Opposition Brief — Massachusetts v. American Trucking Assns.
Supreme Court brief2001
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IN THE
Supreme Court of the United States
CarROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY,
“ Petitioners
AMERICAN TRUCKING ASSOCIATIONS, INC., ef al.,
Respondents
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
BRIEF IN RESPONSE FOR THE RESPONDENTS
APPALACHIAN POWER CO., et al.
DAviID E. MENOTTI HENRY V. NICKEL
WILLIAM F. PEDERSEN F. WILLIAM BROWNELL
JEFFERY A. KNIGHT (Counsel of Record)
SHAW PITTMAN LUCINDA MINTON LANGWORTHY
2300 N Street, N.W. HUNTON & WILLIAMS
Washington, D.C. 20037 1900 K Street, N.W.
(202) 663-8675 Washington, D.C. 20006
Counsel for American (202) 955-1500
Forest & Paper Counsel for Appalachian Power
Association, American Co., et al., American Public
Iron & Steel Institute, Power Association, and
and Alliance of National Association of
Automobile Home Builders
Manufacturers
February 28, 2000
[Additional Counsel Listed Inside]
er
WILeon-Epes PrintinGc Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001
NEWMAN R. PORTER
LEWIS AND ROCA
40 N. Central Avenue
Phoenix, AZ 85004
(602) 262-5786
Counsel for Nevada Mining
Association, Newmont Gold
Company, and Meridian
Gold Company
RUSSELL S. FRYE
COLLIER, SHANNON, RILL &
Scott, PLLC
8050 K Street, N.W., Suite 400
Washington, D.C. 20007
(202) 342-8878
and
RICHARD WASSERSTROM
AMERICAN FOREST & PAPER
ASSOCIATION, INC.
1111 19th Street, N.W.
8th Floor
Washington, D.C. 200386
(202) 463-2582
Counsel for American Forest
& Paper Association, Ine.
GRANT CRANDALL
General Counsel
UNITED MINE WORKERS OF
AMEnriIcA, AFL-CIO
8315 Lee Highway
Fairfax, VA 22031
(703) 208-7200
and
EUGENE M. TRISKO
P.O. Box 596
Berkeley Springs, WV 25411
(304) 258-1977
Counsel for United Mine
Workers of America,
AFL-CIO
Davip F. ZOLL
ALEXANDRA DAPOLITO DUNN
CHEMICAL MANUFACTURERS
. ASSOCIATION
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5165
Counsel for Chemical
Manufacturers Association
G. WILLIAM FRICK
M. ELIZABETH Cox
AMERICAN PETROLEUM
INSTITUTE
1220 L Street, N.W.
Washington, D.C. 20005
(202) 682-8250
- Counsel for American Petroleum
Institute
HAROLD P. QUINN, JR.
NATIONAL MINING
ASSOCIATION
1180 17th Street, N.W.
Washington, D.C. 20036
(202) 463-9793
Counsel for National Mining
Association
JULIE BECKER
ALLIANCE OF AUTOMOBILE
MANUFACTURERS
1401 H Street, N.W.
Suite 900
Washington, D.C. 20005
(202) 326-5500
Counsel for Alliance of
Automobile Manufacturers
TIMOTHY L. HARKER
THE HARKER LAW FIRM
9500 Accord Drive
Potomac, MD 20854
(301) 983-0964
and
THOMAS J. GRAVES
NATIONAL PAINT AND COATINGS
ASSOCIATION, INC.
1600 Rhode Island Ave., N.W.
Washington, D.C. 20005
(202) 462-6272
Counsel for National Paint and
Coatings Association
PETER S. GLASER
SHOOK, HarDy & BACON
600 14th Street, N.W.
Suite 800 ,
Wasshington, D.C. 20005
(202) 639-5627
Counsel for Western Fuels
Association, Inc.
MAURICE H. MCBRIDE
NATIONAL PETROCHEMICAL &
REFINERS ASSOCIATION
1899 L Street, N.W.
Washington, D.C. 20086
(202) 457-0480
Counsel for National
Petrochemical & Refiners
Association
Davi M. FLANNERY
JACKSON & KELLY
P.O. Box 553
1600 Laidley Tower
Charleston, WV 25322
(804) 340-1017
Counsel for Midwest Ozone
Group; and West Virginia
Chamber of Commerce
DAviD M. FRIEDLAND
BEVERIDGE * DIAMOND
1850 I Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 789-6000
Counsel for Phoenix Cement
Company
RESTATEMENT OF QUESTIONS PRESENTED
. Whether the court of appeals properly remanded to the
U.S. Environmental Protection Agency (“EPA” or “the
Agency”) revised National Ambient Air Quality
Standards (“NAAQS”) promulgated under Section 109 of
the Clean Air Act, 42 U.S.C. § 7409, for that Agency to
exercise the discretion delegated to it by Congress to
develop intelligible criteria for risk management
decisions, and whether the court of appeals properly
construed the scope of the Agency’s discretion in
defining those criteria.
. Whether the court had jurisdiction to review a final rule
promulgated by EPA under the Clean Air Act which
resolved the question of the Agency’s authority to replace
the congressional “Subpart 2” ozone reduction program
in certain areas of the country with a different program of
the Agency’s own creation under “Subpart 1” of the
Clean Air Act.
. Whether this Court should grant certiorari to review the
D.C. Circuit’s unanimous rejection of EPA’s final rule
regarding the manner in which the Clean Air Act
provides for attainment of ozone NAAQS.
3
PARTIES TO THE PROCEEDINGS
CAA Industry Respondents are petitioners in one or both
of the two consolidated cases addressed by this
conditional cross-petition for a writ of certiorari:
American Trucking Ass'ns, Inc. v. United States
Environmental Protection Agency, D.C. Cir. No. 97-1440
(and consolidated cases), and American Trucking Ass ‘ns,
Inc. v. United States Environmental Protection Agency,
D.C. Cir. No. 97-1441 (and consolidated cases).
Alliance of Automobile Manufacturers (petitioned as
American Automobile Manufacturers Association
in the cases below)
American Forest & Paper Association
American Iron & Steel Institute
American Petroleum Institute
American Public Power Association
Appalachian Power Co., et al. is comprised of the
following:
Baltimore Gas and Electric Company
Carolina Power & Light Company
Central and South West Services, Inc.
Central Power and Light Company
Public Service Company of Oklahoma
Southwestern Electric Power Company
West Texas Utilities Company
Central Illinois Public Service Company
CINergy Corp.
Columbus Southern Power Company
Conectiv (petitioned as Delmarva Power &
Light Co. and intervened as Atlantic City
Electric Co. in the cases below)
ill
Consumers Energy Company
Dayton Power and Light Company, The
Detroit Edison Company, The ,
Duke Energy Co.
FirstEnergy (petitioned as Ohio Edison Co. and
Centerior Energy Co., (with Centerior Energy
Co. subsidiaries Cleveland Electric
Illuminating Co. & Toledo Edison Co.) in the
cases below)
Florida Power Corporation
Illinois Power Company
Indiana Michigan Power Company
Indianapolis Power & Light Company
Jacksonville Electric Authority
Kansas City Power & Light Company
Kentucky Power Company
LGE Energy Corp. (petitioned as Kentucky
Utilities Company and Louisville Gas &
Electric Co. in the cases below)
Madison Gas and Electric Company
Minnesota Power Company
Monongahela Power Company,
dba Allegheny Power System, Inc.
Northern Indiana Public Service Company
Oglethorpe Power Corporation
~ Ohio Power Compary
Ohio Valley Electric Corporation
Otter Tail Power Company
PacifiCorp
PPL Electric Utilities Corporation
dba PPL Utilities (petitioned as
Pennsylvania Power & Light Corp.)
Plains Electric Generation & Transmission
iv
Cooperative, Inc.
Potomac Edison Company, The
dba Allegheny Power System, Inc.
Potomac Electric Power Company
Public Service Company of New Mexico
Salt River Project
South Carolina Electric & Gas Company
Southern Company
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric & Power Company
Tampa Electric Company
Union Electric Company
Virginia Power
West Penn Power Company
dba Allegheny Power System, Inc.
Wisconsin Electric Power Company
and
Edison Electric Institute
National Rural Electric Cooperative Association
Chemical Manufacturers Association
Meridian Gold Company
Midwest Ozone Group
National Association of Home Builders
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners Association
(petitioned as National Petroleum Refiners
Association in the case below)
Nevada Mining Association
Newmont Gold Co.
Vv
Phoenix Cement Company
United Mine Workers of America, AFL-CIO
West Virginia Chamber of Commerce
Western Fuels Association, Inc.
2. The following parties are petitioners in one or both of the
two consolidated cases addressed by this brief in
response, but have not joined CAA Industry Respondents
in filing this brief in response.
American Farm Bureau Federation
American Portland Cement Alliance
American Trucking Associations, Inc.
James Bassage
Burns Motor Freight, Inc.
Central Illinois Light Co.
Chamber of Commerce of the United States of
America
Citizens for Balanced Transportation
Commonwealth Edison
Duquesne Light Co.
Equipment Manufacturers Institute
Garner Trucking, Inc.
Genie Trucking Line, Inc.
Gloucester Company, Inc.
Michael Gregory
Idaho Mining Association
Judy’s Bakery, Inc.
Kennecott Energy and Coal Company
Kennecott Holdings Corporation
Kennecott Services Company
David Matusow
Brian McCarthy
National Association of Manufacturers
vi
National Automobile Dealers Association
National Coalition of Petroleum Retailers
National Indian Business Association
National Small Business United
National Stone Association
Non-Ferrous Founders’ Society
Oklahoma Gas & Electric
Richard Romero
Small Business Survival Association
State of Michigan
State of Ohio
State of West Virginia
3. Petitioner United States Environmental Protection
Agency was the respondent in all of the proceedings
below.
