Petition for Writ of Certiorari — Alabama Power Co. v. Environmental Defense Fund

Supreme Court brief1989

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Text

JOSEPH F. SPANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ALABAMA POWER COMPANY, et al.,

Petitioners,

Vv.

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GEORGE C. FREEMAN, JR.

HENRY V. NICKEL

(Counsel of Record)

MICHAEL L. TEAGUE

F. WILLIAM BROWNELL

NORMAN W. FICHTHORN

HUNTON & WILLIAMS

P.O. Box 19230

Washington, D.C. 20036

(202) 955-1500

Counsel for Petitioners

September 6, 1989 Alabama Power Company, et al.

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. ©.C. 20001

e QUESTIONS PRESENTED

1. Whether a federal court can order the Environmental

Protection Agency to engage in notice and comment rule-

making prior to making a decision not to change existing

regulations under § 109(d) of the Clean Air Act, when

neither the Clean Air Act nor the Administrative Proce-

dure Act requires notice and comment rulemaking prior

to such a decision?

2. Whether the decision of the court below was correct

in rejecting the decision of the District of Columbia Cir-

cuit in Oljato Chapter of the Navajo Tribe v. Train, by

holding that a person seeking to challenge an agency’s

decision not to change its existing standards need not

petition the agency for rulemaking and then proceed to

the circuit court of appeals under § 307(b) of the Clean

Air Act after a denial of the petition, but could instead

bring an action in a district court under § 304 of the

Clean Air Act to compel rulemaking on such standard

revisions?

3. Whether the decision of the court below was correct

in rejecting the decision of the District of Columbia Cir-

cuit in Telecommunications Research and Action Center

v. FCC, which precludes district courts from asserting

jurisdiction over suits seeking relief that might affect the

future jurisdiction of the circuit court of appeals (in this

case, the District of Columbia Circuit) ?

(i)

PARTIES TO THE PROCEEDINGS

This case involves a challenge to the Environmental

Protection Agency’s (EPA) decision to leave in place the

current national ambient air quality standards for sulfur

oxides pursuant to § 109 of the Clean Air Act, 42 U.S.C.

§ 7409 (1982). Alabama Power Company, 59 other in-

dividual electric utilities,! the Edison Electric Institute,

the American Public Power Association, and the National

Rural Electric Cooperative Association were intervenor-

appellees below, and are petitioners here. Other inter-

venor-appellees below were Peabody Holding Company,

Inc., Peabody Coal Company, American Mining Con-

gress, Asarco Incorporated, and Magma Copper Company.

The plaintiff-appellants below were the Environmental

Defense Fund, the Natural Resources Defense Council,

the Sierra Club, the National Parks and Conservation

Association, the State of New York, the State of Con-

necticut, the State of New Hampshire, the Commonwealth

of Massachusetts, the State of Vermont, and the State

of Minnesota. Pursuant to Rule 19.6 of this Court, the

plaintiff-appellants and the intervenor-appellees other than

Alabama Power Company, et al., are respondents in this

Court. William K. Reilly, EPA Administrator, and EPA

were defendant-appellees in the proceedings below, and

are respondents here.

1 A list of the individual companies that comprise Alabama Power

Company, et al., and all parent companies, subsidiaries and affiliates

is contained in the supplemental appendix attached to this Petition

pursuant to Rule 28 of this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................0..0.........eeeeeeeees

I iia clini caincnnenissinbiansocarnannnnnesiontneeniiennenaenene

STATUTORY PROVISIONS INVOLVED ....................

STATEMENT OF THE CASE .....2...... eee eee

A. The Administrative Procedure Act and the Clean

ao stensmemunibininnenpines

REASONS FOR GRANTING THE PETITION .............

I. The Second Circuit Decision Requiring Notice

II.

and Comment Rulemaking on Agency Decisions

Not To Change Existing Regulations Is Incon-

sistent with This Court’s Decision in Vermont

Yankee and with Basic Principles of Adminis-

trative Law Regarding the Relationship of Fed-

eral Courts and Agencies ....-.....0........222020cccoe cece

The Second Circuit Decision Conflicts with De-

cisions of Other Circuits as to the Permissible

Means for Seeking Revision of Existing Regula-

tions, and for Obtaining Judicial Review of

EPA Decisions Not To Conduct Rulemaking on

the Adequacy of Existing Regulations .................

(iii)

TABLE OF CONTENTS—Continued

Page

III. Requiring Agencies To Follow Rulemaking Pro-

cedures Before Making a Decision To Maintain

Existing Regulations Will Fiustrate Implemen-

tation of the Clean Air Act and Similar Regula-

tory Statutes, and Will Conflict with the D.C.

Circuit’s Decision in Telecommunications Re-

search and Action Center v. FCC ..............---.------- 22

CONCLIIBION qq..nnas.cnne.-.neenenceees contac tldiniaicibioiijeidas 26

TABLE OF AUTHORITIES

CASES:

Page

Association of National Advertisers, Inc. v. FTC,

627 F.2d 1151 (D.C. Cir. 1979), cert. denied,

Se I iieicinchccternesnctesstetieniinntirnieieinantinn 18

Association of Pacific Fisheries v. EPA, 615 F.2d

Re i aati 21

BASF Wyandotte Corp. v. Costle, 598 F.2d 637

(Ist Cir. 1979), cert. denied, 444 U.S. 1096

ti lite? Ey AA SD S28 ER SE area re 14

Baltimore Gas & Electric Co. v. Natural Resource

Defense Council, Inc., 462 U.S. 87 (1983)..2....... 16

Batterton v. Marshall, 648 F.2d 694 (D.C. Cir.

, EEE Re Bn See Co een 17

Brecker v. Queens B’nai B’rith Housing Develop-

ment Fund Co., Inc., 798 F.2d 52 (2d Cir.

EE CASS ce ORES Ca emery ae 15

Carpet, Linoleum and Resilient Tile Layers v.

Brown, 656 F.2d 564 (10th Cir. 1981) -............. 18

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 887 (1984) .............................. 12, 16

Chocolate Manufacturers Association of United

States v. Block, 755 F.2d 1098 (4th Cir. 1985) .. 14

City of Seabrook v. Costle, 659 F.2d 1871, reh’g

denied, 665 F.2d 347 (5th Cir. 1981) ~................ 24

Environmental Defense Fund, et al. v. Thomas,

et al., No. 85 Civ. 9507 (S.D.N.Y. April 19,

RRR SS i BP 1,8

Environmental Defense Fund, et al. v. Thomas,

et al., 870 F.2d 892 (2d Cir. 1989) —...00002 0. passim

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.) (en

banc), cert. denied, 426 U.S. 941 (1976) -........ 13

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

Ci iicccsbstitsine coitacin nana aeieanidiltinneanataitianiaaintiniiiliaiitansn 18

General Motors v. Ruckelshaus, 742 F.2d 1561

(D.C. Cir. 1984), cert. denied, 471 U.S. 1074

(FAERIE RS Re SE YA ee 72 ee Ce 15

Group Against Smog and Pollution, Inc. v. U.S.

EPA, 665 F.2d 1284 (D.C. Cir. 1981) .............. 21

Guadamuz v. Bowen, 859 F.2d 762 (9th Cir.

BR is isiechinaieslticnsinsaet li atta Raila a tia a tibabsntetianen 15

Heckler v. Chaney, 470 U.S. 821 (1985) .................. 23

TABLE OF AUTHORITIES—Continued

= J Page

Heckler v. Day, 467 U.S. 104 (1984) —.......00000.2...... 23

Independent Bankers Association of America v.

Conover, 603 F. Supp. 948 (D.D.C. 1985) .......... 25

Jean v. Nelson, 711 F.2d 1455, reh’g granted,

TUG FBG BS CERT Car. TOR) q....n.ccccccccccsscecsese:: 15

Mountain States Legal Foundation v. Costle, 630

F.2d 754 (10th Cir. 1980), cert. denied, 450

a iaaeeeenaebainehsentnane 24

Natural Resources Defense Council v. SEC. 606

Be I Is TA, BI ecicnensetersecsecensecensscenaee 14, 23

Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert.

denied, 428 U.S. 824 (1975) ...-........................... 15

Oil, Chemical and Atomic Workers International

Union v. Zegeer, 768 F.2d 1480 (D.C. Cir.

EUR REY ENON na oe QE 25

Oljato Chapter of the Navajo Tribe v. Train, 515

Pe GS6 (D.C. Cir. 1GFG) «......ccrccererecerennnree 10, 12, 20, 21

PPG Industries, Inc. v. Costie, 659 F.2d 1239

Ne RRRRC ARN RAREI SERSES AEACRCNES Ar an 19

Professional Drivers Council v. Bureau of Motor

Carrier Safety, 706 F.2d 1216 (D.C. Cir. 1983).. 14

Public Utility Commissioner of Oregon v. Bonne-

ville Power Administration, 767 F.2d 622 (9th

eas TUITE cenecethanhdchibsicslabatenephoadatshiatailetnaet hueiciiinnbiainintenson 25

Robertson v. Methow Valley Citizens Council, 490

U.S. ——, 104 L.Ed.2d $51 (1989) .............000.... 16

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.

ERC NN Pe Se ARE eS RON 17, 24, 25

State of Maine v. Thomas, 874 F.2d 883 (ist Cir.

