Opposition Brief — Massachusetts v. American Trucking Assns.

Supreme Court, U.S,

FILED

9 od

Nos. 99-1257, 99-1263, 99-126

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1999

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Petitioners,

V.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Respondents.

AMERICAN LUNG ASSOCIATION,

Petitioner,

V.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Respondents.

MASSACHUSETTS AND NEW JERSEY,

Petitioners,

V.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN RESPONSE FOR RESPONDENTS AMERICAN

TRUCKING ASSOCIATIONS, INC., CHAMBER OF

COMMERCE OF THE UNITED STATES, ET AL.*

ROBIN S. CONRAD EDWARD W. WARREN

NATIONAL CHAMBER Counsel of Record

LITIGATION CENTER, INC. ROBERT R. GASAWAY

1615 H Street, N.W. JEFFREY B. CLARK

_ Washington, D.C. 20062 Siar Ane eras

(202) 463-5337 655 Fifteenth Street, N.W.

Counsel for Respondent Washington. D.C. 20005

Chamber of Commerce of (202) 879- 5000

the United States

Counsel for Res, ents American Truckin

od Assoc., Inc. and Chamber of Commerce of the

United States

* Additional Parties and Counsel Listed on Inside Cover

February 28, 2000

LIN Ag

BETH L. LAW

ROBERT S. DIGGES

ATA LITIGATION CENTER

2200 Mill Road

Alexandna, VA 22314

Counsel for American Trucking

Associations, Inc., Burns Motor

Freight, Inc., Garner Trucking,

Inc., and Genie Trucking Line,

Inc. "

GARY H. BAISE

ELIZABETH S. POLINER

BAISE, MILLER & FREER, P.C.

1020 19th Street, N.W.

Suite 400

Washington, D.C. 20036

Counsel for Equipment

Manufacturers Institute

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

Counsel for National Small

Business United, The American

Portland Cement Alliance, and

The Glouster Company, Inc.

ERIKA Z. JONES

TrmoTny S. BISHOP

ADAM C. SLOANE

MAYER, BROWN & PLATT

1909 K Street, N.W.

Washington, D.C. 20006

Counsel for American Farm

Bureau Federation

ROBERT R. GASAWAY

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

Counsel for American Road and

Transportation Builders

Association

JAN S. AMUNDSON

NATIONAL ASSOCIATION OF

MANUFACTURERS f

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Counsel for National Association

of Manufacturers

DIMETRIA G. (JIM) DASKAL

THE DASKAL LAW GROUP

3 Church Circle

Suite 500

Annapolis, MD 21401 .

Counsel for National Coalition

of Petroleum Retailers

DOUGLAS I. GREENHAUS

NATIONAL AUTOMOBILE

DEALERS ASSOCIATION

8400 Westpark Drive

McLean, VA 22102

Counsel for National Automobile

Dealers Association

JEFFREY L. LEITER

CHET M. THOMPSON

COLLIER, SHANNON, RILL &

SCOTT z

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

Counsel for Non-Ferrous

Founders’ Society

QUESTIONS PRESENTED

1. Whether the court of appeals correctly rejected the

Environmental Protection Agency’s (“EPA’s”) standardless

interpretation of Sections 108 and 109 of the Clean Air Act

(“the Act”), and remanded under Chevron for EPA to fashion

and apply a proper interpretation of the Act.

2. Whether the court of appeals acted within its jurisdiction

in reviewing, as a final agency action ripe for review, EPA’s

ruling that it can implement a revised National Ambient Air

Quality Standard (“NAAQS”) for ozone pursuant to its general

implementation authority under Section 172 of the Act,

notwithstanding Congress’ enactment of a_ specific

implementation schedule for the ozone NAAQS in Section 181

of the Act.

3. Whether the court of appeals correctly held that the

specific classifications and attainment dates set forth in Section

181 of the Act for the ozone NAAQS take precedence over

EPA’s general authority to devise classifications and attainment

dates for the various NAAQS pursuant to Section 172 of the

Act.

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................... i

TABLE OF AUTHORITIES ...................... iv

RINE, ad 0 didwic kd anedd ok (ecu doaaieoes l

COUNTERSTATEMENT OF THE CASE ............ 3

A. TheClean Air Act ............... ccc cee aee 3

B. The EPA Rulemakings ....... BRC rer orn 4

l. The Ozone Rulemaking ............... 4

2. The PM Rulemaking.................. 6

C. The Congressional Response ..... paca Ee 7

D. The Court of Appeals Proceedings ............. 8

l. Panel Proceedings.................... 8

2. Rehearing Proceedings ................ 9

REASONS FOR GRANTING THE PETITION IN PART

AND DENYING THE PETITION IN PART ....... 10

I. THE COURT SHOULD GRANT CERTIORARI BOTH

ON THE GOVERNMENT’S FIRST QUESTION AS

REFORMULATED TO REFLECT THE COURT OF

APPEALS’ ACTUAL HOLDING AND ON ATA’S

CONDITIONAL CROSS-PETITION ............. 10

A. The Court of Appeals Correctly Employed

Constitutional Avoidance and Nondelegation

Principles to Invalidate EPA’s Standardless Statutory

PEC ee Pe te ere ee 11

B. This Court Should Grant Certiorari on a Properly-

Formulated Question That Encompasses the

Statutory Interpretation Issues Covered in ATA’s

Conditional Cross-Petition .................. 14

Il.

(iii)

THIS COURT SHOULD DENY CERTIORARI ON

THE SUBPART 2 QUESTIONS PRESENTED . 15

This Court Should Deny Certiorari on Both Subpart

2 Questions, Because, Unlike the Main Issue, Those

Questions Are in an Interlocutory Posture. ..... 16

The Subpart 2 Merits Question Does Not Warrant

COIS 55 SG is ee ee 18

The Subpart 2 Ripeness/Finality Question Does Not

Weel CAPO in oa cca ys Sew teetedees 23

CONCEAL ATI oi ove vec vas een ceesiseceeeskreeens 30

(iv)

TABLE OF AUTHORITIES

Page

Cases:

Abbott Labs. v. Gardner,

ot eee perenne ere y spree 28

American Airlines, Inc. v. Herman,

176 F.3d 283 (Sth Cir. 1999) .................... 26

American Power & Light Co. v. SEC,

329 U.S. 90 (1946) ........ Fk & oak ai ie ges 12

AT&T Corp. v. Iowa Utils. Bd.,

ao kL) Pe ree eee Peres. 14

Bell v. New Jersey,

I I 6 5 5d 5. raat needa Bla eewan 28

Bennett v. Spear,

“sisi ince: Barsitcs ‘arsapint MRR Ee 25

Chevron U.S.A. Inc. v. NRDC,

re See PT EOE be oe heed whoa 1, 9, 14, 15, 24

Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp. Civil Aeronautics Bd.,

err ea ore Peer 25

Ciba-Geigy v. EPA,

Gul F.20 490 GC. Cr. 1966), 2. cic enc ccccn. 27

City of Kansas City v. Department of Housing

& Urban Dev.,

923 F.2d 188 (D.C. Cir. 1991)......... secs ioe 14

Dow Chem. v. EPA,

OSs F206 209 CCE. 1967)... . ccc cccce ess 26, 27

EPA v. National Crushed Stone Ass'n,

Pe Di ela il wemnenew aan’ 29, 30

FEA v. Algonquin SNG,

te er en ie 11

FTC v. Standard Oil Co.,

er SA RE 6 ea waa eee eee a Soe 26

Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co.,

ee es Pe eh eee 17

Harrison v. PPG Indus.,

GHEE PE ba Pipa aiaedstoudecvaseree 28

Her Majesty the Queen in Right of

Ontario v. U.S. E.P.A.,

912 F.2d 1525 (D.C. Cir. 1990) ..............0.5. 28

Hindes v. FDIC,

137 F.3d 148 (3d Cir. 1998) .................0.. 26

Industrial Union Dep't AFL-CIO v. :

American Petroleum Inst.,

ee re ree 12, 13, 15

Lead Indus. Ass'n v. EPA,

O07 Foe FIDO GG. Co. 1GSD) vi kk es i caves |

Loving v. United States,

TET Gee PI i hl a ee ks eens oe ie 11

Magnum Import Co. v. Coty,

eee US. 199 CREB) ww. ccs Pear eo 19, 26

Mistretta v. United States,

I NC kkk Sin on See See i ns Os 11, 12

Mobil Exploration & Producing U.S., Inc. v.

