Reply Brief — Massachusetts v. American Trucking Assns.

Supreme Court, U.S.

FILED

@ ‘APRA 207

No. 99-1265

CLERK

In The

Supreme Court of the United States

4

AMERICAN LUNG ASSOCIATION,

Petitioner,

V.

AMERICAN TRUCKING ASSOCIATIONS, ET AL.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

¢

REPLY OF AMERICAN LUNG

ASSOCIATION IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

4

Howarp 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

RULE 29.6 DISCLOSURE

American Lung Association (ALA) adopts the Rule

29.6 disclosure set forth in ALA’s petition for certiorari at

ii.

TABLE OF CONTENTS

Page

I. THE COURT SHOULD GRANT CERTIORARI TO

REVIEW THE NONDELEGATION QUESTION,

AND SHOULD REJECT RESPONDENTS’ INAC-

CURATE REFORMULATION OF THAT QUES-

8 re rer peepee rn Seats ae 1

II. THE COURT SHOULD GRANT CERTIORARI

TO PREVENT EPA’S UNDISPUTED AUTHOR-

ITY TO REVISE NAAQS FROM BEING

REDUCED TO A POINTLESS EXERCISE....... 6

lil

TABLE OF AUTHORITIES

Page

Cases

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

I i ic a gh ia er dg 5

American Petroleum Institute v. USEPA, 198 F.3d 275

as adie a She Ea A RA A 8 7

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

SE hana Sark ale nee Siva aka ks 4

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

ee cab Saw ak we wlliw wa8 eS “3

Lead Industries Ass'n, Inc. v. EPA, 647 F.2d 1130

ee rk hG expla Maw ky ak ERS EM 5

Mistretta v. United States, 488 U.S. 361 (1989)......... 3

Natural Resources Defense Council v. EPA, 902 F.2d

i er ee ous ede eh ake ek awake ee ea 3

STATUTES

Clean Air Act § 107, 42 U.S.C. § 7407.............. 7,9

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

Coogee Bee Act & 172, 42 USA... © 75E. oo ise cece, 9

Clean Air Act § 181, 42 U.S.C. § 7511.............. 7, 8

REGULATIONS

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1

REPLY OF AMERICAN LUNG

ASSOCIATION IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

None of the responses to American Lung Associa-

tion’s (ALA’s) petition casts doubt on the extraordinary

public health importance of the national ambient air qual-

ity standards (NAAQS) that the lower court has

remanded. As the Environmental Protection Agency

(EPA) found below, those standards will make a profound

difference in pollution levels to which tens of millions of

Americans are exposed, thereby avoiding each year many

thousands of premature deaths, hospitalizations for respi-

ratory and cardiopulmonary illness, other adverse respi-

ratory effects such as reduced lung function and pain on

breathing, as well as missed work days. ALA Pet. 6, 12, 16

(citing EPA). The court below did not challenge these

findings, and indeed resoundi gly rejected attacks on

EPA’s decision to set a fine particle standard. App. 50-51.!

Despite occasional hit-and-run disparagement of EPA’s

analysis, respondents do not seek certiorari on any aspect

of the scientific underpinnings for these standards. Thus,

the vital public health implications of these standards

counsel strongly in favor of certiorari. Accordingly, we

turn to the specific issues addressed by the petitions.

I. THE COURT SHOULD GRANT CERTIORARI TO

REVIEW THE NONDELEGATION QUESTION,

AND SHOULD REJECT RESPONDENTS’ INACCU-

RATE REFORMULATION OF THAT QUESTION.

Respondents American Trucking Associations (ATA)

and Appalachian Power concede that the lower court’s

nondelegation ruling merits review by this Court. ATA

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

Massachusetts and New Jersey in No. 99-1263.

2

Rsp. at 1, 10; Appalachian Power Cross-Pet. at 24. Accord,

Ohio Rsp. at 3 (Ohio does not oppose certiorari on the

nondelegation question). However, they wish to reformu-

late the nondelegation question, and to add an additional

question. ALA’s response to the cross-petitions demon-

strates why the proposed additional question should be

rejected. The discussion below shows that respondents’

proposed reformulations are meritless also.

An initial reason for rejecting respondents’ formula-

tions of the nondelegation question is that those formula-

tions are argumentative. ATA’s Question 1 assumes that

EPA’s interpretation was “standardless,” and Appala-

chian Power’s and Ohio’s Question 1 asks this Court to

remand for EPA “to exercise the discretion delegated to it

by Congress to develop intelligible criteria,” thus assum-

ing that the statute itself does not specify intelligible

criteria and that EPA has not exercised its discretion

pursuant to the statutory criteria. These argumentative

questions should be rejected in favor of the more neutral

questions proposed by AL/ EPA, and Massachusetts.

