Opposition Brief — Massachusetts v. American Trucking Assns.

Supreme Court, U.S.

FILED

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Nos. 99-1257, 99-1263, 99-126$, APR 12 conn

99-1426, 99-1431, 99-1442

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In The hn teers eevee

Supreme Court of the United States

*

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Conditional Cross-Petitioners,

V.

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Conditional Cross-Respondents.

a

On Conditional Cross-Petitions For A

Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

¢

RESPONSE OF AMERICAN LUNG ASSOCIATION

TO CONDITIONAL CROSS-PETITIONS

FOR A WRIT OF CERTIORARI

¢

Howarop I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for

American Lung Association

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Environmental Protection Agency must

base primary national ambient air quality standards

solely on health effects relating to pollutants in the air.

RULE 29.6 DISCLOSURE,

AND LIST OF PARTIES BELOW

American Lung Association (ALA) adopts the Rule

29.6 disclosure, and list of parties below, set forth in

ALA's petition for certiorari at ti-v.

ili

TABLE OF CONTENTS

| Page

CITATIONS TO DECISIONS ENTERED IN THE

| CASE; BASIS FOR JURISDICTION IN THIS

COURT; AND CONSTITUTIONAL PROVISIONS,

' STATUTES AND REGULATIONS INVOLVED IN

| I ahr Asics ca es 1

OUATRMENT OF THE CASE......0.0 600656 cbcs0... 1

Rs ies cee 2

I. THE QUESTION WHETHER NON-HEALTH

FACTORS MAY BE CONSIDERED IN SET-

TING NATIONAL AMBIENT AIR QUALITY

STANDARDS IS SEPARATE FROM, AND

UNNECESSARY TO THE RESOLUTION OF,

THE NONDELEGATION ISSUE ............. 4

A. The Clean Air Act and EPA’s Interpreta-

tion Pass Muster Under the Nondelega-

tion Doctrine, Regardless of Whether the

Act Prohibits, Allows, or Requires Consid-

eration of Non-Health Factors........... 4

B. Cross-Petitioners’ Proposed Interpretation

of the Act Would Broaden, Not Narrow,

the Scope of the Congressional Delegation,

and Therefore Would Not Avoid the Con-

stitutional Nondelegation Issue .......... 9

Il. CROSS-PETITIONERS’ PROPOSED QUES-

TION SEEKS TO UPSET THREE DECADES

OF AGENCY INTERPRETATION, AS WELL

AS TWO DECADES OF D.C. CIRCUIT PREC-

EDENT ON WHICH THIS COURT HAS

REPEATEDLY DENIED CERTIORARI........ 11

|

Ill.

IV.

iv

TABLE OF CONTENTS - Continued

Page

THE D.C. CIRCUIT CORRECTLY HELD THAT

THE ACT EXCLUDES NON-HEALTH FAC-

TORS FROM THE SETTING OF PRIMARY

THE QUESTIONS PROPOSED IN THE CROSS-

PETITIONS SHOULD BE REJECTED AS

poe errr ee eer re rr re

THE COURT SHOULD REJECT CROSS-PETI-

TIONERS’ ARGUMENT THAT, INDEPEN-

DENTLY OF ANY CROSS-PETITION, THE

ISSUE CONCERNING NON-HEALTH FAC-

TORS MAY STILL BE PRESENTED TO THE

CPE dascdsteares SPER: Peer Peer ow rE ee TS

8 SP). 6 | rere reer es Teer ey tarry Ty cere

14

24

Vv

| TABLE OF AUTHORITIES

Page

| Cases

: American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir.

| BPMs 66) 404-05 apd con eRaRAe ke eb eRe bas EEE De eae 12

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

| CEPA. SI BUMPOAGS 0 hs knee ts Neeebecsshenbheees eins 12

American Power & Light Co. v. SEC, 329 U.S. 90

ig POPPE ELEP EUV ESTES LITE POETS eyes oe 8

American Textile Manufacturers Inst. v. Donovan, 452

CED. GIP CHO 6c cccvaesdeseu beetads canes Gees as 6, 7

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

CR. GRE WR. BEE MR BAe hw eentcek coieeseas 1, 12

Chicago v. Environmental Defense Fund, 511 U.S. 328

ti PEEP POPREPEPTTE Teer rear Cerri e oere eee 16

FDA v. Brown & Williamson Tobacco Corp., U.S.

Supreme Court No. 98-1152 (March 21, 2000) ..12, 13

Federal Power Comm'n v. Hope Natural Gas Co., 320

Ro HR ROE 5h. k db 0 aREKRES G00 ca eeD ae ees eer 6

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

eg we. OB Se 8 reer ere 10

Jones v. United States, 119 S. Ct. 2090 (1999)......... 26

Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C.

' Ri EE: 6 020 os. nk ie kek oon wae Soak aes 11

Lichter v. United States, 334 U.S. 742 (1948)........... 6

Mistretta v. United States, 488 U.S. 361 (1989)....5, 6, 7

National Broadcasting Co. v. United States, 319 U.S.

