious problem.

It’s not just a statistical problem, either, because

some standard was exceeded. I can feel it per-

sonally. I have exercised vigorously outside on

“unhealthful” days and become physically sick

— a funny nauseous feeling with a headache. I

would go out and exercise at Ft. Williams Park

and come home feeling queasy and think I had a

bug. Before ozone warnings were given I would

feel this sickness, and I began to associate it

with hazy days, with how the air looked. Then

after awhile I began to make associations with

the way the air felt, then in the last few years I

made the association with the ozone warnings. I

have come home and told my wife how I felt

and she has asked me if I checked the ozone

level, and then I check it and realize the associa-

tion. Now we are very aware of it. We can see it

and feel it in the atmosphere without checking

the DEP warnings. We know when it’s more

than .08. It’s real and it’s degrading our lives.

IV-F-102 at 1, JA(O) 3380 (Charles M. Sexton of South

Portland, ME).

After considering the results of the studies, and the

American Thoracic Society’s criteria for defining which

11

health effects should be considered adverse, EPA con-

cluded that “responses of some sensitive individuals [to

0.08 ppm] are sufficiently severe and extended in duration to

be considered adverse.” 62 Fed. Reg. 38864/1, JA(O) 9

(emphasis added).

In addition to the human experimental data, EPA also

noted that “[nJumerous epidemiological studies have

reported excess hospital admissions and emergency

department visits for respiratory causes (for asthmatic

individuals and the general population) attributed pri-

marily to ambient O3 exposures, including O3 concentra-

tions below the level of the current standard.” Id. (emphasis

added). As the Criteria Doctument noted, these studies

“provide strong evidence that ambient exposures to O3 can

cause significant exacerbations of preexisting respiratory dis-

ease in the general public at concentrations below 0.12

ppm O3.” CD 7-171, JA(O) 1624 (emphasis added). EPA

concluded that “increased hospital admissions and emer-

gency room visits .. . are clearly adverse to individuals.”

62 Fed. Reg. 38864/2, JA(O) 9.

In short, the evidence before EPA showed that health

effects of concern (including adverse health effects) were

occurring at levels allowed by the previous NAAQS, and

at longer averaging times (6-8 hours, not just 1 hour).

CASAC concluded that a new, 8-hour NAAQS was neces-

sary: “It was .. . the consensus of the Panel that an 8-hour

standard was more appropriate for a human health-based

standard than a 1-hour standard.” Letter of November 30,

1995 from George T. Wolff to Carol M. Browner at 2,

JA(O) 237.

12

In acting on CASAC’s consensus recommendation

that an eight-hour NAAQS be set, EPA considered setting

the level of the eight-hour standard at 0.09, which is the

eight-hour level most comparable in protectiveness to the

one-hour 0.12 ppm NAAQS. 61 Fed. Reg. 65725/2, JA(O)

51. Given the evidence documenting adverse health

effects at levels allowed by the one-hour standard, EPA

unsurprisingly rejected this option in favor of a more

protective standard.

EPA presented the results of a risk assessment, which

concluded that thousands more members of the group of

greatest concern - children who are active outdoors -

would suffer respiratory impairment and symptoms at a

0.09 ppm NAAQS than at a 0.08 ppm NAAQS. 62 Fed.

Reg. 38865/2-3, JA(O) 10 (as compared to a 0.08 ppm

NAAQS, a 0.09 ppm NAAQS would subject 70,000 more

children to lung function decrements >15%, 39,000 more

children to decrements >20%, and 14,000 more children to

moderate or severe pain on deep inspiration). These fig-

ures applied only to nine urban areas, id. 38868/1 { 2,

JA(O) 13, and thus underestimate the number of ozone-

induced effects that would occur nationwide.

The assessment also concluded that in New York City

alone, a 0.09 ppm NAAQS would result in 40 more excess

hospital admissions of asthmatics per ozone season than

a 0.08 standard. Id. 38868/1, JA(O) 13. Even for that one

city, this figure is “indicative of a pyramid of much larger

numbers of related O3-induced effects, including respira-

tory-related hospital admissions among the general pop-

ulation, emergency and outpatient department visits,

doctors visits, and asthma attacks and related increased

a

13

use of medication that are important public health con-

siderations.” Id.

