Petition for Writ of Certiorari — Utility Solid Waste Activities Group v. Environmental Protection Agency

Court, U.

FILED

No.00- = 001242 jan 3 1 2001

IN THE OFF ING or =. “RK

Supreme Court of the United States

UTILITY SOLID WASTE ACTIVITIES GROUP,

ENTERGY SERVICES, INC., MISSISSIPPI POWER COMPANY,

AMERICAN ELECTRIC POWER SERVICE CORPORATION,

AND GENERAL ELECTRIC COMPANY,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

JOINT PETITION FOR A WRIT OF CERTIORARI

DOUGLAS H. GREEN CARTER G. PHILLIPS*

JOHN L. MOORE, JR. ANGUS MACBETH

PIPER MARBURY RUDNICK & CHRISTOPHER L. BELL

WOLFE LLP TIMOTHY K. WEBSTER

1200 Nineteenth Street, N.W. SIDLEY & AUSTIN

Washington, D.C. 20036 1722 Eye Street, N.W.

(202) 861-3900 Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioners

Utility Solid Waste Activities Counsel for Petitioner

een 2 mere od mei Inc., et Electric

ississippi Power q ompany

and American Electric ed

Service Corporation

January 31, 2001 * Counsel of Record

[Additional Counsel Listed on Inside Cover]

A LEO D AT AIO OE LE LL EE ALLE A ABE ATI I INO EO

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

O71 Py)

STEPHEN D. RAMSEY KATHERINE L. ADAMS

BRACKETT B. DENNISTON IIIT DAVIDH. E. BECKER

PATRICIA K. CASANO SIDLEY & AUSTIN

GENERAL ELECTRIC 875 Third Avenue

COMPANY New York, NY 10022

1299 Pennsylvania Avenue, (212) 906-2000

N.W.

Washington, D.C. 20004

(202) 637-4228

Counsel for Petitioner General Electric Company

Siz

QUESTIONS PRESENTED

1. Whether the second prong of the ripeness test set forth

in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) -

hardship to the parties — must be satisfied even where the

issue presented is purely legal, and Congress has prescribed

an immediate, limited period for judicial review.

2. Whether the court of appeals erred when it declined to

apply the “substantial evidence” standard of judicial review

mandated by 15 U.S.C. § 2618(c)(1)(B)(i) to an agency rule

because the court believed that the nature of the petitioner’s

challenge merited the imposition of a different, more defer-

ential standard of review.

(i)

il

STATEMENT REQUIRED BY RULES 14.1 AND 29.6

Pursuant to Supreme Court Rule 14.1, the Petitioners state

that the parties to the proceedings below were Central and

South West Services, Inc.,’ Entergy Services, Inc., Missis-

sippi Power Company, the Utility Solid Waste Activities

Group, General Electric Company, Sierra Club, and the

United States Environmental Protection Agency.

Pursuant to Supreme Court Rule 29.6, Petitioner the Utility

Solid Waste Activities Group states that it is an ad hoc

consortium of approximately 100 electric utilities, the Edison

Electric Institute, the National Rural Electric Cooperative

Association and the American Public Power Association.

The Utility Solid Waste Activities Group states that it has no

stock in the hands of the public and no parent corporation.

Petitioner Entergy Services, Inc. states that its corporate

parent is Entergy Corporation, which owns all the common

stock of Entergy Services, Inc. Petitioner Mississippi Power

Company states that its corporate parent is Southern Com-

pany, which owns all the common stock of Mississippi Power

Company. Petitioner American Electric Power Service Cor-

poration states that its corporate parent is American Electric

Power Company, Inc., which owns all of the common stock

of American Electric Power Service Corporation. Petitioner

General Electric Company states that it has no parent com-

pany and that no publicly held company owns ten percent or

more of its stock.

' On January 1, 2001, Central and South West Services, Inc. ceased to

exist as a corporation and merged into American Electric Power Service

Corporation. American Electric Power Service Corporation, as the

successor in interest of Central and South West Services, Inc., is therefore

named in this petition in lieu of Central and South West Services, Inc.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..W.... i

STATEMENT REQUIRED BY RULES 14.1 AND

OT aniston ceshocsnisetiisaitnipsitansesniah Suki siehite. LT ii

TABLE OF AUTHORITIES... iv

nh ed Pe ok l

JURISDICTION ...................... bbc 10a? MOE TON heh 19 2

RELEVANT CONSTITUTIONAL AND STATU-

Bee Ce PUN ai ek ss = 2

STATEMENT OF THE CASE... 2

REASONS FOR GRANTING THE PETITION ____ .

I. A CONFLICT EXISTS AMONG THE COURTS

OF APPEALS CONCERNING THE APPLICA-

BILITY OF THE “HARDSHIP” PRONG OF

THE ABBOTT LABORATORIES RIPENESS

TEST WHERE THE ISSUE TO BE REVIEWED

IS PURELY LEGAL AND THE TIME FOR

REVIEW OF REGULATIONS IS LIMITED BY

oy hit AEA one a Meaapeaitdee 10

Il. THE FIFTH CIRCUIT ERRED WHEN, CON-

TRARY TO OTHER COURTS OF APPEALS,

IT DECLINED TO APPLY TSCA’S EXPRESS

SUBSTANTIAL EVIDENCE STANDARD OF

REVIEW TO CHALLENGES TO EPA’S PCB

iat aid ras tay ise 17

CONCLUSION

way POO RRO NSANShh50hG5NShS6Ndhdk Onde che takenes os deokhos

iV

TABLE OF AUTHORITIES

CASES Page

AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir.