Oe See eee ree Ty eee ere rer rer 6

ial

ii

vi

TABLE OF AUTHORITIES - Continued

Page

Natl. Cable Television v. United States, 415 U.S. 336

bee POE Pre Ee rey eee Ler 10, 11

Natural Resources Defense Council v. Administrator,

OG2 Fld FES COA. Ci Ty inc vcs fens enessnces 12

Natural Resources Defense Council v. USEPA, 824

FOG VEG6 CA.. GC Boe cesta er pace idencdeuees 12

Union Electric Co. v. USEPA, 427 U.S. 246

CRONE 6 icnd0k 3d cared GS era eee 12, 16, 20

Yakus v. United States, 321 U.S. 414 (1944)............ 6

STATUTES

1967 Clean Air Act § 107, 1967 U.S. Code Cong. &

Pal. POO BE oo noe eee ee eee 17

1967 Clean Air Act § 108, 1967 U.S. Code Cong. &

AG. THOME BES oct ckcesscctdaesemies ea 17, 18

1970 Clean Air Act § 110, 1970 U.S. Code Cong. &

Pill. TOW BIG 6 6 os hs cessive eee 15

1970 Clean Air Act § 111, 1970 U.S. Code Cong. &

Did. POE TRS i is osc cerignnseds meee neues etiasnes 15

1970 Clean Air Act § 113, 1970 U.S. Code Cong. &

Sul, DOGO TIMES «oe vaviixcdendaslinewiaesgetaaen 20

1970 Clean Air Act § 231, 1970 U.S. Code Cong. &

Ful: FORGE: TRE bcc hae sahe erecta 16

1970 Clean Air Act § 312, reprinted in 1977 Legisla-

Chwe FRObty OF FREE ise ccntusowsacnethangescisdan 15

Clean Air Act § 108, 42 U.S.C. § 7408........... passim

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

. eee

Vii

TABLE OF AUTHORITIES - Continued

Page

Cen Air Act 8 14Z, 42 USS © FO0F, oon viccccsc. 23

| Clean Air Act § 317, 42 U.S.C. § 7617..........0000. 23

Pub. L. 95-95, § 129, 91 Stat. 746-47 (August 7,

oy OE hie re eer er iy Why tener aes id Pare ree 22

Pub. L. 101-549, §§ 101-111, 104 Stat. 2399-2471

eS SUI 6 5700 e so CG a ee ets eek oe 22

LeGIsLaTIVE History :

Implementation of the Clean Air Act Amend-

ments of 1970 — Part I, Hearings before the

Subcommittee on Air and Water Pollution of the

Senate Committee on Public Works (February

FOV WHEE 0440 Ci dee slvhnd ka YP Des Nie ERE NOES ORS 21

S. Rep. 1196, 91st Cong., 2d Sess. (1970)............ 19

H.R. Rep. 294, 95th Cong., Ist Sess. (1977).......... 22

116 Cong. Rec. 19224 (June 10, 1970)................ 20

116 Cong. Rec. 32901 (September 21, 1970).......... 20

FEDERAL REGISTER

96 Fed. Reg. $186 {April 30, 1971) 26.0... ccccesenes 11

62 Fed. Reg. 38652 (July 18, 1997)..............45. 1, 11

62 Fed. Reg. 38856 (July 18, 1997)................. 1, 29

Court Rutes

Ma ORs ED csp nck nies 124403400 844059 ERR RSs 24

eaieiilanaaneaa a ae aaa

CITATIONS TO DECISIONS ENTEP.ED IN THE CASE;

BASIS FOR JURISDICTION IN THIS COURT; AND

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED IN THE CASE

American Lung Association (ALA) adopts the cita-

tions to decisions entered, the basis for jurisdiction in this

Court, and the constitutional provisions, statutes and reg-

ulations involved in this case set forth in ALA’s petition

for certiorari at 1-2.

STATEMENT OF THE CASE

ALA adopts the statement of the case set forth in

ALA’s petition for certiorari at 2-15. In addition, ALA

notes that in the rulemakings at issue, the Environmental

Protection Agency (EPA) rejected requests that the agency

consider factors other than health effects relating to pol-

lutants in the air. 62 Fed. Reg. 38683-88 (July 18, 1997); 62

Fed. Reg. 38878-83 (July 18, 1997). Specifically, EPA found

that in setting primary national ambient air quality stan-

dards, the agency was statutorily barred by the Clean Air

Act from considering such other factors. Id. The court

below affirmed this aspect of EPA’s decision under step

one of Chevron, U.S.A. v. Natural Resources Defense Council,

467 U.S. 837 (1984), basing its ruling on the plain meaning

of the Act and on longstanding D.C. Circuit precedent.

App. 17-20.! Accord, id. at 13.

.

' Citations to “App.” refer to the appendix filed by

Massachusetts and New Jersey in No. 99-1263. In addition, for

purposes of brevity, this response uses the phrase “non-health

factors” to encompass all factors other than health effects

relating to pollutants in the air.

ARGUMENT

The cross-petitions of American Trucking Associa-

tions (ATA) and Appalachian Power Company seek to

reopen an issue that has been the subject of consistent

interpretation by EPA for three decades and by the D.C.

Circuit for two decades, and on which this Court has

repeatedly denied certiorari. See ATA Cross-Pet. at 5.

Specifically, cross-petitioners seek to reopen the long-

standing conclusion of EPA and the D.C. Circuit that

Clean Air Act § 109(b)(1) - which mandates national

ambient air quality standards (NAAQS) that “protect the

public health” with “an adequate margin of safety” -

“bar[s] EPA from considering any factor other than health

effects relating to pollutants in the air.” App. 13 (internal

quotations omitted). Cross-petitioners advance the

curious assertion that by opening up this straightforward

public health mandate to a plethora of other additional

factors not specified in the statute, the extent of the

congressional delegation can be reduced. The additional

factors advocated by cross-petitioners are variously

described as “overall impacts on society,” Appalachian

Power Cross-Pet. at 14, “economic or pragmatic factors,”

ATA Cross-Pet. at 22, “practical impacts,” Appalachian

Power Cross-Pet. at 15, “economic and social conse-

quences,” ATA Cross-Pet. at 23, or “broad economic,

environmental, and indirect public health consequences.”

Appalachian Power Cross-Pet. at i. Moreover, cross-peti-

tioners are apparently uncertain as to whether EPA’s

consideration of these factors is discretionary or manda-

tory. Their proposed cross-questions do not ask for a

determination that such consideration is mandatory,? and

at least one of their cross-petitions advances the view that

it is discretionary. Appalachian Power Cross-Pet. at 8 (the

D.C. Circuit was “not unreasonable” in holding that EPA

is not required to consider cost and feasibility; “a require-

ment to consider costs could allow costs to override pub-

lic health”) (emphasis in original). Elsewhere, however,

they assert that EPA “must” consider non-health factors.

Appalachian Power Cross-Pet. at_18; ATA Cross-Pet. at

22, 26. Accord, Ohio Rsp. to Cross-Pets. at 12.

The ATA and Appalachian Power cross-petitions

should be denied. Cross-petitioners’ argument that the

Court can avoid the constitutional nondelegation ques-

tion by adopting a statutory interpretation that greatly

increases the scope of the congressional delegation is pat-

ently meritless. Moreover, under this Court’s precedent,

the constitutionality of the Act and EPA’s interpretation

can and should be upheld, regardless of how cross-peti-

tioners’ questions might be answered. Cross-petitioners

do not even defend the D.C. Circuit’s conclusion that the

Clean Air Act is unconstitutional, and indeed ATA con-

cedes that the Act “undisputedly” is constitutional. ATA

Rsp. at 15. Cross-petitioners likewise do not explain how

a constitutional statute can be made unconstitutional by

an agency interpretation-.and this Court’s precedent

establishes that it cannot.