Sup. Ct. R. 14.1(a) (questions “should not be argumenta-

tive”).

In addition, Appalachian Power’s proposed question

would improperly seek review of a question that is

reviewable only by cross-petition, not by response. See

ALA Rsp. to Cross-Petitions at Part V.

Finally, respondents’ proposed questions ignore the

essence of the lower court’s nondelegation ruling. First,

though that ruling was clearly based on an alleged consti-

tutional violation, App. 12 (finding that the Act’s

language and EPA’s interpretation “involve an unconstitu-

tional delegation of power”) (emphasis added), the Con-

stitution is mentioned nowhere in respondents’ proposed

questions. Second, though the lower court plainly

asserted that Clean Air Act § 109 itself does not set forth

3

an intelligible principle, App. 4 (“nor is [an intelligible

principle] . . . apparent from the statute”), respondents’

proposed reformulations omit any reference to whether

that ruling was correct, instead focusing only on EPA’s

interpretation of the statute.

Respondents’ attempt to avoid review of the lower

court’s constitutional ruling concerning § 109 is under-

standable, given that none of them defends that ruling.

Indeed, quite the contrary: ATA concedes that § 109

“undisputedly is not” unconstitutional. ATA Rsp. at 15

(emphasis added). Accord, Natl. Stone Assn. Rsp. at 8

(conceding that an “ ‘intelligible principle’ [was] pro-

vided by Congress”). If the Act is undisputedly constitu-

tional, however, there was no basis for the lower court to

proceed to a constitutionally based evaluation of EPA’s

interpretation, much less to require a constitutionally

based narrowing of that interpretation. Mistretta v. United

States, 488 U.S. 361, 373 n.7 (1989) (recent application of

nondelegation doctrine has been principally limited “to

giving narrow constructions to statutory delegations that

might otherwise be thought to be unconstitutional”)

(emphasis added). Thus, it is particularly important that

the nondelegation question be formulated to reflect the

lower court’s ruling concerning the constitutionality of

the Act. Review of that ruling should be dispositive of the

lower court’s entire nondelegation ruling - i.e., the por-

tion addressing the Act as well as the portion addressing

EPA’s interpretation of the Act.

Even assuming arguendo that the lower court prop-

erly proceeded to evaluate EPA’s interpretation, respon-

dents’ reformulated questions should still be rejected,

because once again they overlook the constitutional aspect

of the lower court’s ruling. App. 12 (finding that EPA’s

interpretation “involve[s] an unconstitutional delegation

+

of power”) (emphasis added). The core of that constitu-

tional ruling was the lower court’s demand that EPA

prescribe a “determinate criterion for drawing lines.” App.

5 (emphasis added). This Court, however, has plainly

ruled that there is “[nJo[ ] . . . constitutional requirement

that the legislative standards be translated by [an agency]

... into formal and detailed rules of thumb prior to their

application to a particular case,” and that there is no

constitutional obstacle to an agency using “the more flex-

ible case-by-case method.” American Power & Light Co. v.

SEC, 329 U.S. 90, 106 (1946). Moreover, because this

Court’s precedent establishes that the nondelegation doc-

trine does not require a determinate criterion even for

statutes, ALA Pet. 18-21, the doctrine cannot possibly

require such a criterion for agency interpretations of stat-

utes. In short, because the constitutional aspect of the

lower court’s ruling concerning EPA’s interpretation

should be dispositive, respondents’ proposal to define the

Constitution out of the nondelegation question should be

rejected.

Respondents’ attempted justifications of their refor-

mulations must be rejected. First, respondents argue that

in the wake of Chevron, U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984), the nondelegation doctrine

has changed; instead of the courts offering narrowing

constructions, they should remand for the agency to do

so. ATA Cross-Pet. at 5 (quoting App. 69-70), 8, 11. See

also Appalachian Power Rsp. at 13, 15. ALA submits that

this assertion - which is unsupported by any decision of

this Court - is plainly wrong on the merits: the non-

delegation doctrine requires Congress, not the agency, to

supply an intelligible principle. For present purposes,

however, it suffices to observe that respondents’ argu-

ment is a constitutional one — 1.e., it is an argument about

5

the application of the constitutionally based nondelega-

tion doctrine. Thus, respondents’ argument undermines

rather than supports respondents’ attempt to omit the

Constitution from the nondelegation question presented

to this Court.

