Opposition Brief — Massachusetts v. American Trucking Assns.

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Nos. 99-1257, 99-1263, 99-1265, 99-1426 Rete 99-134

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In The Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

v.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Respondents.

On Petitions For A Writ Of Certiorari To The United States Court

of Appeals For The District Of Columbia Circuit

BRIEF IN RESPONSE FOR STATES OF OHIO,

MICHIGAN AND WEST VIRGINIA

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

FRANK J. REED, JR.

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Flr.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

*Counsel of Record

| Additional Counsel Listed on Inside Cover]

MARK J. RUDOLPH

Deputy Chiet

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hanstord Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan

z LAMSON arin, Re

SRR a sp

QUESTIONS PRESENTED

Whether the court of appeals properly remanded to

the U.S. Environmental Protection Agency (EPA or

the Agency) revised National Ambient Air Quality

Standards (NAAQS) promulgated under Section 109

of the Clean Air Act, 42 U.S.C. 7409, for that Agency

to exercise the discretion delegated to it by Congress

to develop intelligible criteria for risk management

decisions, and whether the court of appeals properly

construed the scope of the Agency’s discretion in

defining those criteria. ,

Whether the lower court had jurisdiction to review a

final rule promulgated by EPA under the Clean Air

Act, which rule resolved the question of the Agency’s

authority to replace the congressional “Subpart 2”

ozone reduction program in certain areas of the

country with a different program of the Agency’s own

creation.

Whether the lower court erred in its unanimous

rejection of EPA’s final rule regarding the manner in

which the Clean Air Act provides for attainment of

national ozone standards.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED fannne paidaiguashnacbesscaeanssunuohweted i

TABLE OF AUTHORITIES ...........ccsecccesereeesereeeesteeeeenenes iil

STATEMENT OF THE CASE ......ccccsssssseseseseseenenenenenenenens l

POSITION ON GRANTING REVIEW OF QUESTION

ONE OF EPA’S PETITION......:ssssessesesssssesenenteneens 3

REASONS FOR DENYING REVIEW OF

QUESTIONS TWO AND THREE OF

EPA’S PETITION ..........cccccsessccnrecsessecovessnssesercsncnses 3

A. This Court Should Deny Certiorari on

Question Two of EPA’s Petition, which

Asks for Review of the Lower Court’s

Jurisdiction to Consider a Final Agency

PI. inisiccssnisinitascidaitidsctennnnsiaiesuninaispiniviaanianiacinsnabigontians 4

B. The Court Should Deny Certiorari on

Question Three of EPA’s Petition, which

Seeks Re-argument of the Case Below............seee 9

CONCLUSION, .cccsssescsscoscccssssserscesentencosnsonsnsconsesssnencesenses 15

TABLE OF AUTHORITIES

Page

CASES

Abbott Laboratories v.Gardner, — -

ET GF, SANT Ditiintasetieshicsiictatninianidaniaastaatdinasiade 8

American Trucking Ass’ ns, Inc. v.

U.S. EPA, \75 F.3d 1027, modified, 195 F.3d 4

CE SB Pa vi cacsnitinstesvuideantitasestabinsncinnhtcniansbeantigs I

Bennett v. Spear,

Se AE Ba LE IE Minibiinasatiansincemndahicineemsiiiatnaciiidade 5,6

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

EE SE Re Cain iadaseacascionnssnhacnitanbababbotatients 1]

Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp.,

PED Ts LOE Mia ihttintehcsninsasndebsshaiideieaaiheiiinaianna 6

Ciba-Geigy Corp. v. U.S. EPA,

SE FBO GTO a, FI esncccicnensctsecnsansincscees 8

. Fidelity Fed. Sav. and Loan Ass'n v. De La Cuesta,

SD a BE eB ee wires 7

Her Majesty the Queen ex rel. Ontario v. EPA,

912 F.2d 1525 (D.C. Cir. 1990)..........ccccscssscosscocseees 7

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

Dept. of Interior,

180 F.3d 1192 (10™ Cir, 1999) ..occscccsseccsssessseeesseees 8

Pacific Gas & Elec. Co.-v. State Energy

Resources Conservation and Dev. Comm'n,

RR Fa CO Cs vaiiiaitiinpcaioaciiaeinienlaiadaiaitila 9

Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic,

Ie a Ne Eel eahccsiveriahainhtes idle shieiesinscienlnoianidagi 6

Rail Reorganization Act Cases,

OF RAs: Fe Ce iii siectntisnbiniisbactisineniniianiatacaiin 9

iv

TABLE OF AUTHORITIES - Continued

Page

Rio Grande Pipeline Co. v. Federal Energy

Regulatory Comm'n,

178 F.3d 533 (OL. Ct. FRR vcictiionnnainnecen 8

Western Ill. Home Health Care, Inc. v. Herman,

150 F.34:659-(7" Cle. 19IB cicaisinstccnunirentcnne 8

STATUTES

Clean Air Act §107(d);

42 UBC, FOBT issiccnscinrtieniiaaans 7,10

Clean Air Act §107(d)(1)(B):

42 U.S.C. TASTIG UB) .ciscmiaiiniotiaiainn 7

Clean Air-Act, §109

62 USL, FAD ciksssstcisrnindinkiniineaain l

Clean Air Act §110;

42 UB. FOG siaceicsinseniicsinnion baie 1,5

Clean Air Act;

42 1), SA... TORI HAPO TE nite 2

Clean Air Act §172(a)(1);

G2 U Bk). FONE EY scccsssscssisssssiiaecidiniemenionn 7

Clean Air Act §172(b);

42 USE. TOR cinéioniemenressianenialane 8

Clean Air Act §181(a);

42 USS. TOUT) cictscctsnvnssannstitnsiladiadiiiiamaiin 10

Clean Air Act §181(b);

42 US), FETA) acicniccissimmnnatntaennln 13

Clean Air Act §182;

Bist. —ummmimmim_eaaaan 12

Clean Air Act §182(c)(9);

42 U.S.C. T3411) cccescensscgineiaeenenes 13

Vv

TABLE OF AUTHORITIES - Continued

Page

Clean Air Act §182(d);

Oe SA SAPO IN ciitaiittiinatiniktnabsitasrsd sen pbasidedeenbtade 13

Clean Air Act §182(e);

Uy Ase Pere UID sinks lsitb gricciuicniiebinbiidasibbacsniast on scwns 13

Clean Air Act §307;

A Uk PIE atucknsCasidchioiigkeciladechisica abbas ictpeicablaaiiatl NS: 5

Clean Air Act §307(b)(1);

Ee es: PTGS D sci knsijhictiniddnitsasebnsnbiabaiscebiasoeteaks 5

FEDERAL REGISTER

62 Fed. Reg. at 36,873 (July 18, 1997) ..cccscssecscorcecsscsscsonerens 6

62 Fed. Reg. at 60,318, 60,323 (July 18, 1997).......eeeee 14

63 Fed. Reg. at 2,726, 2,762, 2,778 (January 16, 1998)....14

MISCELLANEOUS

H.R. Rep. No. 101-490 at 145-50,

reprinted in II 1990 Legislative History

RI FW sepiiscasstssiaipiciade silcanaivacnasninibiavsesicsinnganasnabias 11

I Legislative History of the Clean Air Act

Amendments of 1990 at 1236...........ccscssesreeseeees 12

STATEMENT OF THE CASE

Respondent States of Ohio, Michigan, and West

Virginia submit this brief in response to the petitions by the

United States Environmental Protection Agency (EPA or the

Agency) and other parties for a writ of certiorari to review

the decision of the District of Columbia Circuit in American

‘Trucking Associations, Inc. v. United States Environmental

Protection Agency, 175 F.3d 1027, modified, 195 F.3d 4

(D.C. Cir. 1999), EPA App. at la. The case before the lower

court arose from an EPA rulemaking regarding two

pollutants regulated under the Clean Air Act — particulate

matter (PM) and ozone. The Respondent States support the

Statement of the Case presented in the response briefs filed

by the American Trucking Associations, Inc., ef al.