2 The questions focus on whether EPA “must ignore” the

non-health factors, ATA and Appalachian Power Cross-Pets.,

and Ohio Rsp. to Cross-Pets., at i (emphasis added), not on

whether EPA must consider them.

Thus, far from contributing to this Court’s resolution

_of the nondelegation question, the proposed cross-ques-

tions are irrelevant to - and a distraction from —- that

question. Cross-petitioners are simply seizing upon the

lower court’s incorrect nondelegation ruling as a means

to obtain review of a question that was long ago decided

-- correctly - by EPA and the D.C. Circuit, and on which

the Court has repeatedly denied certiorari.

I. THE QUESTION WHETHER NON-HEALTH FAC-

TORS MAY BE CONSIDERED IN SETTING

NATIONAL AMBIENT AIR QUALITY STAN-

DARDS IS SEPARATE FROM, AND UNNECESS-

ARY TO THE RESOLUTION OF, THE

NONDELEGATION ISSUE.

A. The Clean Air Act and EPA’s Interpretation Pass

Muster Under the Nondelegation Doctrine,

Regardless of Whether the Act Prohibits,

Allows, or Requires Consideration of Non-

Health Factors.

In an attempt to obtain review of an issue unworthy

of certiorari, cross-petitioners contend that the question

whether Clean Air Act § 109(b)(1) permits EPA to con-

sider non-health factors in setting primary NAAQS is

“intertwined with” the nondelegation question. ATA

Cross-Pet. at 7. See also Appalachian Power Cross-Pet. at

4. To the contrary, cross-petitioners’ proposed issue

addressing non-health factors is not implicated by the

lower court’s constitutional nondelegation ruling, and

review of that statutory issue would in no way assist this

Court’s review of that ruling. Under this Court’s non-

delegation jurisprudence, the statutory provisions at

issue in this case, and EPA’s interpretation of those provi-

sions, are unquestionably constitutional, regardless of

whether the statute requires that EPA consider only direct

health impacts of air pollutants (as the lower court cor-

rectly held) or whether the agency may - or must - also

consider other factors such as cost, socioeconomic factors,

and indirect health impacts. Thus, to review the lower

court’s nondelegation ruling, the Court need not decide

whether these other factors may or must be considered by

EPA. We turn first to the constitutionality of the Act, and

then to the constitutionality of EPA’s interpretation of the

Act.

Constitutionality of the Act. Cross-petitioners do

not defend the lower court’s holding that the Clean Air

_ Act violates the nondelegation doctrine. See App. 12

(finding that “statutory language and an existing agency

interpretation involve an unconstitutional delegation of

power”) (emphasis added); App. 4 (“nor is [an intelligible

principle] . . . apparent from the statute”). To the contrary,

ATA acknowledges that the Act is “undisputedly” consti-

tutional. ATA Rsp. at 15.

ALA agrees. To pass muster under the nondelegation

doctrine, Congress need only specify an “intelligible prin-

ciple” to guide agency implementation. Mistretta v. United

States, 488 U.S. 361, 372 (1989). This Congress has plainly

done here, with the mandate for NAAQS that “protect the

public health” with “an adequate margin of safety,” and

with ample additional guidance in the Act and legislative

history. This Court has “upheld, . . . without deviation,

Congress’ ability to delegate power under broad stan-

dards.” Mistretta, 488 U.S. at 373. Indeed, contrary to the

lower court’s insistence on a “determinate criterion,”

App. 5, the Court has upheld statutes specifying thor-

oughly non-determinate criteria such as “fair and equita-

ble” prices, Yakus v. United States, 321 U.S. 414, 426-27

(1944), “excessive profits,” Lichter v. United States, 334

U.S. 742, 778-86 (1948), “just and reasonable” rates, Fed-

eral Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591,

600-601 (1944), and even the “public interest,” National

Broadcasting Co. v. United States, 319 U.S. 190, 225-26

(1943). As Justice Scalia put it: “[Ww]hat legislated stan-

dard, one must wonder, can possibly be too vague to

survive judicial scrutiny, when we have repeatedly

upheld, in various contexts, a ‘public interest’ standard?”

Mistretta, 488 U.S. at 416 (Scalia, J., dissenting on other

grounds, but agreeing with majority’s conclusion that the

statute at issue set forth an intelligible principle).

Indeed, this Court’s precedent not only confirms

ATA’s concession that the Clean Air Act is “undis-

putedly” constitutional, but also establishes that the Act’s

constitutionality does not in any way depend on whether

consideration of costs or other non-health factors is stat-

utorily authorized or mandated. In American Textile Man-

ufacturers Inst. v. Donovan, 452 U.S. 490 (1981), concern

was expressed by a dissenting Justice that Congress had

written the Occupational Safety and Health Act so

broadly as to allow three possible interpretations con-

cerning the role of cost-benefit analysis: that Congress

“required” the agency to engage in such analysis, that it

“prohibited” the agency from doing so, or that it “permit-

ted” the agency to do so. 452 U.S. at 545, 548 n.* (Rehn-

quist, J.). The majority squarely held that such statutory

flexibility would not create a delegation problem: “Even

[if] . . . there were three possible constructions of the

phrase ‘to the extent feasible[,]’ . . . this would hardly have

been grounds for invalidating § 6(b)(5) under the delegation

doctrine. After all, this would not be the first time that

more than one interpretation of a statute had been

argued.” Id. at 541 n.75 (emphasis added).

As American Textile makes clear, this Court can

resolve the nondelegation challenge to the Clean Air Act

without reaching or deciding whether consideration of

costs and other non-health factors is prohibited, allowed,

or required.

Constitutionality of EPA’s Interpretation of the Act.

Moreover, consideration of the role of non-health factors

is unnecessary to review of the constitutionality of EPA’s

interpretation of the Act. First, as stated above, the Court

can and shouid rule - without resolving whether consid-

eration of non-health factors is prohibited, allowed, or

required — that the Act passes muster under the non-

delegation doctrine. This “undisputed[ ]” constitu-

tionality of the Act (ATA Rsp. at 15) necessarily entails

the further conclusion that the lower court erred in

requiring EPA to undertake a narrowing construction of

the Act. A narrowing construction would only be appro-

priate if the Act “might otherwise be thought to be

unconstitutional.” Mistretta, 488 U.S. at 373 n.7. No party

contends that the Act is or might be thought to be uncon-

stitutional, and any such contention would be patently

meritless under the Court’s nondelegation precedent.

