Opposition Brief — Smiland Paint Co. v. Environmental Protection Agency

FILED

JUL 13 19%

eS

In the Supreme Court of the Unite States

OcTOBER TERM, 1997

gee a

SMILAND PAINT COMPANY, ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

ELLEN J. DURKEE

ETHAN G. SHENKMAN

Attorne ys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

;

)

:

QUESTION PRESENTED

Whether the court of appeals correctly concluded

that petitioners are not entitled to judicial review of a

proposed rule until completion of the rulemaking pro-

cess.

TABLE OF CONTENTS

Page

RII SNIIEN sicitesisatisieaaisisseibcaiabinnncstessnanssnnioeicbaastees 1 e

SINE; oi:idapisacss,sbcsuasiumiencbsoudssoonounecsnntowsansksedentocsaios 1

Soa ITIIN siishicitiidhiinbalhiaisshesvenbasesenésesintncbenseidsinesacsoatinescs 2

SMMINTINIL - covanbsdetncuieusontacneeceetenctaverseucensassesntucadeaieevoesses 7

RII NININ sta saaetisvaisncincenshpinhstetebtvestnersiesssshecsivsnenbvankscees 14

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136

LED Sin tekiniiteniinencinbcehsseenigineetecesséubenstapicsvenensecievees 8, 9

Anaconda Co. v. Ruckelshaus, 482 F.2d 1301

SIs MPI ucticncdeihiahipiiegiadananthidisesesbniopienvessensinnen 8

Bennett v. Spear, 1178S. Ct. 1154 (1997) ............006 8

Center for Auto Safety v. National Highway

Traffic Safety Admin., 710 F.2d 842 (D.C. Cir.

WIEE Minidbekannidigniussicirinannctaiibeesbvaketeletaineieabneiheeieoceinis 8

Citizens for a Better Env’t v. Costle, 617 F.2d

Ne ie SG BIND dis hiannveicninicenseninieesneisiacansereibcnrines 11

Environmental Defense Fund v. Hardin, 428

ae ee CRN SEY RINT) exssitciscncbikcentursabavucnennniecs 11

Environmental Defense Fund v. Thomas, 870

F.2d 892 (2d Cir.), cert. denied, 493 U.S. 991

LUTTE shicauiipsidlidaainbetessaninviieicncitsbliberenéundanevesacnebastiies 10

FTC v. Standard Oil Co., 449 U.S. 232 (1980) ...... i)

Kennecott Copper Corp. v. Costle, 572 F.2d 1349

Es, DTT sib oc Lincsnamstatsaneionssebiadisiniaidcsdsiesensreeies 13

Monongahela Power Co. v. Reilly, 980 F.2d 272

EE TAIT, STEED ncanCandeninseheccdnibsaiidixnesinbinkesussipevecsveinee 12

Motor Vehicles Mfrs. Ass’n v. Costle, 647 F.2d

675 (6th Cir.), cert. denied, 451 U.S. 907 (1981) .... 10

(TIT) “

Cases—Continued: Page

latural Resources Defense Council, Inc. v.

Thomas, 885 F.2d 1067 (2d Cir. 1989) ...........eeeeees 12-13

Ohio Forestry Ass’n v. Sierra Club, 1188. Ct.

RN SIG) bnticcssigsnccuniecvastemsashiehinsbsabehenenitananestisenn 7,9

Pennsylvania v. EPA, 618 F.2d 991 (3d Cir.

FINED isnstsonianvenidenionienicthanseaipekuenntntienpenmuanentebeonente 10

Public Citizen Health Research Group v.

Commissioner, FDA, 740 F.2d 21 (D.C. Cir.