TE A SEI RON eRe TO 21, 24

Telecommunications Research and Action Center

v. FCC, 750 F.2d 70 (D.C. Cir. 1984) _............ .. 12, 25

Thomas .v. State of New York, 802 F.2d 1448

(D.C. Cir. 1986), cert. denied, 482 Ur’. 919

ERI Rane eres Subs oketite N Oep re: A Oe RO 9,16

United States Brewers Association, Inc. v. EPA,

Se ee ee Cs TH, BUD crctennnttttcsieneees 21

Vermont Yankee Nuclear Power Corp. v. Nat-

ural Resources Defense Council, 435 U.S. 519

DUI” \.csccaicianceeahdeaionbicniolenieiatastbapioestipanigidieotantanaba 12, 14, 16, 17

vii

TABLE OF AUTHORITIES—Continued

Page

Wisconsin Environmental Decade, Inc. v. Wiscon-

sin Power and Light Co., 395 F. Supp. 313 (W.D.

Seite HITT icisicciciacn aeiteraicisapsclaneendaeinhdidicdaanliaiateitarenaiieia a iti 17

WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir.

gs RETR TESS ar oS AO i a Fe DN a er 21

STATUTES:

The Administrative Procedure Act, 5 U.S.C.

§§ 551, et seq. (1988)

Sf SE nee 3,13

5 U.S.C. § 552(a) (1) (D) (1988) -...000.. 15

fe | aE 2,3, 15, 17

pie TS ene 3

Lik fo | | |_| Ree ae 21

ne 14

Re | nee 21

| ee eee 14

nN 2

EN 2

The Clean Air Act, 42 U.S.C. §§ 7401, et seq.

(1982)

§ 108(a), 42 U.S.C. § 7408(a) (1982) 2.000... 13

§ 109, 42 U.S.C. § 7409 (1982)... 2,3,5,8

§ 109(a), 42 U.S.C. § 7409(a) (1982)... 4

§ 109(b), 42 U.S.C. § 7409(b) (1982)... 4,138

§ 109(b) (2), 42 U.S.C. § 7409(b) (2) (1982)... 6

§ 109(d), 42 U.S.C. § 7409(d) (1982) -............ 20

§ 109(d) (1), 42 U.S.C. § 7409(d) (1) (1982)... 4,5,

11, 13

§ 304, 42 U.S.C. § 7604 (1982)............ 21, 24

§ 304(a), 42 U.S.C. § 7604(a) (1982) -.....0..... 2

§ 304 (a) (2), 42 U.S.C. § 7604 (a) (2) (1982)... 2, 5, 8,

§ 807, 42 U.S.C. § 7607 (1982)............0.. 4,19

§ 307(b), 42 U.S.C. § 7607(b) (1982)... 2

§ 307 (b) (1), 42 U.S.C. § 7607(b) (1) (1982).. 4, 19,

21, 24

§ 307(d), 42 U.S.C. § 7607(d) (1982) .............. 2

§ 307(d) (1) (A), 42 U.S.C. § 7607 (d) (1) (A)

RRIUEEy ‘taitsaneinianiascnctinnpnnidlesincitnaadceamadbaiichdiaiatbadsiitesibniees 4

viii

TABLE OF AUTHORITIES—Continued

§ 307 (d) (6), 42 U.S.C. § 7607 (d) (6) -....

§ 307 (e), 42 U.S.C. § 7607(e) (1982) .......... 2, 4,

LEGISLATIVE HISTORY:

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977)......

A Legislative History of the Clean Air Amend-

ments of 1970 (Comm. Print, Senate Comm. on

Public Works (1974)) (Serial No. 93-18) ........

Senate Committee on the Judiciary, 79th Cong., 2d

Sess., Administrative Procedure Act—Legisla-

RTT AS TITERS

REGULATIONS:

EER ATEN eee a ae

FEDERAL REGISTER:

4, EL

44 Fed. Reg. 56730 (1979) _................ ccc

cscs sescnssannnres

rs ccnessmmsnneneanensnunn

52 Fed. Reg. 24670-71 (1987) _.........-....ccccecccccceeeeee

53 Fed. Reg. 14926-42 (1988) 2.0...

MISCELLANEOUS:

Annotation, Exceptions Under 5 USC § 553(b)

(A) and § 553(b)(B) to Notice Requirements

of Administrative Procedure Act Rule Making

Provisions, 45 A.L.R. Fed. 12 (1979) 0.000000...

EPA, The Acidic Deposition Phenomenon and Its

Effects: Critical Assessment Review Papers

I Gctiasciinktntinnreinalesdieihctnadl i tenidaiaidiicssrmnatennnes

C. Koch, Administrative Law and Practice § 1.24

I unclediitasticteibsta anieectehichnaidaeieidaiankaubeeheldldblameaacdicaniiinen

U.S. Department of Health, Education, & Welfare,

National Air Pollution Control Administration

(NAPCA), NAPCA Pub. No. AP-50, Air Qual-

ity Criteria for Sulfur Oxides (1970) ................

W. Rodgers, 1 Environmental Law: Air and Water

RI EEE Ren IE NRC ICTS

jaz)

NJoantsnagan

15 ~

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

ALABAMA POWER COMPANY, et al.,

m Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Alabama Power Company, 59 other individual electric

utilities,’ the Edison Electric Institute, the National Rural

Electric Cooperative Association, and the American Pub-

lic Power Association respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit entered in this

proceeding on March 22, 1989.

OPINIONS BELOW

The Opinion of the U.S. Court of Appeals in Environ-

mental Defense Fund, et al. v. Thomas, et al., No.

88-6142 (2d Cir. March 22, 1989), is reported at 870

F.2d 892, and is reprinted in the appendix (hereinafter

referred to as “App. —’”’) at p. la.

The Opinion of the United States District Court for

the Southern District of New York, Environmental De-

fense Fund, et al. v. Thomas, et al., No. 85 Civ. 9507

(DNE), has not been reported. It is reprinted in the

appendix at p. 22a.

1 The 59 individual utility petitioners and their parent companies,

subsidiaries, and affiliates are set forth in the supplemental appen-

dix attached to the Petition pursuant to Rule 28 of this Court.

9 =

JURISDICTION

The judgment of the U.S. Court of Appeals for the

Second Circuit was entered on March 22, 1989.2 A timely

Petition for Rehearing was denied on June 8, 1989, over

the dissent of Judge Mahoney. App. 49a. This petition

for a writ of certiorari is being filed within ninety days

of that date pursuant to 28 U.S.C. § 2101(c) (1982) and

Rules 20.2 and 20.4 of this Court. This Court’s jurisdic-

tion is invoked pursuant to 28 U.S.C. § 1254(1) (1982).

STATUTORY PROVISIONS INVOLVED

The following statutory provisions are set forth in the

Appendix:

1. Administrative Procedure Act § 4; 5 U.S.C. § 553

(1988), App. 51a.

2. Clean Air Act §§ 109, 304(a), 307(b), (d), (e);

42 U.S.C. §§ 7409, 7604(a), 7607(b), (d), (e)

(1982), App. 52a.

2 The court below heard this case on appeal from a decision of the

District Court for the Southern District of New York dismissing the

case for lack of jurisdiction. Plaintiffs, the Environmental Defense

Fund, et al. (hereinafter referred to collectively as “EDF”), had

asserted jurisdiction in the district court under § 304(a) (2) of

the Clean Air Act, 42 U.S.C> § 7604(a)(2) (1982), which pro-

vides district courts with jurisdiction to compel the Adminis-

trator of the Environmental Protection Agency (“EPA” or

“Agency’’) “to perform any act or duty under this Act which is not

discretionary with the Administrator” and which che Administrator

has “failfed] ...to perform.” EDF claimed that the Administrator

had failed to revise the ambient standard for sulfur oxides to account

for specific health and welfare effects. The district court found that

revision of ambient standards is discretionary with the Administra-

tor, and therefore not a proper subject of district court jurisdiction.

The Second Circuit reversed in part, finding that even though

revision of ambient standards is discretionary with the Adminis-

trator, the Administrator has a nondiscretionary duty under § 109

of the Act to determine through notice and comment rulemaking

whether standard revisions are appropriate. Petitioners here dis-

agree with the Second Circuit’s creation of a nondiscretionary duty

to conduct rulemaking, and believe that the lower court properly

decided that it had no jurisdiction over this case.

tose 3

STATEMENT OF THE CASE

This case involves a decision of the Administrator of

the Environmental Protection Agency (the “Administra-

tor’) to leave in place its regulations containing the cur-

rent national ambient air quality standards (NAAQS)

for sulfur oxides. This decision was based on the Ad-

ministrator’s review of recent scientific information re-

garding potential health and welfare effects of emissions

of sulfur oxides. Although the EPA Administrator did

nothing to change the existing regulations, the Second

Circuit held that his review of new scientific information

must be embodied in notice and comment rulemaking pro-

cedures, and must result in a formal decision whether or

not to maintain the status quo. The statutory and regu-

latory background of this case is summarized below.

A. The Administrative Procedure Act and the Clean Air

Act :

Absent an express statutory exception in the Adminis-

trative Procedure Act (“APA”) or the agency’s organic

statute, an agency’s action to promulgate or to revise

rules is governed generally by the APA. The APA de-

fines a “rule” as “an agency statement of general or

particular applicability and future effect designed to im-

plement, interpret, or prescribe law or policy.” 5 U.S.C.

§ 551(4) (1988). Under the APA, rules must be devel-

oped through notice and comment rulemaking.*

Apart from the APA, Congress prescribed procedures

that must be followed to implement specific statutory

provisions under the Clean Air Act (“CAA” or “the

Act”). For example, the “promulgation or revision of

any national ambient air quality standard under sec-

tion 109” of the Act must be accompanied by develop-

ment of a rulemaking docket and an opportunity for a

35 U.S.C. § 553 (1988). While there are specific exceptions to the

rulemaking requirement, see id. § 553(b), these exceptions are not

relevant here.

public hearing, as well as notice and an opportunity for

comment.‘

Neither the APA nor the Clean Air Act, however, pre-

scribes procedures that EPA must follow in making

the decision whether or not to revise existing regulations.