Department of Interior,

180 F.3d 1192 (10th Cir. 1999) .................. 26

Morales v. Trans World Airlines, Inc.,

De WR PINE ks bp kad eas ee ent fees 3, 20

Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co.,

SE NE non oa od AR ee 15

(vi)

National Cable Television Ass'n v. United States,

eR EEE den ck taces av Bvadeedeaededa 12

NRDC v. EPA,

me © oes tae OC. Ce, T9DE) own ccc eeee 28

Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic,

DP OE. GR GNP) oo ccc ce cabeenteaden 25, 27, 28

Ross v. Moffitt,

ee ED a do ad SA beens s mas buenas 19

Thomas v. Union Carbide Agric. Prods. Co.,

eh: PU oo sek cn na edd lew na ea ere 29

Statutes:

Clean Air Act § 107(d),

I OG eke ceed whe hi daeee Raia 4

Clean Air Act § 107(d)(1)(A),

SZUSC. § T4CHGMINA) ... 2... ceca. 21

Clean Air Act § 107(d)(1)(B)(i),

42 U.S.C. § PONE pai ar at ak dads Ee ae 22

Clean Air Act § 108(a)(2),

PEM PED ok eee sk oe ed hiked was 16 |

Clean Air Act § 109(a),

ies Sane ek ele woe bee 3

Clean Air Act § 109(b)(1),

ED ok ek esc anc cine ean 4,17

Clean Air Act § 109(b)(2),

a ame ps ae era 4

Clean Air Act § 109(d)(2),

ok Ae ee: ae are 4,17

Clean Air Act § 109(d)(2)(B),

42 U.S.C. § 7409(dK(2KB) .............0 2.22005. 16

Clean Air Act § 172(a),

4 se Pa eee aa ere 21

Clean Air Act § 172(a)(1),

Se PEE 6 oka VaseuedsNane a aes wl 4

Clean Air Act § 172(a)(1)(C),

RS SEB. © TOMEI) « 6 6 ee eae ck dees 21, 22

Clean Air Act § 172(a)(2),

ee I i's, Ks esa kw 4

Clean Air Act § 172(a)(2)(D),

gtk ee 0 rr re 21

Clean Air Act § 181(a)(1),

gk | omy) | ana 4,21, 22

Clean Air Act § 307(b),

ee ae ceo k ed cia ke newed anes dake 19

Clean Air Act § 307(b)(1),

i oy |, rane 26

Clean Air Act § 307(d)3),

ee ee PD on vec ues ewes ann es 17

Clean Air Act § 307(d)5),

Ae Sina PE 5 ina sv baie bee ee oe 17

Clean Air Act § 307(d)(6)(B),

GRUB STOP oon ce cet meescn cess 17

Pub. L. No. 105-178, § 6101,112 Stat. 465 (1998) .... 7,8

Miscellaneous:

MEPR AMO .. 2... sie sae a 27

G2 Pad. Bia FEATS CISNT) . ow ow nc ccc cess eegsd. 27

62 Fed. Reg. 38,652 (July 18, 1997) .............. 7,12

62 Fed. Reg. 38,856 (July 18, 1997) ......... 5, 6,24, 27

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

(viii)

63 Fed. Reg. 39,432 (July 22, 1998) ................ 27

64 Fed. Reg. 30,911 (June 9, 1999) ................. 27

64 Fed. Reg. 57,424 (Oct. 25, 1999) ............. 16, 27

Or ee oe re 19, 26

Robert L. Stern, et al., SUPREME COURT PRACTICE

Cl MN foe ea ee ss 17

INTRODUCTION

A properly reformulated version of the Government’s first

question is worthy o* this Court’s review for the reasons

summarized in Part I below and detailed in the conditional

cross-petition filed today by the American Trucking

Associations, Inc., the Chamber of Commerce of the United

States, and other “Small Business Petitioners” below

(collectively “ATA”). The court of appeals invalidated the

Environmental Protection Agency’s (“EPA’s” or “the

Agency’s”) interpretation ofits standard-setting authority under

the Clean Air Act (“CAA” or “the Act”), using the framework

provided by this Court’s decision in Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837 (1984). While the constitutionality of the

underlying statutory provisions vas never at issue, the court

deployed the nondelegation and constitutional avoidance

doctrines to invalidate EPA’s statutory interpretation and to

remand under Chevron. The court of appeals’ interpretation

was constrained by Lead Industries Ass’n v. EPA, 647 F.2d

1130 (D.C. Cir. 1980) (“Lead Industries”), a decision never

reviewed by this Court. ATA acquiesces in certiorari on a

question properly framed to include all of the interrelated issues

involving the interpretation of EPA’s standard-setting authority,

recognizing that the constitutional issues discussed below might

be avoided entirely if Lead Industries were held to be wrongly

decided.

The second and third questions presented by the Government

(as well as the similar questions presented by the American

Lung Association and State petitioners), concern entirely

separate provisions of the Act, and are patently unworthy of

certiorari. They involve Subpart 2 of the Act’s Title I, Part D,

which codifies a detailed schedule for gradual attainment of the

National Ambient Air Quality Standard (“NAAQS”) for ozone.

At issue is EPA’s decision to supplant Subpart 2 by requiring

the States to attain a revised ozone NAAQS on an accelerated

schedule that overrides the Subpart 2 schedule. The Agency’s

justification? That the specific classifications and attainment

dates set forth in Subpart 2 do not “restrict EPA’s general

2

authority under other provisions” to implement a revised ozone

NAAQS. Pet. (I) (emphasis added).

The court of appeals unanimously rejected EPA’s argument

and not a single judge voted to rehear the case on this issue.

The Government’s attempt to dress up its Subpart 2 point by

belatedly raising finality and ripeness arguments was also

unanimously rejected by all three panel members, and drew no

interest from the en banc court. As explained in Part II below,

the second and third questions do not warrant certiorari for at

least three separate reasons.

First, the court of appeals’ ruling on Subpart 2, unlike its

ruling on the main issue presented, is interlocutory. That is

because the court of appeals unanimously reversed EPA’s

ozone NAAQS on other grounds. Specifically, EPA argued

that it was barred by statute from considering record evidence

from officials of three separate federal agencies that reducing

ground-level ozone by the amounts predicted for EPA’s ozone

NAAQS could lead to thousands of additional skin cancer and

cataract cases every year. The unanimous court of appeals

made quick work of that argument, both in its initial decision

and in denying rehearing.

The Government does not seek certiorari on this issue and

indeed never even mentions that it must redo its ozone NAAQS

independently of the issues on which certiorari is being sought.

But that remarkable omission cannot disguise the fact that the

substantial new proceedings now required will take years to

complete. Specifically, the Agency must commence a new

rulemaking that will require, inter alia: (1) a revised scientific

review document; (2) additional review by the Clean Air

Scientific Advisory Committee (“CASAC”); and (3) a new

proposal and final rule that address the evidence, cited by the

court of appeals, that lowering the ozone NAAQS may have a

negative net health effect. Every aspect of the Subpart 2 issue

is on hold until these proceedings are completed. Only then

would any remaining questions about the implementation

schedule for a newly revised ozone NAAQS have to be revisited

3

by the court of appeals and, if necessary, this Court. See Part

II-A below.

Second, the Government’s merits argument concerning

Subpart 2 is entirely unconvincing, as the unanimous court of.

appeals decision demonstrates. It is a “commonplace of

statutory construction that the specific governs the general.”

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384

(1992). Tellingly, not one member of the D.C. Circuit accepted

EPA’s contention that the scheme for implementing NAAQS in

general trumped the specific provisions of Subpart 2 governing

implementation of the ozone NAAQS in particular. See Part

II-B below.’

Finally, there is simply no basis for the Government’s

argument that the court of appeals lacked jurisdiction to reach

the Subpart 2 issue. EPA never argued that the Subpart 2

ruling which it had made in the rulemaking below was not final

until after the panel unanimously ruled against the Agency.

Even EPA’s rehearing petition devoted only about one page to

arguing finality and ripeness — arguments that were unanimously

rejected. Even now, the Government relies only on easily

distinguishable cases that hold only that agency rulings

sometimes are not final where (unlike here) they were not

subject to formal notice and comment rulemakings, were not

published in the Federal Register, and were not expressly made

subject to prompt judicial review by statute. None of these

cases presents a circuit conflict with the decision below, nor can

the Government plausibly argue that the panel’s application of

settled finality and ripeness principles conflicts with any

decisions of this Court. See Part II-C below.