Second, respondents attempt to equate the lower

court’s nondelegation ruling with a garden variety non-

constitutional remand under Chevren or the arbitrary and

capricious standard. Appalachian Power Rsp. at 12-13;

ATA Rsp. at 14. This argument is refuted by the lower

court itself, which stated:

EPA cites prior decisions of this Court hold-

ing that when there is uncertainty about the

health effects of concentrations of a particular

pollutant within a particular range, EPA may

use its discretion to make the “policy judgment”

to set the standards at one point within the

relevant range rather than another. NRDC v.

EPA, 284 U.S. App. D.C. 136, 902 F.2d 962, 969

(D.C. Cir. 1990); American Petroleum Inst. v.

Costle, 214 U.S. App. D.C. 358, 665 F.2d 1176,

1185 (D.C. Cir. 1981); Lead Industries, 647 F.2d at

1161 (D.C. Cir. 1980). We agree. But none of those

panels addressed the claim of undue delegation that

we face here, and accordingly had no occasion to

ask EPA for coherence (for a “principle,” to use

the classic term) in making its “policy judg-

ment.”

App. 11 (emphasis added). Thus, the lower court clearly

believed that its invocation of the constitutionally based

nondelegation doctrine made possible a ruling that the

court would not have been able to issue on non-constitu-

tional grounds. It is precisely the lower court’s constitu-

tionalization of what should have been a non-

constitutional administrative law question that merits

this Court’s review.

6

II. THE COURT SHOULD GRANT CERTIORARI TO

PREVENT EPA’S UNDISPUTED AUTHORITY TO

REVISE NAAQS FROM BEING REDUCED TO A

POINTLESS EXERCISE.

Respondents’ position on the Subpart 2 question

strongly underscores the need for certiorari concerning

EPA’s authority to implement and enforce a revised

ozone NAAQS. Unlike Judge Tatel, who at least con-

cluded that a new ozone NAAQS can be implemented

and enforced in areas that are attaining the pre-existing

one-hour NAAQS, App. 81, respondents adopt a maxi-

malist reading of the lower court’s opinion, asserting that

the new eight-hour NAAQS can never be implemented or

enforced in any area. Appalachian Power Rsp. at 28; Ohio

Rsp. at 2.

This reading reduces the statute to an absurdity. The

lower court held — in a ruling not challenged by respon-

dents in this Court - that the 1990 Amendments retained

EPA’s duty to revise NAAQS as appropriate, and to des-

ignate nonattainment areas pursuant to such revisions.

App. 31-34. Acting pursuant to this duty, EPA carefully

considered the scientific evidence, concluded that

adverse health effects are occurring at ozone levels

allowed by the pre-existing one-hour NAAQS, and pro-

mulgated a new NAAQS to address those effects. Yet

under the lower court's ruling (as interpreted by respon-

dents), EPA is now statutorily barred from ever imple-

menting or enforcing this new standard anywhere, and

the children and asthmatics suffering pain and reduced

lung function due to ozone levels allowed by the prior

NAAQS are simply abandoned to their fate. Thus, con-

trary to respondents’ attempt to portray their position as

a defense of Subpart 2 against Subpart 1, their real argu-

ment is that the new standard cannot be implemented or

enforced under either subpart. This argument reduces the

7

Act to an absurdity, and flies in the face of the Act’s core

public health purpose.

Nor are respondents persuasive even in their chosen

domain of statutory textualism. Their whole textual argu-

ment (and the lower court’s holding) rests on the asser-

tion that, because of § 181(a)(1)’s cross-reference to the

entirety of § 107(d), § 181(a)(1) is not limited to the one-

hour standard, but instead specifies classifications and

attainment dates for any ozone standard - including the

new eight-hour standard. This professed fidelity to statu-

tory text is illusory, however. Tellingly, neither respon-

dents nor the lower court was able to point to a single

classification or attainment date specified by § 181(a)(1)

for the eight-hour standard — or even to resp@~d to, much

less refute, ALA’s arguments on this point, ALA Pet. at

25. The reason is simple: § 181(a)(1) specifies no such

classifications or attainment dates.

First, for areas with a design value less than 0.121,

§ 181(a)(1) specifies no classifications or attainment dates:

the table set forth in that provision provides classifica-

tions and attainment dates only for areas with design

values of 0.121 or higher. As Judge Tatel observed, “it is

difficult to see how Subpart 2 can ‘specifically provide[ ]’

attainment dates for areas that are designated nonattain-

ment under the new standard but are not covered by

Table 1.” App. 77.