(collectively, ATA) and the Appalachian Power Company, ef

al. (collectively, the CAA Industry Respondents), which

discuss both PM and ozone. In this response, the Respondent

States focus on just one aspect of the rulemaking — ozone.

Prior to amendment in 1990, the Clean Air Act, 42

U.S.C. 7401, et seq. (the Act, cited as CAA), applied an

identical statutory program for six specified pollutants, i.e.,

pollutants for which EPA issued criteria for meeting air

quality. Section 109 of the Act, 42 U.S.C. 7409, required

EPA to establish a national standard (a National Ambient Air

Quality Standard or NAAQS) for each of these pollutants.

Once EPA set the national standards, Section 110 of the Act,

42 U.S.C. 7410, required each State to develop a plan (a

State Implementation Plan or SIP) to implement its own mix

of air pollution control strategies to meet each standard.

Each implementation plan had to provide for “attainment” of

the national standard within five years, with the possibility of

a five-year extension, from the time of the 1977 amendments.

By 1990, Congress recognized that its historic

approach to compliance — simply commanding that all States

reach attainment of each standard by a date certain — had

2

failed with regard to ozone. In the face of this failure,

Congress established a new approach and a unique program

for ozone. In Subpart 2 of Part D of the amended Act, 42

U.S.C. 7511-7511f (CAA Indus. App. at 2a-64a), Congress

created an elaborate, 20-year plan for achieving national

compliance with the ozone standard, and specified measures

that would ensure continued compliance in the future.

Integral to that program is the one-hour standard, which

Congress codified in Subpart 2.

On July 18, 1997, EPA changed Congress’s plan for

ozone attainment. On that date, EPA gave final notice of its

revision of the national standard for ozone, changing the

standard from the one-hour limit of 0.12 ppm set by

Congress, to an eight-hour limit of 0.08 ppm.' The

Respondent States petitioned the District of Columbia Circuit

to review that revision. On May 14, 1999, the D.C. Circuit

remanded the revised standards for PM and ozone to EPA for

further rulemaking. As to Subpart 2 and Congress’s plan for

regulating ozone, the lower court rejected EPA’s conclusion

that the Agency had the authority to rewrite the congressional

plan. The court relied on Congress’s directive that Subpart 2

must apply “by operation of law” to “[ejach area designated

nonattainment for ozone” under the Act. 175 F.3d at 1048;

EPA App. at 38a. On this basis, the court held that EPA

could enforce a revised ozone standard only “under Subpart

2,” 175 F.3d at 1050; EPA App. at 43a, and that the Act

precluded EPA “from requiring areas to comply either more

quickly or with a more stringent NAAQS.” 175 F.3d at

1049; EPA App. at 40a.

EPA’s rulemaking and the questions it raises are of

substantial importance to the States. However, as described

' The response briefs of ATA and the CAA Industry Respondents

describe these limits in detail.

3

fully below, these questions arise here within the framework

of well-established principles of judicial review and rules of

statutory construction. The Court need not, therefore, revisit

these principles in the context of this case.

POSITION ON GRANTING REVIEW OF QUESTION

ONE OF EPA’S PETITION

The States of Michigan and West Virginia adopt the

reasoning of the CAA Industry Respondents and ATA for the

purpose of denying review of Question One of EPA’s

petition of certiorari. That question asks whether the lower

court properly remanded the revised rules to EPA in order for

EPA to exercise the discretion delegated to it by Congress to

develop intelligible criteria for risk management decisions, |

and whether the lower court properly construed the scope of

the Agency’s discretion in defining those criteria. The State

of Ohio does not oppose the Court’s grant of certiorari on the

“delegation” question.