EPA also considered other scientifically documented

effects of 6- to 8-hour exposure to 0.08 ppm, including

“increased nonspecific bronchial responsiveness (related,

for example, to aggravation of asthma), decreased pul-

monary defense mechanisms (suggestive of increased

susceptibility to respiratory infection), and indicators of

pulmonary inflammation (related to potential aggrava-

tion of chronic bronchitis or long-term damage to the

lungs).” Id. 38868/1-2, JA(O) 13.

After weighing the evidence, EPA opted for an eight-

hour standard at 0.08 ppm, a level consistent with the

recommendations of CASAC. Letter of November 30,

1995 from George T. Wolff to Carol M. Browner at 3,

JA(O) 238 (of ten panel members who expressed views,

three favored 0.08 ppm, one endorsed a range of 0.08-0.09

ppm, and two endorsed the range presented by EPA (i.e.,

0.07-0.09 ppm)). In responding to commenters who

favored a 0.09 ppm standard because it would be equiva-

lent to the 0.12 ppm one-hour standard, EPA noted that

even at the chosen 0.08 ppm eight-hour level, “numerous

controlled-exposure human studies have reported health

effects such as lung function decrements, respiratory

symptoms, and indicators of inflammation.” RTC 13-14,

JA(O) 93-94. See also 62 Fed. Reg. 38865/2-3, JA(O) 10

(even at a 0.08 ppm NAAQS, 180,000 children in the nine

cities assessed would experience lung function decre-

ments >15%, 58,000 would experience lung function dec-

rements >20%, and 27,000 would experience moderate or

severe pain on deep inspiration).

14

Proceedings Below. In the court below, industry and

state petitioners challenged the NAAQS on a number of

grounds in petitions for review under Clean Air Act

§ 307(b)(1), 42 U.S.C. § 7607(b)(1). The court did not in

any way question the validity of the science relied upon

by EPA concerning either PM or ozone, and on the con-

trary found that EPA’s decision to set a fine particulate

standard “easily” satisfied the statutory standard. App.

51. “Given EPA’s statutory mandate to establish stan-

dards based on ‘the latest scientific knowledge,’ 42 U.S.C.

§§ 7408(a)(2), 7409(d), the growing empirical evidence

demonstrating a relationship between fine particle pollu-

tion and adverse health effects amply justifies establish-

ment of new fine particle standards.” Id.

Nonetheless, the court of appeals held that the Clean

Air Act, and EPA’s interpretation of it, violate the non-

delegation doctrine. App. 12. The court interpreted the

requirement that Congress provide an “intelligible princi-

ple,” see, e.g., J.W. Hampton, Jr. & Co. v. United States, 276

U.S. 394, 409 (1928), as demanding a “determinate criterion

for drawing lines.” App. 5 (emphasis added). The court

remanded for EPA to articulate such a criterion. App.

12-13, 53. Subsequently, five of nine participating judges

voted to grant en banc rehearing. App. 84. Because two

active judges did not participate-in the vote, however, the

five fell short of constituting a majority of active judges

of the circuit, and en banc rehearing was denied.

In addition, in a ruling directed expressly to ozone,

the court called into question EPA’s authority to imple-

ment the new eight-hour ozone NAAOS. App. 29-40. This

A nee me cement

15

ruling was modified, but not withdrawn, on rehearing.

App. 73-75.

¢

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS A PUBLIC HEALTH ISSUE

OF THE FOREMOST IMPORTANCE.

This Court has recognized that the 1970 Clean Air

Act, which enacted the § 109(b)(1) mandate to set NAAQS

that “protect the public health” with “an adequate margin

of safety,” responded to “threats to public health [that]

were regarded as urgent.” General Motors Corp. v. United

States, 496 U.S. 530, 532 (1990). The Court has detailed the

disappointing pre-1970 attempts at air pollution control

that led Congress to this step. Train v. Natural Resources

Defense Council, 421 U.S. 60, 64 (1975) (under the pre-1970

Act, “the States generally retained wide latitude to deter-

mine both the air quality standards which they would

meet and the period of time in which they would do so;”

the response of the States was “disappointing, and

brought “little progress;” “Congress reacted by taking a

stick to the States in the form of the Clean Air Amend-

ments of 1970,” which “sharply increased federal author-

ity and responsibility in the continuing effort to combat

air pollution.”).