1979), aff'd in part, vacated in part sub nom.

American Textile Mfrs. Inst. v. Donovan, 452

th SR rats tetsnniaiprenasiansenichsidsatasaeiion bind 18

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)..... passim

American Textile Mfrs. Inst. v. Donovan, 452

CF iia satacncinitncictnscnsenpiccdbtticacaiing 20

Aqua Slide N’ Dive Corp. v. Consumer Product

Safety Comm'n, 569 F.2d 831 (Sth Cir. 1978)... 21

Asbestos Info. Ass'n/N. Am. v. OSHA, 727 F.2d

i. fe Sere are meres 18

Association of Data Processing Serv. Orgs. v.

Board of Governors, 745 F.2d 677 (D.C. Cir.

3 5 EERO CERT | SOROS E SF h Byer ete es 19

Ausimont U.S.A. Inc. v. EPA, 838 F.2d 93 (3d Cir

RP RR FEN TTA Oe on La 18

Chemical Mfrs. Ass'n v. EPA, 859 F.2d 977 (D.C.

| SER ereer enc og ey Sa er oe 18, 19

Connecticut Nat’] Bank v. Germain, 503 U.S. 249

III s:ciciischijnichuascieds sheeasedidiicidpatacmiabiabibdeuaian 21

Consolidated Edison vy. National Labor Relations

BE, FO ee Fer CR vai inininscisis science: 19

Corrosion Proof Fittings v. EPA, 947 F.2d 1201

CG, Biases scsesciksnciseitis.cxcdascnaeaate 5

D.D. Bean & Sons Co. v. Consumer Product

Safety Comm'n, 574 F.2d 643 (ist Cir. 1978)... 20

Dickinson v. Zurko, 527 U.S. 150 (1999).............. 19

Eagle-Picher Indus. v. EPA, 759 F.2d 905 (D.C.

Cir. es aT a BRIS EA oe EA Se EB thang tiga 9, 12, 16

Rok. oy Def. Fund, Inc. v. EPA, 636 F.2d

SOFIE. Ge. Sih circ pictcnn 5, 8, 18, 19

v

TABLE OF AUTHORITIES - continued

Page

Florida Mfd. Hous. Ass’n, Inc. v. Cisneros, 53

F.3d 1565 (11th Cir. 1995)... ccccccccccccccsoeeese, on

Forging Indus. Ass’n v. Secretary of Labor, 773

F.2d 1436 (4th Cir. 1985).........2cccccccccossoocese..-s.. 20

Gardner v. Toilet Goods Ass'n, 387 U.S. 167

RID) sisesssissinstascinsiasshiciaia ite ed. nh 13

George E. Warren Corp. v. EPA, 159 F.3d 616

GAL. Che, 1906) 6 nt 12

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

ST siidasaiipinanigicsibiice thie ce A a a an *

Industrial Union Dep’t, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607 EI ichesssincnssisnessin 20

Katherine Gibbs Sch. (Inc.) v. FT C, 612 F.2d 658

Ci PTE iideiiintptnis cei OS 20

Louisiana Envtl. Action Network v. EPA, 172

Poses Ge. Ci, 1900) 7, 12

National Recycling Coalition, Inc. v. Reilly, 884

Padee WOE CN OE, BOD aise i 12

Natural Res. Def. Council, Inc. v. EPA, 22 F.3d

BR CE, CO vicsiccicsarucainiiink. Sisaslbip iain 12

Natural Res. Def. Council, Inc. v. EPA, 859 F.2d

RP a Nelle WE ai iacicncsccetiitia pie aca 16

Ohio Forestry Ass’n, Inc. v. Sierra Club, 523

nk oh OE, PE er Bate ip 13, 14

Pacific Gas and Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190

Ocal fe ELIS TELE DOES ETE 14

Pennsylvania Funeral Dirs. Ass’n v. FT. C, 41

Fe CO I iiiriicg ce i 20

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)..... 21

Rollins Envtl. Servs. v. Parish of St. James, 775

Fumes (Ce. 1965)... 5

Shalala v. Illinois Council on Long Term Care,

ny Ps BN sivvniiseinigctcccc st 14

vi

TABLE OF AUTHORITIES — continued

Page

Shell Chem. Co. v. EPA, 826 F.2d 295 (Sth Cir.