If, however, the Court grants review of the delegation

question, all three Respondent States urge the Court to

reformulate that question in a manner consistent with the

conditional cross-petitions filed by ATA and the CAA

Industry Respondents. In particular, as explained in the Brief

of Respondent States in Support of the ATA and CAA

Industry Cross-Petitions, the Court may avoid the delegation

question altogether if it finds that EPA may consider cost in

any revision of a standard under Section 109 of the Act.

REASONS FOR DENYING REVIEW OF QUESTIONS

TWO AND THREE OF EPA’S PETITION

Questions Two and Three of EPA’s petition ask this

Court to review the lower court’s decision that EPA may

only enforce any revised ozone standard in conformity with

Subpart 2 of Part D of the Act. EPA App. at 81a. EPA first

4

asserts that the lower court did not have jurisdiction to review

EPA’s decision. EPA Pet. at 19-25. Alternatively, EPA

presents to this Court the same arguments EPA made to the

lower court on the merits of the question, i.e., the same

arguments the lower court rejected in its initial decision and

on rehearing. EPA Pet. at 25-29. For the reasons detailed

below, neither of these questions warrants additional review

by this Court.

A. The Court Should Deny Certiorari on Question

Two of EPA’s Petition, which Asks for Review of

the Lower Court’s Jurisdiction to Consider a Final

Agency Action.

In its petition for rehearing before the lower court,

EPA argued for the first time that the Agency’s decision to

change the ozone standard was not a final agency action ripe

for review. Instead, EPA argues, the court’s jurisdiction

ended with its review of whether “the statutory provisions at

issue precluded EPA from promulgating the revised

standard.” EPA Pet. at 21. EPA bases this argument on two

grounds: first, that the lower court’s test for finality is

“inconsistent with the test applied by this Court and other

courts of appeals;” and, second, that the action is not ripe for

review because it “deprived EPA of the opportunity to

develop fully its interpretation and to reconcile any tensions

that may arise in the future respecting implementation of the

revised NAAQS.” EPA Pet. at 10.

EPA’s arguments ignore the plain language of the

Act, which explicitly permitted review in this case,

misrepresent the lower court’s express findings, which were

based on well-established principles of judicial review, and

contradict the position EPA took in the final rulemaking that

gave rise to this case. It is unnecessary, therefore, for this

Court to grant EPA’s petition on this question and to revisit

established precedent in the context of this case.

1. The Clean Air Act expressly authorizes review of

EPA’s action. Section 307 of the Act provides that “action of

the Administrator in promulgating any [NAAQS], . . . or any

other nationally applicable regulations promulgated, or final

action taken, by the Administrator under this Act may be

filed only in the United States Court of Appeals for the

District of Columbia.” CAA §307(b)(1); 42 U.S.C.

7607(b)(1). That petition for review must be filed within 60

days of the Federal Register notice of the promulgation, and

that action may not be judicially challenged thereafter. /d.

As EPA points out, Section 307, 42 U.S.C. 7607, also

authorizes review of a number of final actions that are locally

or regionally appealable in the local circuit court of appeals,

including the Agency’s approval or promulgation of a state

implementation plan under Section 110 of the Act, 42 U.S.C. _

7410. That additional authorization, however, in no way

limits review, pursuant to Section 307, of EPA’s

promulgation of rules at the time of promulgation. Nor does

the case here present a request, express or otherwise, to

review “classification challenges.” EPA Pet. at 20. Rather,

it is a challenge to a final rule governing the manner in which

States are to achieve attainment of national ozone standards,

and, thus, a challenge specifically provided for under Section

307’s scheme for prompt review of rules and standards upon

promulgation.