Accordingly, no narrowing construction can possibly be

required under the constitutional nondelegation doctrine,

and the lower court’s insistence on one was error.

Because the premise of this conclusion (the undisputed

constitutionality of the Act) does not depend in any way

on resolving what role non-health factors have in the

setting of NAAQS, the conclusion itself does not require

such resolution either.

Second, the core of the lower court’s nondelegation

ruling was the requirement that EPA specify a “determi-

nate criterion for drawing lines.” App. 5. This Court has

held, however, that the Constitution does not require an

agency to specify any rule of thumb to constrain its case-

by-case determinations - much less a “determinate” rule

of thumb:

Nor is there any constitutional requirement that

the legislative standards be translated by the

Commission into formal and detailed rules of

thumb prior to their application to a particular

case. If that agency wishes to proceed by the

more flexible case-by-case method, the Constitu-

tion offers no obstacle.

American Power & Light Co. v. SEC, 329 U.S. 90, 106 (1946).

Moreover, because the Court’s nondelegation precedent

has repeatedly upheld non-determinate standards set

forth directly in statutes, p. 6, supra, there is in any event

no constitutional basis for requiring agency interpretations

to be determinate. Accordingly, regardless of whether the

Clean Air Act prohibits, allows or mandates consider-

ation of non-health factors, the lower court erred in rul-

ing that the nondelegation doctrine requires EPA to

prescribe a “determinate criterion” to govern the

agency's decisionmaking.

B. Cross-Petitioners’ Proposed Interpretation of

the Act Would Broaden, Not Narrow, the Scope

of the Congressional Delegation, and Therefore

Would Not Avoid the Constitutional Non-

delegation Issue.

Cross-petitioners also argue that the Court could

avoid deciding the constitutional nondelegation issue by

construing the Act to allow consideration of non-health

factors. ATA Cross-Pet. at 22; Ohio Rsp. to Cross-Pet. at 2.

This argument must be rejected for two reasons.

First, as shown above, the Court’s precedent clearly _

establishes that the Clean Air Act passes constitutional

muster under the nondelegation doctrine. There is no

merit to cross-petitioners’ request that the Court avoid

that clear-cut issue - especially when the consequence of

such avoidance would be to reach out and decide an issue

that has been settled in the agency and the D.C. Circuit

for decades, and on which this Court has repeatedly

denied certiorari. See ATA Cross-Pet. at 5.

Second, cross-petitioners err in asserting that their

interpretation would, if adopted, avoid the constitutional

issue. Cross-petitioners’ argument necessarily rests on the

assumption that expanding the statutorily cognizable fac-

tors beyond health would narrow the scope of the con-

gressional delegation. The opposite is true: for reasons

stated by then-Justice Rehnquist in American Textile, a

health-only mandate involves a far narrower delegation

than one that allows an agency to balance health against

other factors. ALA Pet. at 19-20 (quoting then-Justice

Rehnquist).

10

Indeed, under cross-petitioners’ open-ended con-

struction of the Act, any conceivable factor would be

cognizable by EPA. ATA Cross-Pet. at 23 (“the key text of

Section 109(b) rules in consideration of ‘public health,’

but fails to rule out consideration of anything”) (emphasis

in original); Ohio Rsp. to Cross-Pets. at 11 (§ 109 “does

not preclude consideration of any factor”) (emphasis

added). As these assertions make clear, if § 109(b)’s

express reference to public health were to be construed as

non-exclusive, there is no statutorily specified limit to the

other factors EPA might be allowed to consider. As dem-

onstrated by cross-petitioners’ own multifarious descrip-

tions of their proposed non-health factors, see supra at p. 2

(quoting cross-petitioners), reading such factors into the

Act would result in a truly broad-ranging delegation. See

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

Inst., 448 U.S. 607, 662 (1980) (Rehnquist, J., dissenting,

explains why he concluded that the Occupational Safety

and Health Act represents an unconstitutionally excessive

delegation: “If § 6(b)(5) authorizes the Secretary to reject

a more protective standard in the interest of administra-

tive feasibility; I have little doubt that he could reject such

standards for any reason whatsoever, including even politi-

cal feasibility.”) (emphasis added).

Remarkably, cross-petitioners’ proposed interpreta-

tion actually would take the Court in a direction

diametrically opposite to that followed in Natl. Cable Tele-

vision v. United States, 415 U.S. 336 (1974), one of two

cases cited in Mistretta as having adopted a narrowing

interpretation to avoid a nondelegation issue. Construing

a statute requiring fees to be “fair and equitable taking

ee a

11

into consideration direct and indirect cost to the Govern-

ment, value to the recipient, public policy or interest served,

and other pertinent facts,” id. at 337, Natl. Cable concluded

that the italicized factors should be disregarded. Id. at

342-43. As a result, “[t]he phrase ‘value to the recipient’

is ... the measure of the authorized fee.” Id. By contrast,

the interpretation proposed by cross-petitioners here

would add factors to the public health factor enumerated

in the statute, thereby broadening the scope of the congres-

sional delegation. “Cross-petitioners’ novel proposal to

adopt a “widening” construction of the Act would not

avoid the nondelegation issue, and should be rejected.

II. CROSS-PETITIONERS’ PROPOSED QUESTION

SEEKS TO UPSET THREE DECADES OF AGENCY

INTERPRETATION, AS WELL AS TWO DECADES

OF D.C. CIRCUIT PRECEDENT ON WHICH THIS

COURT HAS REPEATEDLY DENIED CER-

TIORARI.

Twenty-nine years ago, only four months after enact-

ment of the §§ 109 and 108 provisions governing NAAQS,

EPA concluded that the Act “does not permit any factors

other than health to be taken into account in setting the

primary standards.” 36 Fed. Reg. 8186 (April 30, 1971).

Since that time, the agency has not wavered-from its

initial interpretation. See, e.g., 62 Fed. Reg. 38683-88 (July

18, 1997).

Moreover, two decades of jurisprudence by the D.C.