| EE Fo ORE ee 18

Toilet Goods Ass'n v. Gardner, 387 U.S. 158

6, Ee Ge nee 13

Union Oil Co. v. Federal Power Comm'n, 542

oe Ff. (8 8) ee ee 18

STATUTES AND REGULATIONS

DS Cs Oe PTET csccscicescceteccishusiabhantedntaheettins 3,9, 17

RB! beg 2 a. eR eae 10, 20

© Pe cedescnsanedicbdaesdctediictuackdniaeaiceas 10

BEI et SE ee 20

OF Gee icclncssesentséstedebidtbeisaineatediteamelanieiade 10, 20

OS FED snxsitanictinsitbeticeccenbauminsiadanlinads 2,3

OF SOT win scictinksecetanaienebtaesniaeneetaesaice 22

|, SE ae eee, ES 2,4

OF Bee Dciducincincictashiiabrncnsttpitaidialadiamngetaia passim

y RISE ll | EDEL BEV oh ee ET 20

Fo ae. O CD ivislicatinianntbliandemicte dine 16

Ae A. BED cestiticicnitbincicindnndontetitestants 10, 12

SP PUTED acdseccvecetscstadlbdcanatsentbnaniovenans 10, 12

pp REE NAL E PRE TE et: 10, 13, 16

OCs Oe Fe ct aanscssectinchcvasbiiinianiaciianteimen 6

2 | SR ERE SA TS me atic ae 4

i UPI < ceiinsceeist dips ontinaties bentalmemminatanteite 5

OF PP cxactaccattneienatannsuentantincmate 4

pp, EER Scat 8 sot nasa sad SE TE 4,5

63 Fed. Reg. 35,384 (June 29, 1998)......... palleieas 3,4, 14

65 Fed. Reg. 18,018 (Apr. 6, 2000) ................eeeee 23

EPA, Reclassification of PCB and PCB-Contami-

nated Electrical Equipment (Jan. 16, 2000)......... 23

Vii

TABLE OF AUTHORITIES - continued

LEGISLATIVE HISTORY Page

H.R. Conf. Rep. 94-1679 (1976) .........cccccccscesseeeee 18, 21

H.R. Rep. No. 94-1341 (1976) ...........cccccecesesepecneees 21

INTHE |

Supreme Court of the Ginited States

No. 00-

UTILITY SOLID WASTE ACTIVITIES GROUP,

ENTERGY SERVICES, INC., MISSISSIPPI POWER COMPANY

AMERICAN ELECTRIC POWER SERVICE CORPORATION,

AND GENERAL ELECTRIC COMPANY,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A

for the Fifth Circuit

JOINT PETITION FOR A WRIT OF CERTIORARI

Petitioners the Utility Solid Waste Activities Group, En-

tergy Services, Inc., Mississippi Power Company, American

Electric Power Service Corporation (collectively “USWAG”),

and the General Electric Company (“GE”) respectfully jointly

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals was entered on August

15, 2000, revised on November 13, 2000, reported at 220

F.3d 683 (Sth Cir. 2000), and is reprinted in the Appendix to

this Petition (“Pet. App.”) at 1a-35a.

2

JURISDICTION

The court of appeals entered its decision on August 15,

2000. The petitioners filed a Joint Petition for Rehearing En

Banc, and USWAG filed a separate petition for panel rehear-

ing, both of which were denied on November 2, 2000. Pet.

App. 36a-37a. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The first question presented raises no constitutional or

statutory provisions. Instead, it involves the application of a

prudential element of the ripeness doctrine announced in

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

The second question presented concerns Section 19 of the

Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2618,

which is reproduced in Pet. App. at 42a-46a. Sections 6(e)

and 18 of TSCA, 15 U.S.C. §§ 2605(e) & 2617, are also

relevant, and are reproduced in Pet. App. at 38a-42a.

STATEMENT OF THE CASE

The first important question raised by the decision below is

whether the second prong of the prudential ripeness test first

announced in Abéott Laboratories — hardship to the parties

from delaying judicial review — must be mechanically applied

in all cases. The courts of appeals are split on the question of

whether hardship must be considered where, as here, the issue

to be reviewed is purely legal, and where, as is also true here,

Congress has, by specifying a limited time for judicial review

of a regulation after promulgation, expressed its preference

for the immediate resolution of disputed issues. This question

has far-reaching implications, given the multiplicity of

statutes (including many post-Abbott Laboratories public

health and welfare enactments) that mandate that suits

seeking judicial review of new administrative rules be

brought within a brief period following their promulgation.

3

The second important question arises because TSCA re-

quires that certain rules promulgated by the U.S. Environ-

mental Protection Agency (“EPA”) (including those chal-

lenged by the petitioners below) “shall be held unlawful”

where “not supported by substantial evidence in the rule-

making record ... taken as a whole.” 15 USC.

§ 2618(c)1(BXi) (“TSCA § 19(c)(1(BXi)”) (emphasis

added). The question raised by the decision below is whether

a court may override this congressionally-mandated standard

of review provision where the reviewing court determines in

its discretion that the standard is too demanding. Contrary to

every other court that has applied this provision, the Fifth

Circuit concluded that the nature of the challenge before it did

not justify the heightened scrutiny afforded by the substantial

evidence test. The court ignored the clear language-of TSCA,

and substituted the more deferential arbitrary and capricious

test set forth in the Administrative Procedure Act (“APA”), 5

U.S.C. § 706(2)(A), in upholding the challenged rules.

1. Factual Background

The petitions for review below arose from EPA’s promul-

gation of a final rule concerning the use and disposal of

polychlorinated biphenyls (“PCBs”), 63 Fed. Reg. 35,384

(June 29, 1998), known as the PCB “Mega Rule.” PCBs are a

class of compounds originally prized both because they were

good insulators and non-flammable. PCBs were manufac-

tured and widely used in many industrial sectors from the

1930s through the 1970s. By 1978, however, Congress

prohibited PCB manufacturing, and severely curtailed ap-

proved uses. See 15 U.S.C. § 2605(e) (“TSCA § 6(e)”).

These statutory provisions, and the resulting regulatory

program, have decreased human and environmental exposure

to PCBs. Owing to their many historic applications, however,

_ PCBs are still found in the environment and in industrial

settings, including in equipment that still is being used for its

original purpose (e.g., electrical transformers).