For example, § 109(d) (1) of the Clean Air Act provides

that the Administrator shall review the NAAQS “at

five-year intervals,” or “more frequently” if he chooses.

If he decides, based on that review, to revise the NAAQS,

he “shall make such revisions . . . as may be appropriate”

following rulemaking.’ Nothing in § 109(d) (1) tells the

Administrator that rulemaking must precede a decision

not to revise the NAAQS.

The Clean Air Act also addresses federal court juris-

diction over Agency action. Section 307(b) (1) of the

Act assigns exclusive jurisdiction to the court of appeals

to review any-final action of the Administrator under the

Act. A petition to review any national ambient air qual-

ity standard or any nationally applicable final action of

the Administrator under the Act may be filed only in the

Court of Appeals for the District of Columbia Circuit.°

To emphasize the exclusivity of the jurisdiction of the

court of appeals, § 307 provides that “[n]lothing in this

Act shall be construed to authorize judicial review of

regulations or orders of the Administrator under this

Act, except as provided in this section.” *

In contrast to the sweeping and exclusive jurisdiction

of the courts of appeals under § 307, the jurisdiction of

district courts over claims against the Administrator is

*CAA §307(d)(1)(A), 42 U.S.C. §7607(d)(1) (A) (1982)

(emphasis added). All citations to the Clean Air Act hereinafter

are to sections of the Act. The Table of Authorities contains

parallel citations to the United States Code. See also CAA § 109

(a), (b) (requiring notice and comment procedures for promulga-

tion and revision of ambient standards).

5 See id. §109(d) (1) (emphasis added).

6 Id. § 307(b) (1).

7 Id. § 307(e) (emphasis added).

limited to a narrow class of cases. Section 304(a) (2) of

the Act permits a person to bring such a claim to a dis-

trict court only where the Administrator has failed to

perform an “act or duty which is not discretionary with

the Administrator” (emphasis added).

B. EPA’s Review of the NAAQS for Sulfur Oxides

This proceeding involves EPA’s ongoing efforts to keep

up to date on emerging scientific data regarding the

effects of sulfur oxides on public health and welfare.

Pursuant to § 109, the EPA Administrator originally

promulgated ambient standards for sulfur oxides in

1971.8 These standards were based on a summary of

available scientific data (referred to as an “air quality

criteria document”)® that addressed, inter alia, the pos-

sible adverse effects of this substance on the public wel-

fare, including possible adverse effects on materials,’

vegetation, and visibility.’

Since the late 1970s, the Administrator has more or

less continuously reviewed the air quality criteria and

standards for sulfur oxides. In 1979, the EPA Adminis-

trator announced that he was reviewing, pursuant to

§109(d) (1), the scientific basis for the standards.*

This review resulted in the completion in 1982 of a re-

vised criteria document addressing both sulfur oxides

and particulate matter, another air pollutant regulated

under § 109. EPA also prepared an addendum evaluat-

5 36 Fed. Reg. 1502, 5867, 8186 (1971).

9 See id. at 1502 col. 2.

10 U.S. Dep’t of Health, Educ., & Welfare, National Air Pollution

Control Admin. (NAPCA), NAPCA Pub. No. AP-50, Air Quality

Criteria for Sulfur Oxides, 51-56 (1970).

11 Jd. at 61-68.

12 Td. at 9-15.

13 See 53 Fed. Reg. 14928 col. 2 (1988) ; 44 Fed. Reg. 56730 col. 2

(1979).

ing additional scientific studies, and in 1984 issued the

revised criteria document with the addendum.

These review documents addressed, inter alia, acid

deposition, visibility impairment, and the sources, physi-

cal and chemical properties, and possible health and wel-

fare effects of the pollutants. The EPA Administrator

in 1984 decided, based on these documents, that no revi-

sion of the secondary sulfur oxides standard was appro-

priate.*®

The EPA Administrator in 1984 began a further re-

view of additional scientific data on sulfur oxides. On

the basis of that review, he concluded in 1986 that revi-

sion of the secondary sulfur oxides standard was not

appropriate.'7 That conclusion was later reflected in a

Federal Register notice,* which observed that the cur-

rent standard was “necessary and adequate” to protect

against harm to vegetation,"® and that, based on the

available scientific evidence, it would not be appropriate

14 See 53 Fed. Reg. 14928 cols. 2-3 (1988); 49 Fed. Reg. 10408

(1984).

15 See 53 Fed. Reg. 14940 col. 1-14942 col. 1 (1988).

16 Jd. at 14929 col. 2; Defendants’ Answers to First Set of In-

terrogatories at 11, March 6, 1986 (answers 18 and 18a) (here-

inafter “Defendants’ Answers’), App. 63a-67a. For example, EPA

concluded in 1984 that “[a] lack of quantitative cause and effect

data, in itself, defines the state of knowledge in many of the re-

search areas” regarding acid deposition. EPA, The Acidic Deposi-

tion Phenomenon and Its Effects: Critical Assessment Review

Papers (July 1984), Vol. II, at p. 1-1. Based on his concurrent

review of information regarding the effects of sulfur oxides emis-

sions on visibility, the Administrator explained that available in-

formation was insufficient to allow him to decide whether visibility

impairment associated with fine particles was an “adverse effect”

on the “public welfare,” or whether the current secondary stand-

ards for particulate matter (as opposed to sulfur oxides) were not

“requisite to protect” the public welfare. See CAA § 109(b) (2);

52 Fed. Reg. 24670-71 (1987).

17 Defendants’ Answers at 11 (answers 18 and 18a), App. 63a-67a.

18 53 Fed. Reg. 14926 col. 1 (1988).

19 Jd. at 14931 col. 2.

to revise the standard to address welfare effects such as

acid deposition.”

In sum, the ambient standard program has been char-

acterized by evolving scientific data and analyses. The

EPA Administrator has reviewed that information more

or less constantly since the late 1970s. Where the EPA

Administrator has found that revisions are appro-

priate—as he did recently in the case of the particulate

matter ambient standards—he has undertaken notice and

comment rulemaking to revise the standards.*! Where he

has found no need for a change in the status quo, he typi-

cally has not undertaken rulemaking to evaluate the

validity of the existing standards.”

C. The Proceedings Below

EPA’s ongoing review of the sulfur oxides ambient

standards has provided a wealth of scientific information

on the potential health and welfare effects of sulfur

oxides. As with any complex data, however, these data

are subject to varying interpretations.

Exercising the discretion given it by Congress, EPA

decided in 1984 and again in 1986, based on its review

20 Jd. at 14935 col. 3-14936 col. 2. The Administrator noted that

his science advisers (the Clean Air Scientific Advisory Committee,

or “CASAC”) had “concluded that acidic deposition is a topic of

extreme scientific complexity because of the difficulty in establishing

firm quantitative relationships between emissions of relevant pol-

lutants, formation of acidic wet and dry deposition products, and

effects on terrestrial and aquatic ecosystems.” Id. at 14935 col. 3.

The Administrator also noted that CASAC had found that “acidic

deposition involves, at a minimum, several different criteria pol-

lutants—oxides of sulfur, oxides of nitrogen, and the fine particulate

fraction of suspended particles.” Jd. at 14936 col. 1.

21 See Revisions to the National Ambient Air Quality Standards

for Particulate Matter, 52 Fed. Reg. 24634 (1987) (codified at

40 C.F.R. § 50.6 (1988)); Proposed Revisions to the National Am-

bient Air Quality Standards for Particulate Matter, 49 Fed. Reg.

10408 (1984).

22 But see 53 Fed. Reg. 14926 (1988), where the Administrator

solicited public comments on his most recent decision not to revise’

the sulfur oxides standards.

of these data, that revisions to the existing standards

were not appropriate.~ Respondent EDF disagreed with

this conclusion. Rather than petitioning EPA to conduct

a rulemaking to revise the existing regulations in light

of EDF’s interpretation of the scientific data, however,

EDF in 1985 sued the Administrator in the district court

under § 304(a) (2) of the Act.

1. The District Court Suit

EDF argued to the district court that it should (1)

review the information developed by the Agency and its

science advisers regarding acid deposition and visibility,

(2) find that this information established adverse effects

against which the current regulations do not afford pro-

tection, and (3) order the EPA Administrator to under-

take rulemaking to revise the current standards to take

these effects into account.

In response, the district court dismissed EDF’s com-

plaint. That court noted that suits against the Adminis-

trator can be brought under § 304(a) (2) of the Act only

where the Administrator has failed to perform a specific,

clear-cut nondiscretionary act or duty required by the

Act.* The court held that § 109 does not impose on the

Administrator any nondiscretionary duty to revise the

ambient standards based on his review of complex scien-

tific data. EDF’s means of relief under the Clean Air

Act, therefore, would be to petition the EPA Administra-

tor to revise the sulfur oxides standards.”*

2. The Second Circuit Decision

* On appeal, EDF argued that the district court was

wrong in concluding that it had no jurisdiction to review

23 See supra pp. 5-7.

24 See Environmental Defense Fund v. Thomas, No. 85 Civ. 9507

(S.D.N.Y. April 19, 1988), App. 22a.

25 See App. 31a. i

26 See App. 32a-34a & n.4, 39a-43a.

information deveioped by the Agency and its science ad-

visers, and on that basis to order the Administrator to

undertake rulemaking to revise the NAAQS to address

acid deposition and visibility effects.*7 In response to

EDF’s argument, the Second Circuit held that “[a]]-

though the district court does not have jurisdiction to or-

der the Administrator to make a particular revision,” it

“does have jurisdiction to compel the Administrator to

make some formal decision” regarding whether NAAQS

must be revised to address the effects alleged by EDF.**

On this basis, the Second Circuit remanded the case to the

district court “to compel the Administrator to take some

formal action, employing rulemaking procedures, see

Thomas v. State-of New York, 802 F.2d 1443 (D.C. Cir.