Circuit has affirmed that (as stated by the court below)

Ҥ 109(b) . . . bar[s] EPA from considering any factor other

than health effects relating to pollutants in the air.” App.

13 (internal quotations omitted). See Lead Industries Ass'n

12

v. EPA, 647 F.2d 1130, 1148-51 (D.C. Cir. 1980); American

Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir.

1981); Natural Resources Defense Council v. Administrator,

902 F.2d 962, 972-73 (D.C. Cir. 1990); Natural Resources

Defense Council v. USEPA, 824 F.2d 1146, 1158-59 (D.C. Cir. |

1987) (en banc) (“Vinyl Chloride”); American Lung Ass'n v. 7

EPA, 134 F.3d 388, 389 (D.C. Cir. 1998). Contrary to cross-

petitioners’ assertions that this caselaw has been super-

seded by Chevron, the D.C. Circuit has confirmed the

exclusiveness of health factors in the NAAQS process

repeatedly since Chevron. NRDC v. Administrator; Vinyl

Chloride; ALA v. EPA. Moreover, Lead Industries itself,

though pre-dating Chevron, was nonetheless decided “in

Chevron step one terms.” App. 18.

As cross-petitioners recognize, this Court has repeat-

edly denied certiorari on these decisions. ATA Cross-Pet.

at 5. Moreover, these decisions are consistent with this

Court’s precedent. In Union Electric Co. v. EPA, 427 U.S.

246, 257 n.5 (1976), a decision construing the Clean Air

Act, the Court concluded: “Where Congress intended the

Administrator to be concerned about economic and tech-

nological infeasibility, it expressly so provided.” Because

Congress did not so provide in § 109(b)(1), EPA properly

excluded those factors from consideration.

Likewise, the Court has recently held that the deter- ‘

mination whether a product is “safe” within the meaning

of the Food, Drug, and Cosmetic Act encompasses only

whether “the product itself is safe,” not whether regulation

of the product could produce indirect adverse health

effects. FDA v. Brown & Williamson Tobacco Corp., U.S.

Sup. Ct. No. 98-1152 (March 21, 2000), slip op. at 17

13

(emphasis in original). The Food and Drug Administra-

tion had argued that a cigarette ban would not be “safe”

because it would produce indirect adverse effects: “cur-

rent tobacco users could suffer from extreme withdrawal,

the health care system and available pharmaceuticals

might not be able to meet the treatment demands of those

suffering from withdrawal, and a black market offering

cigarettes even more dangerous than those currently sold

legally would likely develop.” Id. at 16. The Court

rejected this argument:

[T]he FDA’s conception of safety -would allow

the agency, with respect to each provision of the

FDCA that requires the agency to determine a

product’s “safety” or “dangerousness,” to com-

pare the aggregate health effects of alternative

administrative actions. This is a qualitatively

different inquiry. . . . Sectien 352(j) focuses on

dangers to the consumer from use of the prod-

uct, not those stemming from the agency’s reme-

dial measures.

Id. at 17-19. This ruling directly supports EPA’s and the

D.C. Circuit’s consistent position that the agency may

consider only health effects relating to pollutants in the

air — not indirect health effects.

Given EPA’s and the D.C. Circuit’s long-settled inter-

pretation; this Court’s prior denial of certiorari; and the

consistency of the D.C. Circuit’s position with this

Court’s precedent, there is no reason for the Court at this

late date to change course and accept cross-petitioners’

proposed issue for review.

14

Ill. THE D.C. CIRCUIT CORRECTLY HELD THAT

THE ACT EXCLUDES NON-HEALTH FACTORS

FROM THE SETTING OF PRIMARY NAAQS.

Another reason for denying certiorari on cross-peti-

tioners’ proposed issue is that the lower court was plainly

correct in ruling that primary NAAQS must be based

only on direct health effects of air pollutants. Section

109(b)(1) specifies that primary NAAQS must be “requi-

site to protect the public health.” (Emphasis added.) More-

over, primary NAAQS must be “based on” air quality

“criteria,” § 109(b)(1), which in turn “shall accurately

reflect the latest scientific knowledge useful in indicating

the kind and extent of all identifiable effects on public

health or welfare which may be expected from the presence

of such pollutant in the ambient air, in varying quantities.”

§ 108(a)(2) (emphasis added). Thus, the statute clearly

provides that factors other than direct health impacts of

air pollutants have no place in the setting of primary

national ambient air quality standards.*

This conclusion, clear enough on the face of

§§ 109(b)(1) and 108(a)(2), is confirmed by other portions

of the 1970 Act, which show that Congress knew how to

expressly incorporate non-health factors when it wished

to do so. For example, § 108(b)(1) provides for EPA to

issue “information on air pollution control techniques,

which information shall include data relating to the cost

of installation and operation, energy requirements, emis-

sion reduction benefits, and environmental impact of the

3 Section 108(a)(2)’s reference to “welfare” is relevant only

to the setting of secondary national ambient air quality

standards, which are to “protect the public welfare.” § 109(b)(2).

15

emission control technology.” (Emphasis added.) How-

ever, such non-health data is not for the purpose of

setting NAAQS, but rather is to be “issue[d] to the States

and appropriate air pollution control agencies.”

§ 108(b)(1). Indeed, § 109(b)(1) omits any reference to the

§ 108(b)(1) control techniques information, instead

expressly providing that primary NAAQS are to be

“based on .. . [the] criteria.” (Emphasis added.)

Non-health factors were also referenced in other pro-

visions of the 1970 Act. For example, the 1970 Act

retained a preexisting provision mandating “a compre-

hensive study of the economic impact of air quality stan-

dards on the Nation’s industries, communities, and other

contributing sources of pollution, including an analysis of

the national requirements for and the cost of controlling

emissions to attain such standards of air quality as may

be established pursuant to this Act.” 1970 Act § 312(a),

reprinted in A Legislative History of the Clean Air Act

Amendments of 1977 (“1977 Legislative History”) at 7431.

Tellingly, § 109(b)(1) omits any reference to such eco-

nomic and cost analysis as a basis for NAAQS.

In addition, the 1970 Act provided that NAAQS were

to be attained within three years from approval of air

pollution control plans, § 110(a)(2)(A)(i), 1970 U.S. Code

Cong. & Ad. News 1959-60, but allowed for extensions if

it could be shown that “the necessary technology or other

alternatives are not available or will not be available soon

enough to permit compliance within such three-year

period.” § 110(e)(1)(A), 1970 U.S. Code Cong. & Ad.