Three decades after Congress took this urgent step,

the promise embodied in the 1970 legislation - “the

promise that ambient air in all parts of the country shall

have no adverse effects upon any American’s health,” 116

Cong. Rec. 42381/2 (December 18, 1970) (remarks of Sen-

ator Muskie, floor manager of the conference agreement)

16

- remains unrealized. Persistent unhealthy levels of PM

and ozone are the most important reason for that continu-

ing failure. No other pollutants come close to these in the

number of deaths, illnesses, and other adverse effects

caused.

For over ten years, the American Lung Association -

and many other concerned organizations and individuals,

including many scientists, physicians, and public health

professionals - have worked to combat this problem by

advocating the adoption of more protective NAAQS. As

the record of this proceeding abundantly documents, the

pre-existing NAAQS are simply not adequate to the task

of protecting public health. At pollution levels allowed by

those NAAQS, large numbers of people are dying, being

driven to the hospital, and suffering pain and discomfort

- all for the simple act of breathing the air.

Compared with their predecessors, the fine particle

and ozone NAAQS remanded by the court of appeals

represent a major step forward towards control of this

pollution. Currently, many millions of people are exposed

to harmful levels of pollution, yet live in areas where the

pre-existing PM and ozone NAAQS are met. P. 5, supra

(most studies finding adverse health effects were from

eastern U.S., where PM concentrations meet the pre-exis-

ting NAAQS); 62 Fed. Reg. 38868/2, JA(O) 13 (“approxi-

mately 46 million more people, including approximately

13 million more children and 3 million more individuals

with asthma, live in areas that would not attain a 0.08

ppm standard compared to a 0.09 ppm standard”); 61

Fed. Reg. 65725/2, JA(O) 51 (0.09 ppm standard is the

17

eight-hour level most equivalent to the pre-existing one-

hour NAAQS).

EPA’s new NAAQS will extend much-needed protec-

tion to these many people, as well as ensuring that clean-

up activities in areas currently violating the pre-existing

NAAQS will prevent more adverse health effects. The

prospect is striking: the new NAAQS are expected to

prevent thousands of deaths and hospital admissions

each year, as well as tens of thousands of cases of respira-

tory illness and millions of days of missed work and

restricted activity. Pp. 6, 12-13, supra.

The court of appeals decision will at best greatly

delay and at worst outright prevent these public health

benefits from being realized, and will condemn millions

of Americans to continued exposure to harmful air pollu-

tion associated with premature death, hospital admis-

sions, and other adverse health effects. To prevent this

result, this Court should grant certiorari.

Moreover, the court of appeals’ interpretation of the

nondelegation doctrine threatens to sweep far beyond the

specific regulations at issue here. Under the court's ratio-

nale, a “determinate criterion” may now be demanded for

a variety of regulations, including regulations addressing

topics other than health or the environment. To prevent

this unwarranted expansion of nondelegation doctrine,

the Court should grant certiorari.

18

Il. THE COURT OF APPEALS’ NONDELEGATION

RULING CONFLICTS WITH PRIOR RULINGS OF

THIS COURT, AS WELL AS OF AT LEAST ONE

OTHER CIRCUIT.

The core of the court of appeals’ nondelegation rul-

ing is the assertion that a delegation must be limited by a

“determinate criterion” in order to pass constitutional

muster. App. 5. This assertion conflicts with the prece-

dent of this Court, which requires only an “intelligible

principle,” not a determinate criterion - and which has

upheld delegations under thoroughly non-dete:minate

standards such as the “public interest.” App. 54-55 (dis-

senting opinion of Judge Tatel cites cases). As Justice

Scalia observed: “What legislated standard, one must

wonder, can possibly be too vague to survive judicial

scrutiny, when we have repeatedly upheld, in various

contexts, a ‘public interest’ standard?” Mistretta v. United

States, 488 U.S. 361, 416 (1989) (agreeing with majority’s

conclusion that the Sentencing Reform Act set forth intel-

ligible standards).