Where, as here, the Act expressly provides for the

review granted by the lower court, this Court need not grant

certiorari to consider this question.

y The lower court's decision on finality is consistent

with the test applied by this Court and other courts of

appeals. EPA has correctly noted that, in this Court’s view,

two conditions must be satisfied for agency action to be

“final.” Bennett v. Spear, 520 U.S. 154 (1997). First, “the

6

action must mark the ‘consummation’ of the agency’s

decisionmaking process . . . — it must not be of a merely

tentative or interlocutory nature.” /d. at 177-78, citing

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103, 113 (1948). Second, “the action must be one

by which ‘rights or obligations have been determined’ or

from which ‘legal consequences will flow.’” Bennett, 520

U.S. at 178, citing Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970).

Contrary to EPA’s suggestion, the lower court applied this’

well-established test and correctly determined that both

- elements are satisfied here.

First, EPA’s interpretation of Subpart 2 marks the

“consummation” of its decisionmaking process. In the

preamble to the final rule, EPA stated:

4. Final decision on the primary standard.

After carefully considering the information

presented in the Criteria Document and the

Staff Paper, the advice and recommendations

of [the Clean Air Scientific Advisory

Committee], public comments received on the

proposal, and for the reasons discussed above,

the Administrator is replacing the existing 1-

hour, 0.12 ppm primary standard with a new

8-hour, 0.08 ppm primary standard. The new

8-hour standard will become effective

September 16, 1997.

62 Fed. Reg. 38,873 (July 18, 1997)(emphasis in original).

EPA explained that this “final decision” represented a change

from its original intention to delay revocation of the |-hour

standard until after it had approved state plans for

implementing the new standard. /d. EPA clarified that under

this final decision “the provisions of subpart 2... will

continue to apply for so long as an area is not attaining the 1-

=—

scent amtehepnaaaeaaea cia aia lea eae

7

hour standard. Once an area attains that standard . . . the

provisions of subpart | . . . would apply to the

implementation of the new 8-hour [ozone] standards.” /d.

EPA then codified this decision in Section 50.9(b) of the

final rule, from which the petitions below sought review.

That section provides, “The |-hour standard set forth in this

section will no longer apply to an area once EPA determines

that the area has air quality meeting the |-hour standard.” 40

C.F.R. 50.9(b); Mass. and N.J. App. at 113.

There is nothing tentative about this final decision.

As the lower court found, it is “unambiguous and devoid of

any suggestion that it might be subject to subsequent

revision.” 195 F.3d at 8 (EPA App. at 78a), quoting Her

Majesty the Queen ex rel. Ontario v. EPA, 912 F.2d 1525,

1532 (D.C. Cir. 1990).

Second, as the lower court found, EPA’s

promulgation of a revised ozone NAAQS triggered a number

of “obligations” and “legal consequences.” As EPA

acknowledged in the preamble to the final rule, the 8-hour

standard becomes immediately effective to those areas

designated “attainment” under the current standard.” Section

107 of the Act requires the Governor of each State, within

one year after EPA’s promulgation of a revised standard, to

submit to EPA a list of designations for all areas in the State.

CAA §107(d); 42 U.S.C. 7407(d). Under EPA’s theory of

the statute, this list of designations then triggers other actions

by EPA to promulgate the designations, CAA §107(d)(1)(B);

42 U.S.C. 7407(d)(1)(B), to classify the areas, CAA

§172(a)(1); 42 U.S.C. 7502(a)(1), and to apply an attainment

date, CAA §172(a)(1); 42 U.S.C. 7502(a)(1), then by the

States to implement a pian for meeting the revised

? Reliance on preamble statements to explain final legislative rules is

appropriate. See Fidelity Fed. Sav. and Loan Ass'n v. De La Cuesta, 458

U.S. 141, 157-58 & n.13 (1982).

8

requirements, CAA §172(b); 42 U.S.C. 7502(b). EPA’s

suggestion that finality does not occur until after it designates

areas and the States implement plans ignores the burden on

the States that flows from EPA’s theory of the statute as

reflected in the final rule.