4

The PCB Mega Rule was the culmination of a seven-year

effort by EPA to reform its PCB program, which, over the

prior 20 years, had become a tangled mass of restrictions,

conditions, use authorizations, and cleanup and disposal

requirements. In the Mega Rule, EPA attempted to add

flexibility to, or streamline, its PCB decontamination,

cleanup, and disposal procedures, and to clarify and codify

other policies and practices that had developed over time but

were not part of the regulations.

In the court of appeals,” petitioner USWAG challenged

EPA’s assertion in the Mega Rule that state and local PCB

disposal regulations are not preempted by TSCA. EPA took

this position both in the legally binding preamble to the Mega

Rule, 63 Fed. Reg. at 35,386, and in its substantive text, 40

C.F.R. §§ 761.50(a)(6), 761.72(c)(2), & 761.79(a)(6). As

required, USWAG’s suit was filed “[nJot later than 60 days

after the date of the promulgation of’ the Mega Rule. 15

US.C. § 2618(a)(1)(A) (“TSCA § 19(a)(1){AY’).

The basis for USWAG’s claim of express federal preemp-

tion was 15 U.S.C. § 2617(aX2)(B) (“TSCA § 18(aX(2)(B)”),

which provides that, with limited exceptions, “no State or

political subdivision of a State may, after the effective date of

[inter alia, a TSCA § 6(e) PCB] requirement, establish or

continue in effect, any requirement which is applicable to

such substance or mixture.” The Fifth Circuit had previously

interpreted this TSCA provision. It held that a local ordi-

nance banning the disposal of PCBs was expressly preempted

by 15 U.S.C. § 2617 (“TSCA § 18”), reasoning that “Con-

gress has explicitly mandated that [TSCA], and regulations

promulgated under it by the EPA, preempt state and local

? Jurisdiction over petitions to review PCB regulations is initially in the

courts of appeals. See 15 U.S.C. § 2618(aX1)A) (“TSCA

§ 19(a)(1)(A)”). USWAG and GE filed separate petitions for review

which were ultimately consolidated before the Fifth Circuit.

5

regulation of PCB disposal.” Rollins Envil. Servs. v. Parish

of St. James, 775 F.2d 627, 634 (Sth Cir. 1985).

In addition, both USWAG and petitioner GE challenged a

variety of other provisions in the Mega Rule, including the

scientific underpinnings for the PCB cleanup and decontami-

nation provisions, the storage for reuse rule, certain provi-

sions governing PCB transformers, and the authorization to

use PCB-contaminated buildings and other surfaces. Central

to each challenge was the assertion that EPA’s action was

unsupported by substantial evidence (indeed in some cases,

any evidence) in the administrative record. TSCA

§ 19(c)(1)(B)i) expressly provides that “in the case of a rule

under [TSCA § 6(e)], . . . the court shall hold unlawful and set

aside such rule if the court finds that the rule is not supported

by substantial evidence in the rulemaking record . . . taken as

a whole.” 15 U.S.C. § 2618(c\1)\(BYi). Both USWAG and

GE noted that several courts had applied the substantial

evidence standard to their review of PCB rules, including the

Fifth Circuit previously in Corrosion Proof Fittings v. EPA,

947 F.2d 1201, 1214 (Sth Cir. 1991), and the District of

Columbia Circuit in Environmental Defense Fund, Inc. v.

EPA, 636 F.2d 1267 (D.C. Cir. 1980). Besides being statuto-

rily mandated, the parties observed that TSCA’s substantial

evidence test is more searching than the APA’s arbitrary and

capricious standard. See, e.g., Corrosion Proof Fittings, 947

F.2d at 1213-14.

2. Decision of the Court of Appeals

The Fifth Circuit dismissed in substantial part GE’s and

USWAG’s review petitions.? In doing so, it made two

* EPA agreed to, and the Fifth Circuit therefore ordered, a remand of

the cleanup and decontamination provisions of the Mega Rule (40 CFR.

§§ 761.61(a) & 761.79()) in response to petitioners’ arguments that

EPA’s estimate of the toxicity of PCBs was not supported by substantial

evidence in the record. Pet. App. 22a, 35a. On remand, EPA is reviewing

6

remarkable holdings: First, it ruled that USWAG’s preemp-

tion claim was not ripe for review, even though it involved a

pure question of law, and was filed during the statutorily-

prescribed period for judicial review; second, it ruled that

TSCA’s “substantial evidence on the record” standard for

review of the regulation should be discarded in favor of the

more deferential arbitrary and capricious standard.

1. On ripeness, the Fifth Circuit panel observed that Abbott

Laboratories was the source of the ripeness requirement in

proceedings for judicial review of administrative action:

The Supreme Court has explained that the essence of the

ripeness doctrine is to: “prevent the courts, through

avoidance of premature 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. The problem is best seen in a two-

fold aspect, requiring us to evaluate both the fitness of

the issues for judicial decision and the hardship to the

parties of withholding court consideration.”

Pet. App. 10a-1 1a (citing Abbott Labs., 387 U.S. at 148-49).

_ While agreeing that, where a challenge is purely legal,

prudential concerns that typically lead courts to reject facial

challenges to agency regulations become less important, the

Fifth Circuit nonetheless concluded that “where an issue

presents purely legal questions, the plaintiff must show some

hardship in order to establish ripeness.” Pet App. lla. In

light of this requirement, the court held that USWAG’s

preemption challenge was unripe, claiming that USWAG did

not identify the state or local regulations that it contended

that estimate. The Fifth Circuit also remanded another section (40 C.F.R.