4. The following parties were intervenors in one or both of
the two consolidated cases addressed by this brief in
response.
American Lung Association
American Road and Transportation Builders
Association
Atlantic City Electric Company
Commonwealth of Massachusetts
State of New Jersey
5. The following parties appeared as amici curiae in one or
both of the two consolidated cases addressed by this brief
in response.
Representative Tom Bliley
Vii
Senator Orrin G. Hatch
State of Connecticut
State of New Hampshire
State of New York
State of Vermont
l.
Vill
RULE 29.6 DISCLOSURE STATEMENT
The following list of CAA Industry Respondents hereby
discloses the parent companies of respondents and any
publicly held companies that own 10% or more of
respondents’ stock.
Alabama Power Company
(a subsidiary of Southern Company)
Appalachian Power Company
(a subsidiary of American Electric Power
Company, Inc.)
Baltimore Gas and Electric Company
(a subsidiary of Constellation Energy Group, Inc.)
Central and South West Services, Inc.
(a subsidiary of Central and South West
Corporation)
Central Illinois Public Service Company
(a subsidiary of Ameren Corporation)
Central Power and Light Company
(a subsidiary of Central and Southwest
Corporation)
Columbus Southern Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Consumers Energy
(a subsidiary of CMS Energy Corporation)
Dayton Power & Light Company, The
(a subsidiary of DPL Inc.)
Florida Power Corporation
(a subsidiary of Florida Progress
Corporation)
Georgia Power Company
ix
(a subsidiary of Southern Company)
Gulf Power Company
(a subsidiary of Southern Company)
Illinois Power
(a subsidiary of Illinova Inc.)
Indiana Michigan Power Company
(a subsidiary of American Electric Power
Company, Inc.)
Indianapolis Power & Light Company
(a subsidiary of IPALCO Enterprises, Inc.)
Kentucky Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Mississippi Power Company
(a subsidiary of Southern Company)
Monongahela Power Company
(a subsidiary of Allegheny Energy, Inc.)
Northern Indiana Public Service Company
(a subsidiary of NiSource Inc.)
Ohio Power Company
(a subsidiary of American Electric Power
Company, Inc.)
Potomac Edison Company, The
(a subsidiary of Allegheny Energy, Inc.)
Public Service Company of Oklahoma
(a subsidiary of Central and Southwest
Corporation)
Savannah Electric & Power Company
(a subsidiary of Southern Company)
South Carolina Electric & Gas Company
(a subsidiary of SCANA Corporation)
Southwestern Electric Power Company
(a subsidiary of Central and Southwest
Corporation)
Tampa Electric Company
(a subsidiary of TECO Energy, Inc.)
Union Electric Co. (a subsidiary of Ameren Corp.)
Virginia Power
(a subsidiary of Dominion Resources, Inc.)
West Penn Power Company
(a subsidiary of Allegheny Energy, Inc.)
West Texas Utilities Company
(a subsidiary of Central and South West
Corporation)
Wisconsin Electric Power Company
(a subsidiary of Wisconsin Energy Corporation)
2. The following CAA Industry Respondents have no parent
corporations, and no publicly-held companies have a 10%
or greater ownership interest in these respondents.
Alliance of Automobile Manufacturers (petitioned as
American Automobile Manufacturers Association
in the cases below)
American Forest & Paper Association
American Iron & Steel Institute
American Petroleum Institute
American Public Power Association
Carolina Power & Light Co.
CINergy Corp.
Chemical Manufacturers Association
Conectiv
Detroit Edison Co.
Duke Energy Corp.
Edison Electric Institute
FirstEnergy Corp.
XI
Jacksonville Electric Authority
Kansas City Power & Light Co.
LGE Energy Corp.
Madison Gas and Electric Co.
Meridian Gold Co.
Minnesota Power
Midwest Ozone Group
National Association of Home Builders
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners
Association (formerly National Petroleum Refiners
Association)
National Rural Electric Cooperative Association
Nevada Mining Association
Newmont Gold Co
Oglethorpe Power Corp.
Ohio Valley Elec. Corp.
Ottertail Power Co.
PacifiCorp
PP&L Electric Utilities Corporation
dba PPL Utilities
Phoenix Cement Company
Plains Electric Generation & Transmission
Cooperative, Inc.
Potomac Electric Power Co.
Public Service Company of New Mexico
Salt River Project
Southern Company
United Nvine Workers of America, AFL-CIO
West Virginia Chamber of Commerce
Western Fuels Association, Inc.
TABLE OF CONTENTS
Page
RESTATEMENT OF QUESTIONS PRESENTED... i
PAG tS FO THE PROCEEDINGS, ....ccccccscsserscessssees il
RULE 29.6 DISCLOSURE STATEMENT ................. Vill
FU FE Cnc scccevenressaccesccscantonepsascens XV
Pe AMET SPP AUER SC ALSES se cnccsaisvvecveseracssnsesesorosees 2
REASONS FOR’ REJECTING THE “NON-
DELEGATION” QUESTION PRESENTED BY
EPA AND FOR DENYING THE PETITIONS FOR
CERTIORARI ON THE SUBPART 2 HOLDING...... 10
I. THE “NONDELEGATION” QUESTION PRE-
SENTED BY EPA. ALA AND STATE
PETITIONERS DOES NOT WARRANT
UNEP Avidssuehiectainaschdavanssensharesied sasvsshastsedsasnnaveions 10
A. The Question Presented by EPA and Other
Petitioners Presents No Conflict With
Supreme Court Precedent or With Any
Important Principle of Law............cceeeeeeees 11
B. If Certiorari Is Granted, It Should Be
Granted to Address the Scope of EPA’s
Authority on Remand To Define an
UPCTETNTENS WVOICIING 0.0. 00ccccesccsoreseccsssieccsosves 19
Xi
XIV
Hl. THE COURT OF APPEALS* “SUBPART 2”
HOLDING DOES NOT WARRANT
1S BARONE si ssindsninccanpeidetanicnidiatneninaaennaaaenaee:
A.
B.
The Government's Belated Finality and
Ripeness Arguments Present Neither A
Conflict of Law Nor an Issue of
INE i sinisivasinsvcteisieeitdaabinnccioaaestnale
EPA’s Arguments on the Merits, Which
Have Been Rejected by the Panel and by
the Court of Appeals En Banc, Provide No
SO TE UIIIIND srt vicisiesnenibssisnditiccsiiiiniinins
The Interlocutory Nature of the Lower
Court's Decision Counsels — Against
Granting Certiorari on the Subpart 2
Questions Presented by EPA ...........c..cceeeees
A eRe seek sidishsikascnlénbsteippasdanaititiibamaniatnidaumeiaitie
20
29
30
XV
TABLE OF AUTHORITIES
CASES
Addison v. Holly Hill Fruit Products, Inc., 322
Os Gr CE siiccstiienscciatisantaeiiins 16
ALA Schechter Poultry Corp. v. United States,
EPO Cts PS CERO cviscchasisipiciaviinieiadeniaons 16
Alabama Power Co. v. Costle, 636 F.2d 323
CORA; CA, Ti tisininsshediticssdinectnmatetiiteiscs 16
Alabama Power Co, v. EPA, 40 F.3d 450 (D.C.
OE | Rabin rei ods Ra EMR WR CR a lo
American Lung Association v. EPA, 134 F.3d
388 (D.C. Cir. 1998), cert. denied, 120 S.
OR; Sab CF tidcisinseasnsdataliiioenciatieniabatinns 17
American Power & Light Co. v. SEC, 329 U.S.
Per GREED scinsncistvetaenanctninnanbiniiaamiansbaseaiin Ps)
American Trucking Associations, Inc. vy.
EPAA75 F.3d 1027, modified, 195 F.3d 4
(PIRI ciscaxscececinchoiecinsandeibadadagipelaiiaiidanl passim
AT&T Corp. v. lowa Utilities Board, 119 S. Ct.
Te CRITE ixiisttusnectdnaidiitabiishssiciindanmintahinninns 16
Bennett v. Spear, 520 U.S. 154 (1997)... 24
Chevron U.S.A., Inc. v. Natural Resources De-
fense Council, Inc., 467 U.S. 837 (1984) ...9,13,14
Dow Chemical v. United States Environmental
Protection Agency, 823 F.2d 319 (Sth Cir.
GSIIF fs ciceasacicieamnsiniginanbeonlaubammncancaaiaaueianen 24
Ethyl Corp. v. EPA, 51 F.3d 1053 (D.C. Cir.
oT UTT Piivesceneasdsineansehiatneiinaeineenaitielinaibshennicianiant 16
Federal Energy Admin. vy. Algonquin SNG,
Fc. 426 UB, SAB (ISTE) ..ccrcecercercsccersesccens i)
H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970)... 16
XVI
Industrial, Union| Department, AFL-CIO. y.
American Petroleum Institute, 448 U.S.
GET CFD cvsevitnstasnvivesinieaiaaecamas: 15,16
International Union, VAW v. OSHA, 938 F.2d
CSO CK... COR. FIG Risccsccicceredccieaans 16
J.W. Hampton, Jr. & Co. v. United States, 276
C2 .. Pe Cee cnistacistiisuseabaadeeuaaiela 14,16
Kent v. Dulles, 357 U.S. 116 (1958)... cece 16
Lead Industries Ass'n v. EPA, 647 F.2d
FE RAD, Ce, FIR i iciscsmsiemiatonasen 19
Loving v. United States, 517 U.S. 748 (1996)... 16,17
Mistretta v. United States, 488 U.S. 361 (1989) 14,16
National Cable Television Association, Inc. v.