1986) [(opinion by Scalia, J.)], either revising the

NAAQS or declining to revise them.” ”

The Second Circuit’s decision therefore stands for the

proposition that, under the Clean Air Act, district courts

can review scientific data and order the Agency to en-

gage in rulemaking based on the-results of that review.®

While district courts may not dictate whether the Agency

must revise the standard, they may tell the Agency when

to undertake rulemaking to determine the need for stand-

ard revisions and what the topics of that rulemaking

must be (e.g., in this case, rulemaking on acidic deposi-

tion and visibility) .*

The Second Circuit based its decision in large part on

its concern that to find no district court jurisdiction

would “leav[e] the matter [i.e., EPA’s informal decision

27 See Environmental Defense Fund v. Thomas, 870 F.2d 892,

896 (2d Cir. 1989), App. 9a.

28 Jd. at 900, App. 17a (emphasis added).

29 Jd., App. 18a (emphasis added).

30 According to the panel majority, “[t]he 1982 criteria and the

1984-1985 ‘Critical Assessment’ triggered a duty on the part of

EPA to address and decide whether and what kind of revision is

necessary.” Id. at 900, App. 17a. '

31 See id. at 895-96, 900, App. 6a-8a, 17a.

not to revise the NAAQS for sulfur oxides] in a bureau-

cratic limbo subject neither to review in the District of

Columbia Circuit nor to challenge in the district court.” *

According to the Second Circuit, EDF did not have avail-

able the alternative suggested by the district court of

petitioning the Administrator for revision of the stand-

ards, because the 1977 Amendments to the Clean Air Act

made a district court suit the appropriate avenue of

relief.**

In a dissenting opinion, Judge Mahoney sharply dis-

agreed with the panel majority. According ‘to Judge

Mahoney, “the procedure outlined in Oljaco Chapter of

Navajo Tribe v. Train, 515 F.2d 654 ‘(D.C./ Cir. 1975),

[a petition to the Agency for revision of standards] was

available to the plaintiffs here.” ** Under this procedure,

a party seeking revision of a standard would present in-

formation justifying the revision to the Agency. In re-

sponse to such a petition, the Agency might grant the

petition, avoiding the need for judicial relief. If the

Agency denied the petition, the U.S. Court of Appeals

for the District of Columbia Circuit would have juris-

diction to review the Agency’s denial.**

As a result, Judge Mahoney concluded that plaintiffs

have a forum—the Agency—in which to present their

claims regarding standard revisions. On the other hand,

the Clean Air Act, he concluded, does not allow a dis-

trict court to review evidence presented by a plaintiff

and to compel the Agency to undertake a rulemaking re-

garding the need for standard revisions.**

A timely petition for rehearing was filed after the

panel’s decision, and was denied over Judge Mahoney’s

dissent. Alabama Power Company, et al., now seek a

32 Jd. at 900, App. 17a.

33 Jd. at 897 & n.1, App. 10a-lla & n.1.

34 Jd. at 900-01, App. 19a.

35 Jd. at 901, App. 19a.

36'See id. at 901-02, App. 20a-21a.

writ of certiorari from this Court to resolve the im-

portant issues of administrative law presented by this

decision.

REASONS FOR GRANTING THE PETITION

Unless specifically exempted by statute, an agency must

comply with the Administrative Procedure Act when it

makes rules. Absent a specific requirement in its organic

statute, however, an agency’s adherence to rulemaking

procedures is not required when the agency reexamines

its existing rules and decides to leave them in place.

Congress can impose rulemaking procedures on any

agency conduct that it believes merits such formality—

even on the day-to-day review of new scientific informa-

tion. Congress has not done so with respect to EPA’s

review of scientific information underlying the national

ambient air quality standards and the threshold decision

whether or not revisions to those standards are needed.**

The panel below, however, decided that whenever EPA

reviews new scientific information to determine whether

the Agency’s current standards are up to date, the Agency

must conduct notice and comment rulemaking with re-

spect to each and every potentially adverse effect identi-

fied by the court and, as to each effect, make a formal

decision either to revise the standards or to maintain

the status quo. According to the Second Circuit, this duty

to proceed by notice and comment rulemaking is not dis-

cretionary with the Administrator, and it can be enforced

by a district court based on the plaintiff’s description of

potential inadequacies in the standards.

If allowed to stand; the Second Circuit’s decision will

frustrate agencies’ ability to respond to evolving scien-

tifie information by requiring continuous rulemaking pro-

ceedings on decisions not to change agency rules. More-

over, it will place district courts at the center of the ad-

ministrative process, allowing them to dictate the need

for and scope of agency rulemaking in light of emerging

87 See CAA § 109(d) (1).

scientific data, and to impose their choice of issues on

which the agency must conduct rulemaking. Finally, the

opinion below is in direct conflict with the decisions of

the Court of Appeais for the District of Columbia Cir-

cuit in Oljato Chapter of the Navajo Tribe v. Train, 515

F.2d 654 (D.C. Cir. 1975), and Telecommunications Re-

search and Action Center v. FCC, 750 F.2d 70 (D.C. Cir.

1984), and with the decisions of other circuits that have

adopted these cases. The opinion below also contravenes

the principles announced by this Court in its landmark

decisions in Vermont Yankee Nuclear Power Corp. v. Nat-

ural Resources Defense Council, 435 U.S. 519 (1978),

and Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984).

I. The Second Circuit Decision Requiring Notice and

Comment Rulemaking on Agency Decisions Not To

Change Existing Reguiations Is Inconsistent with

This Court’s Decision in Vermont Yankee and with

Basic Principles of Administrative Law Regarding the

Relationship of Federal Courts and Agencies.

In this case, the Second Circuit decided that where

EPA reviews recent scientific data and decides to re-

tain its existing regulations, district courts “have juris-

diction to compel the Administrator to take some formal

action, employing rulemaking procedures,” on the thresh-

old question whether or not revisions to the regulations

are needed.** There is no basis in either the APA or the

Clean Air Act for this assertion of judicial power regard-

ing the procedures an agency must follow in determining

whether or not to change its existing regulations.

It is axiomatic that, as scientific knowledge advances,

the factual and policy predicates for regulation may

change. Congress recognized this and addressed it specifi-

cally in the context of the Clean Air Act. With respect to

the ambient air quality standards program, Congress pro-

vided that the Administrator was to exercise his “judg-

38 Environmental Defense Fund v. Thomas, 870 F.2d at 900, App.

18a.

NT OE SE

ment” to establish regulations that are “requisite to pro-

tect” the public health and welfare, based on his review

of relevant scientific evidence.”

Once regulations have been promulgated, an agency is

expected to remain informed as to the evolving facts and

circumstances pertinent to its regulations, and to review

and to revise the regulations when it deems that appro-

priate.” Congress directed the EPA Administrator, for

example, to review the basis for the NAAQS at least

every five years, and to revise those standards “as

appropriate.” *

Where agencies decide to revise standards based on

their review of new information, the APA and organic

statutes such as the Clean Air Act require them to con-

duct notice and comment rulemaking.*® An agency’s in-

forma! review of evolving scientific information to deter-

mine whether or not to revise its existing regulations,

however, is not rulemaking, just as a decision to main-

tain the status quo is not a “rule.” ** Thus, the fact that

Congress intended agencies to keep up to date on the

factual and policy predicates for their rules does not

89 See CAA §§ 108(a), 109(b). =

40 As the D.C. Circuit has observed, EPA is

charged with evaluating the effects of unprecedented environ-

mental modifications, often made on a massive scale. Neces-

sarily, they must deal with predictions and uncertainty, with

developing evidence, with conflicting evidence, and sometimes,

with little or no evidence at all.

Ethyl Corp. v. EPA, 541 F.2d 1, 6 (D.C. Cir.) (en banc), cert. de-

nied, 426 U.S. 941 (1976). Given the environment in which agencies

must operate, “administrative law tends to allow a great variety of

factfinding procedures from which the correct one can be applied

to a particular program.” C. Koch, Administrative Law and Prac-

tice § 1.24, at 44 (1985).

41 CAA § 109(d) (1).

42 See supra pp. 3-4.

43 4 decision to maintain the status quo is not a “statement of

future effect . . . designed to implement . . . law or policy”—the

definition of a “rule” under the APA. 5 U.S.C. § 55144) (1988).

mean that Congress intended agencies to conduct con-

stant rulemakiag on decisions not to change their rules.“

To the contrary, if there is no “rule” that changes the

rights and responsibilities of regulated parties, the rea-

sons for rulemaking (i.e., notice to parties and public

comments to agencies) * simply are not present. More-

over, it makes little sense to burden an agency with a

multitude of formal proceedings whenever the agency

must keep up to date on evolving scientific and policy con-

cerns.*® This is especially the case where a party can

seek revocation or revision of a regulation through a

petition for agency action to which, under the APA, the,

agency must respond within a reasonable time.‘

44Cf. Professional Drivers Council v. Bureau of Motor Car-

rier Safety, 706 F.2d 1216, 1221 (D.C. Cir. 1983) (“No regulatory

scheme is perfect, and the agency’s decision to refrain from amend-

ing the elaborate established regulatory scheme cannot be disturbed

absent a strong showing that such action was unreasonable.’”’) ;

Natural Resources Defense Council v. SEC, 606 F.2d 1031, 1045

(D.c. Cir. 1979) (“Requiring an agency to defend in court its

decision not to adopt proposed rules will divert scarce institutional

resources into an area that the agency in its expert judgment has

already determined is not even worth the effort already expended.’’).

45 See, e.g., Chocolate Mfrs. Ass’n of United States v. Block,

755 F.2d 1098, 1103 (4th Cir. 1985) (“The notice-and-comment

procedure encourages public participation in the administrative

process and educates the agency, thereby helping to ensure in-

formed agency decisionmaking.”); BASF Wyandotte Corp. v.