News 1962. Likewise, other provisions of the Act

expressly incorporate non-health factors such as cost and

feasibility. § 111(a)(1), 1970 U.S. Code Cong. & Ad. News

16

1963 (new source performance standards must provide

for the degree of emission reduction that is “achievable,”

“taking into account the cost of achieving such reduc-

tion”); § 231(b), 1970 U.S. Code Cong. & Ad. News 1989

(aircraft emission standards shall take effect after such

period as is necessary “to permit the development and

application of the requisite technology, giving appropri-

ate consideration to the cost of compliance”).

“[I]t is generally presumed that Congress acts inten-

tionally and purposely when it includes particular lan-

guage in one section of a statute but omits it in

another[.]” Chicago v. Environmental Defense Fund, 511 U.S.

328, 338 (1994) (internal quotations omitted). Recognizing

this general principle, this Court has specifically held, in

a decision construing the Clean Air Act: “Where Con-

gress intended the Administrator to be concerned about

economic and technological infeasibility, it expressly so

provided.” Union Electric, 427 U.S. at 257 n.5. Because

Congress did not provide for non-health factors to be

considered in setting primary NAAQS, EPA is not permit-

ted to consider them.

The absence of non-health factors from the statutory

provisions governing primary NAAQS, coupled with

their presence in other portions of the Act, is fully suffi-

cient grounds to reject cross-petitioners’ proposed inter-

pretation of the Act. But there is additional compelling

evidence that Congress’s exclusion of non-health factors

from the setting of NAAQS was a deliberate choice.

1967 Act. For example, in the predecessor to the 1970

Act (the Air Quality Act of 1967), Congress had provided

for issuance of air quality crite~ia and control techniques

ee eer

17

information by EPA’s predecessor agency, the Depart-

ment of Health, Education, and Welfare (HEW). As in the

1970 Act, criteria were defined in terms of direct effects of

air pollutants on health, in wording very similar to the

comparable wording in § 108(a)(2) of the 1970 Act.4 As in

the 1970 Act, control techniques information encom-

passed consideration of non-health factors such as cost -

indeed, it was even broader, expressly requiring “cost-

effectiveness analyses.”5 As in the 1970 Act, ambient air

quality standards were to be established. 1967 Act

§ 108(c), 1967 U.S. Code Cong. & Ad. News 523-24.

Despite the similarities, however, the 1967 Act dif-

fered in certain key respects from the 1970 Act. Under the

1967 Act, not only control techniques, but also air quality

criteria, were to be “issue[d] to the States,” § 107(b)(1),

1967 U.S. Code Cong. & Ad. News 522 (emphasis added),

which were to have the first opportunity to establish

ambient air quality standards. § 108(c)(1), 1967 U.S. Code

Cong. & Ad. News 523. HEW was to determine whether

4 1967 Act § 107(b)(2), 1967 U.S. Code Cong. & Ad. News

522 (criteria shall “accurately reflect the latest scientific

knowledge useful in indicating the kind and extent of all

identifiable effects on health and welfare which may be

expected from the presence of an air pollution agent, or

combination of agents in the ambient air, in varying

quantities”).

5 1967 Act § 107(c), 1967 U.S. Code Cong. & Ad. News

522-23 (control techniques information was to include

“technical data relating to the technology and costs of emission

control,” and “such data as are available on the latest available

technology and economic feasibility of alternative methods of

prevention and control of air contamination including cost-

effectiveness analyses”).

18

“such State standards are consistent with the air quality

criteria and recommended control techniques.” Id. (emphasis

added). If a state failed to establish standards, or if a

Governor so requested, HEW was authorized to issue

federal ambient air quality standards, which - like state-

issued standards - were to be “consistent with the air

quality criteria and recommended control techniques.”

§ 108(c)(2), 1967 U.S. Code Cong. & Ad. News 523-24

(emphasis added).

In enacting the 1970 Act, Congress rejected several

key aspects of the 1967 approach. Of key importance,

Congress deleted the linkage between control techniques

information and ambient air quality standards: instead of

being consistent with the criteria and control techniques

information, standards were henceforth to be based only

on the “criteria,” § 109(b)(1) - i.e., based only on direct

health effects of air pollutants.

This conclusion is further confirmed by another

change made by the 1970 Act. Specifically, in 1970 Con-

gress shifted responsibility for ambient standard-setting

from the states to EPA, and accordingly deleted the 1967

Act’s requirement that criteria be issued “to the States.”

§ 108(a)(2) (“EPA shall issue air quality criteria”)

(emphasis added). In sharp contrast, Congress retained

the 1967 Act’s requirement that control techniques informa-

tion be issued “to the States and appropriate air pollution

control agencies,” § 108(b)(1), thus confirming that that

information — and the non-health factors addressed in it —

is not for use in EPA’s standard-setting.

Finally, the 1970 Act deleted the 1967 Act’s require-

ment that control techniques information include “cost-

19

effectiveness analyses.” If Congress did not provide for

such analyses to be included even in control techniques

information, which under § 109(b)(1) is irrelevant to

NAAQS-setting, there is no basis for asserting that such

analyses are required or even permissible in establishing

the NAAQS themselves.

1970 House and Senate Bills. Further confirmation of

Congress’s decision to exclude non-health factors is

found in the evolution of the 1970 committee bills. First,

the Senate bill provided for ambient air quality standards

to be based on health, with no provision for consideration

of non-health factors. S. Rep. 1196, 91st Cong., 2d Sess. 86

(1970). The Senate Committee noted that “[i]n the Com-

mittee discussions, considerable concern was expressed

regarding the use of the concept of technical feasibility as

the basis of ambient air standards.” Id. at 2. The Senate

Committee concluded that “the health of people is more

important than the question of whether the early achieve-

ment of ambient air quality standards protective of health

is technically feasible.” Id. As Senator Muskie explained:

The first responsibility of Congress is not the

making of technological or economic judgments

— or even to be limited by what is or appears to

be technologically or economically feasible. Our

responsibility is to establish what the public

interest requires to protect the health of persons.

This may mean that people and industries will

be asked to do what seems to be impossible at

the present time. But if health is to be protected,

these challenges must be met.