United States, 415 U.S. 336 (1974)..ccseeeee 16
Natural Resources Defense Council, Inc., v.
EPA, 824 F.2d 1146 (D.C. Cir. 1987)........ 19,20
Natural Resources Defense Council, Inc. vy.
EPA, 902 F.2d 962 (D.C. Cir. 1990).......... 17
Ohio Forestry A. sociation, Inc. v. Sierra Club,
Sad CF, Fe CES INIED scohiaccsecserudioncanabiinnios 24
Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985)... 15
SEC v. Chenery, 332 U.S. 194 (1947).........00000. 15S
South Terminal Corp. v. EPA, 504 F.2d 646
(Tat Qot,. S979} a ncasssstertcnniediniaetneions 15
Stelos Co. v. Hosiery Motor-Mend Corp., 295
U.S. Lat © Pee orscaceccsiscenainaividiamaalnen: 20
Touby vy. United States, 500 U.S. 160 (1991)... 14
United States v. Henry, 136 F.3d 12 (Ist Cir.
Vermont Yankee Nuclear Power Corp. vy.
Natural Resources Defense Council, Inc.,
4335 US. SUP CURT cccisnsneerincategioniuds 12
Zemel v. Rusk, 381 U.S. 1 (1965)..............0cc0000. 16
XVil
STATUTES
Clean Air Act, 42 U.S.C. §§ 7401 et seq.
(1994 & Supp. Ill 1997)
CAA, Title I, Part D, Subpart 2, §§ 181-185B,
BE ES Beles. Oe FO Ue PE ais caisnsvstanceses
CAA G FG Se Bice BE Fe wicsecctecencsctrevesstccss VI
CAA § 107(d), 42 U.S.C. § 7407(d).... eee 7,21,26
CAA § 107(d)(1), 42 U.S.C. § 7407(d)(1)........ 26
CAA § 107(d)(4), 42 U.S.C. § 7407(d)(4) ........ 26
CAA § 108, 42 U.S.C. § 740B............ccscesessoreees 2
CAA § 108(a), 42 U.S.C. § 7408(a)..... ee 2
CAA BF, 92 A. FFF ccc csrnsscessssnsvcncennees passim
CAA § 109(b), 42 U.S.C. § 7409(b)..... ee 2,11
CAA § 109(d), 42 U.S.C. § 7409(d)........... 2,11,19,29
CAA § 109(d)(2), 42 U.S.C. § 7409(d)(2)........ 3
CAA § 172(a)(1)(C), 42 U.S.C. § 7502(a)(1)(C) 25
CAA § 172(a)(2)(D), 42 U.S.C. § 7502(a)(2)(D) 25
CAA § 172(b), 42 U.S.C. § 7502(b)................4 26
CAA § 172(c), 42 U.S.C. § 7502(c)..........0s00008 26
COPRPR FUER We Stak Fat OM tntrohntrtccneseessosnesss 26
CAA § 181(a), 42 U.S.C. § 751 1(a)...... 7,21,25,26
CAA § 181(b)(1), 42 U.S.C. § 751 1(b)(1)........ 7,26
CAA §§ 182-185A, 42 U.S.C. §§ 751 1a-751 le 28
CAA § 184(b), 42 U.S.C. § 751 Ic(b).. 7
CAA § 307(b), 42 U.S.C. § 7607(b)........ 24
CAA § 307(d)(9), 42 U.S.C. § 7607(d)(9)........ 13
The Transportation Equity Act for the 21st Century
§ 6101, Pub. L. 105-178, 112 Stat. 463 (1990)
4
XVill
REGULATIONS
SF FD Pe itisnsiissthesntnasipanbenmiccnnns 8,9,23,24
FEDERAL REGISTER
62 Fed. Reg. 38,42 1-32 (1997).....sscecsssscssssseees 4
62 Fed. Reg. 38,651-701 (1997)... eceeseeeeeees 4.5.6
62 Fed. Reg. 38,855-96 (1997)......cceeseeeees 4,5,6,8,23
63 Fed. Reg. 31,014-96 (1998)...........csessseesseees 8
63 Fed. Reg. 39,431-37 (1998).........cssccsssssesseees 8
64 Fed. Reg. 30,91 1-17 (1999)... ccscsessesseees 8
LEGISLATIVE HISTORY
H.R. Rep. No. 101-490, Pt. | (1990), reprinted
in Sen. Comm. on Env. And Pub. Works,
A Legislative History of the Clean Air Act
Amendments of 1990 (Comm. Print, 1993)... 7,28
Sen. Comm. on Env. and Pub. Works, A
Legislative History of the Clean Air Act
Amendments of 1990, 1236-37 (Comm.
Print, 1993) (H.R. Debate Oct. 26, 1990,
Statement of Rep. Fields).............ccssscscssees 7
MISCELLANEOUS
ik AR ca ea ee, 11,25
Craig Oren, “Run Over by American Trucking
Part I: Can EPA Revive its Air Quality
Standards?”, 29 Envel. L. Rep. (Envtl. L.
net.) FO,GSS CO8. FSF D csi rcrviccensnirones 12
XIX
R. Lutter and C. Wolz, “UV-B Screening by
Tropospheric Ozone: Implications for the
National Ambient Air Quality Standard”
31 Env'tl Sci. Tech. News 142-146 (1997)...
Statement of the Hon. John H. Chafee, Chair-
man, Senate Environment Committee,
Hearings on Clean Air Act (May 20, 1999)..
29
17
BRIEF IN RESPONSE TO PETITIONS FOR
CERTIORARI
On May 14, 1999, the United States Court of Appeals for
the District of Columbia Circuit remanded to the United
States Environmental Protection Agency (“EPA” or “the
Agency”) the Agency’s revised National Ambient Air
Quality Standards (“NAAQS”) for ozone and particulate
matter (““PM’’). EPA has petitioned for a writ of certiorari
(No. 99-1257) on parts of that decision, as confirmed and
clarified upon rehearing on October 29, 1999. The American
‘Lung Association (“ALA”) (No. 99-1265) and the states of
Massachusetts and New Jersey (“State Petitioners”) (No. 99-
1263) have filed petitions seeking review of the same issues.
This response is being filed on behalf of trade associations
representing most of the major industries in this country,
including the utility industry, automobile industry, coal
industry, mining industry, oil industry, iron and steel
industry, chemical industry, paper industry, paint and coating
industry and home building industry; over 50 individual
companies; and other organizations (hereinafter referred to as
“CAA Industry Respondents”). These companies and
organizations are listed on the cover to this brief.
This Court should deny these petitions as to the lower
court’s holding on Subpart 2 to Part D of Title I of the Clean
Air Act (“CAA”). As to the questions Petitioners present
regarding the “nondelegation” holding, if certiorari is
granted, it must encompass review of the lower court’s
2
decision limiting the factors that may be considered by EPA
on remand in developing an “intelligible principle.”
STATEMENT OF THE CASE
1. The NAAQS Program — Section 108(a), EPA App. 109a-
110a, provides for regulation of an ambient air pollutant that
“endangers” public health. Under §§ 108 and 109 of the Act,
EPA App. 109a-113a, NAAQS are to be based on a “criteria
document,” that “accurately reflects the latest scientific
knowledge useful in indicating the kind and extent of all
identifiable effects on public health or welfare” associated
with the presence of a pollutant in the ambient air. Under
§ 109(b), State App. 102, “primary” NAAQS are set at a
level that, allowing an “adequate margin of safety,” is
“requisite to protect the public health.” Secondary standards
are set at a level that is “requisite to protect the public welfare
from known or anticipated adverse effects.” Under § 109(d),
State App. 102, NAAQS may be revised periodically “as may
be appropriate” in accordance with § 108 and § 109(b).
2. The EPA Rulemaking — \n the case below, CAA
Industry Respondents challenged EPA’s decision to establish
new “public health” policy under § 108 and § 109 of the
Clean Air Act as reflected in its decision (1) to revise the
existing NAAQS for ozone and PM, and (2) to replace the
ozone reduction program enacted by Congress in 1990 based
on the l-hour NAAQS (the “Subpart 2” program, CAA
Industry Cross-Petitioners App. (“ICP App.”) 2a-62a) with a
' Out of ar excess of caution, a Conditional Cross-Petition for Certiorari
addressing this issue is being filed today. The companies and
organizations joining in that Cross-Petition (“CAA Industry Cross-
Petitioners”) are listed on the cover of that petition.
3
different program to be developed by EPA under the general
planning requirements of Subpart 1 of the Act and based on a
new 8-hour ozone NAAQS.
While EPA and other petitioners claim these standards are
needed to address serious health risks, the record below
presents a very different picture. With respect to the ozone .
NAAQS, EPA’s independent science advisers (the Clean Air
Scientific Advisory Committee or “CASAC”) concluded,
based on their extensive review of the science, that none of
the ozone levels that were considered for the revised NAAQS
(including the existing ozone NAAQS) could _ be
distinguished as significantly more protective of public
health than the others.’ EPA’s staff similarly observed that a
standard equivalent to the existing 1-hour NAAQS “would
reduce estimated exposure of the at-risk population
sufficiently to provide some margin of safety.””
As for PM, the same independent science advisers could
form no consensus on the level, averaging time or form of a
revised PM NAAQS because of many uncertainties regarding
the existence and nature of any causal relationship between
public health, on the one hand, and the fine particle indicator
* CASAC is the independent body created by Congress to provide
scientific advice to EPA on NAAQS decisions. See CAA § 109(d)(2),
EPA App. 112a.