COUNTERSTATEMENT OF THE CASE

A. The Clean Air Act

Section 109 of the Act authorizes EPA to establish primary

and secondary NAAQS for certain pollutants and to reconsider

and, if necessary, amend those standards every five years. CAA

§ 109(a), 42 U.S.C. § 7409(a). In general, NAAQS enactment

4

and enforcement entails three steps: promulgation,

designation/classification, and then implementation through

State Implementation Plans (“SIPs”). Primary NAAQS are

promulgated at levels “requisite to protect the public health”

with “an adequate margin of safety.”” CAA § 109(b)(1),

42 U.S.C. § 7409(b)(1). Secondary NAAQS are to be set at

levels “requisite to protect the public welfare.” CAA

§ 109(b)<2), 42 U.S.C. § 7409(b)(2).

Following the promulgation of a NAAQS, EPA must

designate each air quality area as an attainment, nonattainment,

or unclassifiable area. See CAA § 107(d), 42 U.S.C. § 7407(d).

The Agency then classifies each such area based on “factors

such as the severity of nonattainment in such area,” and assigns

an attainment date based on that classification. See CAA

§ 172(a)(1), (2), 42 U.S.C. § 7502(a)(1), (2) (“Subpart 1”).

As part of its 1990 amendments to the Act, Congress

provided a “comprehensive plan for reducing ozone levels

throughout the country.” App. 33a. Each area is assigned a

statutory classification based on the extent of its noncompliance

with the existing ozone NAAQS, as well as a specific attainment

date based on that classification. See CAA § 181(a)(1), 42

U.S.C. § 7511(aX(1) (“Subpart 2”). Congress enacted this

regime to “strip[] the EPA of discretion to decide which ozone

nonattainment areas should receive more time to reach

attainment... .” App. 40a.

B. The EPA Rulemakings

Following the 1990 amendments, EPA initiated two

rulemakings in 1996 to revise the NAAQS for ozone and

particulate matter.

1. The Ozone Rulemaking

EPA’s Clean Air Scientific Advisory Committee (“CASAC”)

is an independent scientific review committee that EPA must

consult regarding NAAQS revisions. See CAA § 109(d){2), 42

U.S.C. § 7409(d)(2). In the ozone rulemaking, CASAC advised

_ the Agency that “there is n> ‘bright line’ which distinguishes

any of the proposed standards . . . as being significantly more

protective of public health.” J.A. (Ozone) at 239. EPA

nonetheless replaced the existing 0.12 ppm one-hour ozone

NAAQS with a 0.08 ppm eight-hour standard based on a

“policy” judgment that the latter standard is “sufficient[]” in

light of “hazards that research has not yet identified” and

“uncertainties associated with inconclusive scientific and

technical information.” 62 Fed. Reg. 38,856, 38,857, 38,863,

38,867 (July 18, 1997). In so doing, EPA asserted the right to

render decisions that follow “no generalized paradigm,” that

“may not be amenable to quantification in terms of what risk is

‘acceptable’ or any other metric,” and that are “largely

judgmental in nature.” /d. at 38,883 (emphasis added).

The Agency also ruled out any consideration of the health

tradeoffs (for example, the prospect that reducing ground-level

ozone could increase cancer levels) or the economic costs of its

proposed rule. Commenters had submitted evidence that the

health disbenefits of reducing ground-level ozone to the degree

that EPA proposed could more than offset any benefits from

increased respiratory protection. In particular, a study by the

United States Department of Energy documented that, while the

new ozone standard would cause some reduction in respiratory

ailments, it would also increase the incidence of skin cancer,

melanoma, and cataracts by permitting more ultraviolet

radiation to reach ground level. J.A. (Ozone) at 255-71. A

further study by Office of Management and Budget staff

members concluded that the “adverse health effects of . . .

EPA’s more stringent [ozone] NAAQS may be similar in

magnitude to the respiratory-related beneficial effects of such an

[ozone] reduction,” and a study by EPA personnel produced

comparable results. See id. at 2764, 3089. Nonetheless, the

Agency claimed that taking account of all health effects would

be “inconsistent with the Clean Air Act and ill advised from an

environmental management policy perspective.” Jd. at 210.

6

EPA also refused to consider the economic costs of its

proposed standard on the ground that Lead Industries and

subsequent D.C. Circuit decisions “interpreted section 109 of

the Act as precluding consideration of the economic costs or

feasibility of NAAQS in setting them.” 62 Fed. Reg. at 38,878.

The Agency acknowledged, however, that the costs of attaining |

the revised ozone NAAQS would greatly exceed the resulting |

benefits, perhaps by as much as six times. See J.A. (Ozone) at

2919, 2924, 2932-34 (costs could exceed $9 billion; benefits

could be as low as $1.5 billion).

EPA also rejected the contention, made by many

commenters, that it lacked authority to revise the ozone

NAAQS. Those commenters relied on Subpart 2 of the 1990

amendments, which requires EPA to classify each

nonattainment area into one of five specific categories, and does

not provide a category for areas with ozone levels lower than

0.12 ppm (the level of the existing ozone NAAQS). EPA

responded that because Subpart 2 “simply govern[s] the

implementation of the [existing ozone] standard,” the Agency

is free to revise the ozone NAAQS and then ignore Subpart 2

altogether. See 62 Fed. Reg. at 38,885.

2. The PM Rulemaking

The PM rulemaking consisted of essentially two rulemakings:

one rulemaking on fine PM (“PM,,”), and one rulemaking on

coarse PM (“PM,,”). Since 1988, EPA had regulated all

particles with diameters less than 10 micrometers under a single

standard. See App. 49a. In the rulemaking below, however,

EPA determined that “coarse and fine particles pose

independent and distinct threats to public health,” and that

separate standards should be established. See id.

Although EPA concluded that the PM standards should be

strengthened, CASAC expressed skepticism that this was

necessary. In particular, nearly half of CASAC’s members

concluded that the PM standard should not be tightened at all,

and many of the remaining panelists agreed that EPA’s

ee eT SHR ME Dre an nT MET

7

proposed standard was too strict. See J.A. (PM) at 3151, 3165-

66. These CASAC panelists explained that EPA had

“overstated” the claimed health benefits of its proposal, in part

because pollutants other than PM might be responsible for the

effects that EPA attributed to PM. See id.

In response, EPA acknowledged the great “uncertainty in the

characterization of health effects attributable to exposure to

ambient PM.” 62 Fed. Reg. 38,652, 38,655 (July 18, 1997).

As it had in the ozone rulemaking, however, EPA asserted the

right to promulgate the revised standard based on an ad hoc

analysis that recognizes “no generalized paradigm,” that “may

not be amenable to quantification in terms of what risk is

‘acceptable’ or any other metric,” and that is “largely

judgmental in nature.” Jd. at 38,688.

EPA also acknowledged that compliance with its revised PM

NAAQS would cost at least $37 billion annually, J.A. (PM) at

3477, making this the most expensive environmental program

ever. By EPA’s own estimate, the costs of even partial

compliance would greatly exceed the total annual sales of small

businesses in several sectors, and therefore drive such

companies out of business altogether. /d. at 3611-12, 3628. As

it had in the ozone rulemaking, however, EPA publicly stated

that it would not consider these extraordinarily high costs. 62

Fed. Reg. at 38,683.

C. The Congressional Response

Congress responded by postponing the implementation of the

revised ozone and PM standards, and thus providing time for

pre-implementation judicial review. See Pub. L. No. 105-178,

§§ 6101-03, 112 Stat. 107 (1998). In particular, Congress

delayed implementation of the PM NAAQS until such a time as

PM, , monitors are put in place and three years’ worth of data

have been gathered. See id § 6102. It also pushed back

implementation of the ozone NAAQS by one year. See id.

§ 6103(a). Congress emphasized that “[nJothing” in its action

8

“shall be construed . . . to be a ratification of the ozone or [PM]

standards.” Jd. § 6104.

D. The Court of Appeals Proceedings

1. Panel Proceedings

Before the court of appeals, EPA continued to assert that

“nothing in the statute requires [the Administrator] to make any

specific ‘findings’ or to structure her decisionmaking in any

particular way.” EPA Ozone Br. at 43 (emphasis added). The

D.C. Circuit disagreed. In particular, the court held that

Section 109 must be construed to provide an “intelligible

principle” that guides the exercise of agency discretion. See

App. 5a. The court of appeals accordingly “remand[ed] the

cases for EPA to develop a construction of the act that satisfies

this constitutional requirement,” and, “if appropriate, modify the

disputed NAAQS.” Jd. 4a, Sa. Judge Tatel dissented on this

point. See id. at 59a.