Under this caselaw, the specific standards in the

Clean Air Act (App. 56-57 (Judge Tatel’s dissenting opin-

ion discusses standards prescribed by Clean Air Act

§§ 108 and 109)) easily pass muster. Moreover, these

standards are supplemented by legislative history provid-

ing additional guidance concerning congressional intent -

e.g., that NAAQS must protect sensitive individuals, must

protect against adverse effects, and must be preventive. S.

Rep. No. 1196, 91st Cong., 2d Sess. 10 (1970); H. R. Rep.

No. 294, 95th Cong., Ist Sess. 49-51 (1977). See Lead Indus-

tries Assn. v. EPA, 647 F.2d 1130, 1152, 1155 n.50 (D.C. Cir.

1980) (noting that legislative history of Clean Air Act

19

provides guidance concerning the congressional intent

underlying § 109); Mistretta, 488 U.S. at 376 n.10 (legisla-

tive history and statutory text together “provide a factual

background and statutory context that give content to the

mandate of the Commission”).

Moreover, the standard adopted by the plurality in

Industrial Union Dept., AFL-CIO v. American Petroleum

Inst., 448 U.S. 607 (1980) (“Benzene”) to avoid a possible

nondelegation issue — “significant risk” — is likewise non-

determinate. As the plurality itself made clear, there is no

formula for determining what risks are “significant.” Ben-

zene, 448 U.S. at 655-56 (significant risk standard “is not a

mathematical straitjacket,” and “cannot be based solely

on a resolution of the facts,” but “will be based largely on

policy considerations;” the agency “is free to use conser-

vative assumptions in interpreting the data,” “risking

error on the side of overprotection rather than under-

protection”).

Indeed, the court of appeals’ nondelegation ruling

conflicts even with the dissenting opinion of Justice

Rehnquist, the lone vote in Benzene for a finding of exces-

sive delegation. As Justice Rehnquist noted, it was tiie

feasibility requirement in the Occupational Safety and

Health Act that led him to that vote: “the insertion into

§ 6(b)(5) of the words ‘to the extent feasible’ rendered

what had been a clear, if somewhat unrealistic, statute

into one so vague and precatory as to be an unconstitu-

. tional delegation.” American Textile Mfrs. Institute v. Don-

ovan, 452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting,

and explaining his vote in Benzene). By contrast, the bill

as introduced contained no,feasibility provision:

20

Prior to the inclusion of the “feasibility” lan-

guage, § 6(b)(5) simply required the Secretary to

“set the standard which most adequately

assures, on the basis of the best available profes-

sional evidence, that no employee will suffer

any impairment of health. .. . ” Had that statute

been enacted, it would undoubtedly support the

‘result the Court reaches in these cases, and it

would not have created an excessive delegation

problem. The Secretary of Labor would quite

clearly have been authorized to set exposure

standards without regard to any kind of cost-benefit

analysis.

Id. (emphasis added). The Clean Air Act, like the original

OSHA bill that never became law, requires standards to

be based on health “without regard to any kind of cost-

benefit analysis.” See App. 13. Accordingly, even under

the strong version of the nondelegation doctrine

_ espoused by Chief Justice Rehnquist, the Act would pass

muster.

In addition to the conflict with this Court’s non-

delegation cases, the court of appeals’ insistence on a

determinate criterion conflicts with the seminal case of

Chevron, U.S.A. v. Natural Resources Defense Council, 467

U.S. 837 (1984). Under Chevron Step Two, which applies

where Congress has “delegat[ed]” to an agency authority

to interpret a statute, the reviewing court must uphold

the agency interpretation if it is “reasonable.” Id. 843-44.

Chevron Step Two necessarily presupposes that Congress

may lawfully write statutes that are ambiguous and

therefore subject to differing interpretations - indeed,

diametrically opposing ones. Id. 863 (“The fact that the

agency has from time to time changed its interpretation

21

of the term ‘source’ does not. . . lead us to conclude that

no deference should be accorded the agency’s interpreta-

tion of the statute.”). Indeed, Chevron expressly acknowl-

edged that it is proper for Congress to punt issues to

agencies, rather than resolving them itself. Id. 865-66

(administrative agency can properly “resolv[e] the com-

peting interests which Congress itself either inadver-

tently did not resolve, or intentionally left to be resolved by

the agency charged with the administration of the stat-

ute”) (emphasis added). In demanding a “determinate

criterion,” the court of appeals would take away Con-

gress’ rightful prerogative to delegate.