BDI Y xiscissccnsensovebanisicciensvoredurenuathiniamminyiahanantatweaiene 8

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

EES) sardinssevensernersonscotenntvoniicieshncmenassipisiavenmionsienesah 10, 13

Texas v. United States Dep’t of Energy, 764 F.2d

278 (5th Cir.), cert. denied, 474 U.S. 1008

CEI | scnssncnntacacecnconaniapucdieniateinteneindsiesocuiamiarteubiatibes 8

Statutes:

Act of Nov. 15, 1990, Pub. L. No. 101-549,

ROE FORE. TOU endceasseunsnnecimscdebrebinbieketdinabisasnebietbenness 2

Administrative Procedure Act, 5 U.S.C. 706 ........... 9

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

BD BE Me Ride TMEE suictissdslepedeasscnssessceesinansonenns 2

S IBGle), 42 U.S.C. TEEIRO) ccssivcccsenecccscass 2, 3, 4, 7, 13

§ 183(e)(2), 42 U.S.C. T511b(e)(2) ..........ccceceseeees 3, 4

§ 183(e)(2)(A)Gi), 42 U.S.C. 7511b(e)(2)( A)(ii) .. 3

§ 183(e)(2)(B), 42 U.S.C. 7511b(e)(2)(B) ............ 6

§ 183(e)(3)(A), 42 U.S.C. 7511b(e)(3)(A) ........... 3, 5

FB Me SE Pre, TREE tasaksincsnantebcibicennesisnblonpaxseus 2

Ry ee Ri. FON he caned casts vbseniccostiarsdrnaniniziens 3, 4

§ 304(a), 42 U.S.C. T604(a) ..........sccecceereserceseesees 4

§ 304(a)(Z), 42 U.S.C. T604(a)(2) ......cccccccccecceeses 4, 6, 7,

10-11, 12, 13

5 Oe; GS UBL, FOCe cinscivitieonicaieceivcnivescon 3, 4, 9, 13

§ 307(bX1), 42 U.S.C. TE0T(D)1) .....cccccccosescrceses 3, 6, 9

§ 307(d)(9), 42 U.S.C. T607(d)(9) ........cccssscosrseees 9

§ 307(d)(9)(A), 42 U.S.C. T607(d)(Q)(A) «2... 3

ee

Statutes—Continued: Page

§ 307(d)(9)(D), 42 U.S.C. 7607(d)(9)(D) ............ 3

5 DVie), 4B UDG. TOG) wiscsarcscccsreiscicocscancesnes 4

Miscellaneous:

Office of Air Quality Planning and Standards,

U.S. Envtl. Protection Agency, EPA-4531/R-94-

066-A, Study of Volatile Organic Compound

Emissions from Consumer and Commercial

Products: Report to Congress (Mar. 1995) ............ 4

60 Fed. Reg. (1995):

DD. BE DIG sncecncsasiecicineensksevoiecenecaivedioniacgenbiacsneneestenas 5

Bs TEINS Setinsapctntaiscitveninsnhsnsecheatabaoseenindibinienensyatadans 5

61 Fed. Reg. (1996):

iy Cre O "Ack ssadaceticioneiantiasdnecinnssetissbitecsanbiebineseies 5

hs: Samet aE tiegnntsliovsabinenkeebaebiabbbiabepiakslthnennmetenenness 5

Boe EID cinch hnkesiansenvehestnsaeertecnbesinborsennsecsabicseneie 6

1, GR, Ce kiscsmsennssbureucenniabtosancienpinsonetnetonntuanetinbred 6

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-1817

SMILAND PAINT COMPANY, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-5a)

is unpublished, but the decision is noted at 122 F.3d

1070 (Table). The district court did not issue an

opinion, but its final judgment is reproduced at Pet.

App. la-2a.