Cosile, 598 F.2d 637, 642 (1st Cir. 1979), cert. denied, 444 U.S.

1096 (1980).

46 As this Court observed in Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, 485 U.S. 519, 5438

(1978), administrative agencies “ ‘should be free to fashion their

own rules of procedure and to pursue methods of inquiry capable

of permitting them to discharge their multitudinous duties.’ [Cita-

tion omitted].” See also supra note 40.

475 U.S.C. §§ 555(b), 706(1) (1988); see infra note 58. On the

other hand, an agency would have discretion to review evolving

science through rulemaking in those cases where it thought this

type of procedure would be beneficial. See supra notes 40 & 46.

Thus, that EPA has solicited comments with respect to the ade-

quacy of the existing sulfur oxides standards, see supra note 22,

Requiring the EPA Administrator to conduct notice

and comment rulemaking for a decision not to revise a

regulation flatly contradicts the well-established principle

that rulemaking procedures are required only for sub-

stantive rules that change existing law or policy.** In

this regard, the definition of a substantive rule that trig-

gers rulemaking requirements is already the subject of

some confusion among the circuits.*® The Second Circuit

decision will create further confusion among the circuits

does not mean that it must conduct rulemaking in every case where

it reviews the adequacy of its existing standards. Nor does it

mean that the Agency must complete rulemaking on every’issue on

which it has solicited comments.

48 See Senate Committee on the Judiciary, 79th Cong., 2d Sess.,

Administrative Procedure Act—Legislative History at 18, 19

(1946). Section 552 requires notice for “substantive” rules.

5 U.S.C. §552(a)(1)(D) (1988). The legislative history of the

APA states that §553 rulemaking procedures apply “only to

the type of rules for which notice is required by []section [552]...

—that is, substantive rules.” Jd. at 19. See also Guadamuz v.

Bowen, 859 F.2d 762, 771 (9th Cir. 1988) (No rulemaking require-

ment exists if a rule “does not change any existing law or policy,

... [or] remove any p.eviously existing right of claimants or their

attorneys.”) ; Brecker v. Queens B'nai B’rith Housing Development

Fund Co., Inc., 798 F.2d 52, 56 (2d Cir. 1986) (No publication

requirement exists where the agency action “did not constitute a

change in [the agency’s] position.”); General Motors v. Ruckels-

haus, 742 F.2d 1561, 1565 (D.C. Cir. 1984), cert. denied, 471 U.S.

1074 (1985) (Rulemaking is not required because “the rule did

not create any new rights or duties; instead, it’ simiply restated the

consistent practice of the agency.”).

49 The definition of a substantive rule has evolved through case

law. Frustrated courts have described the resulting law on when

a rule is subject to rulemaking proceedings as “enshrouded in con-

siderable smog,” Noel v. Chapman, 508 F.2d 1023, 1080 (2d

Cir.), cert. dented, 423 U.S. 824 (1975), or “akin to wandering lost

in the Serbonian bog,” Jean v. Nelson, 711 F.2d 1455, 1480, reh’g

granted, 714 F.2d 96 (11th Cir. 1983). For a summary of the

numerous approaches adopted by courts to defining a substantive

rule, see Annotation, Exceptions Under 5 USC § 553(b)(A) and

§ 558(b)(B) to Notice Requirements of Administrative Procedure

Act Rule Making Provisions, 45 A.L.R. FED. 12 (1979).

as to when rulemaking is required by the Administrative

Procedure Act.”

Moreover, by expanding the rulemaking requirement,

the Second Circuit decision is directly contrary to this

Court’s teaching in Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, as to the proper

relationship between courts and agencies on questions of

agency procedure. Since neither the Clean Air Act nor

the APA requires EPA to conduct notice and comment

rulemaking when it decides to maintain the status quo, a

court may not impose such a requirement on the EPA

Administrator. Certiorari should be granted to clarify

50 In this regard, the Second Circuit cited then-Judge Scalia’s

opinion for the court in Thomas v. State of New York, 802 F.2d 1443

(D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987), in finding that

rulemaking procedures must be employed here. Environmental

Defense Fund v. Thomas, 870 F.2d at 900, App. 18a. That opinion

has no relevance here. It holds only that if an agency wants to

bind itself to take discretionary action in the future, it can do so

only through rulemaking. See 802 F.2d at 1447.

51 4385 U.S. at 544. Cf. Baltimore Gas & Electric Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87 (1983); Robertson v.

Methow Valley Citizens Council, 490 U.S. ——, 104 L.Ed.2d 351

(1989).

52 In this regard, the Second Circuit’s decision is also inconsistent

with the basic thrust of this Court’s decision in Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Under Chevron, a reviewing court looks first to “whether Con-

gress has directly spoken to the precise question at issue.” Id.

at 342. “[I]f the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the agency’s

answer is based on a permissible construction of the statute.” Jd.

at 843. In the instant case, there is nothing in the language or

legislative history of the Clean Air Act that speaks directly to

whether the agency is required to undertake notice and comment

rulemaking on a decision not to revise an ambient air quality

standard. The question for the court, therefore, should have been

whether the agency’s construction of the statute was a rermissible

one. The Second Circuit, however, did just what this Court in-

structed it not to do, and “simply [imposed] its own construction

of the statute” on the Agency. Id. See Environmental Defense

Fund v. Thomas, 870 F.2d at 897-98 n.1 (“We believe that the

the applicability of Vermont Yankee where agencies de-

cide to maintain the status quo.™

Beyond creating new rulemaking obligations for agen-

cies, the Second Circuit decision gives the district courts

an unprecedented role with respect to implementation of

the Clean Air Act. That is, this decision allows district

courts to tell the Agency when and under what terms it

must conduct rulemaking regarding new scientific data

based on the court’s review of documenis such as

“t]he 1982 criteria and the 1984-1985 ‘Critical Assess-

ment.’ ” *4

Congress’ grant of jurisdiction to district courts under

§ 304(a) (2) of the Clean Air Act, however, is “undis-

putedly limited” * and “narrowly defined.” ** By allow-

ing petitioners to bypass the agency and to argue to a

district court that new information on an alleged potential

effect creates a nondiscretionary duty for the agency to

‘specified action’ under this section is the making of some deci-

sion... . To the extent that the ‘specified action’ is simply the

making of some decision,” district court jurisdiction would exist.)

(emphasis in original), App. 12a.

53 In Batterton v. Marshall, 648 F.2d 694, 709 (D.C. Cir. 1980),-

the D.C. Circuit held that Vermont Yankee constrained a reviewing

court from requiring procedures beyond those set forth in § 553,

but did not limit a court’s power to require § 553 procedures in a

case where the statute was silent as to whether rulemaking proce-

dures were intended by Congress. This is the only interpretation

of Vermont Yunkee that might support the Second Circuit’s deci-

sion in the instant case. It is, however, an unwarranted narrowing

of the broad principle established in Vermont Yankee that a re-

viewing court should defer to an agency’s choice of procedures,

provided the agency has “employed at least the statutory minima.”

435 U.S. at 548. This Court should grant certiorari to clarify the

extent of the principle enunciated in Vermont Yankee.

54 See Environmental Defense Fund v. Thomas, 870 F.2d at 900,

App. 17a.

55 Sierra Club v. Thomas, 828 F.2d 783, 792 (D.C. Cir. 1987).

56 Wisconsin Environmental Decade, Inc. v. Wisconsin Power and

Light Co., 395 F. Supp. 318, 321 (W.D. Wis. 1975).

conduct rulemaking on that potential effect,®’ the Second

Circuit decision violates the separation of powers princi-

ple. That is, it would permit federal courts, rather than

the agencies to which Congress has delegated primary

jurisdiction to administer the Act, to dictate rulemaking

based on the courts’ review of evolving scientific data.**

In sum, by creating new rulemaking obligations gov-

erning agency review of evolving scientific data and by

giving district courts a central role in the administrative

process, the Second Circuit decision represents an abrupt

departure from the traditional rules governing agency

action and conflicts with the decisions of other circuits

and of this Court. For these reasons, it is important that

certiorari be granted to address this decision.

57 As Judge Mahoney explains, the majority opinion concluded

that a formal decision whether to revise the standard was re-

quired “[i]n view of” a revised criteria document and other new

information the agency had produced. See Environmental Defense

Fund v. Thomas, 870 F.2d at 901 n.2 (Mahoney, J., dissenting).

Under the majority’s decision, therefore, district courts would re-

view the merits of a request for rulemaking in deciding whether

a nondiscretionary duty to act exists. This newly created district

court jurisdiction will create uncertainty for agencies that must act

in light of evolving scientific data.

58 The Supreme Court has long admonished the judiciary to re-

spect “the distribution of authority made by Congress as between

its power to regulate commerce and the reviewing power which it

has conferred upon courts under Article 3 of the Constitution,”

noting that federal courts possess only a limited supervisory pro-

vince as to agencies. FCC v. Pottsville Broadcasting Co., 309 U.S.

134, 141 (1940). See also Carpet, Linoleum and Resilient Tile

Layers v. Brown, 656 F.2d 564, 566 (10th Cir. 1981) (“to the

extent a statute vests discretion in a public official, his exercise of

that discretion should not be controlled by the judiciary. The

doctrine of separation of powers precludes the judiciary’s arroga-

tion of authority as a ‘super agency’ controlling or overseeing the

discretionary affairs of an agency’’); Association of National Ad-

vertisers, Inc. v. FTC, 627 F.2d 1151, 1180 (D.C. Cir. 1979)

(Leventhal, J., concurring), cert. denied, 447 U.S. 921 (1980).