The lower court’s recognition of the finality of EPA’s

decision and the immediate obligations that flow from it is

consistent not only with this Court’s review in Bennett v.

Spear, but also with the analysis of such questions invariably

applied by the lower court and other courts of appeals. See,

e.g., Mobil Exploration & Producing U-.S., Inc. v. Dept. of

Interior, 180 F.3d 1192, 1196-1200 (10" Cir. 1999); Rio

Grande Pipeline Co. v. Federal Energy Regulatory Comm’ n,

178 F.3d 533, 540-41 (D.C. Cir. 1999); Western Ill. Home

Health Care, Inc. v. Herman, 150 F.3d 659, 662-63 rT Cir.

1998); Ciba-Geigy Corp. v. USEPA, 801 F.2d 430, 436-37

(D.C. Cir. 1986).

In short, there is no disagreement between this Court

and circuit courts, including the D.C. Circuit, as to the proper

inquiries to determine finality, nor even among the parties in

this case. EPA’s real contention is that the lower court

incorrectly applied the law to the facts before it -— a

contention unworthy of this Court’s review.

8 EPA's action is ripe for review. In determining that

EPA’s action was ripe for review, the lower court applied the

well-established guidelines of Abbott Laboratories vy.

Gardner, 387 U.S. 136 (1967). As this Court has often

stated, the question of ripeness turns on “the fitness of the

issues for judicial decision” and “the hardship to the parties

of withholding court consideration.” /d. at 149. Here, the

lower court determined that the case was fit for review

because it presented “‘a pure question of law, the resolution of

which would not benefit from a more concrete setting.” 195

F.3d at 9, EPA App. at 79a.

EPA’s suggestion to this Court that it should have had

more time to further develop its inter; retation and to “work

through the various implementation provisions” could apply

to any rulemaking. See EPA Pet. at 25. EPA could always

develop its original interpretation and, through various

implementation efforts, change its approach. Where, as here,

the question is one of law, judicial review need not await

further development, even if additional interpretation would

prove useful. Pacific Gas & Elec. Co. v. State Energy

Resources Conservation and Dev. Comm'n, 461 U.S. 190,

201-02 (1983).

Nor must judicial review await a more concrete injury

to potential petitioners. Where, as here, “decisions to be

made now or in the short future may be affected” by a court’s

decision, review is proper. Rail Reorganization Act Cases,

419 U.S. 102, 144 (1974).

As with its decision on finality, the lower court

applied well-established principles of jurisprudence to

determine that the issues before it were fit for review and that

delay would cause further hardship to the parties. It is

unnecessary, therefore, for this Court to revisit these

established principles in the context of this case.

B. The Court Should Deny Certiorari on Question

Three of EPA’s Petition, which Seeks Re-

argument of the Case Below.

As an alternative to its argument that the lo-ver court

lacked jurisdiction to review the Agency’s action, EPA

asserts that the lower court did not decide the merits of the

case correctly. As with its decisions on finality and ripeness,

however, the lower court decided the merits of the Subpart 2

implementation question within the_ framework of well-

established principles of statutory construction. The lower

10

court determined that EPA’s decision was contrary to

Congress’s intent, as expressed in the plain language of the

1990 amendments to the Clean Air Act. Re-argument of this

question is, therefore, unworthy of review by this Court.

I. The interlocutory nature of the lower court's decision

counsels against granting certiorari on Question Three

presented by EPA. In their briefs in response to the petitions

for certiorari, ATA and the CAA Industry Respondents have

fully explained the interlocutory nature of the lower court’s

decision, which requires additional rulemaking. See CAA

Industry Respondents Brief in Response at 29-30; ATA Brief

in Response at 16-18. The Respondent States support the

arguments presented in those briefs.