JURISDICTION

The court of appeals entered its judgment on

August 27, 1997. The court of appeals denied a peti-

tion for rehearing on February 9, 1998 (Pet. App. 6a-

7a). A petition for a writ of certiorari was filed on

May 11, 1998. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Section 1838(e) of the Clean Air Act (CAA), 42

U.S.C. 751l1b(e), directs the Environmental Protec-

tion Agency (EPA) to promulgate regulations or

“control technique guidelines” to curb emissions of

volatile organic compounds (VOCs) from consumer

and commercial products. In accordance with Section

183(e), EPA has prepared a study, filed a report with

Congress, and proposed rules or control technique

guidelines to reduce VOC emissions from various

categories of products. EPA has not, however, issued

final rules or control technique guidelines. Nonethe-

less, petitioners, a group of paint manufacturing com-

panies, filed suit in federal district court challenging

the substance of EPA’s study, report, and proposed

architectural coatings rule. The district court

granted summary judgment for respondents. Pet.

App. la-2a. The court of appeals dismissed peti-

tioners’ appeal, ruling that both courts lacked juris-

diction to review the non-final agency action. Id. at

oa-da.

1. The CAA has long regulated industrial and

automotive sources of VOC emissions, which contri-

bute to the build-up of ground-level ozone, one of the

primary ingredients of “smog.” See, e.g., CAA § 111,

42 U.S.C. 7411; CAA § 202, 42 U.S.C. 7521. The 1990

amendments to the CAA, Act of Nov. 15, 1990, Pub. L.

No. 101-549, 104 Stat. 2399, instituted several new

initiatives to address non-industrial, non-automotive

sources of VOC emissions that federal law had not

previously addressed.

One of those initiatives is contained in Section

183(e), which requires EPA to begin regulating VOC

emissions from consumer and commercial products,

3

including but not limited to paints, coatings, and

solvents. 42 U.S.C. 7511b(e). Section 183(e) requires

EPA, among other things, to conduct an informa-

tional study on the potential magnitude of the prob-

lem, 42 U.S.C. 7511b(e)(2), report the results to Con-

gress, ibid., and develop criteria and issue a timetable

for regulation, 42 U.S.C. 7511b(e)(2)(A)(ii) and (3)(A).

Once the timetable is issued, EPA is then required

to promulgate a series of regulations or control

technique guidelines over an eight year period, with

each regulation or control technique guideline to

focus on reducing VOC emissions from a particular

category of products. 42 U.S.C. 7511b(e)(3)(A).

EPA’s activities under Section 183(e) are subject

to the CAA’s procedures for judicial review. Section

307(b)(1) of the CAA vests exclusive jurisdiction in

the District of Columbia Circuit to adjudicate chal-

lenges to “nationally applicable regulations” and

“final actions.” 42 U.S.C. 7607(b)(1). Section 307

effectively ensures that there will be an opportunity

for judicial review of every one of EPA’s final con-

sumer product VOC regulations or control techni-

que guidelines. 42 U.S.C. 7607. The court of appeals’

review extends to whether the final regulations are

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” 42 U.S.C.

7607(d)(9)(A), and whether there were procedural

deficiencies in the rulemaking process. 42 U.S.C.

7607(d)(9)(D).

In addition, Section 304 of the CAA contains a

citizen suit provision that authorizes any person to

bring a civil action in federal district court “against

the Administrator where there is alleged a failure of

the Administrator to perform any act or duty under

this chapter which is not discretionary with the

4

Administrator.” § 304(a)(2), 42 U.S.C. 7604(a)(2). See-

tion 304 provides a basis for relief from agency

inaction in the face of a mandatory duty, see CAA

§ 304(a), 42 U.S.C. 7604(a) (empowering the district

courts to “order the Administrator to perform such

act or duty”), but it does not provide a basis for seek-

ing review of the substance of an agency regulation or

order, see CAA § 307(e), 42 U.S.C. 7607(e) (“Nothing

in [the CAA] shall be construed to authorize judicial

review of regulations or orders of the Administrator

under this chapter, except as provided in [Section

307].”).

2. EPA has completed preliminary steps in the

Section 183(e) rulemaking process, but has not yet

issued any final rules or control technique guidelines.