II. The Second Circuit Decision Conflicts with Decisions

of Other Circuits as to the Permissible Means for Seek-

ing Revision of Existing Regulations, and for Obtain-

ing Judicial Review of EPA Decisions Not To Conduct

Rulemaking on the Adequacy of Existing Regulations.

The Second Circuit’s decision to require notice and

comment rulemaking refiected the majority’s belief that

if the Agency were not required to make a formal de-

cision through rulemaking that its existing standards

are adequate, the adequacy of those standards would be

left “in a bureaucratic limbo subject neither to review

in the District of Columbia Circuit nor to challenge in the

district court.” °° Granting a district court jurisdiction to

order rulemaking was necessary, the court believed, to

force the Agency to take final action that would be re-

viewable in the D.C. Circuit under § 307 of the Act.”

The Second Circuit’s conclusion that, without district

court jurisdiction, plaintiffs would have no forum to

air their claims is inconsistent with the law of other

circuits, and will disrupt the administrative process by

allowing judicial review before the agency has had an

opportunity to develop an administrative record.

When the EPA Administrator promulgates regulations

under the Clean Air Act, those regulations are subject

to judicial challenge within 60 days after promulgation,

unless the grounds for review arise after the expiration

of this period." The review takes place within the con-

fines of the record developed by the agency.” Reflecting

the primary jurisdiction that Congress granted agencies

to resolve complex, technical questions, the record on

judicial review must reflect the agency’s response to the

59 Environmental Defense Fund v. Thomas, 870 F.2d at 900, App.

17a.

0 Td.

61 CAA § 307(b) (1).

62 See, e.g., PPG Industries, Inc. v. Costle, 659 F.2d 1239, 1241

(D.C. Cir. 1981).

arguments of those seeking review, as well as the agency’s

explanation of its action.”

Principles of primary jurisdiction and the need for an

administrative record for a court to exercise its judicial

review function preclude parties from seeking post-sixty-

day judicial review on the basis of information and argu-

ments not presented to the agency in a petition for rule-

making. This requirement was originally enunciated by

the D.C. Circuit in Oljato Chapter of the Navajo Tribe v.

Train.“ The Second Circuit, however, concluded in the

present case that the Oljato procedure is not available

under the Clean Air Act in the wake of the 1977 Amend-

ments to the Act. In the words of the panel majority, the

Oljato procedure is only “dictum” and in any event is

“obsolete” after those Amendments.®

As Judge Mahoney recognized in his dissent, however,

the Oljato court’s holding that the petition for rulemak-

ing procedure was mandatory was not dictum.® Fur-

thermore, contrary to the assertion of the panel majority,

the Oljato procedure was endorsed, not rejected, by Con-

gress when it amended the Act in 1977.%

63 See CAA § 307 (d) (6).

64 515 F.2d 654 (D.C. Cir. 1975).

65 Environmental Defense Fund v. Thomas, 870 F.2d at 897 n.1,

App. lla n.1.

66 Jd. at 900-01 & n.1 (Mahoney, J., dissenting), App. 19a-20a &

n.l. Indeed, this procedure was “mandated” by the D.C. Circuit

and therefore was not dictum. The petition for review in Oljato

was dismissed specifically for failure to follow that procedure.

515 F.2d at 668.

67 The Second Circuit was plainly wrong when it held that the

Oljato procedure was made obsolete when Congress enacted § 109 (d)

as part of the 1977 Clean Air Act Amendments. Nothing in

the language of the 1977 Amendments supports the Second Cir-

cuit’s holding. Moreover, the House report accompanying the

House bill that proposed to add § 109(d) explicitly states that “the

committee bill confirms the court’s decision in Oljato.” H.R. Rep.

No. 294, 95th Cong., Ist Sess. 323 (1977), reprinted in 1977 U.S.

Code Cong. & Admin. News 1077, 1402.

As a result, other circuits have explicitly adopted the

Oljato scheme subsequent to the 1977 Clean Air Act

Amendments. See, e.g., Group Against Smog and Pollu-

tion, Inc. v. U.S. EPA, 665 F.2d 1284, 1290 (D.C. Cir.

1981) (The Oljato scheme is “explicitly endorsed.”) ; State

of Maine v. Thomas, 874 F.2d 883, 889-90 (1st Cir.

1989) (“We approve the procedures suggested” by the

“entrenched precedent” of the Oljato decision.) ; Associa-

tion of Pacific Fisheries v. EPA, 615 F.2d 794, 812 (9th

Cir. 1980) (Kennedy, J.). Indeed, the Second Circuit

is the only court to reject application of this doctrine.

The Oljato decision confirms that Congress, in granting

district courts jurisdiction under § 304 of the Act to com-

pel nondiscretionary duties, did not change the basic pro-

cedure for obtaining review of the adequacy of existing

standards. That is, a petitioner must seek standard re-

visions from the agency." Judicial relief with respect to

the adequacy of existing standards (and consequently the

obligation of an agency to conduct rulemaking on the

adequacy of those standards) is appropriate only in the

D.C. Circuit after the Agency has had an opportunity to

act on a petition for rulemaking, and not in the district

court before a petition is filed.”

68 Each agency is required by the APA to provide a mechanism

for interested persons to petition for the issuance, amendment, or

repeal of a rule, and to give prompt notice of a denial of such a

petition. 5 U.S.C. §§ 553(e), 555(e) (1988). As the Oljato court

recognized, the rulemaking petition procedures mandated by the

D.C. Circuit in Oljato simply reflect the APA requirements. Oljato,

515 F.2d at 666.

69 See CAA §§ 307(b) (1), 307(e). It is well established that an

adequate record for review of a denial of a rulemaking petition is

created by the rulemaking petition and the agency’s explanation of

its decision on the petition. See WWHT, Inc. v. FCC, 656 F.2d 807,

817-18 (D.C. Cir. 1981) ; United States Brewers Ass’n, Inc. v. EPA,

600 F.2d 974, 979 (D.C. Cir. 1979). See also W. Rodgers, 1 Environ-

mental Law: Air and Water §3.4, at 209 (1986) (An agency’s

rejection of a rulemaking petition under the Oljato procedure will

“be deliberate, informed, with reasons laid out as would be the

case where action is taken.”).

Rejecting the Oljato procedure, as the Second Circuit

has done, would leave courts with no record on which to

review the need for rulemaking on standard revisions,

and with no agency decision to use in evaluating that

record. Rather, allegations of a plaintiff would *-rm the

basis for review and for an order compelling ruiemak-

ing.” Facts alleged by a plaintiff based on its view of

evolving science are simply not a substitute for a record

developed by an agency in response to a rulemaking

petition.

For these reasons, the Second Circuit’s rejection of

Oljato conflicts with the law of other circuits, and will

create confusion as to how to gain review of the ade-

quacy of existing regulations. This Court should grant

certiorari to resolve this conflict.

III. Requiring Agencies To Follow Rulemaking Procedures

Before Making a Decision To Maintain Existing Regu-

lations Will Frustrate Implementation of the Clean

Air Act and Similar Regulatory Statutes, and Will

Conflict with the D.C. Circuit’s Decision in Telecom-

munications Research and Action Center v. FCC.

Agencies charged with implementing complex statutory

provisions of necessity review the scientific predicates for

their regulatory decisions on a periodic basis.’ Such

review may lead to the revision of standards, in which

case the agency undertakes rulemaking. On the other

hand, the review may result in a decision to maintain the

status quo, and no rulemaking will take place. 4

As discussed above, the Second Circuit decision would

change how agencies operate in the face of evolving sci-

ence. Rather than permitting the agency the flexibility

needed to review changing information on an informal

basis, the Second Circuit decision would require the agency

to undertake rulemaking to address alleged potential in-

70 See supra notes 30, 57.

71 See supra pp. 12-13.

adequacies identified by a district court. For the follow-

ing reasons, this approach would disrupt the implementa-

tion of the Clean Air Act and similar regulatory statutes.

Under the Second Circuit decision, an agency would

no longer be able to monitor new information as it arises,

and engage in rulemaking only when it concludes that

new information justifies regulatory changes. Rather,

the agency would be required to engage in rulemaking

prior to each determination that a revision of the exist-

ing standards is not warranted. The amount of rule-

making required under this decision would place an im-

possible burden on agencies, especially in light of the

many important rulemaking obligations already confront-

ing agencies such as EPA.”

This Court has consistently counseled against judicial

intrusion into an agency’s ordering of its priorities.”

By radically expanding the rulemaking obligations of

agencies, this decision will cause precisely the result

against which this Court has cautioned.

Besides imposing substantial new and unnecessary

rulemaking burdens on agencies, this decision will lead

to jurisdictional conflicts regarding implementation of

complex regulatory programs. Recognizing the potential

of district court jurisdiction to disrupt the agency’s im-

72 Requiring repetitive rulemaking on decisions not to revise exist-

ing standards would detract from agencies’ performance of these

obligations.

73 See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“The

agency is far better equipped than the courts to deal with the many

variables involved in the proper ordering of its priorities.’ ;

Heckler v. Day, 467 U.S. 104, 116 (1984). See also, e.g., Natural

Resources Defense Council v. SEC, 606 F.2d at 1056 (The

agency “alone is cognizant of the many demands on it, its lim-

ited resources, and the most effective structuring and timing of

proceedings to resolve those competing demands. An agency is al-

lowed to be master of its own house, lest effective agency decision-

making not occur in any proceeding; and judicial review awaits the

agency’s conclusion of its proceedings.”) (emphasis in original).

plementation of the Act, Congress created district court

jurisdiction under § 304 only in situations where the

Administrator has failed to carry out a duty clearly

required on the face of the statute.* By contrast, circuit

court jurisdiction under the Clean Air Act is broadly

defined to cover “any .. . final action” of the Adminis-

trator.”