’ Letter from Dr. George T. Wolff, Chair, CASAC, to Hon. Carol M.
Browner (Nov. 30, 1995), Ozone JA 236, (“{Tlhe Panel concluded that
there is no ‘bright’ which distinguishes any of the proposed standards . . .
as being significantly more protective of public health.”).
* EPA, Review of the National Ambient Air Quality Standa-ds for Ozone:
Assessment of Scientific and Technical Information 167 (1996) (“Staff
Paper”), Ozone JA 1790.
4
(“PM,,”) chosen for the revised NAAQS, on the other.
Given these uncertainties and the lack of air quality data for
PM,,;, the Administration delayed implementation of the
PM,; NAAQS until at least 2002 so that the revised standard
could be reevaluated.°
The uncertain science regarding possible health effects
associated with exposure to extremely low ambient
concentrations of these substances,’ coupled with EPA’s
assumption that there is no threshold for effects for these
substances, made it impossible to distinguish among ‘the
range of alternative standard levels based on public health
protection alone.” EPA’s decisions to revise these NAAQS
> Letter from Dr. George T. Wolff, Chair, CASAC, to Hon. Carol M.
Browner (June 13, 1996), PMJA 3167 (“The diversity of opinion...
reflects the many unanswered questions and uncertainties associated with
establishing causality of the association between PM,, and mortality.”);
see also 62 Fed. Reg. 38,689 n.90 (suggesting a lack of direct evidence of
a relationship between long-term PM, , exposure and health effects).
° The President, Memorandum of July 16, 1997, “Implementation of
Revised Air Quality Standards for Ozone and Particulate Matter,” 62 Fed.
Reg. 38,421 (1997), ICP App. 72a. This decision was codified by
Congress. See Transportation Equity Act for the 21" Century § 6101,
Pub. L. 105-178, 112 Stat. 463 (1990), ICP App. 66a.
” In the case of ozone, for example, EPA’s science advisers observed that
the revised standard would regulate concentrations approaching
background levels. CASAC Tr. (March 22, 1995) at 296, Ozone JA 278;
Comments by George T. Wolff (March 27, 1995), at 4, Ozone JA 383;
Staff Paper at 20, Ozone JA 1830.
* See, e.g., 62 Fed. Reg. 38,883 (ozone); 62 Fed. Reg. 38,688 (PM) (the
Administrator’s margin of safety determinations “are largely judgmental
in nature, particularly with respect to nonthreshold pollutants, and may
not be amenable to quantification in terms of what risk is ‘acceptable’ or
any other metric.”).
5
therefore were driven not by science, but by the
Administrator’s policy judgment, unbounded by any
intelligible principle, as to how much protection is
“sufficient[]” in light of “[u)ncertainties associated with
inconclusive scientific and technical information” and
“hazards that research has not yet identified.” Furthermore,
these policy judgments were exercised against a background
of declining pollutant concentrations due to CAA programs
already in place."°
In exercising this policy judgment, EPA explained at length
factors that it asserted were not relevant to its decision'' and
then identified several health-related factors that it did
consider.'? EPA wholly failed, however, to articulate any
principle that would guide the exercise of its discretion in
°62 Fed. Reg., 38,857, (ozone); 62 Fed. Reg. 38,653 (PM).
'° See, e.g., EPA, National Air Quality and Emissions Trends Report,
1995 at 1, 61 (1996), PMJA 4152-53 (ambient PM,, concentrations
decreased by 22 percent between 1988 and 1995 and the number of areas
designated nonattainment for ozone decreased by 30% between 1990 and
1996).
'' These factors included the cost and technological feasibility of
controls, the disruptive impact of replacing the congressional ozone
reduction program with a new program to be devised by EPA, and the
public health “disbenefits” of more restrictive standards. 62 Fed. Reg.
38,878-83, 38,884-85 (ozone); 62 Fed Reg. 38,683-89 (PM); Responses
to Significant Comments on the National Ambient Air Quality Standards
for Ozone 128-33 (July 1997), Ozone JA 210-15; EPA, Responses to
Significant Comments on the 1996 Proposed Rule on the National
Ambient Air Quality Standards for Particulate Matter 112 (July, 1997),
PMJA 312.
'2 The factors that EPA did consider included the magnitude and severity
of health effects, uncertainty in the data, and the size of the sensitive
population. EPA Pet. 15 n.9, EPA App. 7a.
6
choosing, based on these health-related factors, from among
air quality levels that could not be distinguished from a
public health protection standpoint. It simply asserted that
where there is scientific uncertainty, the courts must defer to
the Administrator’s “reasoned” judgment even if the Agency
articulates no principle for assessing whether the resulting
standard is reasonable."’
As a result, the revised NAAQS reflected EPA’s
interpretation of § 109 to provide no intelligible criteria to
guide the Administrator’s risk management decisions.
Following this theory, the Administrator’s discretion in
choosing among health protective alternatives was
unconstrained, for example, by EPA’s own analyses
showing that the costs to society of the revised ozone
NAAQS would significantly outweigh its benefits.'*
Finally, as a result of the failure of the pre-1990 Clean Air
Act program to reduce ozone under the general planning
authority of Subpart | of Part D, Title I of the Act, Congress
in 1990 enacted a detailed statutory program as Subpart 2 to
Part D. This new statutory ozone reduction program was
based on the existing 1l-hour NAAQS and reflected
Congress’ judgment that addressing the public health risks
associated with low-level ozone exposures does not require
inflexible attainment deadlines or massive economic or social
'* See, e.g., 62 Fed. Reg. 38,883, (ozone); 62 Fed. Reg. 38,688 (PM).
'* See EPA, Regulatory Impact Analyses for the Particulate Matter and
Ozone National Ambient Air Quality Standards and Proposed Regional
Haze Rule ES-12, ES-17, ES-20 (July 16, 1997), Ozone JA 2919, 2924,
2927 (“RIA”). In the case of the revised PM NAAQS, EPA estimated the
cost of attainment at $37 billion annually. /d. at 9-1, Ozone JA 2934.
7
dislocation — aspects of the pre-1990 Subpart 1 ozone
reduction program that made that program unworkable."
The statutory Subpart 2 program includes specific
strategies and timetables, based on the existing 1-hour ozone
NAAQS, for reducing ground-level ozone concentrations. It
applies to both nonattainment and attainment-areas.'® And it
explains how to regulate areas that are now in attainment but
that may have deteriorating air quality and become
nonattainment areas in the future."’
To avoid any confusion about how ozone reductions were
to be achieved under the Clean Air Act, Congress provided in
§181(a) of Subpart 2 that “each area designated
nonattainment for ozone pursuant to § 107(d)” — a provision
that governs designation of a// existing and future ozone
nonattainment areas as a prerequisite for regulating that area
under the Act -— “shall be classified at the time of such
designation, under table 1, by operation of law” and then
regulated according to its Subpart 2 classification. CAA
§ 181(a), EPA App. 117a (emphasis added). In this way
Congress blocked EPA from initiating an alternative ozone
reduction program under Subpart | based on a more stringent
ozone NAAQS.
'S See 1 Sen. Comm. on Env. & Pub. Works, A Legislative History of the
Clean Air Act Amendments of 1990, 1236-37 (Comm. Print, 1993)
(“1990 Legis. Hist.”), (H.R. Debate Oct. 26, 1990, statement of Rep.
Fields); H.R. Rep. No. 101-490, Pt. 1, at 145-148, 229-258, reprinted in
2 1990 Legis. Hist. at 3169-72, 3253-82.
'© See, e.g., CAA § 184(b), ICP App. 55a-56a (requiring specific
implementation measures in attainment areas of states within an ozone
transport region).
" See CAA § 181(b)(1), EPA App. 119a-120a.
8
Despite this clear statutory language, EPA in its final rule
revising the ozone NAAQS promulgated a provision (40
C.F.R. § 50.9(b), State App. 113) authorizing EPA to revoke
the congressional Subpart 2 program for areas that have air
quality meeting the l-hour NAAQS. The provision requires
EPA to replace the Subpart 2, 1l-hour NAAQS-based
regulatory program in these areas with a program that EPA
would develop for the revised 8-hour NAAQS under the
general planning requirements of Subpart 1,'* the approach
Congress rejected in adopting Subpart 2. Pursuant to that
provision, EPA subsequently revoked the 1-hour NAAQS
and Subpart 2 program in a number of areas."
3. The Lower Court's Opinion -- Because of the various
flaws in EPA’s reasoning summarized above, on May 14,
1999, a panel of the D.C. Circuit remanded the revised
NAAQS for ozone and PM to EPA. First, after a thorough
review of the record, the panel concluded that, because the
Administrator’s interpretation of § 109 failed to provide any
intelligible principle for exercising public health policy
judgment in response to uncertain and inconclusive science
(1.e., because her interpretation of § 109 “[flail[ed] to state
intelligibly how much [risk] is too much”), the
Administrator’s interpretation would render this provision an
unconstitutional delegation of authority. EPA App. Sa-6a.
The court did not hold the statute itself unconstitutional but
rather remanded the NAAQS for EPA to exercise the
discretion delegated to it by Congress to interpret § 109 in a
'® 62 Fed. Reg. 38,873, ICP App. 74a-75a.
'? See, e.g., 64 Fed. Reg. 30,911 (1999); 63 Fed. Reg. 31,014 (1998); 63
Fed. Reg. 39,432 (1998).
ee
way that provides intelligible criteria for implementing it.
EPA App. 14a.