In March 1995, EPA published a six-volume study of

emissions of VOCs into the ambient air from con-

sumer and commercial products, see C.A. ER 7:1-4,

and transmitted_the results to Congress in a 158-

page, comprehensive report, see Office of Air Quality

Planning and Standards, U.S. Envtl. Protection

Agency, EPA-4531/R-94-066-A, Study of Volatile

Organic Compound Emissions from Consumer and

Commercial Products: Report to Congress (Mar.

1995); C.A. ER 7. EPA conducted its study in accor-

dance with the congressional directives contained in

Section 183(e)(2). See 42 U.S.C. 7511b(e)(2).

In that study, EPA concluded that VOC emissions

from consumer and commercial products have the

potential to contribute substantially to the nation’s

ground-level ozone problem. C.A. ER 7:2-1. EPA also

established criteria for reguiating various categories

of products and explained how it had evaluated each of

five factors that Congress instructed the agency to

consider in establishing those criteria. C.A. ER 7:4-1

5

to 4-138. EPA emphasized, however, that neither the

study nor the report to Congress constituted final

agency action and that the findings contained therein

were subject to revision in light of new data, and

further refinement of the agency’s analyses in con-

nection with the development of regulations or

control technique guidelines for consumer and com-

mercial products. See, e.g., C.A. ER 7:2-9, 4-1.

In conjunction with the report to Congress, EPA

published in the Federal Register a list of categories

of products that EPA intended to regulate, in their

order of priority. See 60 Fed. Reg. 15,264 (1995). As

required by Section 183(e)(3)(A), EPA identified

roughly 40 categories of products, which together

account for approximately 80% of VOC emissions

from consumer and commercial products in ozone

non-attainment areas, and divided those categories

into four groups in a timetable for regulation. Jd. at

15,267. Architectural coatings—the product category

of concern to petitioners—was placed in the group

scheduled for earliest regulation. Jbid. EPA noted,

however, that its list of categories and schedule for

regulation were non-final and could “be amended as

further information becomes available or is submitted

to the EPA.” 7d. at 15,264.

In June 1996, EPA released a proposed rule to regu-

late VOC emissions from architectural coatings. 61

Fed. Reg. 32,729 (1996). In the preamble to the pro-

posed rule, EPA reiterated that its previously issued

study, report, and schedule for regulation were non-

final. Jd. at 32,731. EPA noted that its decision to

regulate architectural coatings was subject to recon-

sideration in response to public comment and would

not become final until EPA actually promulgated a

final rule. Jbid. EPA provided for a 60-day public

6

comment period and extended the comment period

deadline twice. See 61 Fed. Reg. 46,410 (1996); id. at

52,735.

3. On September 10, 1996, petitioners filed the in-

stant action in district court to enjoin EPA from

proceeding with its rulemaking. C.A. ER 1:1-52.

They invoked the court’s jurisdiction primarily under

the CAA’s citizen suit provisions, CAA § 304(a)(2), 42

U.S.C. 7604(aX(2). Petitioners alleged that EPA failed

to comply with various “non-discretionary” statutory

requirements in conducting its study and preparing

the proposed architectural coatings rule. C.A. ER

1:2-3. Petitioners claimed, for instance, that EPA

failed properly to evaluate the five factors that Con-

gress identified in Section 183(e)(2)(B), 42 U.S.C.

7511b(e\(2)(B), as considerations for establishing cri-

teria for regulation. See eg., C.A. ER 1:33. The

government moved for summary judgment, and the

district court granted judgment for the government

on all claims. Pet. App. la-2a.

4. Petitioners sought review of the district court’s

judgment, but the court of appeals dismissed peti-

tioners’ appeal for lack of jurisdiction. Pet. App. 3a-

5a. The court of appeals observed that “EPA has not

promulgated final rules or otherwise taken any other

final action that is reviewable.” Jd. at 4a. The court

of appeals explained that, even if EPA had taken final

action, Section 307(b)(1) provides. for exclusive juris-

diction in the District of Columbia Circuit. Jbid. As

for petitioners’ assertion of jurisdiction under the

CAA’s citizen suit provision, the court of appeals

stated that, while Section 304(aX(2) of the CAA

authorizes suit to compel an “act or duty * * *

which is not discretionary,” 42 U.S.C. 7604(a)(2),

petitioners “have not demonstrated that the EPA has

7

failed to perform any nondiscretionary duty.” Pet.