20

116 Cong. Rec. 32901-02 (September 21, 1970). See Union

Electric, 427 U.S. at 257 (“[The Act’s] requirements are of a

‘technology-forcing character,’ and are expressly

designed to force regulated sources to develop pollution

control devices that might at the time appear to be eco-

nomically or technologically infeasible.”) (citation omit-

ted).

Second, although the House bill adopted an approach

weaker than that of the Senate bill, the conferees rejected

the House approach. The House bill, though it did not

expressly require or allow NAAQS to be based on non-

health factors, did not include as strong a mandate for

consideration of health as the Senate bill. 116 Cong. Rec.

19224 (June 10, 1970). Moreover, other provisions of the

House bill provided for consideration of non-health fac-

tors in implementing the NAAQS.® In response, the con-

ferees deleted any references that they believed would

diminish public health protection:

In respect to economic feasibility, it is clear

again beyond any shadow of a doubt that Con-

gress intended that this not be a factor insofar as

6 For example, the House bill had authorized EPA to file

federal enforcement actions where NAAQS were not being met,

and had provided that district courts would have jurisdiction to

order appropriate relief, “giving due consideration to the

practicability and to the technological and economic feasibility

of complying with provisions of the [pollution control] plan

established to implement such [ambient air quality] standards.”

116 Cong. Rec. 19225 (House bill § 108(c)(4)). The conferees

deleted that provision in favor of an enforcement authority not

premised on practicability or technological and economic

feasibility. 1970 Act § 113, 1970 U.S. Code Cong. & Ad. News

1966-68.

21

the primary standards were concerned relating

to public health. Economic feasibility was

included in the House bill, it was hotly debated

in conference and it was deleted.

Implementation of the Clean Air Act Amendments of

1970 — Part I, Hearings before the Subcommittee on Air

and Water Pollution of the Senate Committee on Public

Works (February 16-23, 1972), at 18-19 (remarks of Sena-

tor Eagleton, a 1970 Act conferee).

On this question of an economic factor, I am

as positive about this as a mortal can be, that

was specifically written out of the bill because

many hours were spent in conference debating

the economic feasibility factor and the House

had such language in the bill as:

Giving due consideration to economic and

technological feasibility of compliance.

That appeared in more than one place in the

House bill and it was stricken from the bill in

conference to go back to the Senate version

which had no economic factor as far as protec-

tion of public health was concerned.

Id. at 21 (remarks of Senator Eagleton).

In short, the evolution of the Senate and conference

bills clearly shows that the absence of non-health factors

from § 109(b)(1) was no accident, but reflects a deliberate

congressional choice.

Post-1970 Congressional Action. Twice since 1970,

Congress has enacted major overhauls of the Act - in

1977 and 1990. Yet, despite the longstanding agency and

judicial interpretations construing the Act, Congress did

not amend § 109 or 108 to allow or mandate consideration

22

of non-health factors in NAAQS-setting. To the contrary,

Congress continued the 1970 Act’s mandate that NAAQS

be based on direct health effects of air pollutants, and

instead made adjustments in the provisions governing

implementation of NAAQS. E.g., Pub. L. 95-95, § 129(b),

91 Stat. 746-47 (August 7, 1977) (adding § 172(a), which

authorized attainment deadlines to be extended to 1982,

with a possible further extension to 1987); Pub. L.

101-549, §§ 101-111, 104 Stat. 2399-2471 (November 15,

1990) (extensive amendments addressing designation of

areas violating NAAQS, preparation of pollution control

plans, and deadlines for attainment of NAAQS).

In 1977, Congress amended § 109 by adding a

requirement for periodic review and revision of NAAQS

at intervals of no more than five years. § 109(d). Far from

changing § 109(b)(1)’s exclusive focus on direct health

effects of air pollutants, Congress expressly reaffirmed

that focus with an express cross-reference to § 109(b).

§ 109(d)(1).7

7 Section 109(d) also mandated a scientific review

committee, which was to advise EPA (inter alia) “of any adverse

public health, welfare, social, economic, or energy effects which

may result from various strategies for attainment and

maintenance of such national ambient air quality standards.”

§ 109(d)(2)(C)(iv). Section 109(d) neither authorizes nor requires

EPA to consider the § 109(d)(2)(C)(iv) factors in revising

NAAQS, and the legislative history confirms that those factors

were designed to be “of interest and assistance to the States and

to Congress in fashioning future legislation.” H.R. Rep. 294, 95th

Cong., 1st Sess. 183 (1977), reprinted in 1977 Legislative History

at 2650 (emphasis added).

23

In addition, the 1977 Amendments provided for con-

sideration of non-health factors in various provisions of

the Act, once again demonstrating that Congress knew

how to incorporate such factors when it wished to do so.

For example, the 1977 Amendments added § 317, 42

U.S.C. § 7617, which mandates an “economic impact

assessment” in connection with certain specified proceed-

ings, not including NAAQS, § 317(a), and even as to the

covered proceedings cautions that the assessment

requirement does not change the substantive factors EPA

is required to consider. § 317(c).

Likewise, the 1990 Act added a mandate for hazard-

ous air pollutant emission standards that expressly refer-

ences cost:

Emission standards promulgated under this

subsection shall provide an ample margin of

safety to protect public health in accordance

with this section (as in effect before November

15, 1990), unless the Administrator determines

that a more stringent standard is necessary to

prevent, taking into consideration costs, energy,

safety, and other relevant factors, an adverse envi-

ronmental effect.

§ 112(f)(2)(A), 42 U.S.C. § 7412(f)(2)(A) (emphasis added).

Though Congress thus knew full well how to incorporate

non-health factors such as cost into EPA standard-setting,

it made no such change in § 109(b)(1).

In short, the statute and its development over-

whelmingly demonstrate the correctness of the D.C. Cir-

cuit’s longstanding precedent holding that the Act’s

provisions governing primary NAAQS bar EPA from con-

sidering “any factor other than health effects relating to

24

pollutants in the air.” App. 13 (internal quotations omit-

ted). Accordingly, the cross-petitions seeking to reopen

that long-settled issue should be denied.

IV. THE QUESTIONS PROPOSED IN THE CROSS-

PETITIONS SHOULD BE REJECTED AS ARGU-

MENTATIVE.