B The lower court correctly decided that EPA may only

implement any revised ozone NAAQS in conformity with

Subpart 2 of Part D of the Act. In the case below, the

Respondent States argued that Subpart 2 codified the one-

hour, 0.12 ppm ozone standard and, therefore, only Congress

can promulgate a revised standard for ozone. The

Respondent States based their argument on the explicit

language of Section 181(a), 42 U.S.C. 7511(a), which applies

the Subpart 2 program “by operation of law” to “[eJach area

designated nonattainment for ozone” under Section 107(d) of

the Act, 42 U.S.C. 7407(d). The lower court rejected that

argument, finding that EPA has authority to revise the ozone

standard and to designate areas as nonattainment under

Subpart | of Part D, which applies to all other nonattainment

areas.

The court agreed, however, that EPA does not have

authority to implement a more stringent ozone standard in |

conflict with the Subpart 2 program, which Congress

established as the exclusive program for implementing the

ozone standard. On rehearing, the court confirmed that

“EPA can enforce a revised primary ozone NAAQS only in

conformity with Subpart 2.” 195 F.3d at 10, EPA App. at

8la. The court was correct in its analysis that, even if EPA

retains the authority to revise the ozone NAAQS and to

designate areas not meeting that standard as nonattainment,

EPA may only implement that standard using the

classifications and attainment dates set by Congress in

Subpart 2. :

The lower court based its findings, as with its finality

and ripeness findings, upon straightforward — statutory

construction. As Chevron instructs, if Congress has spoken

on the “precise question at issue,” then a court “must give

effect to the unambiguously expressed intent of Congress.”

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 & n.9

(1984). Congress has clearly spoken here.

Congress enacted Subpart 2 as a comprehensive

scheme to address ozone nonattainment. Specifically, as

EPA acknowledges, Congress enacted Subpart 2 because the

existing controls imposed under Subpart 1, which applies to

other nonattainment areas, had failed to bring areas into

attainment with the one-hour, 0.12 ppm standard. See H.R.

Rep. No. 101-490 at 145-50, reprinted in II 1990 Legislative

History at 3169-74. Rather than continue to treat all ozone

nonattainment areas alike, Congress allowed the various

areas between three and 20 years to attain the ozone standard,

depending upon the extent of the area’s ozone problem. See

id. at 146-47. Congress provided additional measures that

would apply in areas that failed to achieve attainment in 20

years, or that relapsed into nonattainment in the future.

The lower court held that the detailed and

comprehensive nature of the Subpart 2 program manifests

Congress’s intent to require EPA to implement a revised

ozone standard only in conformity with Subpart 2. Anything

less would conflict with Congress’s plan.

12

First, as noted above, Congress avoided the “one size

fits al’ approach of Subpart 1 and provided varying

deadlines for attainment. In Subpart 2, Congress provided

that if an area does not meet the standard on time, the area

will “bump up” to the next classification, which includes a

new attainment date. If an area does not achieve compliance

by the final deadline for the most polluted category, sources

within the area are then subject to fees for each ton of

pollutant in excess of a baseline amount. In this way,

Congress acknowledged that attainment was going to be

extremely difficult, if not impossible, to achieve in some

areas, and crafted a plan with strong incentives, specific

programs, varying deadlines, and remedial measures for

areas that failed to meet the applicable deadlines.

Second, Congress mandated specific controls for each

category of nonattainment and directed EPA to impose

certain requirements for reducing ozone. These specific

requirements are a marked departure from the historic

approach, which allowed States great latitude in determining

what mix of controls is most appropriate to a certain region.

Again, these specific requirements were included because

Congress saw that the old model could not work for ozone.

See I Legislative History of the Clean Air Act Amendments

of 1990 at 1236 (statement of Rep. Fields)(“We have placed

what we hope are more realistic deadlines in the new law.

We have not, however, simply continued to tell the states to

do a plan to clean their air. That did not work. We have

imposed some very stringent requirements on nonattainment

areas which will in turn have to impose such requirements on

industry in those areas”’).