Indeed, a recent D.C. Circuit decision - written by

Judge Williams, a member of the panel below — held that

§ 181(a)(1) does not set forth classifications or attainment

dates even for all nonattainment areas under the pre-

existing one-hour standard. American Petroleum Institute v.

USEPA, 198 F.3d 275, 278-80 (D.C. Cir. 2000) (holding that

“sub-marginal” areas - i.e., areas that are in nonattain-

ment with the one-hour standard but have design values

less than 0.121 - are not covered by Table 1 of § 181(a)(1);

8

Table 1 and nonattainment status “overlap but are dis-

tinct”). The API decision confirms an observation made in

the lower court opinion itself. App. 33 (“not all areas

designated nonattainment for ozone will have design

values of 0.121 ppm or higher”). These statements under-

mine the lower court’s conclusion that “Subpart 2 speci-

fically provides classifications and dates for all areas

designated nonattainment under any ozone NAAQS.”

App. 34-35 (emphasis added).

A second reason why respondents’ (and the lower

court’s) textual argument fails is that neither respondents

nor the lower court was willing to acknowledge —- much

less accept — the implications of that argument. For nonat-

tainment areas under the new NAAQS whose design

values are between 0.121 and 0.160, that argument would

lead to the conclusion that those areas have attainment

dates that had already passed as of the date when the 1997

ozone standard was promulgated. § 181(a)(1) (setting

forth a 1993 deadline for areas with design value from

0.121 to 0.138, and a 1996 deadline for areas with design

value from 0.138 to 0.160). Respondents’ (and the lower

court’s) unwillingness to follow their textual argument to

its absurd conclusion - or even to respond to ALA’s

discussion of this point - undermines the alleged textual

basis for the lower court's ruling.

In addition to its incorrect rulings concerning classi-

fications and attainment dates, the lower court also incor-

rectly held (App. 31) that the “control measures” of

Subpart 2 oust those of Subpart 1 for purposes of the new

eight-hour NAAQS. Respondents do not point to any

statutory provision that ousts the Subpart 1 control mea-

sure requirements. See 4 LA Pet. 26 (noting that the lower

court had not pointed to any such provision, and that no

such provision exists). Instead, respondents argue that

9

“ ‘ouster’ language is not needed in these later subsec-

tions of § 172 once areas are ‘ousted’ from the deadline

and classification provisions that trigger the planning

requirements.” Appalachian Power Rsp. at 26 n.49. To the

contrary, the statute plainly provides that the control

measure requirements are triggered by “the designation

of an area as nonattainment with respect to a national

ambient air quality standard under section 107(d).”

§ 172(b). In a holding not challenged by respondents, the

lower court ruled that the § 107(d) designation provision

does apply to the new NAAQS. App. 33-34 (EPA is

required to designate nonattainment areas under the new

NAAQS). Accordingly, absent an ouster provision, the

control measures triggered by this designation apply as

well.

Unable to defend the lower court’s Subpart 2 hold-

ing, respondents argue that the holding is not appropri-

ate for certiorari. In doing so, they mischaracterize the

Subpart 2 question as simply alleging “the misapplication

of a properly stated rule of law.” ATA Rsp. at 19 (quoting

Sup. Ct. R. 10). To the contrary, the Subpart 2 question is

itself a question of law - 1.e., of the proper interpretation

of the Clean Air Act. This Court’s rules plainly contem-

plate review of “important question(s] of federal law,”

Sup. Ct. R. 10(c), and respondents cannot seriously deny

the importance of the question whether EPA has author-

ity to implement and enforce nationwide air quality stan-

dards affecting the exposure of millions of Americans to

harmful air pollution.

Finally, respondents argue that the Subpart 2 ruling

is interlocutory, because EPA must pursue a remand to

address the alleged beneficial health effects of ozone.

Appalachian Power Rsp. at 29-30; ATA Rsp. at 16-18. That

remand would be a pointless exercise, however, if EPA

10

were barred from implementing or enforcing any result-

ing ozone standard. Moreover, there is no basis for

respondents’ suggestion (ATA Rsp. at 20) that the Subpart

2 question should be presented to the D.C. Circuit yet

again before this Court accepts review. While the lower

court indicated that “[t]he remaining issues” — i.e., those

not yet expressly ruled on - could not be resolved pend-

ing completion of the remand, App. 4 (emphasis added),

the court nowhere invited post-remand reargument of the

Subpart 2 question. That question, having already been

considered by the lower court twice (on the merits and on

rehearing), is clearly ripe for this Court’s review.

DATED: April 13, 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

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