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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 812

## Text

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
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1515%3A2. Public record. Not legal advice.