To avoid conflicts between district court jurisdiction

and court of appeals jurisdiction with respect to agency

regulations, the D.C. Circuit and the Ninth Circuit have

adopted an explicit rule that “any suit seeking-relief that

might affect the Circuit Court’s future jurisdiction [to

74 See, e.g., A Legislative History of the Clean Air Amendments

of 1970 (Comm. Print, Senate Comm. on Public Works (i974) )

(Serial No. 93-18) at 112 (“[Clitizen suits against the Adminis-

trator will be limited to those duties which are mandatory under

the legislation and the suits will not extend to those areas of en-

forcement with regard to which the Administrator has discretion.’’)

(statement of Sen. Staggers); id. at 147 (“[S]uits against the

Administrator of the Environmental Protection Agency are limited

to actions in which there is an alleged failure by the Administrator

to perform mandatory duties imposed by the statute.”) (statement

of Sen. Spong).

Consisent with the language of the statute and the Act’s legis-

lative history, § 304 jurisdiction has been limited by other cir-

cuits to enforcing mandatory duties that are clear on the face

of the statute. See, e.g., Sierra Club v. Thomas, 828 F.2d at 792

(Section 304 cannot be used to enforce a duty “merely inferred

from the overall statutory scheme.) ; State of Maine v. Thomas,

874 F.2d at 888 n.7 (Even nondiscretionary duties are not review-

able under §304 unless they are “statutory nondiscretionary du-

ties.”) (emphasis added); City of Seabrook v. Costle, 659 F.2d

1371, 1374, reh’g denied, 665 F.2d 347 (5th Cir. 1981) (requiring

“a clear statutory mandate” to impose a nondiscretionary duty on

the Administrator) ; Mountain States Legal Found. v. Costle, 630

F.2d 754, 766 (10th Cir. 1980), cert. denied, 450 U.S. 1050 (1981)

(Section 304 jurisdiction is restricted to “actions seeking to en-

force specific non-discretionary clear-cut requirements of the Act.’’).

™ CAA §§ 307(b) (1); see also id. §307(e) (“Nothing in this

Act shall be construed to authorize judicial review of regulations

or orders .. . except as provided in this section.”’).

review agency actions] is subject to the exclusive review

of the Court of Appeals.” * The D.C. Circuit has held

that the rule of preclusive court of appeals jurisdiction

enunciated in TRAC applies to cases under the Clean

Air Act, thereby confirming that the jurisdiction of dis-

trict courts under the Act is extremely narrow.”

In the instant case, by contrast, the Second Circuit has

held that a district court may review facts alleged by a

plaintiff and order an agency to conduct rulemaking

based on the plaintiff’s reading of those facts."* This

kind of district court review of scientific data to compel

final agency action after rulemaking will result in the

jurisdictional conflict that the TRAC rule seeks to avoid.”

As Judge Mahoney pointed out, therefore, the Second

Circuit’s decision directly contradicts the TRAC rule

adopted by the D.C. Circuit and the Ninth Circuit.*°

In sum, the Second Circuit decision will hinder imple-

mentation of the Clean Air Act and similar regulatory

7 Telecommunications Research & Action Center v. FCC, 750

F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”) (emphasis in original).

The D.C. Circuit noted that “this part of our decision has been

considered separately and approved by the whole court, and thus

constitutes the law of the circuit.” Jd. at 75 n.24. The Ninth Cir-

cuit adopted the rule in TRAC, in an opinion by then-Judge Ken-

nedy, in Public Utility Commissioner of Oregon v. Bonneville

Power Admin., 767 F.2d 622, 626 (9th Cir. 1985).

77 Sierra Club v. Fhomas, 828 F.2d at 787-93.

78 See supra notes 30, 57.

79 See TRAC, 750 F.2d at 74-75. .

80 See Environmental Defense Fund v. Thomas, 870 F.2d at 901-

02, App. 21s. Indeed, TRAC has been applied to deny district court

jurisdiction in cases directly comparable to the instant case in

which the relief sought was a district court order compeiling an

agency to make a final order that would be subject to exclusive

appellate review. See, e.g., Oil, Chemical & Atomic Workers Int’l

Union v. Zegeer, 768 F.2d 1480, 1483 (D.C. Cir. 1985); Independ-

ent Bankers Ass’n of America v. Conover, 603 F. Supp. 948, 956-

57 (D.D.C. 1985).

statutes. Certiorari should be granted to avoid these

problems and to resolve the conflict with the TRAC rule

adopted by the D.C. Circuit and the Ninth Circuit.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari to the United States Court of Appeals for the

Second Circuit should be granted.

Respectfully submitted,

GEORGE C. FREEMAN, JR.

HENRY V. NICKEL

(Counsel of Record)

MICHAEL L. TEAGUE

F. WILLIAM BROWNELL

NORMAN W. FICHTHORN

HUNTON & WILLIAMS

P.O. Box 19230

Washington, D.C. 20036

(202) 955-1500

Counsel for Petitioners

Alabama Power Company, et al.

SUPPLEMENTAL

APPENDIX

SA-1

SUPPLEMENTAL APPENDIX

PARENT COMPANIES, SUBSIDIARIES, AND

AFFILIATES OF INDIVIDUAL

ELECTRIC UTILITIES

“(Asterisk indicates an inactive entity.)

Alabama Power Company

(subsidiary of The Southern Company) .

: subsidiaries :

Alabama Property Company

Columbia Fuels, Inc.

affiliate:

Southern Electric Generating Company

Appalachian Power Company

— (eontrolled by American Electric Power Company, Inc.)

subsidiaries:

;

Central Appalachian Coal Company

Kanawha Valley Power Company

Southern Appalachian Coal Company

West Virginia Power Company

Cedar Coal Company

affiliates:

Central Coal Company

Central Operating Company

Ohio Valley Electric Corporation

Baltimore Gas and Electric Company

subsidiaries:

B&G, Inc.

Safe Harbor Water Power Corp.

Constellation Holdings, Inc.

SA-2

subsidiaries:

Constellation Biogas, Inc.

Constellation Investments, Inc.

Constellation Properties, Inc.

Constellation Development, Inc.

Constellation Operating Services, Inc.

Constellation Real Estate Group, Inc.

Constellation Water Systems, Inc.

Boston Edison Company

Carolina Power and Light Company

subsidiaries :

Capitan Corporation

Carolina Power & Light Finance, N.V.

Leslie Coal Mining Company

McInnes Coal Mining Company

affiliate:

Carolinas-Virginia Nuclear Power

Associates, Inc.

Central and South West Corporation

subsidiaries :

Central Power and Light Company

Public Service Company of Oklahoma

subsidiary:

Ash Creek Mining Company

Transok, Inc.

Southwestern Electric Power Company

West Texas Utilities Company

Central and South West Services, Inc.

CSW Financial, Inc.

CSW Energy, Inc.

SA-3

- CSW Leasing, Inc.

CSW Credit, Inc.

Central Hudson Gas and Electric Corporation

subsidiaries :

Phoenix Development Company, Inc.

Greene Point Development Corporation

Central Hudson Enterprsies Corporation

CH Resources, Inc.

CH Cogeneration, Inc.

Central Illinois Light Company

(a subsidiary of CILCORP, Inc.)

subsidiaries :

CILCO Exploration and Development Company

CILCO Energy Corporation

Central Illinois Public Service Company

affiliate :

Electric Energy, Inc.

Central Power and Light Company

(controlled by Central and South West Corporation)

The Cincinnati Gas and Electric Company

subsidiaries :

Union Light, Heat and Power Company

West Harrison Gas & Electric Company

Miami Power Corporation

Lawrenceburg Gas Company

Lawrenceburg Gas Transmission Corporation

Tri-State Improvement Company

YGK, Inc.

——

SA-4

affiliate:

Ohio Valley Electric Corporation

Cleveland Electric Illuminating Company

(controlled by Centerior Energy Corporation)

subsidiaries :

CEICO Company

CCO Company

Dynamic Energy Ventures, Inc.

Columbus Southern Power Company

(formerly Columbus and Southern Ohio

Electric Company )

(controlled by American Electric Power Company, Inc.)

subsidiaries :

Colomet, Inc.

Simco, Inc.

Conesville Coal Preparation Company

Commonwealth Edison Company

subsidiaries :

Commonwealth Edison Company of Indiana, Inc.

Chicago and Illinois Midland Railway Company

Cotter Corporation

Commonwealth Research Corporation

Edison Development Canada, Inc.

Edison Development Company

Concomber, Ltd.

Consoliated Edison Company of New York, Inc.

Consumers Power Company

(controlled by CMS Energy Corporation)

‘subsidiaries :

Michigan Gas Storage Company

Northern Michigan Exploration Company

SA-5

Selective Collection Services, Inc.

Utility Systems, Inc.

Huron Hydrocarbons, Inc.

Jackson Partners, Ltd.

Midland Group, Ltd.

CMS Midland, Inc.

MEC Development Corporation

Plateau Resources, Ltd.

Canyon Homesteads, Inc.

The Dayton Power and Light Company

(controlled by DPL, Inc.)

subsidiaries :

DP&L Commuity Urban Redevelopment

Corporation

Miami Valley Development Company

affiliate:

Ohio Valley Electric Corporation

Delmarva Power & Light Company

subsidiaries :

Delmarva Industries, Inc.

Delmarva Services Company

Delmarva Capital Investments, Inc.

subsidiaries :

DCI I, Ince.

DCI II, Ine.

Delmarva Capital Technology, Inc.

Delmarva Capitol Realty Company

Peach Bottom Generating Station

The Detroit Edison Company

subsidiaries :

Edison Illuminating Company of Detroit

Midwest Energy Resources Company

SA-6

Washtenaw Energy Corporation

St. Clair Energy Corporation

SYNDECO, Inc.

subsidiaries :

SYNDECO Realty Corporation

Utility Technical Services Inc.