App. 4a. The court also noted that petitioners had

failed to provide the 60-day notice required by Section

304(aX(2) and that petitioners’ other proffered bases

for judicial review did not provide a basis for

jurisdiction in this case. Id. at 5a.

ARGUMENT

The court of appeals’ decision is correct and does

not conflict with the decision of any other court.

EPA intends to promulgate the final architectural

coatings rule in the near future, and once the final

rule is issued, petitioners’ challenge to the proposed

rule will become moot. Further review by this Court

is therefore not warranted.

1. Petitioners allege that EPA’s proposed archi-

tectural coatings rule, as well as the study, report to

Congress, and criteria and timetable for regulation

on which the proposed rule is based, are deficient

because EPA prepared them without adequately con-

sidering what petitioners describe as “[mJandatory”

statutory factors. Pet. 5-9. In petitioners’ view,

Section 304(a)(2) of the CAA, 42 U.S.C. 7604(a)(2), en-

titles a citizen to obtain judicial relief from a district

court during the course of a rulemaking if the citizen

is dissatisfied with the agency’s interpretation of its

statutory obligations in announcing a proposed rule.

As the court of appeals correctly recognized, peti-

tioners’ challenge to the preliminary steps in the

Section 183(e), 42 U.S.C. 7511b(e), rulemaking process

is not ripe for review until the agency completes its

rulemaking process. See Ohio Forestry Ass’n v.

Sierra Club, 118 S. Ct. 1665, 1670 (1998). Section

304(a)(2) allows a plaintiff to challenge agency in-

action in the face of a non-discretionary statutory

8

duty, but it does not allow a plaintiff to enjoin an on-

going rulemaking based on the citizen’s disagreement

with the agency’s interpretation of its statutory

duties. Petitioners’ approach “would effect a whole-

sale abrogation” of the ripeness doctrine. Bennett v.

Spear, 117 S. Ct. 1154, 1166-1167 (1997); see also Texas

v. United States Dep’t of Energy, 764 F.2d 278, 283

(5th Cir.), cert. denied, 474 U.S. 1008 (1985) (“We have

long imposed a ripeness requirement even where the

statute authorizing our review did not do so.”).

As this Court has explained, the ripeness require-

ment is designed to

prevent the courts, through avoidance of pre-

mature adjudication, from entangling themselves

in abstract disagreements over administrative

policies, and also to protect the agencies from

judicial interference until an administrative

decision has been formalized and its effects felt in

a concrete way by the challenging parties.

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149

(1967). The courts have consistently rejected as pre-

mature challenges to informational studies, reports,

and proposed rules, which, as here, do not create any

legal rights or impose any legal obligations. See, e.g.,

Public Citizen Health Research Group v. Commis-

sioner, FDA, 740 F.2d 21, 31 (D.C. Cir. 1984)

(“[rjeview of tentative agency positions on substan-

tive questions severely compromises the interests

that ripeness and finality notions protect”); Center

for Auto Safety v. National Highway Traffic Safety

Admin., 710 F.2d 842, 846 (D.C. Cir. 1983) (proposed

rules generally not ripe for review); Anaconda Co.

v. Ruckelshaus, 482 F.2d 1301, 1305 (10th Cir. 1973)

(same). Premature review “denies the agency an op-

9

portunity to correct its own mistakes and to apply

its expertise,” FTC v. Standard Oil Co., 449 U.S. 282,

242 (1980), and risks wasting judicial resources, as

“review may now turn out to have been unnecessary.”

Ohio Forestry Ass’n, 118 S. Ct. at 1672.

