Opposition Brief — Alabama Power Co. v. Environmental Defense Fund

No. 89-373

In the Supreme Court of the United States

OCTOBER TERM, 1989

ALABAMA POWER COMPANY, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

"TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

IN OPPOSITION

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

ROBERT L. KLARQUIST wi

JACQUES B. GELIN

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GERALD K. GLEASON

Office of the General Counsel

Environmental Protection Agency

Washington, D.C. 10460

QUESTION PRESENTED

Whether 42 U.S.C. 7409(dj}{1) imposes a non-

discretionary duty on the Administrator of the Environmen-

tal Protection Agency to engage in notice and comment

rulemaking before deciding not to revise national ambient

air quality standards for suiiur oxides.

(1)

TABLE OF CONTENTS

Page

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Ra ee Ne ed chee bade 2

ec. cen an ko ceek a weeks ONS HOS CORO 8 5

RE Se eee a Oe ee re 8

TABLE OF AUTHORITIES

Cases:

Anderson v. Yungkau, 329 U.S. 482 (1947) .... 3

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

Council, Inc., 467 U.S. 837 (1984) .......... 7

Natural Resources Defense Council, Inc. v. Thomas,

No. 88-6210 (2d Cir. Sept. 18, 1989) ........ 6-7

New England Legal Foundation v. Costle, 666 F.2d

Ne adc awh aa ch eee es 5

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d

I er 5

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

ES aE kl gh 4

Telecommunications Research & Action Center v.

FCC, 750 F.2d 70 (D.C. Cir. 1984) ......... 4

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

ee eee ee Eh Ks Whe che KS aes 7

Statutes:

Clean Air Act, 42 U.S.C. 7401 “et seg. ......... 5

ere ee 5, 6

CR eee eee &

Ee 2,4

ee re 4,5

Clean Air Act Amendments of 1977, Pub. L. No.

0 ci wdc adavateasesanes 5

IV

Miscellaneous: Page

43 Fed. Reg. 26,962 (1978) ..... ............. 6

45 Fed. Reg. $5,066 (1900) ................... 6

| ee 6

33 Fed. Reg. 14,936 (1988) ................... 4

H.R. 3030, 101st Cong., Ist Sess. I ae 7

S. 57, 101st Cong., Ist Sess. (1989) ...°....... 7

S. 1490, 101st Cong., Ist Sess. (1989) ......... 7

In the Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-373

ALABAMA POWER COMPANY, ET AL., PETITIONERS

V.

ENVIRONMENTAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. la-2la,

is reported at 870 F.2d 892. The opinion of the district court,

Pet. App. 22a-45Sa, is unreported.

JURISDICTION

The judgment of the court of appeals, Pet. App. 48a,

was entered on March 22, 1989. A petition for rehearing

was denied on June 8, 1989. Pet. App. 49a. The petition

for a writ of certiorari was filed on September 6, 1989. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

Seven states and four environmental groups brought suit

in the United States District Court for the Southern District

of New York to compel the Administrator of the En-

vironmental Protection Agency to revise the national am-

bient air quality standards (NAAQS) for sulfur oxides. The

district court dismissed the suit for lack of subject matter

jurisdiction. The court of appeals reversed on the ground

that the district court had jurisdiction “to compel the Ad-

ministrator to take some formal action, employing rulemak-

ing procedures * * * either revising the NAAQS or declin-

ing to revise them.” Pet. App. 18a. The court of appeals

accordingly remanded the case to the district court.

1. The states and environmental groups brought a

“citizen suit[]” in the district court under 42 U.S.C. 7604,

Pet. App. 24a, which provides that “any person may com-

mence a civil action on his own behalf * * * against the Ad-

ministrator where there is alleged a failure of the Ad-

ministrator to perform any act or duty under this [Act]

which is not discretionary with the Administrator.” The

Staies and environmental groups contended that the Ad-

ministrator had a non-discretionary duty under 42 U.S.C.

7409(d)(1) to revise the national ambient air quality stand-

ards for sulfur oxides.