Finally, in addition to the conflicts with precedent of

this Court, the court of appeals’-decision conflicts with

precedent of the First Circuit, upholding against non-

delegation challenge a broad statutory delegation of

authority to EPA to define “hazardous waste.” United

States v. Henry, 136 F.3d 12, 16-17 (1st Cir. 1998).

III. THE COURT OF APPEALS’ RULING CONCERN-

ING IMPLEMENTATION OF THE OZONE

NAAQS PRESENTS AN IMPORTANT QUESTION

THAT WAS ERRONEOUSLY DECIDED BELOW,

AND SHOULD BE REVIEWED BY THIS COURT.

Once NAAQS are set, the Act requires that areas

where air quality violates the NAAQS be designated as

nonattainment areas, and that specified steps be taken to

bring those areas into attainment. The Act prescribes

generic provisions concerning nonattainment areas in

Subpart 1 of Part D (§§ 171-179B, 42 U.S.C. §§ 7501-

7509a), supplemented by pollutant-specific provisions in

22

Subparts 2-5 (§§ 181-192, 42 U.S.C. §§ 7511-75i4a). The

ozone-specific program in Subpart 2 (§§ 181-185B, 42

U.S.C. §§ 7511-7511f) is based on the pre-existing ozone

NAAQS (which was set at 0.12 parts per million, aver-

aged over one hour), App. 29-30, while Subpart 1 applies

‘generically to any NAAQS (including any revised

NAAQS). 172(a)(1)(A), 42 U.S.C. § 7502(a)(1)(A).

The court of appeals correctly held that the ozone-

specific program set forth in Subpart 2 does not preclude

EPA either from promulgating a revised ozone NAAQS,

or from issuing nonattainment area designations under

that NAAQS. App. 31-34. The court incorrectly held,

however, that “EPA can enforce a revised primary ozone

NAAQS only in conformity with Subpart 2.” App. 75. See

also App. 31 (“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.”).

A. The Court of Appeals’ Subpart 2 Ruling Creates

Uncertainty Concerning EPA’s Authority to

Implement the New Eight-Hour Ozone

NAAQS.

The court of appeals’ Subpart 2 ruling creates uncer-

tainty concerning EPA’s authority to implement the new

eight-hour ozone NAAQS. That uncertainty is amply

illustrated by statements of Judge Tatel, a member of the

court of appeals panel that issued the ruling. Citing lan-

guage in the court’s opinion, Judge Tatel interpreted that

23

language to mean that areas meeting the pre-existing

ozone NAAQS are “completely exempt from any ozone

regulation whatsoever,” App. 77 — even if they are violat-

ing the new eight-hour NAAQS.‘

This reading of the court’s opinion raises serious

concerns for public health. Tens of millions of Americans

live in areas with air pollution which — though meeting

the pre-existing one-hour NAAQS - violates the new

eight-hour NAAQS. See pp. 16-17, supra. It is crucial that

these individuals enjoy the benefits of pollution control

measures pursuant to the new eight-hour NAAQS. More-

over, millions of Americans live in areas that currently

violate the pre-existing one-hour NAAQS. 40 C.F.R. Part

81 (listing areas where one-hour NAAQS is violated,

including Los Angeles, Houston, Chicago, Washington,

D.C., Baltimore, Philadelphia and New York, among

~ others). In such areas, it is crucial that pollution control

programs reduce ozone pollution sufficiently to meet the

new eight-hour standard - and that these areas not be

held exempt from further pollution reductions once they

attain the one-hour standard.

Despite Judge Tatel’s concerns about the implications

of the court of appeals’ decision, he nonetheless joined in

the court’s disposition of this issue, because he concluded

that the court’s decision (as amended upon rehearing)

“leaves open the possibility that the new ozone standard can

be implemented in areas that have attained the old stan-

dard.” App. 81 (emphasis added). ALA also believes that

* The language cited by Judge Tatel was not altered on

rehearing.