§ 761.35) since EPA had not adequately explained why it had not granted

a variance requested by the electric utility industry. /d. at 16a, 35a.

7

TSCA should preempt, nor offer evidence that it would suffer

hardship if the court deferred consideration of the issue. The

court thus concluded that “any hardship that USWAG could

suffer is conjectural.” Jd. at 12a. The panel made no mention

of TSCA’s 60-day limitation on post-promulgation judicial

review, nor of the District of Columbia Circuit’s line of

decisions holding that predominantly legal challenges brought

within statutorily-mandated periods for judicial review need

not meet the “hardship to the parties” test. See, e.g., Louisi-

ana Envil. Action Network v. EPA, 172 F.3d 65 (D.C. Cir.

1999).

2. In laying out the standard for its review of the petition-

ers’ remaining claims, the Fifth Circuit initially recognized

that for TSCA § 6(e) rules (i.e., PCB rules) “‘the court shall

hold unlawful and set aside such rule if the court finds that the

tule is not supported by substantial evidence in the rulemak-

ing record ... taken as a whole.”” Pet. App. 5a (quoting

TSCA § 19(c)(1)(BXi)). It further recognized that ““Congress

put the substantial evidence test in the statute because it

wanted the courts to scrutinize [EPA’s] actions more closely

than an arbitrary and capricious standard would allow.” Jd

(alteration in original) (quoting Corrosion Proof Fittings, 947

F.2d at 1214).

Nevertheless, the Fifth Circuit found that when it consid-

~ ered TSCA § 19(c)(1)(B){i) in “context,” that section did not

“require” application of the mandated substantial evidence

standard to the petitioners’ claims. Pet. App. 6a-7a. The

“context” consisted primarily of the following two findings:

* As explained in its petition for panel rehearing, USWAG in fact cited

to PCB disposal regulations from five states that it contended TSCA

should preempt. USWAG also explained how these more stringent state

regulations would frustrate -and hamper PCB cleanups by USWAG

members across the country, and why immediate resolution of this issue

was necessary to prevent harm to petitioners. See Pet. App. 61a-63a &

n.11.

(1) that TSCA § 6(e) “establishes a categorical ban on most

uses of PCBs except as authorized by EPA,” id. at 6a-7a,

which the court characterized as a “rebuttable presumption

that all uses of PCBs present an unreasonable risk of injury to

health and the environment,” id at 7a; and (2) that the peti-

tioners’ challenges to the Mega Rule were in essence claims

that EPA failed “to act,” or “to craft as large an exemption as

petitioners would like.” Jd From these conclusions, the

court reasoned that the petitioners were not entitled to any

greater standard than would apply to most informal rulemak-

ings, i.e., that the agency acted arbitrarily and capriciously,

because “[t]o require a greater evidentiary showing by EPA

would eviscerate the categorical ban of section 6(e) and

would reverse the presumption against PCB use that the

section imposes.” /d.

After acknowledging but distinguishing the District of

Columbia Circuit’s straightforward application of TSCA

§ 19(c)(1\(B)i) in an earlier challenge to EPA’s § 6(e) PCB

regulations, see Environmental Defense Fund, 636 F.2d at

1277-78, the Fifth Circuit concluded:

Accordingly, we hold that the substantial evidence stan-

dard of review provided for under section 19(c){1)(B\i)

applies only when a petitioner challenges EPA’s deci-

sion to depart from the outright ban and permit the use

or expand the use of PCBs. When a petitioner chal-

lenges an EPA rule restricting or prohibiting the use of

PCBs, courts must review EPA’s action under the arbi-

trary and capricious standard of review.

Pet. App. 8a. (emphasis added)

REASONS FOR GRANTING THE FETITION

This case presents an important, recurring issue of federal

ripeness jurisprudence. The Court’s original prudential

ripeness paradigm, announced in a trilogy of cases including

Abbott Laboratories, states that ripeness turns on “the fitness

9

a challenge to final agency action presents predominantly

legal issues, and the suit was filed within a statutorily-limited

period for review. See, e.g., Eagle-Picher Indus. v. EPA, 759

F.2d 905, 915-19 (D.C. Cir. 1985).

The Abbott Laboratories Court neither considered nor pre-

dicted Congress’s increasing practice of specifying limited,

immediate periods for preimplementation judicial review of

new rules or regulations. The evolution of Congress’s

approach to administrative law necessitates a shift in the

Proper treatment of ripeness. This Court should grant certio-

rari in order to resolve the split between the courts of appeals

on this prominent, oft-repeating issue.

the rulemaking record ... taken as a whole.” 15 U.S.C.

the substantial evidence standard was applicable only to

petitions challenging a regulation departing from the TSCA

P a, + a ee ee ee

10

§ 6(e) ban on the use of PCBs, while the arbitrary and capri-

cious standard was applicable to petitions challenging regula-

tions that restrict or prohibit the use of PCBs.

The Fifth Circuit’s conclusion is contrary to the plain lan-

guage of the statute and the views of other courts of appeals

that have considered TSCA § 19(c)(1)(BXi) and similar

judicial review provisions in other statutes. By conditioning

the applicable standard of review upon the nature of the

petitioner’s claim, the decision also creates an unworkable

framework for determining what standard of review to apply.

This Court should grant certiorari in order to clarify the

proper standard of review under TSCA § 19(c)(1)(B)(i) and

similar provisions of other statutes.