The district court dismissed the complaint for lack of sub-

ject matter jurisdiction. Pet. App. 43a, 45a. In the court’s

view, the mandatory language of Section 7409(d)(1) imposes

a non-discretionary duty on the Administrator to review

periodically the air quality standards governing sulfur ox-

ides. At the same time, however, the court reasoned that

the permissive language of that Section applicable to revi-

sions of air quality standards means that the Administrator

has discretion not to revise those standards. Section

7409(d)(1) provides:

~J

3

Not later than December 31, 1980, and at five-year in-

tervals thereafter, the Administrator shall complete a

thorough review of the criteria published under section

7408 of this title and the national ambient air quality

standards promulgated under this section and shall

make such revisions in such criteria and standards and

promulgate such new standards as may be appropriate

in accordance with section 7408 of this title and subsec-

tion (b) of this section. The Administrator may review

and revise criteria or promulgate new standards earlier

or more frequently than required under this paragraph.

42 U.S.C. 7409(d)(1) (emphasis added). By providing that

the Administrator shall make such revisions “as may be ap-

propriate,” the district court explained, Section 7409(d)(1)

entrusts revision of the sulfur oxides standards to the Ad-

ministrator’s sound discretion. First, the qualifying term

“may” indicates that the Administrator’s authority is per-

missive. Pet. App. 32a (citing Anderson v. Yungkau, 329

U.S. 482, 485 (1947)). Second, the determination of what |

is appropriate “clearly calls for the exercise of discretion

and expert judgment.” Pet. App. 32a. Accordingly, the

district court “reject{ed] the proposition that [the Ad-

ministrator was] under a nondiscretionary duty to revise the

standards for sulfur oxides.” Ja. at 34a & n.5.

2. A divided panel of the court of appeals reversed and

remanded. The majority agreed with the district court that

“{t]he words ‘as may be appropriate’ clearly suggest that the

Administrator must exercise judgment” under Section

7409(d)(1). Pet. App. 14a. But the majority also held that

“the presence of ‘shall’ in the section implies * * * that the

district court has jurisdiction to order the Administrator to

make some formal decision whether to revise the NAAQS,

the content of that decision being within the Administrator’s

discretion.” bid. See id. at 12a-l4a, 17a-18a.

4

One week after the district court’s decision, the Ad-

minisirator had published a “Proposed Decision not to

Revise the National Ambient Air Quality Standards for

Sulfur Oxides (Sulfur Dioxide),” 53 Fed. Reg. 14,926 (1988),

and invited public comment. In light of the Administrator’s

notice of proposed rulemaking, the court of appeals

remanded “so the district court can enter an order direc-

ting the Administrator to continue the rulemaking to for-

mal decision.” Pet. App. 18a.

Judge Mahoney dissented. In his view, the requirement

in Section 7409(d){1) that the Administrator “shal!” make

revisions “as may be appropriate” does not impose a date-

certain deadiine by which time all specified agency action

must be completed so as to impose a non-discretionary duty

of timeliness under Sierra Club v. Thomas, 828 F.2d 783

(D.C. Cir. 1987). Pet. App. 20a. Because of the lack of a

non-discretionary duty, he reasoned, the district court did

not have subject matter jurisdiction under the “citizens suit”

provision. 42 U.S.C. 7604. Only the Court of Appeals for

the District of Columbia Circuit would have jurisdiction

over the sulfur oxides standards on review of a rule pro-

mulgation or other “final action” by the Administrator. 42

U.S.C. 7607(b). Judge Mahoney therefore concluded that

this case falls within the rule of Telecommunications

Research & Action Center v. FCC, 750 F.2d 70, 75 (D.C.

Cir. 1984), which held that “where a statute commits review

of agency action to the Court of Appeals, any suit seeking

relief that might affect the Circuit Court’s future jurisdic-

tion is subject to the exclusive review of the Circuit Court

of Appeals.” Pet. App. 21a.

Judge Mahoney emphasized that dismissing the suit for

lack of subject matter jurisdiction would not create a

“bureaucratic limbo subject neither to review in the District

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

Pet. App. 19a. The states and environmental groups could

5

have invoked the procedure outlined in Oljato Chapter

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

under which they would have petitioned EPA for revi-

sion of the sulfur oxides standards. If the Administrator

denied their petition, the states and environmental groups

could have sought review of that “final action” in the

Court of Appeals for the District of Columbia Circuit

under 42 U.S.C. 7607(b).

ARGUMENT

1. We agree with petitioners that the court of appeals’

decision is in error. As the district court and Judge

Mahoney correctly observed, 42 U.S.C. 7409 requires the

Administrator to review national ambient air quality

standards periodically, but it does not impose a non-

discretionary duty to revise such standards that would be

enforceable in a “citizens suit” brought by the states and

environmental groups in this case.