The D.C. Circuit also unanimously remanded for entirely

separate reasons. In the coarse particulate case, the court held

that EPA erred in adopting an “arbitrary indicator for coarse

particle pollution.” /d. at 53a. As for ozone, the court rejected,

both as contrary to the plain language of the Act and as

unreasonable, EPA’s “bizarre” contention “that a statute

intended to improve human health would . . . lock the agency

into looking at only one half of a substance’s health effects in

determining the maximum level for that substance.” App. 47a.

Finally, while the court of appeals unanimously accepted

EPA’s contention that, notwithstanding the detailed provisions

of Subpart 2, the Agency may still revise the ozone NAAQS,

see App. 31a-43a, it unanimously rejected EPA’s contention

that “Subpart 2 specifically provides classifications and

attainment dates only for nonattainment designations under the

[existing] ozone NAAQS.” /d. at 37a. The plain language and

drafting history of Subpart 2 confirm that the subpart applies to

all ozone NAAQS, including revised NAAQS. See id. at 38a-

39a. Because Congress’ detailed handiwork was “purposeful

9

and not the drafting error that EPA’s interpretation implies,”

“EPA is precluded from enforcing a revised primary ozone

NAAQS other than in accordance with .. . Subpart 2.” /d. at

34a.

2. Rehearing Proceedings

In a petition for rehearing, EPA’s lawyers argued that the

Agency had followed a constitutional interpretation of the Act

in the underlying rulemakings. The panel majority rejected that

contention, and explained that “the agency previously put

forward neither the assertedly intelligible principle its counsel

now claim to find in the statute nor the corollaries its counsel

now implicitly derive therefrom.” App. 73a. Accordingly, the

court “express[ed] no opinion” on these post hoc

rationalizations. See id. at 74a. The panel majority went on to

emphasize that, when read in light of its context and purpose,

‘ the Act could be interpreted to provide a constitutionally

sufficient “intelligible principle.” App. 75a. Because the Act is

ambiguous as to what that principle is, however, the court held

that the appropriate remedy is a remand to the agency for

development of a constitutional construction. /d. at 76a (citing

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

EPA’s rehearing petition also argued, for the first time, that

the panel lacked jurisdiction to reach the Subpart 2 issue

because the Agency “has taken no final action implementing the

revised NAAQS.” App. 77a. All three judges rejected that

contention. /d at 79a. The court explained that “[w]hether

agency action is final for purposes of [judicial review] entails a

functional, not a formal, inquiry.” /d. at 77a. Here, EPA had

expressed its definitive position on the implementation issue,

which is “a pure question of law, the resolution of which would

not benefit from a more concrete setting.” Jd at 77a-79a. In

addition, EPA’s promulgation of the revised NAAQS

“triggered” certain statutory provisions that “impose a number

of requirements upon the states.” /d. at 78a.

4

10

On the merits, EPA continued to press its contention that

Subpart 2 amounts to a massive scrivener’s error. See App.

79a. All three members of the panel again rejected that

contention, and noted that “all five Subparts of the Clean Air

Act providing requirements for nonattainment areas” contain

the same language. See id. The en banc court unanimously

denied rehearing on the Subpart 2 issue.

Two opinions dissenting from the denial of rehearing en banc

addressed the main statutory interpretation questions. See App.

92a. Judge Silberman’s dissent disagreed with the panel

majority’s use of the nondelegation doctrine. But he went on

to emphasize that he was “quite uncertain” whether EPA’s

analysis satisfied the demands of “arbitrary and capricious”

review. See id. at 96a. Judge Tatel also dissented from denial

of rehearing and focused on use of the non-delegation canon.

His opinion was joined by Chief Judge Edwards and Judge

Garland. See id. at 97a.

REASONS FOR GRANTING THE PETITION IN PART

AND DENYING THE PETITION IN PART

L_ THE COURT SHOULD GRANT CERTIORARI BOTH

ON THE GOVERNMENT’S FIRST QUESTION AS

REFORMULATED TO REFLECT THE COURT OF

APPEALS’ ACTUAL HOLDING AND ON ATA’S

CONDITIONAL CROSS-PETITION.

ATA submits that the court of appeals was certainly correct

when it invalidated EPA’s standardless interpretation of

Sections 108 and 109, but also that the proper interpretation of

these provisions is so exceptionally important that certiorari is

warranted on that issue. In rejecting EPA’s interpretation under

Chevron, the panel majority faithfully followed this Court’s

precedents holding that constitutional avoidance and

nondelegation principles retain vitality as construction canons.

While the court was right to condemn EPA’s assertion of

unbridled and ad hoc policymaking authority, ATA submits that

all sides would benefit from this Court’s authoritative

11

construction of the Act for the reasons set forth in ATA’s

conditional cross-petition.

A. The Court of Appeals Correctly Employed

Constitutional Avoidance and Nondelegation

Principles to Invalidate EPA’s Standardless

Statutory Interpretation.

The Government bases its unusually strong condemnation of

the court of appeals’ decision on a red herring. The court of

appeals did not hold Section 109 unconstitutional, much less

mark out a “radical departure from settled law.” Pet. 9.

Instead, the D.C. Circuit merely (1) applied the traditional rule

that agencies must construe their authorizing statutes to provide

some “intelligible principle” to confine agency discretion and

guide judicial review; and, finding that EPA failed to follow

such an interpretation, (2) “remand[ed] the cases for EPA to

develop a construction of the act that satisfies this constitutional

requirement.” App. 4a, 5a.

It is therefore common ground that “‘in our increasingly

complex society . . ., Congress simply cannot do its job absent

an ability to delegate power under broad general directives.”

Pet. 16 (quoting Mistretta v. United States, 488 U.S. 361, 372

(1989)). There is also no dispute that while “the doctrine of

unconstitutional delegation is_. . a fundamental element of our

constitutional system,” it is not “readily enforceable by the

courts” in the manner of other constitutional guarantees.

Mistretta, 488 U.S. at 415 (Scalia, J., dissenting).

Confronted by these exigencies, the Court has responded, not

by abandoning this “fundamental element” of the Constitution,

but by transforming the nondelegation doctrine into a canon of

construction. In particular, this Court has consistently held that

Congress may delegate policymaking discretion to agencies if

it provides an “intelligible principle” to guide the exercise of

that discretion. See, e.g., Loving v. United States, 517 U.S.

748, 771 (1996); Mistretta, 488 U.S. at 372; FEA v. Algonquin

SNG, 426.U.S. 548, 559 (1976). And, consistent with the

12

doctrine of constitutional avoidance, this Court has wielded this

rule to construe statutes narrowly in order to supply the

requisite “intelligible principle.” See, e.g., Industrial Union

Dep’t AFL-CIO v. American Petroleum Inst., 448 U.S. 607,

686 (1980) (plurality opinion) (“Benzene”); National Cable

Television Ass'n v. United States, 415 U.S. 336, 342 (1974).

Accordingly, while consistently rejecting claims that statutes

should be struck down under the non-delegation doctrine, this

Court has never waivered in “giving narrow constructions to

statutory delegations that might otherwise be thought to be

unconstitutional.” Mistretta, 488 U.S. at 374 n.7 (emphasis

added).

The court of appeals’ deployment of these well-established

construction canons hardly constitutes a “striking departure

from this Court’s nondelegation jurisprudence.” Pet. 11.

Rather, the “striking” fact about this case is that an agency of

the federal government would assert and then defend up to the

Supreme Court a supposed right to allocate tens of billions of

dollars of public and private resources through decisions that

follow “no generalized paradigm,” that “may not be amenable

to quantification in terms of what risk is ‘acceptable’ or any

other metric,” and that are “largely judgmental in nature.” 62

Fed. Reg. at 38,688 (emphasis added).

Nor is there truth in the various other hyperbolic accusations

hurled by the Government. Far from “overlooking this Court’s

instruction that the starting point for analysis of a nondelegation

claim should be the statute’s language, purpose, history, and

context,” see Pet. 12 (citing American Power & Light Co. v.

SEC, 329 U.S. 90, 104 (1946)), the court of appeals expressly

complied with that instruction, instructed the Agency to follow

it, and quoted American Power & Light for that very

proposition. See App. 75a. Nor did the court “expressly

reject[] EPA’s view that the relevant provisions of the CAA...

set out intelligible principles.” Pet. 7-8 (mischievously citing the

entirety of the rehearing opinion below). Instead, the court

proposed such a principle itself, noted that EPA “may well find

13

a completely different method for securing reasonable

coherence” on remand, and went out of its way to “express no

opinion” on the sufficiency of a principle proposed for the first

time by EPA’s appellate counsel on rehearing. See App. 18a,

74a. And finally, far from holding that “the nondelegation

doctrine requires . . . a quantitative rule for deciding the precise

degree of protection required for a given health or safety

standard,” Pet. 17; see also id. (court requires “exactly the

‘right’ result”), the panel made clear that EPA would retain

authority to exercise “‘policy judgment,” and noted that it had

previously upheld on nondelegation grounds an agency

interpretation that allowed standards to be set “somewhere

between” a given level and “some ‘moderate’ departure from

that level.” See App. 12a-13a.