I. A CONFLICT EXISTS AMONG THE COURTS OF

APPEALS CONCERNING THE APPLICABILITY

OF THE “HARDSHIP” PRONG OF THE ABBOTT

LABORATORIES RIPENESS TEST WHERE THE

ISSUE TO BE REVIEWED IS PURELY LEGAL

AND THE TIME FOR REVIEW OF REGULA-

TIONS IS LIMITED BY STATUTE.

A broad array of major federal statutes provide immediate

but limited periods for preimplementation judicial review of

new agency regulations. See, e.g., the Federal Trade Com-

mission Act, 15 U.S.C. § 57a(e){1)(A); the Securities Ex-

change Act, 15 U.S.C. § 78y(b)(1); the Consumer Products

Safety Act, 15 U.S.C. § 2060(a); the Resource Conservation

and Recovery Act (“RCRA”), 42 U.S.C. § 6976(a)(1); the

Clean Air Act (“CAA”), 42 U.S.C. § 7607(b)(1); the Com-

prehensive Environmental Response, Compensation, and

Liability Act (“CERCLA” or “Superfund”), 42 U.S.C.

§ 9613(a); and TSCA; see also Pet. App. 47a-59a (quoting the

above and other statutory provisions that provide limited

judicial review periods for new rules). These include many

hallmark health and welfare programs enacted since this

Court decided Abbott Laboratories. Regulations promulgated

1]

pursuant to these statutes occupy many volumes of the Code

of Federal Regulations.

By specifying limited, up-front periods for review, Con-

gress has expressed a strong preference for scrutinizing new

rules prior to implementation so that unreasonable or unsup-

portable elements can be excised before the government and

the regulated community devote resources to implementation

and compliance. The relationship of such provisions to the

“hardship” prong of the Abbott Laboratories ripeness test is

an important, recurring issue, which, until the Fifth Circuit’s

decision below, had been resolved in favor of allowing

challenges to proceed within those congressionally prescribed

periods.

A. Recognizing the prudential nature of the “hardship”

test, the District of Columbia Circuit has dispensed with it in

many cases where the issues are predominantly legal, and the

time for judicial review is circumscribed by statute. The issue

first arose in Eagle-Picher, where the court was presented

with a challenge to CERCLA regulations filed within the 90-

day review period prescribed in 42 U.S.C. § 9613(a). See Pet.

App. 59a. The court rejected EPA’s ripeness defense to the

petition, stating:

It is abundantly clear from the plain language of

[§ 9613(a)] that Congress intended to provide prompt,

uniform “pre-enforcement” review of CERCLA regula-

tions to a broad class of petitioners, in order to avoid

needless delays in the implementation of an important

national program. This provision constitutes compelling

evidence that Congress has, in effect, decided that the

interest of the EPA in effectuating CERCLA’s purposes

will generally be furthered by review during the statu-

tory period and, by implication, hindered by postponing

review.... In determining a regulation’s ripeness for

review, courts should accord heavy weight to this sort of

strong congressional proclamation of an agency’s inter-

est in the timing of review of its regulations.

12

759 F.2d at 916 (footnote omitted). The District of Columbia

Circuit accordingly concluded that “no purpose is served by

proceeding to the second prong” of the Abbott Laboratories

ripeness test. /d at 918. Stated otherwise, Congress’s

directive that courts hear challenges to new rules immediately

renders inapposite the Abbott Laboratories Court’s prudential

interest in “protect[ing] the agencies from judicial interfer-

ence until an administrative decision has been formalized and

its effects felt in a concrete way.” 387 U.S. at 148.

The District of Columbia Circuit has followed this ap-

proach in petitions for review filed under several different

statutory schemes, each of which provides a window for

preimplementation judicial review. See Louisiana Envil.

Action Network, 172 F.3d at 69 (RCRA); George E. Warren

Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998) (CAA);

Natural Res. Def. Council, Inc. v. EPA, 22 F.3d 1125, 1133

(D.C. Cir. 1994) (CAA); National Recycling Coalition, Inc. v.

Reilly, 884 F.2d 1431, 1434 (D.C. Cir. 1989) (RCRA).

Indeed, the National Recycling Coalition court took the

Eagle-Picher analysis one step further, holding that judicial

review during the limited period set forth in RCRA was “not

merely ‘preferred,’ it was statutorily required.” 884 F.2d at

1434.

TSCA § 19(a)(1)(A)’s 60-day limitation on judicial review

is, in substance, the same as the limitation provisions central

to the District of Columbia Circuit’s ripeness analysis in the

above cases.° In each, Congress set forth immediate but

° Compare TSCA § 19(a1)(A) (“Not later than 60 days after the date

of the promulgation of a rule under [various sections of TSCA including

§ 6(e)], amy person may file a petition for review of such rule” with the

appropriate court of appeals), with, eg., 42 U.S.C. § 6976(aX1) (“a

petition for review of action of the Administrator in promulgating any

regulation ... shall be filed within ninety days from the date of such

promulgation”) (at issue in Louisiana Envil. Action Network), and id.

§ 7607(b)(1) (“A petition for review of [various agency actions and

13

limited periods. in which challenges to new regulations may

be brought, and specified the court or courts in which such

challenges must be filed. These periods are substantially

similar to statutes of limitations, and have been held to be

jurisdictional. See, e.g., Edison Elec. Inst. v. EPA, 996 F.2d

326, 331-32 (D.C. Cir. 1993) (holding untimely a challenge to

RCRA regulations not filed within 90 days of promulgation).