Postponing review until EPA has completed its

rulemaking process would not result in significant

“hardship to the parties.” Abbott Laboratories, 387

U.S. at 149. If petitioners are dissatisfied with the

final architectural coatings rule that EPA ultimately

adopts, petitioners will be able to obtain judicial re-

view of the final rule under Section 307 of the CAA.

See 42 U.S.C. 7607(b)(1); Ohio Forestry Ass’n, 118 S.

Ct. at 1672; cf. id. at 1670 (challenge to agency action

unripe for review where plaintiff “will have ample

opportunity later to bring its legal challenge at a time

when harm is more imminent and more certain”).

Section 307(d)(9), 42 U.S.C. 7607(d)(9), which provides

a scope of review similar to that provided by the

Administrative Procedure Act, 5 U.S.C. 706, grants

the court of appeals ample authority to consider sub-

stantive and procedural challenges to the final rule.

See 42 U.S.C. 7607(d)(9).

2. Petitioners contend that review is warranted

in this case to resolve a division of authority among

the courts of appeals. Pet. 12-20. According to

petitioners, the court of appeals’ decision conflicts

with decisions of several other circuits which, they

assert, “allow immediate challenges to EPA’s fail-

ures to perform nondiscretionary acts regardless of

whether such acts are the preliminary steps in future

rulemaking procedures.” Pet. 13. No such conflict

exists.

None of the cases that petitioners cite supports

their contention that a plaintiff may challenge an

10

agency’s formulation of an informational study, re-

port to Congress, or proposed rule through a Section

304(aX(2) suit for failure to perform a nondiscretion-

ary duty. For example, Sierra Club v. Thomas, 828

F.2d 783 (D.C. Cir. 1987), involved a situation in which

the plaintiffs sought to compel EPA to issue a final

rule after an allegedly unreasonable delay. The court

observed that a plaintiff may bring a citizen suit in

district court to compel issuance of a final rule where

the agency has failed to meet a clear-cut statutory

deadline. Jd. at 791. That decision provides no

support for petitioners’ attempt to use Section

304(a)(2) to provide judicial review of a proposed rule

and enjoin issuance of the final rule.

Environmental Defense Fund v. Thomas, 870 F.2d

892 (2d Cir.), cert. denied, 493 U.S. 991 (1989), is simi-

larly inapposite. There, the court held that a plaintiff

may bring a citizen suit to compel the agency to issue

a formal decision whether or not to revise its

regulations, where the statute clearly mandates that

the agency make such a decision on a periodic basis.

Id. at 900. The “bureaucratic limbo” that would re-

sult from the absence of a formal decision in that

situation, zbid., does not exist here, as EPA is pro-

ceeding apace with promulgating the final archi-

tectural coatings rule. Indeed, petitioners’ lawsuit is

designed to interfere with and disrupt that process.

Motor Vehicles Manufacturers Ass’n v. Costle, 647

F.2d 675 (6th Cir.), cert. denied, 451 U.S. 907 (1981),

and Pennsylvania v. EPA, 618 F.2d 991 (3d Cir. 1980),

are also inapposite. They each address circumstances

under which Section 304(a)(2) may be used to compel

issuance of final regulations in the face of a statu-

tory deadline or a clear-cut statutory duty to do so.

Neither stands for the proposition that Section

11

304(a)(2) may be used to compel EPA to remedy al-

leged deficiencies in a proposed rule before the agency

has considered those alleged deficiencies itself in the

course of promulgating the final rule.

Petitioners also contend (Pet. 17-20) that the court

of appeals’ decision conflicts with the approach taken

by the D.C. Circuit in deciding whether allegations

of agency inaction are ripe for review. Petitioners’

arguments, however, are far off the mark. In Envi-

ronmental Defense Fund v. Hardin, 428 F.2d 1093

(D.C. Cir. 1970), for instance, the court of appeals

granted a petition to review EPA’s failure to act on

a request that the agency suspend registration for

the pesticide “DDT” on the ground that it posed an

imminent public health hazard. The court held that

the petition was ripe for review, even though the

agency had not formally denied the request, because

the facts of that case presented an extraordinary

circumstance where agency “inaction is tantamount

to an order denying” relief. Jd. at 1099.