As the court of appeals patiently explained, constitutional

issues are lurking in this case only because the Agency’s

“construction” of its governing statute amounts to no

construction at all. Specifically, the interpretation fails to

“speak to” the critical question presented by the statute — the

“issue of degree”— and thus leaves the agency “free to pick any

point” it chooses. See App. 5a, 7a, 13a. Moreover, the

inherent vice of EPA’s interpretation is further worsened by the

context in which it was issued — promulgation of the most

expensive environmental program ever. In view of “the

unprecedented power over American Industry that would result

from the Government’s view,” a construction that “avoids this

kind of open-ended grant should certainly be favored.” See

Benzene, 448 U.S. at 645, 646 (plurality opinion).

In the end, the Government is left with the surprising

accusation that, by remanding to EPA so that the Agency itself

can adopt a more constrained view of its authority, the court of

appeals undertook a “fundamental change in the nature of

judicial review of agency standard-setting” that would “expand

the role of courts” and lead to “otherwise unwarranted judicial

supervision in the exercise of administrative discretion.” See

Pet. 9, 16-17.

14

Once again, this is mere hyperbole. On its own terms, the

court of appeals simply made the inevitable reconciliation

between use of the modern nondelegation doctrine as a tool of

interpretation, on the one hand, and the deference accorded

under Chevron to agencies’ interpretations of their governing

statutes, on the other. As the court of appeals explained, “just

as we must defer to an agency’s reasonable interpretation of an

ambiguous statutory term, we must defer to an agency’s

reasonable interpretation of a statute containing only an

ambiguous principle by which to guide its exercise of delegated

authority.” App. 76a (citing Chevron). In this regard, the

remedy selected below is functionally indistinguishable from the

work-a-day remands courts issue every time they invalidate an

unreasonable agency interpretation under Chevron. See, e.g.,

AT&T Corp. v. Iowa Utils. Bd., 119 S. Ct. 721, 738 (1999);

City of Kansas City v. Department of Housing & Urban Dev.,

923 F.2d 188, 191 (D.C. Cir. 1991).

B. This Court Should Grant Certiorari on a Property-

Formulated Question That Encompasses the

Statutory Interpretation Issues Covered in ATA’s

Conditional Cross-Petition.

The Government now concedes that EPA must develop a

new interpretation of Sections 108 and 109 — at least to the

extent necessary for it to consider the health “disbenefits” of

lowering ground-level ozone levels. ATA agrees that EPA

would benefit from this Court’s plenary construction of these

same sections, including whether the court of appeals was ._

correct that EPA must ignore all factors “other than ‘health

effects relating to pollutants in the air’” in setting NAAQS.

App. 15a; see ATA Cross-Petition. Review by the Court at this

stage would increase the likelihood that EPA’s next NAAQS

rulemaking will be more successful than its last. Cf Pet. 19

(“This Court should grant review . . . before EPA and other

agencies refocus the[ir] analyses”).

As drafted by the Government, however, the first question

contains two significant flaws. First, it is somewhat misleading,

15

as it emphasizes the issue of whether Section 109 is

unconstitutional (which it undisputedly is not), and downplays

the real issue in this case: whether EPA used a standardless

interpretation when issuing its ozone and PM NAAQS.

Accordingly, the question presented should be reformulated to

reflect accurately the holding of the court of appeals, and thus

the issue before this Court, to wit: whether the court of appeals

correctly rejected EPA’s standardless interpretation, and

remanded under Chevron for the Agency to fashion and apply

a proper interpretation.

Second, the Government’s question fails expressly to mention

the court of appeals’ interrelated and imbedded ruling that EPA

may not consider “any factor other than ‘health effects relating

to pollutants in the air’” in setting a NAAQS. App. 15a. The

court below recognized that this ruling would constrain the

Agency’s ability to develop an “intelligible principle” on

remand, but felt it was precluded by circuit precedent from

ruling otherwise. See id. at 18a. In order to ensure that this

Court is not encumbered by arguments contending that it is

jurisdictionally barred from issuing a comprehensive

interpretation of the relevant provisions, and also to ensure that

EPA receives the full and final guidance that it has requested,

the Court should grant, or at least hold in abeyance, ATA’s

conditional cross-petition.

I. THIS COURT SHOULD DENY CERTIORARI ON

THE SUBPART 2 QUESTIONS PRESENTED.

If it had properly formulated and presented its first question

alone, EPA would have brought before the Court what is likely

the most significant administrative law case since the 1980s

trilogy of Benzene, Chevron, and Motor Vehicle Manufacturers

Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29

(1983). But instead, EPA has sought to piggy back onto that

single cert-worthy question, two additional questions that do

not deserve the Court’s attention. Those two additional

questions, both entirely unrelated to the main question

presented, are (1) whether the court of appeals erred in

16

unanimously concluding that EPA’s rulings on the Act’s

Subpart 2 are final and ripe for review; and (2) whether the

court erred in unanimously rejecting EPA’s contention that

Subpart 2 could be effectively nullified. Taking those two

unworthy questions would needlessly complicate what already

promises to be an unusually complex case with numerous parties

and the intersection of statutory construction, constitutional,

and administrative law issues. As demonstrated below, neither

question is remotely worthy of certiorari.

A. This Court Should Deny Certiorari on Both

Subpart 2 Questions, Because, Unlike the Main

Issue, Those Questions Are in an Interlocutory

Posture.

Resolution of the second and third questions presented by

EPA would have no practical effect at this time. Those issues

-address the question whether EPA may implement and enforce

a revised ozone NAAQS outside of the framework provided by

Subpart 2. They do not address — indeed they are entirely

separate from — the question of the statutory standards and

record that govern EPA’s promulgation of a revised ozone

NAAQS. Accordingly, any ruling by this Court on the second

and third questions presented would not take effect until EPA

promulgates a revised ozone NAAQS on remand — a point that

EPA itself has underscored by suspending its implementation

activities following the D.C. Circuit’s invalidation of the revised

ozone NAAQS. See 64 Fed. Reg. 57,424, 57,425 (Oct. 25,

1999).

How far off is a conclusion to any ozone remand proceedings

and the first practical effects of the appellate court’s Subpart 2

decision? First, EPA must revise its Section 108 criteria

document for ozone, which will entail scientific review of not

only ozone’s heretofore ignored “positive effects,” but also of

the rest of “the latest scientific knowledge” relevant to ozone’s

effects on human health and welfare. CAA § 108(a)(2),

42 U.S.C. § 7408(a)(2). Second, CASAC must review that

revised criteria document. CAA § 109(d)(2)(B), 42 U.S.C.

17

§ 7409(d)(2)(B). Third, EPA must draft a revised ozone

NAAQS based in part on the revised criteria document and

CASAC’s review. See CAA § 10%b\1), 42 US.C.

§ 7409(b)(1). Fourth, EPA must provide CASAC sufficient

time to review its new proposal. See CAA § 109(d)2),

42 U.S.C. § 7409(d)\(2)(B). Fifth, EPA must issue a notice of

proposed rulemaking that explains any differences between its

proposed rule and CASAC’s recommendations. See CAA

§ 307(d)(3), 42 U.S.C. § 7607(d)\(3). Sixth, EPA must permit -

time for meaningful comment, and respond to all significant

comments. See CAA §§ 307(d)\(5), (6B), 42 U.S.C.

§§ 7607(d)(5), (6B).

All by itself, the three to five years that likely will be required

to complete these steps is sufficient to warrant denial of

certiorari on both Subpart 2 questions. “[E]xcept in

extraordinary cases, the writ [of certiorari] is not issued until

final decree.” Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251, 258 (1916). Ironically, EPA’s petition only

underscores this dispositive point. By principally contending

that the D.C. Circuit erred on finality/ripeness grounds, EPA

would place the proper time for review even farther out into the

future.