B. Neither Abbott Laboratories nor its companion cases on

administrative ripeness, Toilet Goods Association v. Gardner,

387 U.S. 158 (1967) and Gardner v. Toilet Goods Associa-

tion, 387 U.S. 167 (1967), involved regulations for which

Congress had specified a period for preimplementation

review.® Nevertheless, while the Court has not squarely

addressed the ripeness issue presented here in any previous

case, the Court has strongly suggested in two recent decisions

that where Congress specifies a period for preimplementation

judicial review, the hardship prong of the Abbott Laboratories

test should not apply. First, in Ohio Forestry Association,

Inc. v. Sierra Club, 523 U.S. 726 (1998), the Court held

unripe a challenge to a U.S. Forest Service management plan

for a national forest in Ohio. In conducting the ripeness

regulations} .. . shall be filed within sixty days from the date notice of

such promulgation. . . .”) (at issue in Natural Res. Def Council), and id

§ 9613(a) (“Review of any regulation promulgated under this chapter may

be had upon application by any interested person only in the Circuit Court

of Appeals of the United States for the District of Columbia. Any such

application shall be made within ninety days from the date of promulga-

tion of such regulations.”) (at issue in Eagle-Picher) (the text of each

provision is reproduced in Pet. App. 57a-59a).

° The Federal Food, Drug and Cosmetic Act, at issue in alll three cases,

does provide for the immediate review of some types of regulations. See

Pet. App. 50a-Sla. The Court rejected the argument that by specifically

to bar preenforcement review of others. See Abbott Labs., 387 U.S. at

141-48. The Court, however, did not consider the significance of the

immediate review provisions to its ripeness analysis.

14

analysis, the Court emphasized that “Congress has not

provided for preimplementation judicial review of forest

plans.... The Plan is consequently unlike agency rules that

Congress has specifically instructed the courts to review

‘preenforcement.”” Jd. at 737. Notably, in support of this

holding, the Court cited 15 U.S.C. § 2618 (“TSCA § 19”) as

an example of a congressional requirement for courts to hear

preenforcement challenges. See id.

In a second case decided just last term, Shalala v. Iilinois

Council on Long Term Care, Inc., 529 U.S. 1 (2000), the

Court made general reference to the doctrines of ripeness and

exhaustion of administrative remedies in the course of its

jurisdictional analysis of a suit challenging certain Medicare

regulations. Specifically, it noted that the:

[djoctrines of “ripeness” and “exhaustion” contain ex-

ceptions, however, which exceptions permit early review

when, for example, the legal question is “fit” for resolu-

tion and delay means hardship, or when exhaustion

would prove “futile.” (And sometimes Congress ex-

pressly authorizes pre-enforcement review, though not

here. See, e.g., 15 U.S.C. § 2618(a)(1)(A) (Toxic Sub-

stances Control Act).)

Id. at 13 (emphasis added) (citations omitted). Having used

TSCA § 19 twice to distinguish potentially ripe from unripe

actions, the Court should grant certiorari, and decide whether

TSCA’s limitation on judicial review in fact renders the

traditional “hardship” test unnecessary and contrary to

congressional intent.

C. Here, the preemption issue is predominantly, if not

purely, legal in nature, see Pacific Gas and Electric Co. v.

State Energy Resources Conservation & Development Com-

mission, 461 U.S. 190, 201 (1983) (finding preemption to be a

predominantly legal issue fit for review), and the Mega Rule

is undoubtedly final agency action under the APA. See 63

Fed. Reg. at 35,384 (noting that the Mega Rule is a “Final

a b)

tule”).’ These factors render the issue “fit” for review.

Abbott Labs., 387 U.S. at 149-51. Under the District of

Columbia Circuit’s formulation in Eagle-Picher, fitness for

review, taken together with Congress’s express preference for

early review of TSCA regulations, leads to the conclusion that

the TSCA § 18 preemption issue is fully ripe for considera-

tion.

The Fifth Circuit, however, relied solely on the traditional

ripeness analysis, including hardship to the parties, in ruling

against USWAG. See Pet. App. la (citing American Forest

& Paper Ass'n v. EPA, 137 F.3d 29] (Sth Cir. 1998);

Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138 (Sth

Cir. 1993); New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 833 F.2d 583 (Sth Cir. 1987)). None of the

cases cited by the court involved a limited judicial review

period.

Furthermore, under the panel’s approach, some petitioners

may be denied facial review of new rules altogether in

instances where their claims are deemed unripe during the

limited review period, and then deemed time-barred later.

Given that time limits on preimplementation judicial review

are likely jurisdictional, see Edison Elec. Inst., 996 F.2d at

331-32, a petitioner whose claim is held unripe during the

specified: review period, but who suffers what the Fifth

Circuit finds is “hardship” later (due, for example, to pressure

to comply with the new regime or face enforcement, a hard-

ship recognized in Abbott Laboratories), would likely be

foreclosed from reinstituting its suit at that time® This is

* The result is even more extreme where limited periods of preimple-

mentation judicial review also have been held to preclude as-applied

16

particularly true here, where states and localities, emboldened

by the Mega Rule’s regulatory reversal of TSCA § 18’s

preemption provision, will increasingly require strict compli-

ance with their PCB rules and regulations that are inconsistent

with, and more stringent than, the federal PCB rules. Even if

TSCA § 18 may be raised as a defense to an individual state

or local prosecution of such rules and regulations, the regu-

lated community will never be able to obtain declaratory

relief invalidating EPA’s regulatory misinterpretation of

TSCA § 18 in the Mega Rule, because such a suit would

likely be time-barred by TSCA § 19(a)(1)(A).”