Second, the court rejected EPA’s interpretation of the CAA
as prohibiting consideration of the protective effect of ozone
in the ambient air with respect to ultraviolet B (“UVB”)
radiation when it establishes an ozone NAAQS. According
to the court, “it seems bizarre that a statute intended to
improve human health would, as EPA claimed at argument,
lock the agency into looking at only one half of a substance’s
health effects.””° EPA does not seek review of this part of the
lower court’s decision.
Third, the panel rejected EPA’s legal conclusion, embodied
in § 50.9(b) of the rule, State App. 113, that EPA had
authority to rewrite the congressional ozone reduction
program. The court relied on the plain language of the
statute directing that the congressional Subpart 2 program
apply “by operation of law” to “[eJach area designated
nonattainment for ozone” under the CAA — explicit language
that the court found dispositive under the first prong of
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). EPA App. 38a. On this basis, the
court held that EPA could enforce a revised ozone NAAQS
only “under Subpart 2,” EPA App. 43a, and that the Agency
was precluded “from requiring areas to comply either more
quickly or with a more stringent NAAQS.” EPA App. 40a
(emphasis added).”"
2°? EPA App. 47a. Respondents also raised the public health disbenefits
issue as to the revised PM NAAQS and EPA rejected those comments on
the same grounds that it relied upon in refusing to consider the issue in
the ozone rulemaking.
?! In another part of its opinion that has gone unchallenged, the panel
vacated the revised coarse PM standards. EPA App. 53a, 57a-58a.
10
On October 29, 1999, the D.C. Circuit panel rejected
EPA’s petition for rehearing, except for minor editing which,
inter alia, clarified and confirmed that portion of the panel’s
decision concerning the role of Subpart 2 in implementation
of any revised primary ozone NAAQS.” The D.C. Circuit
then unanimously rejected EPA’s en banc petition on the
public health disbenefits and Subpart 2 issues of statutory
construction, both of which were independent grounds for
remanding the revised ozone standard.”
EPA’s petition for certiorari followed.
REASONS FOR REJECTING THE “NON-
DELEGATION” QUESTION PRESENTED BY EPA
AND FOR DENYING THE PETITIONS FOR
CERTIORARI ON THE SUBPART 2 HOLDING
I. THE “NONDELEGATION” QUESTION PRE-
SENTED BY EPA, ALA AND _ STATE
PETITIONERS DOES NOT WARRANT REVIEW.
After careful review of a complex record, the court below
concluded that EPA had not applied any “intelligible
principle” in deciding whether and how to revise the ozone
and PM NAAQS. It therefore remanded the cases to allow
*A to identify such a principle.
While the D.C. Circuit correctly held that EPA’s
interpretation of the Act requires remand to develop an
“intelligible principle” to manage risk, EPA App. 14a, it
2 EPA App. 70a-82a.
*> Those judges who dissented from the court’s denial of rehearing en
banc mentioned only the nondelegation issue. See EPA App. 91a-99a.
11
erred in precluding EPA from considering other burdens on
society, including the economic and indirect public health
consequences of NAAQS decisions, as part of the
“intelligible principles” for risk management decisions under
§ 109. EPA App. 19a-22a. As explained in the Conditional
Cross-Petition also being filed in this case, the “adequate
margin of safety” language in § 109(b), EPA App. 11 1a, the
“as may be appropriate” language in § 109(d), EPA App.
112a, and the “purposes” section of the Act, ICP App. 1a,
permit the Agency to consider the broad economic and social
consequences of CAA § 109 risk management decisions.
As a result, although CAA Industry Respondents disagree
that the no idelegation question presented by the Government
and others makes this case worthy of review by this Court,
| they believe that if this Court reviews the “nondelegation”
holding of the lower court, it must review the scope of EPA’s
discretion to manage risk under § 109 of the Act.
A. The Question Presented by EPA and Other
Petitioners Presents No Conflict With Supreme
Court Precedent or With Any Important Principle
of Law.
To read the question presented and the arguments of the
Government and other petitioners, one would think that the
D.C. Circuit had struck down an act of Congress and held
that Congress may no longer legislate in broad terms. But
that is not what the court of appeals did. All it did was to
hold that EPA's construction of a statute is inadequate until
EPA reveals its principle of decision, and then it remanded
| the rules to EPA to articulate such a principle. EPA App. 5a,
14a. This by itself is unexceptional, and no “compelling
reason{]” for Supreme Court review. Sup. Ct. R. 10.
12
Indeed, the court could not have done less, faced with
EPA’s radical view of its own authority. EPA argues that to
issue a legally valid decision it need only consider factors it
deems relevant. This, EPA explains, is satisfied merely by
EPA’s discussion of relevant evidence in the Federal
Register. EPA Pet. 13-14. After that, all is “judgment.” In
other words, EPA can decide whatever it wants, so long as it
has examined an appropriate set of data. Just as the National
Environmental Policy Act is “essentially procedural,”’* EPA
hopes to make its own rulemaking obligation under § 109 of
the Clean Air Act “essentially procedural.”
This is EPA’s position, but it is not the law of agency
rulemaking and never has been. EPA’s view of its role
imposes no substantive standard on agency rulemaking at all,
only the procedural requirement that relevant evidence be
considered in a decisional vacuum. As this novel theory
suggests, agency “judgment” becomes a mysterious process
that cannot ultimately be explained but must issue oracle-like
from the agency’s mouth. “Pay no attention to that man
behind the curtain,” says the Agency; “I have considered the
relevant evidence.”
We repeat: All the court required here was that the agency
explain its reasoning. Some have argued that the
constitutional “nondelegation” rationale for remand in this
case might as well have been articulated as “arbitrary and
capricious” agency action’ — that EPA failed to state a
** Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558
(1978).
>> Craig Oren, “Run Over by American Trucking Part I: Can EPA Revive
its Air Quality Standards?”, 29 Envtl. L. Rep. (Envtl. L. Inst.) 10,653,
10,658 (Nov. 1999).
13
rational basis for its decision.” Whatever the rationale, the
proposition that an agency’s discretion must be guided by an
intelligible criterion is so pedestrian as to require no
comment, let alone Supreme Court review.
In support of its petition, EPA observes that “Congress
does not violate the constitution ‘merely because it legislates
in broad terms.”” EPA Pet. 12. But from this
uncontroversial principle, EPA goes on to argue that because
Congress wrote §109 in broad terms, EPA actions
implementing § 109 must be upheld — even if EPA interprets
§ 109 to provide no criteria to guide its discretion. EPA Pet.
11-12. According to EPA, to rule otherwise would be a
“striking departure from this Court’s nondelegation
jurisprudence.” EPA Pet. 11.
Not at all. - In an attempt to manufacture a basis for
certiorari, EPA attacks a strawman. The lower court did not
question Congress’ authority to legislate in broad terms, and
neither do we. Nor did the court hold that § 109 is
unconstitutional. Rather, in response to EPA’s repeated and
strenuous rejections of any reading of § 109 that would
provide principles to guide the Agency’s choice among
alternative standards, the lower court found that EPA’s
interpretation of § 109 — not the statute on its face — reflects
an unconstitutional delegation. The court therefore remanded
the rules before it to permit the Agency to exercise the
discretion given it by Congress in § 109 to interpret and to
implement this broad delegation of authority.”’
© See CAA § 307(d)(9), EPA App. 126a (“arbitrary and capricious”
standard).
7 See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837, 843, 865 (1984) (Where “Congress has not directly addressed
14
There is nothing remarkable about this. Courts have
frequently required an agency to articulate the legal
principles that guide its discretion when it adopts, or refuses
to revise, legislative rules.* Indeed, we are aware of no
decision, by this Court or any other, that has permitted an
agency to construe its enabling statute so that no intelligible
principle governs the agency’s exercise of rulemaking
discretion.
This Court has always demanded that agencies be guided
by an intelligible principle, as even Petitioner ALA
concedes.” See Loving v. United States, 517 U.S. 748, 771
(1996); Touby v. United States, 500 U.S. 160, 165 (1991);
Mistretta v. United States, 488 U.S. 361, 379 (1989); Federal
Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559-60
(1976); J.W. Hampton, Jr. & Co. v. United States, 276 U.S.
394, 409 (1928). For example, in J/ndustrial Union
Department, AFL-CIO vy. American Petroleum Institute, 448
U.S. 607 (1980), the Court found that the agency had
provided no intelligible principle for setting standards under
§ 6(b)(5) of the Occupational Safety and Health Act
(“OSHA”). The Court nevertheless found that an intelligible
principle could be discerned when this provision was read
along with the definitions in the Act (OSHA § 3(8)) and
the precise question at issue,” it is for the agency to construe the statute
“within the limits of [the congressional] delegation.”).
8 See infra notes 33 - 35 and accompanying text.
? See ALA Pet. 18 (ALA concedes that “the precedent of this Court...
requires . . . an ‘intelligible principle’” to guide statutory implementation,
but argues that the lower court in its explanation of this established
principle demands too much precision from EPA).
15
therefore remanded the case. Jd. at 641.*°° Curiously, EPA in
its petition does not even mention Jndustrial Union. Nor
does EPA discuss the other key case on which the lower
court relied (International Union, UAW v. OSHA)*' — a case
in which the Government did not even seek certiorari.”
Therefore, while EPA argues that the lower court has
questioned Congress’ authority to legislate “in broad terms,”
it did nothing of the kind. It simply confirmed that when
EPA acts pursuant to a broad delegation of authority, EPA’s
first and most critical obligation is to enunciate, under the
second prong of Chevron, the legal standard it applies in
exercising the discretion given it by Congress. Where an
agency misconstrues the scope of the discretion delegated by
Congress, it acts unlawfully.”
*° Petitioner ALA’s reliance on this case, see ALA Pet. 19, is misplaced,
because this case adopts the same method of analysis as applied by the
lower court in ATA.