Third, Congress created several mechanisms by

which Subpart 2 was to control ozone attainment for the

entire 20-year period and beyond. In conjunction with the

bump-up provisions, in Section 182, 42 U.S.C. 751 la,

Congress established reasonable further —_— progress

13

requirements to ensure that States are, in fact, moving

towards their goal. Congress also required areas that are

“serious,” “severe,” or “extreme” nonattainment to include

“contingency plans” with specific measures that would be

implemented if an area does not meet a milestone. CAA

§182(c)(9), (d), and (e); 42 U.S.C. 751 1a(c)(9), (d), and (e).

And Congress expressly mandated that Subpart 2 would

continue to apply even if attainment were achieved. CAA

§181(b); 42 U.S.C. 7511(b). As a whole, these provisions

demonstrate that Congress anticipated that ensuring

attainment and maintenance of the ozone NAAQS would be

a continuing challenge and, more importantly, that Congress

created a statutory structure within Subpart 2 to meet that

challenge.

Because Congress has spoken to the “precise

question” of ozone attainment under the Clean Air Act, the

lower court was correct in its finding that, if EPA has the

authority to revise the ozone NAAQS at all, then it may

implement that standard only in conformity with Subpart 2.

Any further re-argument of these issues within this

straightforward statutory framework is unworthy of this

Court’s review.

cH The lower court's decision restores certainty for the

- States. The States of Massachusetts and New Jersey petition

for certiorari on the merits cf the Subpart 2 question, in part

because the situation resulting from the lower court’s

decision “creates enormous uncertainty for the states as

regulators.” Mass. and N.J. Pet. at 29. On the contrary, the

lower court’s decision restores the certainty that existed prior

to EPA’s attempted interference with the program for ozone

attainment that has been in place since 1990 — Congress’s

program under Subpart 2.

In fact, EPA’s action would have created regulatory

confusion in and among States because it created two

14

national standards instead of one. Many States, including

both Michigan and Ohio, would have had different standards

applicable in different parts of the State, as some portions of

each would still be subject to the one-hour standard and some

would not. See 62 Fed. Reg. 60,318, 60,323 (July 18, 1997);

63 Fed. Reg. 2,726, 2,762, 2,778 (January 16, 1998). The

same would hold true among and between States, thus

making the quantification of interstate pollution, the

Petitioner States’ primary concern, more difficult.

But, most fundamentally, implementation of a

national ozone standard in a manner not in conformity with

Subpart 2 would force the States to return to the failed

compliance scheme that Congress abandoned when it created

Subpart 2. Such a resurrection of the historic dilemma the

States had in creating a plan to comply with an unachievable

standard by a specific timeframe would not only create

uncertainty, but would undoubtedly prove to be unsuccessful

once again.

15

CONCLUSION

For these reasons, the Court should deny certiorari on

Questions Two and Three presented by EPA. If the Court

grants certiorari on Question One of EPA’s petition, the

“delegation” issue, then the Court should reformulate that

question in a manner consistent with the conditional cross-

petitions filed by ATA and the CAA Industry Respondents.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY

State Solicitor

JUDITH L. FRENCH*

ELISE W. PORTER

FRANK J. REED, JR.

Assistant Attorneys General

Office of the Attorney General

30 East Broad Street, 17th Fir.

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent State of Ohio

*Counsel of Record

[Additional Counsel Listed on Next Page]

16

MARK J. RUDOLPH

Deputy Chief

Office of Legal Services

West Virginia Division of

Environmental Protection

1356 Hansford Street

Charleston, West Virginia 25301

(304) 558-9160

Counsel for Respondent State of West Virginia

JENNIFER M. GRANHOLM

Attorney General of Michigan

THOMAS CASEY

Solicitor General

ALAN F. HOFFMAN

PAMELA J. STEVENSON

Assistant Attorneys General

Natural Resources Division

300 S. Washington, Suite 315

Lansing, Michigan 48917

(517) 373-7540

Counsel for Respondent State of Michigan