Duke Power Company

subsidiaries :

Mill-Power Supply Company

Crescent Land & Timber Corporation

Wateree Power Company”

Catawba Manufacturing and Electric Power

Company”*

Western Carolina Power Company*

Caldwell Power Company*

Southern Power Company*

Greenville Gas and Electric Light and Power

Company

Church Street Capital Corporation

Duke Engineering and Services

Nantahala Power & Light Company

Florida Power & Light Company

(wholly-owned subsidiary of FPL Group, Inc.)

subsidiaries :

Land Resources Investment Company

FPL QualTec, Inc.

Alandco, Inc.

Georgia Power Company

(subsidiary of The Southern Company)

subsidiary:

Piedmont Forrest Company

id:

Sr me tal ee! Pr

SA-7

affiliate:

Southern Electric Generating Company

Gulf Power Company

(subsidiary of The Southern Company)

Illinois Power Company

subsidiaries :

IP, Ine.

IPF Company, N.V.

Illinois Power Fuel Company

IP Gas Supply Company

affiliate:

Electric Energy, Ine.

Indiana Michigan Power Company

(formerly Indiana & Michigan Electric Company)

(controlled by American Electric Power Company, Inc.)

subsidiaries :

Price River Coal Company, Inc.

Blackhawk Coal Company

Indianapolis Power & Light Company

(controlled by IPALCO Enterprises, Inc.)

Iowa Public Service Company

(controlled by Midwest Energy Company)

Kansas City Power and Light Company

subsidiary:

WYMO Fuels, Inc.

affiliate:

Utility Fuels, Inc.

SA-8

Kentucky Power Company

(controlled by American Electric Power Company, Inc.)

Kentucky Utilities Company

subsidiary:

Qld Dominion Power Company

affiliates:

Electric Energy, Inc. 3

Ohio Valley Electric Corporation

Madison Gas and Electric Company

subsidiaries :

MG&E Nuclear Fuei Inc.

MAGAEL Inc.

MAGAEL Materviai Resources, Inc.

MAGAEL Communications, Inc.

Waters and Associates

Central Wisconsin Development Corporation

Wisconsin Resources Corporation

North Central Technologies, Inc.

Mid-America Technologies, Inc.

Mississippi Power Company

(subsidiary of The Southern Company)

Monongahela Power Company

(controlled by Allegheny Power System, Inc.)

affiliates:

Allegheny Generating Company

Allegheny Pittsburgh Coal Company

Ohio Valley Electric Company

Northern Indiana Public Service Company

(wholly owned by NIPSCO Industries, Inc. )

subsidiaries :

Shore Line Shops, Inc.

NIPSCO Exploration Company

SA-9

NIPSCO Fuel Company, Inc.

NIPSCO Energy Services, Inc.

Ohio Edison Company

subsidiaries :

Pennsylvania Power Company

Ohio Edison Finance, N.A.

OES Fuel, Inc.

OES Capital, Inc.

Ohio Power Company

(controlled by American Electric Power Company, Inc.)

subsidiaries:

Central Ohio Coal Company

Southern Ohio Coal Company

Windsor Coal Company

affiliates :

Central Operating Company

Central Coal Company

Cardinal Operating Company

Ohio Valley Electric Corporation

subsidiary :

Indiana-Kentucky Electric Corporation

Oklahoma Gas and Electric Company

subsidiary:

Enoyex Inc.

affiliate:

Arklahoma Cor poration

SA-10

Pacific Gas & Electric Company

subsidiaries :

Natural Gas Corporation Energy Company

subsidiary:

NGC Production Company

Gas Lines, Inc.

Alberta & Southern Gas Company, Ltd.

Calaska Energy Company

Standard Pacific Gas Lines, Inc.

Pacific Gas Transmission Company

affiliates:

ANGUS Biotech

ANGUS Chemical Company

ANGUS Petroleum Corporation

Alberta Natural Gas Company, Ltd.

affiliates :

ANGUS Biotech

ANGUS Chemical Company

ANGUS Petroleum

Corporation

Foothills Pipelines

Alaska California LNG Company

Eureka Energy Company

Mission Trail Insurance (Cayman), Ltd.

Pacific Gas LNG Terminal Company

Pacific Gas Marine Company

Pacific Gas & Electric Gas Supply Company

J WP Land Company

Pacific Gas and Electric Finance Company, N.V.

Alberta Natural Gas Company, Ltd.

Pacific Conservation Services Company

Pacific Horizon Enterprises, Inc.

SA-11

subsidiaries :

Pacific Energy Services Company

Pacific Transmission Supply Company

Rocky Mountain Gas Transmission

Company

Pennsylvania Electric Company

(subsidiary of General Public Utilities Corporation)

subsidiaries:

Nineveh Water Company

The Waverly Electric Light & Power Company

Pennsylvania Power Company

(controlled by Ohio Edison Company)

Pennsylvania Power & Light Company

subsidiaries :

Pennsylvania Coal Resources Corporation

subsidiaries :

Brush Valley Coal Corporation*

Rushton Mining Company

Tunnelton Mining Company

Pemico Incorporated*

Pennsylvania Mines Corporation

CEP Group, Ine.

subsidiary:

Hanover Development Corporation

Interstate Energy Company

Realty Company of Pennsylvania

subsidiaries :

BDW Corporation

LCA Leasing Corporation

Lady Jane Collieries, Inc.

Greene Manor Coal Company

Greene Hill Coal Company

SA-12

affiliate:

Safe Harbor Water Power Corporation

The Potomac Edison Company

(controlled by Allegheny Power System, Inc.)

a ffiliates:

Allegheny Generating Company

Allegheny Pittsburgh Coal Company

Potomac Electric Power Company

subsidiaries :

PEPCO Enterprises, Inc.

subsidiary :

Energy Use Management Corporation

Potomac Capital Investment Corporation

PCI Energy Corporation

Public Service Company of Indiana, Inc.~

(wholly-owned by PSI Holdings, Inc.)

subsidiary :

South Construction Company, Inc.

Public Service Company of Oklahoma

(controlled by Central & South West Corporation)

subsidiary:

Ash Creek Mining Company

Public Service Electric and Gas Company

(controlled by Public Service Enterprise Group, Inc.)

subsidiaries :

PSE&G Research Corporation

Mulberry Street Urban Renewal Corporation

Se eae PEs seer me

SA-13

Salt River Project

Southern California Edison Company

(controlled by SCE Corporation)

subsidiaries :

Associated Southern Investment Company

Energy Services, Inc.

Southern Surplus Realty Company

Calabasas Park Company, Inc.

Mono Pewer Company

subsidiaries :

Bear Creek Uranium Company —

Mono Green Mountain Company

S.C.E. Capital Company

(a subsidiary of Southern California Edison

Finance Company, N.V.)

Mission Energy Company

Mission Land Company

Northern Cimarron Resources Company

Mission Financial Management Company

Southern States Realty Company

California Electric Power Company

Conservation Financing Corporation

Southwestern Electric Power Company

(controlled by Central & South West Corporation)

affiliate:

The Arklahoma Corporation

Tampa Electric Company

(controlled by TECO Energy, Inc.)

Toledo Edison Company

(controlled by Centerior Energy Corporation

affiliate:

Ohio Valley Electric Company

SA-14

Tucson Electric Power Company

subsidiaries :

Valencia Energy Company

Escavada Leasing Company

Tucson Resources, Inc.

Tusconel, Inc.

Sierrita Resources, Inc.

San Carlos Resources, Inc.

Santa Clara Resources, Inc.

Santa Rosa Resources, Inc.

Palomas Securities, Inc.

LRCS L.P.

Catalina Securities, Inc.

Gallo Wash Development Company

Pantano Securities, Inc.

Rincon Blue Lake, Inc.

Rincon Investing Company

Katrena Corporation

Kingswood Partee Association

Stockton Gogen (IIT) Ine.

Sabino Investing, Inc.

Santa Cruz Resources, Inc.

Santa Rita Energy, Inc.

Santa Rita Jonesboro, Inc.

Santa Rita West Enfield, Inc.

Union Electric Company

subsidiary:

Union Colliery Company

affiliate:

Electric Energy, Inc.

Arento@es.

SA-15

Virginia Power

(formerly Virginia Electric and Power Company)

(controlled by Dominion Resources, Inc.)

subsidiaries:

Laurel Run Mining Company

Dominion Exploration, Inc.

West Penn Power Company

(controlled by Allegheny Power System, Inc.)

subsidiary:

West Virginia Power & Transmission Company

subsidiary:

West Penn West Virginia Water

Power Company

affiliates:

Allegheny Generating Company

Allegheny Pittsburgh Coal Company

Ohio Valley Electric Company

West Texas Utilities Company

(controlled by Central & South West Corporation)

Wisconsin Electric Power Company

(controlled by Wisconsin Energy Corporation)

Wisconsin Power and Light Company

(wholly owned by WPL Holdings, Inc.)

subsidiaries :

South Beloit Water, Gas and Electric Company

Wisconsin Power and Light Nuclear Fuel, Inc.

NUFUS Resources, Inc.

Residuals Maangement Technology, Inc.

ENSERY\V, Inc.

SA-16

REAC, Ince.

WP&L Holdings, Inc.

WP&L Communications, Inc.

affiliates:

Wisconsin Public Service Corporation

Consolidated Water Power & Paper Company

Wisconsin River Power Company

Wisconsin Public Service Corporation

subsidiaries :

Delores Bench Genera! Partner, Inc.

WPS Development, Inc.

WPS Communications, Inc.

affiiliates :

Wisconsin River Power Company

Wisconsin Valley Improvement Company

Wisconsin Power & Light Company

Consolidated Papers, Inc.

Utech Ventures Capital

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.