Aside from the fact that Hardin’s ripeness deter-

mination was premised on a factual scenario that

bears no resemblance to the instant case, the Hardin

decision deals with a fundamentally different type of

legal claim than that of petitioners. The claim here is

not that EPA has unreasonably delayed or refused

to issue its study, report, or proposed rule. Rather,

petitioners contend that the study, report, and pro-

posed rule are deficient because they fail to address

considerations that, in petitioners’ view, must be

included. Petitioners are, in effect, simply seeking

premature judicial review of non-final agency action.

See Citizens for a Better Env’t v. Costle, 617 F.2d 851

(D.C. Cir. 1980) (citizen suit to compel EPA to include

provision for sewage sludge in its hazardous waste

12 :

regulations was premature where EPA was in the

midst of formulating the final regulations).

3. This Court’s review is not warranted, in any

event, because petitioners’ claims under Section

304(a)(2) fail on their merits. As the court of appeals

stated, petitioners “have not demonstrated that the

EPA has failed to perform any nondiscretionary

duty.” Pet. App. 4a. Notwithstanding petitioners’

characterization of their claims as based on agency

inaction, petitioners essentially seek judicial review

of the substance of its study, report, and proposed

rule.

For example, petitioners’ allegation that EPA

failed to conduct a study of VOC emissions from con-

sumer and commercial products (Pet. 5) is merely

a semantic recasting of a claim that EPA’s study,

which it prepared and transmitted to Congress, is

inadequate. Petitioners’ complaint that the study

failed to “assess[] the relative reactivities: of [dif-

ferent] organic compound species emitted by con-

sumer and commercial products” (ibid.) similarly

amounts to a quarrel with the agency’s exercise of

discretion in choosing an appropriate methodology.

See Monongahela Power Co. v. Reilly, 980 F.2d 272,

276 (4th Cir. 1993) (district court must defer to the

agency’s reasonable interpretation of the statute in

determining whether statute imposes a nondiscre-

tionary duty on the agency).

Petitioners are not entitled to substantive review

of an ongoing agency rulemaking under the guise of

compelling non-discretionary action. The district

court’s inquiry under Section 304(a)(2) is confined to

a “factual determination of whether [performance of a

nondiscretionary duty] did or did not occur.” Natural

Resources Defense Council, Inc. v. Thomas, 885 F.2d

13

1067, 1073 (2d Cir. 1989). Section 304(a)(2) does not

“permit review of the performance of those [duties],”

Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1355

(9th Cir. 1978), which Section 307 places in the court

of appeals. See Sierra Club, 828 F.2d at 792 (“We long

ago rejected * * * the convoluted notion that EPA is

under a nondiscretionary duty—for purposes of sec-

tion 304(a)(2)—not to abuse its discretion.”). Peti-

tioners’ contentions that EPA has not satisfactorily

complied with Section 183(e) are accordingly not

cognizable until the agency issues a final rule.

4. As a separate matter, an environmental group

brought an action against EPA to compel the issu-

ance of either final rules or control technique

guidelines regulating architectural coatings and five

other categories of products. Sierra Club v.

Browner, Civ. No. 97-1984PLF (D.D.C. filed Aug. 29,

1997). The litigation has led to a tentative settlement,

embodied in a proposed consent decree. In accordance

with the terms of that proposed consent decree, EPA

currently intends to issue the final architec-

tural coatings rule by August 15, 1998. Once the final

architectural coatings rule is promulgated, peti-

tioners’ challenge to the proposed rule will become

moot.

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

ELLEN J. DURKEE

ETHAN G. SHENKMAN

Attorneys

JULY 1998