In addition to raising questions the Court should not

and need not entertain, the questions proposed in the

cross-petitions are argumentative, and should be rejected

on that ground as well. Sup. Ct. R. 14.1(a) (questions

“should not be argumentative”).

The question proposed by ATA’s cross-petition

assumes (by using the phrase “given that”) that consider-

ation of non-health factors would avoid constitutional

nondelegation issues. As shown above, however, the

Clean Air Act - an EPA’s interpretation of the Act - are

constitutional, regardless of whether consideration of

non-health factors is prohibited, allowed or required. Part

I.A, supra. Moreover, incorporation of non-health factors

into § 109(b)(1) would broaden, not narrow, the scope of

the congressional delegation. Part I.B, supra.

The question proposed by Appalachian Power’s

cross-petition makes at least three argumentative

assumptions. First, it assumes that EPA’s decisions under

§ 109 consist exclusively of “risk management” — words

that appear nowhere in the statutory provisions govern-

ing NAAQS. Second, it assumes that NAAQS have “broad

economic, environmental, and indirect public health con-

sequences.” (Emphasis added.) The validity of certain

impacts alleged by opponents of the 1997 NAAQS (e.g.,

’

a

25

alleged environmental impacts of changes in mine tax

revenues, see App. 20, and alleged reductions in personal

income that allegedly affect health) is disputed by many,

including ALA.

Finally, and most egregiously, Appalachian Power’s

issue assumes that in the two rulemakings at issue here,

EPA faced “a range of standards that reflect uncertain and

indistinguishable health risks.” (Emphasis added.) The

EPA decisions under review “are based on some of the

best scientific information the Agency has ever been able

to rely on in NAAQS decision-making. In particular, the

science underlying these decisions is much more exten-

sive and of much better quality than the science underly-

ing the existing NAAQS for PM and ozone.” 62 Fed. Reg.

38881 n.53 (July 18, 1997). The D.C. Circuit did not in any

way question the validity of the science relied on by EPA,

and on the contrary found that EPA’s decision to set a

fine particulate standard “easily” satisfied the statutory

standard. App. 51. “Given EPA’s statutory mandate to

establish standards based on ‘the latest scientific knowl-

edge,’ 42 U.S.C. §§ 7408(a)(2), 7409(d), the growing

empirical evidence demonstrating a relationship between

fine particle pollution and adverse health effects amply

justifies establishment of new fine particle standards.” Id.

Based on the science, EPA concluded that the 1997

NAAQS would each year prevent thousands of deaths,

thousands of hospitalizations for respiratory and cardio-

pulmonary causes, tens of thousands of cases of reduced

lung function and respiratory pain, and millions of days

of missed work and restricted activity. ALA Pet. at 6, 12.

26

Appalachian Power’s attempt to assume away these find-

ings with an argumentatively worded question should be

rejected.

V. THE COURT SHOULD REJECT CROSS-PcTI-

TFONERS’ ARGUMENT THAT, INDEPENDENTLY

OF ANY CROSS-PETITION, THE ISSUE CON-

CERNING NON-HEALTH FACTORS MAY STILL

BE PRESENTED TO THE COURT.

Cross-petitioners ATA and Appalachian Power argue

that their cross-petitions are unnecessary, because ATA

and Appalachian Power allegedly can raise the non-

health factors issue independently of any cross-petition.

ATA Cross-Pet. at 27-30; Appalachian Power Cross-Pet. at

4. Indeed, Appalachian Power has even attempted to

reformulate the nondelegation question presented by

ALA, EPA, and Massachusetts in such a manner as to

incorporate that issue. Appalachian Power Rsp. at i

(asserting that nondelegation question should include

consideration of “whether the court of appeals properly

construed the scope of the Agency’s discretion in defin-

ing [intelligible] . . . criteria.”). To the contrary, as ALA

has shown above, the non-health factors issue is not a

part of — and is not necessary or helpful to resolution of -

the constitutional nondelegation issue. Moreover, inser-

tion of that issue into the case would not “preserve” the

judgment below, but on the contrary would “change” it.

See ATA Cross-Pet. at 27 (quoting Jones v. United States,

119 S. Ct. 2090, 2106 (1999)).

ATA argues that because EPA must (for reasons other

than the lower court’s nondelegation ruling) conduct

27

further proceedings in any event, cross-petitioners’ pro-

posed issue would not change or enlarge cross-peti-

tioners’ rights. ATA Cross-Pet. at 27-30. This argument is

doubly flawed. First, it is open-ended: because § 109(d)(1)

mandates cyclical EPA review of NAAQS at intervals not

exceeding five years, EPA will always be facing the need

to conduct further proceedings. Second, the judgment

below did not simply require EPA to conduct further

proceedings, but also defined requirements governing

those proceedings. In particular, EPA must identify a

“determinate criterion for drawing lines,” App. 5, in a

manner that considers only “health effects relating to

pollutants in the air.” App. 13 (citation omitted). Cross-

petitioners’ proposed question would (if cross-petitioners

prevail) change these requirements, such that cross-peti-

tioners would have an opportunity to argue on remand

for consideration of non-health factors - and EPA would

no longer be able to assert a lack of statutory authority to

undertake such consideration. Indeed, Ohio argued

below not only that EPA has authority under the Clean

Air Act to consider non-health factors, but also that the

Unfunded Mandates Reform Act requires the agency to

exercise that authority by considering those factors. Ohio

Opening Br. in D.C. Cir. No. 97-1440 at 15 (“the CAA, in

conjunction with UMRA, affirmatively compels EPA to

consider cost and benefits”) (emphasis added). See also p.

3, supra (citing assertions by cross-petitioners in this

Court that EPA must consider non-health factors).

In short, cross-petitioners’ argument concerning non-

health factors seeks both a change in — and an enlarge-

ment of cross-petitioners’ rights under — the D.C. Cir-

cuit’s judgment. Accordingly, cross-petitioners’ assertion

28

that they may raise that argument independently of a

cross-petition should be rejected.

¢

CONCLUSION

For the foregoing reasons, the cross-petitions of ATA

and Appalachian Power should be denied.®

DATED: April 12, 2000.

Respectfully submitted,

Howarp I. Fox

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., N.W.,

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Attorney for American Lung

Association

8 ALA takes no position on the cross-petition of Citizens for

Balanced Transportation.