*! 938 F.2d 1310 (D.C. Cir. 1991).
*? By contrast, petitioners cite a number of cases, including American
Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946), U.S. v. Henry, 136
F.3d 12, 17 (1st Cir. 1998), and South Terminal Corp. v. EPA, 504 F.2d
646, 677 (lst Cir. 1974), in which statutes delegating broad authority
were found constitutional because the language of the statute, its
purposes, its factual background and context bounded administrative
discretion. Similarly, in this case, the court below did not find the CAA
unconstitutional; it simply remanded this case for EPA to exercise the
discretion delegated to it by Congress. Cf South Terminal Corp. 504
F.2d at 670 (The court set aside a key provision of the rule at issue as
“standardless”).
> See, e.g., SEC v. Chenery, 332 U.S. 194, 196-97 (1947); H.K. Porter
Co. v. NLRB, 397 U.S. 99, 109 (1970); Prill v. NLRB, 755 F.2d 941, 947
(D.C. Cir. 1985).
16
Reflecting these established principles, judicial decisions
commonly set aside agency orders because the agency failed
to apply the correct legal standard when it promulgated a rule
or took some other action. Similarly, where an agency
construes a statute to provide no legal standard at all to
constrain its discretion, the courts have rejected such a
construction because of the “nondelegation” principle.”
Remanding the case for EPA to develop an intelligible
principle for risk management decisions is therefore fully in
keeping with the law of this Court.*°
“ For example, in Addison v. Holly Hill Friit Products, Inc., 322 U.S.
607, 618-19 (1944), Congress authorized the agency to define “area of
production” in geographic terms, leading the Court to disapprove a
regulation dependent on the number of workers involved instead. See
also Ethyl Corp. v. EPA, 51 F.3d 1053, 1055 (D.C. Cir. 1995); Alabama
Power Co. v. EPA, 40 F.3d 450, 456 (D.C. Cir. 1994); Alabama Power
Co. v. Costle, 636 F.2d 323, 355 (D.C. Cir. 1980).
*S See, e.g., National Cable Television Ass'n, Inc. v. United States, 415
U.S. 336, 342-43 (1974); International Union, UAW v. OSHA, 938 F.2d
1310, 1313; see also AT&T Corp. v. lowa Utils. Bd., 119 S. Ct. 721, 734-
35 (1999).
*© See Mistretta v. United States, 488 U.S. 361, 374 n.7 (1989)
(nondelegation doctrine requires narrow construction of statutes that
might otherwise be unconstitutional); /ndustrial Union Dep't, AFL-CIO
v. American Petroleum Inst., 448 U.S. at 646 (plurality opinion) (agency
should be allowed to characterize statute in a way to avoid
unconstitutional delegation); National Cable Television Ass'n, Inc. v.
United States, 415 U.S. at 342 (“the hurdJes revealed in [A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935) and J. W. Hampton,
Jr. & Co. v. United States, 276 U.S. 394 (1928)] lead us to read the
[Independent Offices Appropriation Act] to avoid constitutional
problems”); Zemel v. Rusk, 381 U.S. 1, 17-18 (1965) (construing statute
so as to avoid an invalid delegation); Kent v. Dulles, 357 U.S. 116, 129
(1958) (the act in question does “not delegate to the Secretary the kind of
authority exercised”); see also Loving v. United States, 517 U.S. 748, 758
17
EPA should not have been surprised by this remand, for it
had ample warning in the case law of the lower court. In an
earlier case addressing NAAQS, the D.C. Circuit anticipated
that in future cases “EPA might be required to explain the
risk it considered tolerable.” Natural Resources Defense
Council v. EPA, 902 F.2d 962, 974 (1990). Just such a case
arose in American Lung Ass’n v. EPA, 134 F.3d 388 (D.C.
Cir. 1998), cert. denied, 120 S. Ct. 58 (1999), resulting in a
remand for EPA to explain how it determined what risk was
tolerable.*’ This is not an unreasonable demand when the
statute requires the Agency to explain why “public health”
will be advanced by its decision.** Without a legal standard
(“intelligible principle”) to guide its exercise of discretion,
judicial review — including arbitrary and capricious review —
simply is not possible.”
(1996) (“[T]he lawmaking function belongs to Congress, . . . and may not
be conveyed to another branch or entity.”).
*7 134 F.3d at 392-93 (“[UJnless [the Administrator] describes the
standard under which she has arrived at this conclusion, supported by a
‘[]Jplausible’ explanation, ... we have no basis for exercising our
responsibility to determine whether her decision is ‘arbitrary [or]
capricious. . . .”” (emphasis added; citation omitted)).
*8 As the late Senator Chafee observed after the lower court’s decision,
“this is not a general defect in all of our environmental laws .... I agree
with the Court as it expresses its discomfort with the vagueness in these
two regulations.” Statement of Hon. John H. Chafee, Chairman, Senate
Environment Committee, Hearings on Clean Air Act (May 20, 1999).
*° Contrary to EPA’s argument, EPA Pet. 17-19, the lower court does not
call for an unprecedented amount ef precision in making NAAQS
decisions. Rather, by requiring the Agency to enunciate an “intelligible
principle” guiding its risk management decisions under § 109, the court is
merely seeking consistency in decisionmaking, without which agency
action would be arbitrary by definition.
18
Finally, EPA points in its petition to statutory language and
legislative history which it believes could be used to derive
intelligible principles for making risk management decisions
under § 109. For example, EPA argues in its petition that an
intelligible principle might be found, among other places, in
(1) the Act’s legislative history, which requires EPA to focus
on health effects that are “medically significant,” and not
“merely detectable,” EPA Pet. 15; and (2) the legislative
history’s direction to consider the “public health” and not
“individual health.” Jd.“
While EPA’s suggestions represent a good starting point
for developing an intelligible principle for risk management,
they are only a starting point. None of the language EPA
identifies itself specifies how to select among a range of
uncertain health risks, or among air quality levels that cannot
be distinguished from a public health protection standpoint.
Rather, this is the task the lower court has directed EPA to
undertake on remand, and EPA’s petition suggests that the
Agency knows what this task entails.
For these reasons, the “nondelegation” question presented
in the petitions for certiorari reveals no conflict with any
prior precedent of this Court and no important issue of law.
Certiorari on this question is not appropriate.
“ In its petition for rehearing to the lower court, EPA also argued that an
intelligible principle might be found in the “requisite to protect” language
of § 109 — namely, that this language requires a standard level no more or
less stringent than “necessary” to protect public health. In its petition,
EPA also advances for the first time use of a “zone of reasonableness”
test. See EPA Pet. 18.
19
B. If Certioravi Is Granted, It Should Be Granted to
Address the Scope of EPA’s Authority on Remand
To Define an Intelligible Principle.
For the reasons set out above, CAA Industry Respondents
submit that the nondelegation issue raised by the Government
does not offer a compelling reason for certiorari. Should this
Court nevertheless grant certiorari on the need for an
intelligible principle to guide §109 risk management
decisions, the Court will have to consider the scope of EPA’s
discretion to derive an intelligible principle from the CAA.
On this issue, the lower court was presented with
arguments that neither the “margin of safety” standard-setting
language of § 109 nor the “as may be appropriate” standard-
revision language of § 109(d) prevents EPA from considering
social or economic values or the indirect public health
consequences of its decisions on NAAQS. The court of
appeals emphatically rejected these arguments under
“Chevron step one,” on the ground that its prior decision in
Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.
1980), held that the ““‘[s]tatute . . . make[s] clear that
economic considerations play no part in the promulgation of
[NAAQS].’” EPA App. 19a.
However, this characterization of Lead Industries is at odds
with the lower court’s later decision interpreting similar
language in CAA §112, as it then existed, requiring
regulation of hazardous air pollutants to provide an “ample
margin of safety.” Natural Resources Defense Council v.
EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en banc). Although
this language is more precautionary than the “adequate
margin of safety” in CAA § 109, writing for the court, Judge
Bork observed that the “margin of safety” language on its
face “does not... preclude consideration of any factor,” id.
20
at 1155 (emphasis added), and that Lead /ndustries and prior
D.C. Circuit case law addressing § 109 does not stand for the
proposition that “cost and technological feasibility can never
be considered under the Clean Air Act unless Congress
expressly so provides.” /d. at 1157 (emphasis added).
If the Court decides to grant certiorari in response to the
Government’s nondelegation issue, we believe that the Court
will necessarily have to address the scope of EPA’s authority
on remand to define intelligible principles for risk
management decisions. Nevertheless, “out of excess of
caution,™' CAA Industry Cross-Petitioners are filing a
Conditional Cross-Petition presenting this question directly.
CAA Industry Cross-Petitioners believe that this question is
worthy of review and therefore would not object to a grant of
certiorari to address the question as framed in the Conditional
Cross-Petition.
Il. THE COURT OF APPEALS’ “SUBPART 2” HOLDING
DOES NOT WARRANT CERTIORARI.
The petitions for certiorari also address the court of appeals
holding that any revised NAAQS for ozone may be enforced
only in conformity with Subpart 2 of Part D of the CAA
rather than (as EPA alleges) under Subpart 1 as well. EPA
App. 8la. In support of its petition, EPA first asserts that
certiorari is needed to address an argument that EPA briefed
for the first time in its petition for rehearing to the panel,
namely, that the lower court lacked jurisdiction to review
EPA’s decision on this point. EPA Pet. 19-25. Alternatively,
*' See, e.g., Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239
(1935).
21
EPA repeats the merits arguments that were rejected by the
panel in its initial decision and again on rehearing, and which
did not garner a single vote for rehearing en banc. EPA Pet.
25-29. Neither argument has merit, and neither provides a
basis for certiorari.