24

the better reading of the court of appeals’ amended deci-

sion is that it leaves open this possibility. But because the

new ozone NAAQS is a crucial regulation affecting areas

inhabited by tens of millions, pp. 16-17, supra (tens of

millions of Americans live in areas with air quality that

meets the pre-existing one-hour NAAQS but violates the

new eight-hour NAAQS), this question should not be left

to “possibilit[ies].” Rather, the Court should review this

issue, and ensure that implementation of the new

NAAQS does not become mired in litigation that further

delays - and possibly prevents - achievement of the

healthy air quality that Congress mandated three decades

ago.

B. The Court of Appeals’ Subpart 2 Ruling Is Erro-

neous.

The court of appeals’ holding that the classifications,

attainment dates, and control measures of Subpart 2

apply to the new eight-hour NAAQS contravenes the Act.

By their express terms, the classification provisions of

Subpart 1 apply to “any revised standard, including a

revision of any standard in effect on November 15, 1990,”

§ 172(a)(1)(A), 42 U.S.C. § 7502(a)(1)(A) (emphasis |

added), and the attainment date provisions track that

applicability. Id. (providing that classification under

§ 172(a)(1) is inter alia “for the purpose of applying an

attainment date pursuant to paragraph (2)” — i.e., pur-

suant to § 172(a)(2)).

The court of appeals concluded that these Subpart 1

provisions were ousted by §§ 172(a)(1)(C) and (a)(2)(D),

Sicencemmciaiiiiiiaiiiiniaiiaiiiiiaiill

25

which provide that the § 172(a) classifications and attain-

ment dates do not apply to nonattainment areas for

which classifications and attainment dates “are speci-

fically provided under other provisions of this part.” The

court found that these ouster provisions apply to the new

eight-hour NAAQS, basing this finding on the court’s

conclusion that § 181(a)(1) provides classifications and

attainment dates for all ozone nonattainment areas. App.

34-35.

This conclusion is erroneous. By its terms, § 181(a)(1)

contains no classifications or attainment dates for any

area with an ozone “design value” less than 0.121 - a

level roughly approximating the level of the pre-existing

one-hour NAAQS. App. 29-30. Thus, § 181(a)(1) offers no

classifications or attainment dates for the numerous areas

where air quality meets the pre-existing one-hour

NAAQS, yet violates the new eight-hour NAAQS.

For areas with design values greater than or equal to

0.121, § 181(a){1) provides classifications and attainment

dates - but only for the pre-existing one-hour NAAQS,

not for the new eight-hour NAAQS. Applying the

§ 181(a)(1) classifications and attainment dates to the new

eight-hour NAAQS would produce absurd results — spec-

ifically, many areas would be assigned attainment dates

before the July 1997 promulgation of the new NAAQS. For” ~

example, areas classified as marginal under the new

NAAQS would be required to attain by November 15,

1993, and areas classified as moderate would be required

to attain by November 15, 1996. 181(a)(1) (table 1). A

reading that results in an attainment date for a NAAQS

that antedates the very existence of that NAAQS cannot

possibly be a valid interpretation of the Act.

26

Finally, the court of appeals erred by ruling (App. 31)

that the new eight-hour NAAQS must be enforced only in

accordance with the “control measures” of Subpart 2.

Indeed, the court did not even point to a statutory provi-

sion that allegedly ousted the Subpart 1 provisions con-

cerning control measures.

No such provision exists: § 172(b), which requires

states to submit pollution control plans implementing

new NAAQS no later than “3 years from the date of the

nonattainment designation,” contains no ouster provision

comparable to § 172(a)(1)(C) or (a)(2)(D). Nor is such an

ouster provision contained in § 172(c), which sets forth

nine specific requirements that a control plan must meet -

including the requirement that the plan “provide for

attainment of the national primary ambient air quality

standards.” § 172(c)(1).

In short, the court of appeals’ ruling is erroneous,

and raises questions concerning EPA’s authority to imple-

ment the new NAAQS. Given the importance of that

NAAQS to reducing pollution exposures in areas where

tens of millions of Americans live, this Court should

grant certiorari on this issue.

S

27

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

DATED: January 27, 2000.

Respectfully submitted,

Howarp I. Fox

EartHyusticE LeGAL DEFENSE FUND

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Attorney for American Lung

Association