# Opposition Brief — Massachusetts v. American Trucking Assns.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1458%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 901

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1458%3A03. Public record. Not legal advice.