To be sure, EPA must hope that its unworthy Subpart 2

issues can be smuggled into this Court under cover of the

entirely separate first question presented. But the logic of

ATA’s acquiescence to certiorari on the main issue does not

carry over to the Subpart 2 issues. On the main question, there

is substantial disagreement within the D.C. Circuit, the nation’s

busiest administrative law court, concerning the interrelated

Statutory construction, constitutional, and administrative law

issues presented here. Even if presented in an interlocutory

posture (which it is not), that question — as opposed to

unanimous rulings on non-recurring issues — is the type of

question on which the Court might properly grant certiorari.

Cf. Robert L. Stern, et al., SUPREME COURT PRACTICE § 4.18

at 196 (7th ed. 1993) (interlocutory certiorari may be granted

18

“where . . . there is some important and clear-cut issue of law

that is fundamental to the further conduct of the case”).

But more importantly, the main question, unlike the Subpart

2 questions, is mot in an interlocutory posture. EPA’s

regulations for fine particulate matter — the costliest part of the

combined rulemakings with a minimum price tag of $37 billion

per year — were invalidated based only on the court’s rejection

of EPA’s standardless interpretation of the Act. If that

invalidation is overturned, the fine PM rules would spring

immediately back to life. By contrast, the Subpart 2

implementation issues are of no practical moment until EPA has

completed the lengthy, multi-year remand proceedings

independently required for ozone. Accordingly, even if the

Subpart 2 issues otherwise warranted review (which they do

not, see Sections B and C below), both the court of appeals and

this Court will have ample time to provide that review years

hence, once a valid ozone NAAQS has been promulgated. Until

then, certiorari should be denied.

B. The Subpart 2 Merits Question Does Not Warrant

Under the traditional test for certiorari, the Subpart 2 merits

issue may be one of the most unlikely candidates for review that

this Court ever encounters in a government petition. Put aside

the absence of dissents on this issue below, at either the panel or

the en banc stage. The truth remains that the court’s Subpart

2 ruling affects the interpretation of only one statute, can never

give rise to a svlit among the circuits, and will not have any

practical effect for years to come. As demonstrated below,

those facts, coupled with an ever-changing EPA position on the

issue and a decision below that is unassailable on its merits,

make this issue a most unlikely candidate for certiorari.

1. The Subpart 2 Merits Question Fails to Satisfy the

Criteria for Certiorari. The Subpart 2 issue involves “EPA’s

authority to implement and enforce [a] revised ozone NAAQS.”

Pet. 19-20. But the essential precondition to implementing or

19

enforcing a “revised” ozone NAAQS is, of course, the valid

promulgation of a revised ozone NAAQS. Until that occurs,

questions of enforcement and implementation cannot , ossibly

arise.

In the meantime, there is no chance that the D.C. Circuit’s

decision will have ripple effects. Only the D.C. Circuit reviews

NAAQS revisions, CAA § 307(b), 42 U.S.C. § 7607(b), so

there is no potential for an inconsistency to develop among the

circuits. Nor did the D.C. Circuit misstate or improperly invoke

the rule of Chevron, the governing legal principle here. Sup. Ct.

R. 10 (“A petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.”); cf Ross v.

Moffitt, 417 U.S. 600, 617 (1974) (“perceived correctness” is

not a primary factor in granting certiorari), Magnum Import

Co. v. Coty, 262 U.S. 159, 163 (1923) (Supreme Court does

not sit as court of error).

For their part, the state petitioners claim that review is

needed to dispel the “enormous uncertainty for the states as

regulators.” See Pet. of Mass. and N.J. 29. But any

“uncertainty” that might once have existed has now been

dispelled by the passage of the deadline for challenging the

ruling invalidating the ozone NAAQS for EPA’s failure to

epnsider health “disbenefits.” All States now know or should

know that the 0.12 ppm one-hour ozone NAAQS, implemented

and enforced via the congressionally-enacted regime of the

Act’s Subpart 2, is the only enforceable ozone NAAQS for the

foreseeable future. True enough, there may be time lags

involved as EPA reshapes its regulations to conform to this legal

reality. See id at 26-27 (describing such problems). But that

is always the case when agency actions are reversed and new

proceedings must be commenced.

Moreover, notwithstanding its claim to deference, see

Pet. 25, 28-29, EPA now asserts that it has yet to complete its

“full thinking” on this issue. /d at 24; see also id. at 10

(Agency still needs time “to develop fully its interpretation”).

20

This is an EPA assertion that rings true. Before the appellate

panel, EPA argued that Congress had committed a particular

scrivener’s error. See App. 42a (EPA argues “section 107(d)”

actually means “section 107(d)(4)”). Before the en banc court

it argued for a different scrivener’s error. See id. at 42a (EPA

argues “section 107(d)” actually means “section 107(d){1)(C)

and section 107(d)(4)”). In this Court, EPA has now put

claimed scrivening errors aside in favor of arguing about the

statutory “context[s].” Pet. 28 n.16; see pp. 22, below. There

should accordingly be an extraordinarily strong, conclusive

presumption against review here, where EPA continues to

change legal theories and the court of appeals has expressly left

open the door to further proceedings once EPA promulgates a

new rule (and identifies a coherent statutory interpretation)

years out into the future. See App. 81a.

2. The D.C. Circuit Correctly Decided the Subpart 2 Merits

Question. The Subpart 2 legal issue no doubt appears complex

to the uninitiated. It involves EPA’s authority to promulgate a

revised ozone NAAQS, and then designate, classify, and set

attainment dates for areas based on that revised NAAQS. In

this Court, however, EPA seeks certiorari on a very narrow,

easily-answered issue: whether the specific classifications and

attainment dates set forth in Subpart 2 of the Act for the ozone

NAAQS “restrict EPA’s general authority under other

provisions” to implement a revised ozone NAAQS. Pet. (I)

(emphasis added).

EPA’s question answers itself, for “it is a commonplace of

statutory construction that the specific governs the general.”

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384

(1992). Moreover, EPA’s theory, as the court of appeals

unanimously recognized, would have rendered Subpart 2

“stillborn had the EPA revised the ozone NAAQS immediately

after the Congress enacted the 1990 amendments,” and then

proceeded to implement the revised NAAQS outside of the

Subpart 2 framework. App. 42a. As the court of appeals held,

21

EPA cannot so easily eviscerate the “comprehensive

enforcement scheme enacted in Subpart 2.” /d. at 41a.

EPA correctly acknowledges that this issue turns on “the

interplay among Section 107(d), Section 172, Section 181, and

other relevant provisions” of the Act. See Pet. 24. Section

107(d) requires that “upon promulgation or revision” of a

NAAQS, “the Administrator shall promulgate the designation

of all areas” as “attainment,” “nonattainment,” or

“unclassifiable.” CAA § 107(d)(1)(A), 42 USC.

§ 7407(d)(1){A). As a general matter, Section 172 of Subpart

1 of the Act grants EPA authority to give classifications to those

areas that it has designated as being in nonattainment, and to set

attainment dates for those areas based on their classifications.

See CAA § 172(a), 42 U.S.C. § 7502(a). By Section 172’s own

terms, however, that authority “shall not apply with respect to

nonattainment areas for which classifications are specifically

provided under other provisions of this part,” or “with respect

to areas for which attainment dates are specifically provided

under other provisions of this part.” CAA §§ 172(aX(1)(C),

(2D), 42 U.S.C. §§ 7502(aX1\(C), (2D).

In the case of the ozone NAAQS, Section 181 of Subpart 2

provides that “[e]ach area designated nonattainment for ozone

pursuant to section 7407(d) of this title [CAA § 107(d)] shall

be classified at the time of such designation, under table 1, by

operation of law, as a Marginal Area, a Moderate Area, a

Serious Area, a Severe Area, or an Extreme Area based on the

design value for the area.” CAA § 181(a)(1), 42 U.S.C.

§ 7511(aX1) (emphasis added). Table 1 then provides

classifications and attainment dates based on a region’s design

value (a measure of its ozone level). See id.

As the court of appeals explained, these provisions

unambiguously refute EPA’s contention that it can ignore

Subpart 2 by “establish[ing] classifications and attainment dates °

and tak[{ing] other implementing actions for the revised ozone

NAAQS under Subpart 1.” Pet. 27. In particular, Section

181(a) states that it applies to “[e]ach area designated

22

nonattainment for ozone pursuant to section 7407(d) [CAA

section 107(d)|’; and Section 107(d), in turn, governs the

“promulgation or vevision of a national ambient air quality

standard.” See CAA § 181(a)X(1), 42 U.S.C. § 7511(a)(1)

(emphasis added); CAA § 107(d\1)BXi), 42 U.S.C.

§ 7407(d)1)(B)(i) (emphasis added). Subpart 2 thus applies by

the plain terms of Sections 107(d) and 181(a){1) to any “ozone”

NAAQS, including a revised ozone NAAQS.