Although Section 7409(d)(1) does not impose a non-

discretionary duty to revise national ambient air quality

standards, the states and environmental groups could

have petitioned the Administrator to revise the sulfur ox-

ides standards under the procedure outlined in Oljato

Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.

Cir. 1975). We disagree with the panel majority’s

characterization of the Oljato procedure as “dictum” that

was made “obsolete” by the 1977 amendments to the

Clean Air Act, 42 U.S.C. 7401 et seq. Pet. App. llan.i.

The majority’s disparagement of Oljato is inconsistent

with the Second Circuit’s earlier decision in New England

Legal Foundation v. Costle, 666 F.2d 30, 33 (2d Cir.

1981), and with the decisions of other courts of appeals

that have explicitly approved the Oljato procedure subse-

quent to the Clean Air Act Amendments of 1977, Pub.

L. No. 95-95, 91 Stat. 685, see Pet. 21.

6

2. The court of appeals’ decision nevertheless does not_

warrant further review because it is unlikely to have a

significantly adverse effect on EPA’s procedures and

because there is no conflict among the lower courts on the

precise question presented in this case.

a. It would be premature to conclude that the court of

appeals’ decision will have a significant impact on EPA’s

implementation of 42 U.S.C. 7409. EPA’s current practice

under that Section is to initiate a rulemaking and solicit

public comment on proposed decisions not to revise national

ambient air quality standards. See, e.g., 49 Fed. Reg. 6,866

(1984) (nitrogen dioxide); 45 Fed. Reg. 55,066 (1980) (car- ,

bon monoxide); 43 Fed. Reg. 26,962 (1978) (ozone). The

court of appeals’ erroneous interpretation of Section

7409(d)(1) to impose this same requirement will therefore

not disrupt agency decisionmaking at this time.!

Significantly, the court of appeals correctly recognized

that the Administrator has discretion whether to revise na-

tional ambient air quality standards and how they should

be revised. The court unequivocally rejected the contention

by the states and environmental groups that the Clean Air

Act requires the Administrator to revise the sulfur oxides

standards and instead recognized that Congress has en-

trusted that decision to the Administrator’s sound discre-

tion. Petitioners’ assertion that the panel majority author-

ized district courts to “review scientific data and order the

Agency to engage in rulemaking based on the results of that

review” is thus inaccurate. Pet. 9. Indeed, the Second Cir-

cuit’s subsequent decision in Natural Resources Defense

Council, Inc. v. Thomas, No. 88-6210 (Sept. 18, 1989), slip

' Should the reasoning of the panel majority be applied to require

rulemaking under a comparable statute where an agency had not in-

dependently decided to solicit public comment on a proposed decision

not to take a particular action, review by this Court might be

appropriate.

ee -_

ON a NE alg Ne ee

7

op. 5716, confirms that the decision below does not

“authorize any action on our part to direct the substance,

rather than the timing, of the Administrator’s action, as

NRDC here seeks.” The court of appeals’ decision thus af-

firms the Administrator’s discretion to decide whether and

when new scientific information warrants revision of air

quality standards.

b. Nor does the court of appeals’ decision directly con-

flict with this Court’s decisions in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), and Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519

(1978). We agree with petitioners that the court of appeals

should have deferred to the Administrator’s construction

of Section 7409(d)(1) and that that Section imposes no re-

quirement that the Administrator formally decide whether

to revise air quality standards. Cf. Pet. 16-17 & n.52. But

the court of appeals’ failure to give appropriate deference

and its erroneous imposition of a formal decision require-

ment at most simply misapplies the legal standards in

Chevron and Vermont Yankee. Not every misapplication

of a legal standard articulated by this Court creates a con-

flict of decisions meriting this Court’s review. On the precise

issue that the court of appeals decided here — whether Sec-

tion 7409(d)(1) imposes a non-discretionary duty on the Ad-

ministrator to make a formal decision whether or not to

revise national ambient air quality standards —there is no

conflict of decisions.

? Moreover, Congress is presently considering legislation to amend

the Clean Air Act by specifically addressing the issue of acid rain. See,

e.g., H.R. 3030, S. 1490, and S. 57, 101st Cong., Ist Sess. (1989). This

could result in a substantial change in the statute governing EPA’s

substantive duties in relation to sulfur oxides.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

ROBERT L. KLARQUIST

JACQUES B. GELIN

Altorneys

GERALD K. GLEASON

Office of the General Counsel

Environmental Protection Agency

NOVEMBER 1989

wY U.S. GOVERNMENT PRINTING OFFICE: 1989—262-203/00593