A. The Government’s Belated Finality and Ripeness
Arguments Present Neither A Conflict of Law Nor
an Issue of Importance.
CAA Industry Respondents challenged EPA’s final rule
revising the ozone NAAQS on the ground that, because the
congressional Subpart 2 program is based on the existing 1-
hour NAAQS and because this program applies “by
operation of law” under CAA Section 181(a), EPA App.
117a-119a, to “[eJach area designated nonattainment for
ozone” under CAA § 107(d), it was not “appropriate” to
replace the 1-hour NAAQS with a new more stringent 8-hour
NAAQS that addressed the same public health risks, and that
could not be implemented or enforced under Subpart 2. See
EPA App. 35a.”
The lower court rejected the argument that revision of the
ozone NAAQS was not “appropriate” on this ground. The
court nonetheless accepted Industry Respondents’ underlying
argument that implementing a more stringent ozone NAAQS
would conflict with the Subpart 2 statutory program that
Congress established as the exclusive program for
“ Members of CASAC in fact recommended against an approach that
would require simultaneous application of different ozone standards in
different areas of the country, because of the confusion and disruption
this would cause. See, e.g., Letter from James H. Price to Thomas O.
Miller (April 24, 1995), Ozone JA 388.
22
implementing the ozone NAAQS: “{a]s the petitioners
argue,” Subpart 2 of the 1990 Amendments “preclude[s] the
EPA from requiring areas to comply either more quickly or
with a more stringent ozone NAAQS.” EPA App. 40a
(emphasis added).
EPA argues in its petition for certiorari that the “only issue
before the court of appeals... was whether the statutory
provisions at issue precluded EPA from promulgating the
revised standard.” EPA Pet. 21. But this was clearly not the
case, as State Petitioners recognize.” Indeed, the very first
issue raised in CAA Industry Respondents’ brief below was:
“Whether EPA is authorized to substitute its policy judgment
for that of Congress by replacing the statutory ozone
reduction program designed specifically to implement the 1-
hour NAAQS with a new program to implement a different
NAAQS?” Furthermore, as the lower court’s decision
shows, CAA Industry Respondents specifically briefed and
argued the issue of EPA’s authority to implement a revised
ozone NAAQS under Subpart 2 versus Subpart 1 of the Act.
See EPA App. 40a.“
EPA then argues that it “did not take final action in the
1997 ozone rulemaking to implement or enforce the revised
ozone NAAQS,” and that actual implementation of the
revised 8-hour NAAQS will be the subject of later
proceedings establishing designations and classifications for
the 8-hour NAAQS. EPA Pet. 20. But here again, EPA
attacks a strawman. CAA Industry Respondents did not
*’ State Pet. at 14 (Industry argued that “EPA could neither issue nor
enforce a revised ozone standard.”); see id. at 22.
“* Indeed, the lower court had to address CAA Industry Respondents’
arguments regarding the enforceability of the revised NAAQS in order to
fashion relief. See EPA App. 57a, 81a.
23
challenge EPA’s designation or classification of areas under
the 8-hour NAAQS. See EPA Pet. 20. Rather, they
challenged EPA’s legal conclusion, embodied in 40 C.F.R.
§ 50.9(b) of the final rule, State App. 113, that EPA has
authority to revoke the statutory Subpart 2 ozone reduction
program in certain areas, and to replace it in those areas with
a program to be developed under the general planning
authority of Subpart 1 for a revised ozone NAAQS that is
more stringent than the 1-hour ozone NAAQS.
That decision was final. As EPA explained in the preamble
to the final ozone rule, that rule reflects EPA’s legal
conclusion that “the provisions of subpart 2 . . . will continue
to apply as a matter of law for so long as an area is not
attaining the 1-hour standard. .. . [T]he provisions of subpart
1... would apply to the implementation of the new 8-hour
[ozone] standards.“ EPA codified that final decision in
§ 50.9(b) of the final rule, State App. 113, which states that
“(t]he 1-hour standards set forth in this section will no longer
apply to an area once EPA determines that the area has air
quality meeting the 1-hour standard.”
On this important issue, therefore, EPA’s decisionmaking
process was completed with promulgation of the final rule.“
Furthermore, important legal consequences flow from this
final rule, because of the differences in deadlines and control
programs that apply under the Subpart 1 and Subpart 2
programs. *’
*° 62 Fed. Reg. 38,873, ICP App. 75a.
“ See id. (noting that EPA’s interpretation of the applicability of Subpart
2 was revised “in light of comments received on its proposed
interpretation.”).
“’ Thus, contrary to the Agency’s assertions, see EPA Pet. 23-24, EPA’s
resolution of the applicability of Subpart 1 versus Subpart 2 to a revised
24
Indeed, in EDF v. Browner, D.C. Cir. No. 98-1363, EPA
has asserted that the lower court lacks jurisdiction to hear
EDF’s challenge to EPA’s revocation of the 1-hour NAAQS
and Subpart 2 program in specific areas, because EPA’s
“legal interpretation of the interplay of Subpart 2 and EPA’s
NAAQS revision authority” was addressed and resolved in
the ozone NAAQS rulemaking. EPA Br. in EDF v. Browner
27-28, ICP App. 85a-86a. According to EPA, “{o]ther
participants in the [ozone] NAAQS rulemaking understood
the implications of EPA’s interpretation and challenged
aspects of it in the pending ATA litigation.” ICP App. 86a.
Under CAA § 307(b), ICP App. 63a-64a, any challenge to
a final legislative rule under the Act must be filed within 60
days of the rule’s publication in the Federal Register.
Because EPA resolved the interplay of Subpart 2 and EPA’s
NAAQS revision authority in the revised ozone rule and
EPA’s resolution of this issue is reflected in specific
regulatory language (i.e, §50.9(b)), CAA Industry
Respondents’ only opportunity to challenge EPA’s resolution
of this issue was in this case.** For these reasons, EPA’s
belated attempt to manufacture a finality or ripeness
argument provides no basis for certiorari.
ozone NAAQS plainly meets the conditions for finality set forth in
Bennett v. Spear, 520 U.S. 154 (1997), and other cases cited in its
petition.
“* EPA’s reliance on cases not addressihg final agency regulations,
promulgated after notice and comment rulemaking and expressly made
subject to pre-enforcement judicial review, is misplaced. See, e.g., Ohio
Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998); Dow
Chemical v. United States Environmental Protection Agency, 823 F.2d
319, 324-25 (Sth Cir. 1987) (distinguishing final rules, developed after
notice and comment rulemaking, that “fix[] a legal relationship.”).
25
B. EPA’s Arguments on the Merits, Which Have
Been Rejected by the Panel and by the Court of
Appeals En Banc, Provide No Basis for Certiorari.
The other arguments in EPA’s petition for rehearing have
been considered and repeatedly rejected by the lower court.
While EPA asserts that the court misunderstood the CAA,
EPA Pet. 25, certiorari is not a forum simply to re-argue
matters resolved by the court of appeals. The circuit court’s
resolution of the interplay between Subpart 1 and Subpart 2
in implementing a revised NAAQS does not conflict with the
decision of any other court and does not present a question of
federal law that warrants the attention of this Court. See Sup.
Ct. R. 10.
In support of its petition, EPA argues once again that “the
CAA does not precisely address “how to reconcile Subpart 1
.... With Subpart 2.” EPA Pet. 27. This is simply not the
case, as the lower court carefully explained.
First, the court observed that CAA § 181(a) on its face
provides that “[e]ach area designated nonattainment for
ozone pursuant to section 7407(d) of this title shall be
classified at the time of such designation, under Table 1, by
operation of law.” EPA App. 38a. This language establishes
that Subpart 2 applies to “all areas designated nonattainment
under any ozone NAAQS.” Jd. As the court explained,
because “Congress has spoken on the ‘precise question at
issue,”” the court must give effect to the language of the Act
under the first prong of Chevron. Id.”
” The court also reviewed the language of § 172(a)(1)(C) and (a)(2)(D),
which specifically provides that the attainment date and classification
provisions of Subpart 1 “do not apply to nonattainment areas for which
26
Second, the lower court addressed related CAA provisions,
the structure of the Act, and its legislative history, and it
found them all consistent with the plain language of § 181.
For example, the panel rejected EPA’s argument that the
reference to “section 7407(d)” in § 181(a) should be read as
“section 7407(d)(4)” in order to limit the application of
Subpart 2 to areas that were designated nonattainment in
1990.°° As the court observed, this is not the language of the
statute, and the legislative history shows that Congress acted
purposefully when it referenced “section 7407(d)” to make
Subpart 2 applicable to a// current and future ozone
nonattainment areas. EPA App. 38a - 39a. As a result, the
Subpart 2 program applies to one-hour attainment as well as
one-hour nonattainment areas, including [one-hour]
attainment areas that are redesignated to nonattainment in
the future.”'
Regarding the overall structure of the CAA nonattainment
program, the court observed that “Congress enacted Subpart
2 because of the failure of the controls in Subpart | to bring
classification and attainment dates are specifically provided under other
provisions of this part,” as they are for ozone in Subpart 2. EPA App.
35a. While ALA now argues that the general planning requirements of
Subpart | in § 172(b) and (c) do not contain similar “ouster” provisions,
ALA Pet. 26, the simple response is that “ouster” language is not needed
in these later subsections of § 172 once areas are “ousted” from the
deadline and classification provisions that trigger the planning
requirements.
© See also EPA Pet. 28 n.16. (Subpart 2 should be read to apply “only
for nonattainment areas designated under Section 107(d) for the then-
current one-hour ozone standard,” based on § 107(d)(1) and (4)).