EPA thus finds itself with no rejoinder for the argument that

“Congress has spoken to the precise question at issue” and

resolved it adverse to EPA. See App. 38a (citation and internal

quotation marks omitted). The argument EPA tried below, that

section 172 provides authority to enforce a revised NAAQS

entirely apart from section 181(a) and the rest of Subpart 2, see

EPA Ozone Br. at 67, is of no help, for that section emphasizes

that it “shall not apply with respect to nonattainment areas for

which classifications are specifically provided under other

provisions of this part.” CAA § 172(aX{1X(C), 42 U.S.C.

§ 7502(aX(1)(C).

In the court of appeals, EPA also argued that Section

181(a)(1)’s reference to the entirety of “Section 107(d)” is a

scrivener’s error, and that Subpart 2 should instead be read to

apply only to designations made under particular parts of

Section 107(d). See, e.g., App. 79a. But as the D.C. Circuit

explained, there is no basis for deeming the plain language of

Section 181(aX(1) the “drafting error that the EPA’s

interpretation implies.” /d. at 39a. In fact, “all five Subparts of

the Clean Air Act providing requirements for nonattainment

areas begin with a reference to § 107(d)” in its entirety. /d at

79a. EPA’s “interpretation” thus posits not an isolated

scrivening error, but a total scrivening breakdown.

Although derided by EPA as “highly technical,” App. 28

n.16, the appellate court’s analysis is a conventional,

straightforward, statutory interpretation under the first prong of

Chevron. EPA now downplays all of this evidence in an

extended footnote that argues in favor of a fuzzy, multi-factor

23

analysis conducted under the rubric of “context.” But that

analysis identifies factors that might be relevant, at most, to

resolving an ambiguity. See Pet. 28 n.16. Such considerations

certainly cannot be used to create an ambiguity in the first place.

See App. 43a. Moreover, if any ambiguity did exist, it would

undoubtedly be resolved to EPA’s disadvantage based on the

persuasive evidence that Congress specifically considered and

rejected bills that would have expressly limited Subpart 2’s

reach in just the manner EPA claims the enacted statute does.

See App. 39a (discussing the drafting history of the 1990

amendments).

Whatever interpretation EPA may devise after taking “full

opportunity” for further reflection, Pet. 21, the fact will remain

that Congress replaced the pre-1990 discretionary regime of

EPA ozone enforcement with a more stable, democratically-

legitimate regime of congressionally-mandated controls. EPA

may ask Congress to amend the Act, but it is not free to repeal

Subpart 2, either by deeming it a “drafting error,” or by

invoking some insubstantial notion of “context.” See App. 39a.

C. The Subpart 2 Ripeness/Finality Question Does Not

Warrant Certiorari.

The remaining question EPA presents is largely contrived.

EPA never argued that its Subpart 2 ruling was not final until

after the panel had decided this issue against it. See App. 77a.

Nor did the Agency devote more than a sentence of its court of

appeals brief to its half-hearted ripeness challenge. See id. at

79a. Not surprisingly, the panel on rehearing summarily and

unanimously rejected EPA’s newfound position, App. 77a-79a,

and not a single member of the en banc court disagreed.

1. The Subpart 2 Implementation Issues Were Included

Within Other Unquestionably Final and Ripe Claims. EPA

now complains loudly that the court below should have

determined only whether Section 181 of Subpart 2 “precluded

EPA from promulgating the revised standard,” without ever

addressing whether that section governed “how EPA could

24

implement the revised NAAQS.” Pet. 21 (emphasis added).

But that argument imagines a procedural history divorced from

reality. In the actual proceedings, these two claims that EPA

imagines as different were in fact one and the same claim.

EPA acknowledges, as it must, that the respondents argued

before the agency that Section 181 “precluded EPA from

revising the ozone NAAQS” pursuant to Section 109. Pet. 7.

That argument rested on two premises: (1) what might be called

the “implementation premise,” the claim that section 181(a)(1)

of the Act directs EPA to classify “each” nonattainment area for

ozone according to the Subpart 2 categories, and (2) what

might be called the “designation premise,” the claim that section

107(d) requires “EPA to designate all areas” and requires a

nonattainment designation for “avry area that does not meet the

NAAQS.” J.A. (Ozone) at 3140-41. These two premises led

respondents to conclude that the Act “expressly forbids

downward revisions (but not upward revisions) to the 0.120

standard,” id. at 3139, because in making such revisions, EPA

would be “forced to violate the Act” — by discarding either

section 181(a){1) or section 107(d) or both.

Confronted with this argument in the agency rulemaking,

EPA responded almost exclusively to the “implementation

premise,” arguing that Section 181 does not “prohibit[] EPA

from revising the [ozone] standard” under Section 109 because

the Agency may “implement the revised [ozone] standard”

outside of the Subpart 2 framework. 62 Fed. Reg. at 38,885;

see also EPA Ozone Br. at 67-72. Moreover, in the Court of

Appeals, EPA continued to defend its authority to promulgate

a revised standard based on its disagreement with the

“implementation” premise, while implicitly contesting, but never

fully discussing, the “designation” premise. See EPA Ozone Br.

at 67-72.

To resolve this dispute, as it did, under step one of Chevron,

the court of appeals necessarily had to bring to bear the

“traditional tools of statutory construction,” Chevron, 467 U.S.

at 843 n.9, including analysis of the statute as a whole. Also

25

under Chevron, the court had a duty to use as a starting point

the implementing agency’s own construction; that is, to address

the specific link in the chain of logic that the EPA itself

predominately contested — the “implementation” premise.

Accordingly, if EPA’s ripeness and finality concerns now seem

at all plausible, it is only because they emit a distorted echo of

two entirely innocent facts. The court below, in addition to

ruling against EPA on the implementation issues it did contest

vigorously, went on to rule in EPA's favor on the designation

issues it failed to contest vigorously. In addition, the court

composed an opinion that presents these issues in what it

considered a comprehensible order, without noting that it was

bound to rule first on the implementation premise that the

agency itself had used as its primary legal defense.

2. The Decision Below Is Not in Conflict With Decisions of

this Court or Other Circuits. There is no support whatever for

EPA’s contention that the court of appeals “adopted a test for

finality that is inconsistent with the test applied by this Court

and other courts of appeals.” Pet. 10,21. In particular, EPA’s

contention that this Court should accept review because the

D.C. Circuit’s decision “distorts” this Court’s decision in

Bennett v. Spear is mystifying. See id. at 22 (citing Bennett v.

Spear, 520 U.S. 154 (1997)).

Bennett merely repeats the well-established standard for

administrative finality. See 520 U.S. at 177-78 (quoting Port of

Boston Marine Terminal Ass'n v. Rederiaktiebolaget

Transatlantic, 400 U.S. 62, 71 (1970); Chicago & Southern Air

Lines, Inc. v. Waterman S.S. Corp. Civil Aeronautics Bd., 333

U.S. 103, 113 (1948)). The Court there held that the agency

ruling at issue was final because it “alter[ed] the legal regime”

— even though it did not “conclusively determine” the plaintiffs’

rghts. See Bennett, 520 U.S. at 177, 178. As that holding

suggests, the two prongs of the finality test recited in Bennett

are not the inflexible rules that EPA makes them out to be.

Rather, “[t]he cases dealing with judicial review of

administrative actions have interpreted the ‘finality’ element in

26

a pragmatic way” by taking a “flexible view of finality.” FTC v.

Standard Oil Co., 449 U.S. 232, 239-40 (1980) (internal

quotations omitted).

Here, the panel unanimously held that the Agency’s Subpart 2

ruling is final because (1) it is not tentative, and (2) legal

consequences flow from it. See App. 77a-78a. There is no

sense in which that decision conflicts with Bennett. Rather, the

most that EPA could plausibly contend is that the D.C. Circuit

misapplied “a properly stated rule of law,” a claim that does not

supply a proper ground for certiorari. See Sup. Ct. R. 10;

Magnum, 262 U.S. at 163.

Nor does the D.C. Circuit’s decision stand in conflict with

decisions of other courts of appeals. In particular, the Dow

Chemical case highlighted by the Government holds only that

statements made “while requesting certain data” prior to the

initiation of an enforcement action, as well as statements made

in an “amendment of [an] enforcement suit,” are not final

agency action. See Dow Chem. v. EPA, 832 F.2d 319, 324, 325

(Sth Cir. 1987). The other cases cited by the Government

similarly hold only that the initiation of an administrative

investigation or adjudicatory process, or the announcement of

an interlocutory ruling in the course of an ongoing

administrative proceeding, is likewise not final. See Mobil

Exploration & Producing U.S., Inc. v. Department of Interior,

180 F.3d 1192, 1199 (10th Cir. 1999); American Airlines, Inc.

v. Herman, 176 F.3d 283, 289 (Sth Cir. 1999); Hindes v. FDIC,

137 F.3d 148, 162-63 (3d Cir. 1998). Those cases all involved

truly interlocutory matters, not, like this case, a final rule,

published in the Federal Register, and made expressly

reviewable by statute. See CAA § 307(b)(1), 42 U.S.C.

§ 7607(b)(1). Moreover, the absence of any circuit split is

further underscored by the fact that Mobil Exploration explicitly

relied on D.C. Circuit precedent, see 180 F.3d at 1199, while

Dow Chemical specifically distinguished as inapposite one of the

very D.C. Circuit cases on which the panel below relied. See

27

832 F.2d at 325 n.35 (distinguishing Ciba-Geigy v. EPA, 801

F.2d 430 (D.C. Cir. 1986)); App. 77a (quoting Ciba-Geigy).

3. The Court of Appeals’ Decision Is Correct. On the merits,

EPA appears to be claiming that its Subpart 2 ruling will not be

final until a revised ozone NAAQS is actually implemented and

enforced in a specific area. See Pet. 22. In particular, EPA

argues that the first prong of the finality test is not met because

it has not “completed its decisonmaking process under the

governing statute for the specific agency action at issue,” since

it “has not designated nonattainment areas, classified those

areas, or set attainment dates” for those areas. Jd. The Agency

similarly contends that the second prong is not satisfied because

“ATA will not be affected by EPA’s views on implementation

of the revised ozone NAAQS until the agency takes actual steps

to implement the NAAQS by designating and classifying

nonattainment areas and setting attainment dates.” /d. at 23.

But EPA did far more in the rulemaking below than merely

promulgate the revised NAAQS. Based on its “interpretation”

of “the provisions of subpart 2,” EPA’s final ozone rule

specifies the point at which Subpart 2 and the existing ozone

NAAQS “will no longer apply.” 62 Fed. Reg. at 38,873; id. at

38,894 (codifying this ruling into 40 C.F.R. § 50.9(b)). The

Agency also determined, simultaneously with the ozone

NAAQS revisions, how and where its new ozone NAAQS

would be enforced. 62 Fed. Reg. 38,423, 38,424-27 (1997).

EPA then issued three final rules revoking the existing ozone

NAAQS in certain areas. See 64 Fed. Reg. 30,911 (June 9,

1999); 63 Fed. Reg. 39,432 (July 22, 1998); 63 Fed. Reg.

31,014 (June 5, 1998). Only after the D.C. Circuit issued its

opinion in this case did EPA cease its “continu[ing]

implementation efforts with respect to the 8-hour standard.” 64

Fed. Reg. at 57,425.

In any event, the Government’s argument against pre-

implementation review “has the hollow ring of another era.”

Port of Boston, 400 U.S. at 71. Modern finality jurisprudence

28

,

has “interpreted pragmatically the requirement of administrative

finality, focusing on whether judicial review at the time will

disrupt the administrative process.” Bell v. New Jersey, 461

U.S. 773, 779 (1983). This Court has specifically rejected the

“argument that [an] order lacked finality because it had no

independent effect on anyone and resembled an interlocutory

court order,” Port of Boston, 400 U.S. at 70-71, and has

routinely authorized pre-enforcement review of agency

determinations. See, e.g., Bell, 461 U.S. at 779-80; Harrison

v. PPG Indus., 446 U.S. 578, 586 (1980) (EPA ruling final

under CAA § 307(b)(1) where “[sJhort of an enforcement

action, EPA has rendered its last word on the matter”); Port of

Boston, 400 U.S.at 70-71; see also Abbott Labs. v. Gardner,

387 U.S. 136, 149-51 (1967) (citing cases).

As the D.C. Circuit has repeatedly held, these precedents

have particularly strong force in the context of the Act.

Congress has, on the face of that statute, “declared a preference

for prompt review” by providing that petitions for review of

EPA rulemakings must be filed “within 60 days from the date

notice of such . . . action appears in the federal register.” See

NRDC v. EPA, 22 F.3d 1125, 1133 (D.C. Cir. 1994) (citing

CAA § 307(b)1)) (internal quotation omitted); Her Majesty the

Queen in Right of Ontario v. U.S. E.P.A., 912 F.2d 1525, 1533

(D.C. Cir. 1990) (same). The D.C. Circuit has therefore always

understood EPA’s general NAAQS implementation rulings (as

opposed to its specific classification decisions) to be final even

before they have been applied in the context of a particular

state’s submission of a SIP. See NRDC, 22 F.3d at 1133.

So has EPA. Tellingly, EPA accepted the D.C. Circuit’s

virtually identical ruling in NRDC without even petitioning for

review in this Court. More telling still, in a different proceeding

before the D.C. Circuit last summer, EPA argued that a separate

petition for review that challenged the Agency’s now-suspended

implementation of the revised ozone NAAQS was precluded

precisely because this case is the proper vehicle for resolving

such challenges. In particular, EPA contended that because the

29

Agency’s “legal interpretation of the interplay of Subpart 2 and

EPA’s NAAQS revision authority” was “resolved by the 1997

Rule” (i.e., the rulemaking below), challenges to that

interpretation had to be brought in this proceeding, not in

subsequent actions challenging specific implementation

decisions. See Br. of Resp. U.S. E.P.A. in D.C. Cir. No. 98-

1363 (filed June 21, 1999), at 27-28, 29-30.

In sum, EPA would have this Court grant certiorari and hold

its Subpart 2 ruling non-final even though (1) the D.C. Circuit

had to resolve the Subpart 2 issue in the course of deciding

whether EPA had authority to promulgate the revised ozone

NAAQS; (2) EPA recognized as much by not disputing the

finality of its ruling until after it lost in the court of appeals; (3)

there is no circuit conflict for this Court to resolve; (4) this

Court has long emphasized that the finality test is pragmatic and

flexible; (5) EPA began implementation activities in the

underlying rulemaking itself; (6) Congress expressed a desire for

prompt pre-implementation review of EPA’s actions under the

Act; (7) multiple panels of the D.C. Circuit have long rejected

EPA’s contention; and (8) EPA is trying to have it both ways in

order to evade judicial review altogether. There is no

justification for certiorari in such circumstances.

EPA’s ripeness challenge fails for similar reasons. The “basic

rationale” of the ripeness doctrine “is to prevent the courts,

through premature adjudication, from entangling themselves in

abstract disagreements.” Thomas v. Union Carbide Agric.

Prods. Co., 473 U.S. 568, 580 (1985) (internal quotation

omitted). Accordingly, this Court has consistently held EPA

rulings to be fit for review where, as here, “[t]he issue presented

... iS purely legal, . . . will not be clarified by further factual

development,” and has had pre-enforcement effects such as

those described above. See id. at 581; see also EPA v. National

Crushed Stone Ass’n, 449 U.S. 64, 72 n.12 (1980). Moreover,

this Court has authorized pre-implementation review of a

variance clause in an EPA regulation where the validity of the

variance clause was intertwined with the validity of the

30

regulation as a whole. See National Crushed Stone, 449 U.S.

at 72 n.12. As explained above, that is precisely the situation

that the court of appeals confronted here: interpretation of

Subpart 2 is intertwined with an argument made below (but not

in this Court) regarding interpretation of EPA’s authority to

revise the ozone NAAQS. The issue was therefore ripe for

review in the court below.

CONCLUSION

For the foregoing reasons, the Court should grant certiorari

on a properly formulated question which encompasses the

Statutory interpretation issues covered in ATA’s conditional

cross-petition. The Court should deny the Government’s

petition on the second and third questions presented, as well as

all questions presented by the American Lung Association and

the State Petitioners.

Respectfully submitted,

ROBIN S. CONRAD EDWARD W. WARREN

NATIONAL CHAMBER Counsel of Record

LITIGATION CENTER, INC. ROBERT R. GASAWAY

1615 H Street, N.W. JEFFREY B. CLARK

Washington, D.C. 20062 DARYL JOSEFFER

(202) 463-5337 KIRKLAND & ELLIS

Counsel for Chamber of 655 Fifteenth Street, N.W.

Commerce of the United Washington, D.C. 20005

States (202) 879-5000

Counsel for American

Trucking Associations, Inc.

and Chamber of Commerce of

the United States