*' CAA § 181(b)(1), EPA App. 119a (providing deadlines for attainment
that are “extended by operation of law” for areas that are “subsequently
redesignated to nonattainment for ozone.”)
27
areas into attainment.” EPA App. 39a. In order to resolve
this problem, Congress in Subpart 2 decided not to “continue
[to treat] all ozone nonattainment areas alike,” but to provide
different attainment deadlines and different control strategies
for different areas depending on the ambient levels of ozone
in an area in excess of the one-hour NAAQS. EPA App. 40a.
For example, Congress in Subpart 2 made clear that areas
with intractable ozone problems (e.g., Los Angeles and
Houston) would have to apply specific and aggressive control
programs, but would not be subject to near-term, inflexible
deadlines that could threaten economic shutdown. See EPA
App. 4la. The court found that while EPA might have
authority to revise the ozone NAAQS, EPA did not have
authority to ignore the balance struck by Congress in Subpart
2 in favor of an alternative ozone reduction program under
Subpart 1 that could require even more drastic measures.
As the court explained, under “EPA’s interpretation .. .
[the Subpart 2 statutory] scherne would have been stillborn
had the EPA revised the ozone NAAQS immediately after
Congress enacted the 1990 amendments.” EPA App. 42a.
EPA’s assertion of authority to revoke the statutory Subpart 2
program “does not square with... the long-term nature of
the attainment scheme enacted in Subpart 2,” id., and “clearly
runs counter to the comprehensive enforcement scheme”
based upon the one-hour NAAQS that Congress enacted in
Subpart 2. EPA App. 41a (emphasis added).
The court also reviewed the legislative history, which
shows that “Congress responded to the continued ozone
problem [in 1990] by enacting a new enforcement scheme,
which it codified as Subpart 2.” EPA App. 32a. In other
words, while Subpart 1 provides general planning
requirements, Subpart 2 provides specific and detailed ozone-
requirements for nonattainment areas, for attainment areas in
28
the ozone transport region, for “maintenance plans” in
attainment areas, and for “attainment” areas that subsequently
became “nonattainment” areas. The legislative history
confirms that Subpart 2 is “the Congress’s comprehensive
plan for reducing ozone levels throughout the country.” EPA
App. 33a (emphasis added).
In response to EPA’s petition for rehearing below, the court
clarified and confirmed its holding that “EPA can enforce a
revised primary ozone NAAQS only in conformity with
Subpart 2.” EPA App. 81a (emphasis added).*’ The court
also emphasized that its remand order was “without prejudice
to the ability of any party to apply for vacatur” should EPA
attempt to implement the revised standard. /d. As a result,
the decision on rehearing confirms that, as the court held, the
1990 Amendments to the Act “must preclude the EPA from
requiring areas to comply either more quickly or with a more
stringent ozone NAAQS.” EPA App. 40a. (emphasis added).
Finally, EPA argues that the lower court’s decision will
disrupt EPA’s plans regarding ozone reductions. But it is
EPA’s rule that has disrupted the carefully crafted
congressional program for ozone reductions, and the court of
appeals simply restored that program — a program that has
produced and is continuing to produce substantial reductions
in ozone. EPA’s continued disagreement with this decision
2 See CAA §§ 182-185A, ICP App. 8a-62a; see also H.R. Rep. No. 101-
490, Pt. 1, at 145-148, 229-258, reprinted in 2 1990 Legis. Hist. 3169 -
3172, 3253-3282.
3 The State Petitioners correctly observe that Judge Tatel’s concurring
statement “is hard to reconcile... with the panel’s opinion” regarding
the non-enforceability of the revised ozone NAAQS. See State Pet. 22
n.8.
4 See EPA Pet. 11; see also State Pet. 17, 28.
29
presents no conflict of law or important issue that merits
certiorari.
C. The Interlocutory Nature of the Lower Court’s
Decision Counsels Against Granting Certiorari on
the Subpart 2 Questions. Presented by EPA.
The court of appeals remanded the revised ozone NAAQS
to EPA because the Agency refused, as a statutory matter, to
consider the increased public health risks (due to increased
UVB radiation exposure) its revised st uld create.
See EPA App. 47a - 48a. As a result, regardless of what this
Court does here, EPA will have to undertake further
rulemaking on the ozone standard to determine whether any
standard revision is “appropriate” under § 109(d) in light of
(1) the increased cancer and mortality risks associated with a
more restrictive standard that increases UVB radiation
exposure,” and (2) the conclusion of its independent science
advisers that none of the alternative air quality levels under
consideration can be distinguished as significantly more
protective of public health.*°
Because there will be additional rulemaking addressing the
appropriateness of standard revision regardless of any action
** Ozone reductions of the magnitude associated with EPA’s revised
standard could result in 2,000-11,000 additional cases of melanoma skin
cancer per year, 25-50 melanoma related deaths per year, and up to
28,000 new cataract cases per year due to increased ultraviolet-B
radiation exposure. R. Lutter and C. Wolz, “UV-B Screening by
Tropospheric Ozone: Implications for the National Ambient Air Quality
Standard,” 31 Env’tl. Sci. & Tech. News 142-46 (1997), Ozone JA 2759.
°° Letter from Dr. George T. Wolff, Chair, CASAC, to Hon. Carol M.
Browner (Nov. 30, 1995), Ozone JA 236.
30
by fhis Court, certiorari is unnecessary on the Subpart 2
issues.
CONCLUSION
For the foregoing reasons, if certiorari on the
“nondelegation” issue is granted, it should embrace the issue
presented by CAA Industry Cross-Petitioners in their
Conditional Cross-Petition for Certiorari. Otherwise,
certiorari should be denied on the questions presented by the
Government and other petitioners.
DAVID E. MENOTTI
WILLIAM F. PEDERSEN
JEFFERY A. KNIGHT
SHAW PITTMAN
2300 N St., N.W.
Washington, D.C. 20037
(202) 663-8675
Counsel for American Forest
& Paper Association;
American Iron & Steel
Institute; and Alliance of
Automobile Manufacturers
Respectfully submitted,
HENRY V. NICKEL
F. WILLIAM BROWNELL
(Counsel of Record)
LUCINDA M. LANGWORTHY
HUNTON & WILLIAMS
1900 K Street, N.W.
Washington, D.C. 20006
(202) 955-1500
Counsel for Appalachian
Power Co., et al.; American
Public Power Association;
and National Association of
. Home Builders
NEWMAN R. PORTER
LEWIS AND ROCA
40 N. Central Avenue
Phoenix, AZ 85004
(602) 262-5786
Counsel for Nevada Mining
Association, Newmont Gold
Company, and Meridian Gold
Company
MAURICE H. MCBRIDE
NATIONAL PETROCHEMICAL &
REFINERS ASSOCIATION
1899 L Street, N.W.
Washington, D.C. 20036
(202) 457-0480
Counsel for National
Petrochemical & Refiners
Association
PETER S. GLASER
SHOOK, HARDY & BACON
600 14" Street, N.W.
Suite 800
Washington, D.C. 20005
(202) 639-5627
Counsel for Western Fuels
Association, Inc.
DAVID F. ZOLL
ALEXANDRA DAPOLITO DUNN
CHEMICAL MANUFACTURERS
ASSOCIATION
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5165
Counsel for Chemical
Manufacturers Association
G. WILLIAM FRICK
M. ELIZABETH Cox
AMERICAN PETROLEUM
INSTITUTE
1220 L Street, N.W.
Washington, D.C. 20005
(202) 682-8250
Counsel for American
Petroleum Institute —
HAROLD P. QUINN, JR.
NATIONAL MINING
ASSOCIATION
1130 17™ Street, N.W.
Washington, D.C. 20036
(202) 463-9793
Counsel for National Mining
Association
DAVID M. FLANNERY
JACKSON & KELLY
P. O. Box 553
1600 Laidley Tower
Charleston, WV 25322
(304) 340-1017
Counsel for Midwest Ozone
Group, and West Virginia
Chamber of Commerce
RUSSELL S. FRYE
COLLIER, SHANNON RILL &
ScoTT, PLLC
3050 K Street, N.W.
Suite 400
Washington, D.C. 20007
(202) 342-8878
and
RICHARD WASSERSTROM
AMERICAN FOREST & PAPER |
ASSOCIATION, INC.
1111 19" Street, N.W.
8" Floor
Washington, D.C. 20036
(202) 463-2582
Counsel for American Forest
& Paper Association, Inc.
JULIE BECKER
ALLIANCE OF AUTOMOBILE
MANUFACTURERS
1401 H Street, N.W.
Suite 900
Washington, D.C. 20005
(202) 326-5500
Counsel for Alliance of
Automobile Manufacturers
TIMOTHY. L. HARKER
THE HARKER LAW FIRM
9500 Accord Drive
Potomac, MD 20854
(301) 983-0964
and
THOMAS J. GRAVES
NATIONAL PAINT AND
COATINGS ASSOCIATION,
INC.
1500 Rhode Island Ave., N.W.
Washington, D.C. 20005
(202) 462-6272
Counsel for National Paint
and Coatings Association
GRANT CRANDALL DAVID M. FRIEDLAND
General Counsel BEVERIDGE & DIAMOND
UNITED MINE WORKERS OF 1350 I Street, N.W.
AMERICA, AFL-CIO Suite 700
8315 Lee Highway Washington, D.C. 20005
Fairfax, VA 22031 (202) 789-6000
703) 208-7200. Counsel for Phoenix Cement
and Company
EUGENE M. TRISKO
P. O. Box 596
Berkeley Springs, WV 25411
(304) 258-1977
Counsel for United Mine
Workers of America,
AFL-CIO
February 28, 2000
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.