The Court should grant certiorari to resolve the conflict in

the courts of appeals concerning the proper scope of the

ripeness test where Congress has established a limited period

for the immediate judicial review of new agency pronounce-

ments. In light of the statutes that provide for preimplemen-

tation review of new rules, and the multiplicity of regulations

that are continually promulgated pursuant to these statutes,

this issue is recurring, important, and deserving of resolution

now.

challenges during enforcement actions. See, e.g., 33 U.S.C. § 1369(b)(2);

42 U.S.C. § 9613(a); Natural Res. Def. Council, Inc. v. EPA, 859 F.2d

156, 167 (D.C. Cir. 1988); Eagle-Picher, 759 F.2d at 916. In those cases

a petitioner may be precluded from raising either facial or as-applied

challenges to the rule at issue.

° As USWAG argued below, such a scenario would require resolution

of the TSCA preemption issue on a state-by-state, case-by-case basis,

which would impose tremendous burdens on petitioners, and needlessly

tax judicial resources nationwide. Pet. App. 61a-63a.

17

Il. THE FIFTH CIRCUIT ERRED WHEN, CON-

TRARY TO OTHER COURTS OF APPEALS, IT

DECLINED TO APPLY TSCA’S EXPRESS SUB-

STANTIAL EVIDENCE STANDARD OF REVIEW

TO CHALLENGES TO EPA’S PCB MEGA RULE.

A. In TSCA and several other statutes that authorize

agency rulemaking, Congress has expressly displaced the

arbitrary and capricious standard of review ordinarily appli-

cable under the APA (see 5 U.S.C. § 706(2)(A)) with the

requirement that the agency justify its rules by substantial

evidence. TSCA § 19(c)(1)(BXi) provides that, for review of

regulations issued under the authority granted by certain

sections of the statute, including § 6(e), “the court shall hold

unlawful and set aside such rule if the court finds that the rule

is not supported by substantial evidence in the rulemaking

record .. . taken as a whole.” 15 U.S.C. § 2618(c)(1\(B){i).

Despite the unequivocal language of this provision, the

Fifth Circuit concluded that when a petitioner challenges an

EPA decision not to permit PCB use under TSCA § 6(e), or

challenges a use permitted under TSCA § 6(e) as too restric-

tive, the rule will be subject to the less exacting arbitrary and

capricious standard of review. The court did so notwith-

standing the absence of any language in TSCA

§19(c)(1)(B)(i) providing for an arbitrary and capricious

standard. The court of appeals’ rejection of the unambiguous

judicial review provision of TSCA § 19(c)(1)(B\i), and its

decision to nevertheless review some rules, in some circum-

stances, under an arbitrary and capricious standard, puts it at

odds with the other courts of appeals that have considered this

TSCA provision and similar provisions of other statutes.

1. The decision below is inconsistent with decisions of

other courts of appeals applying the identical provision of

TSCA. The District of Columbia Circuit held that the “more

rigorous” substantial evidence standard “expressly set forth

in” TSCA § 19(c)(1)(B)i) applied to EPA regulations creat-

ing exceptions to the ban on PCB use under TSCA § 6(e).

18

Environmental Def. Fund, 636 F.2d at 1277-78 (reviewing

EPA rules that, inter alia, permitted routine servicing of

certain PCB-containing transformers and electromagnets).

That court later amplified its understanding that Congress

intended TSCA § 19(c)(1)(B){i) to require a searching review

of the agency’s reasons and explanations for rules promul-

gated under § 6(e). See Chemical Mfrs. Ass’n v. EPA, 859

F.2d 977, 991-92 (D.C. Cir. 1988); see also Ausimont U.S.A.

Inc. v. EPA, 838 F.2d 93, 95-96 (3d Cir. 1988) (applying the

substantial evidence standard to review EPA fluoroalkene

regulations issued under TSCA).

The distinction between the uniform substantial evidence

standard of review mandated by Congress and the variable

approach applied below is an important one. ~Several courts

of appeals have noted that TSCA § 19(c)(1)(B)(i) imposes a

more searching standard of review than would ordinarily be

applied under the APA.'° The legislative history of TSCA

§ 19(c)(1)(B)(i) makes clear that Congress intended that

courts “focus on the rulemaking record to see if the Adminis-

trator’s action is supported by that record,” and for that reason

declined to provide for the traditional “arbitrary and capri-

cious” review. H.R. Conf. Rep. 94-1679, at 96 (1976). More

generally, several courts of appeals have described the

substantial evidence test as requiring closer, more rigorous,

and more demanding scrutiny of an agency’s regulation than

the relatively deferential arbitrary and capricious test nor-

mally applied to rulemaking under the APA.'’ This Court has

'° See Chemical Mfrs. Ass'n, 859 F2d. at 991-92; Ausimont U.S.A. , 838

F.2d at 96; Shell Chem. Co. v. EPA, 826-F.2d 295, 297 (Sth Cir. 1987);

Environmental Def. Fund, 636 F.2d at 1277.

' See Florida Mfd. Hous. Ass'n, Inc. v. Cisneros, 53 F.3d 1565, 1573

(11th Cir. 1995); Asbestos Info. Ass'n/N. Am. vy. OSHA, 727 F.2d 415, 421

(Sth Cir. 1984) AFL-CIO v. Marshall, 617 F.2d 636, 649 (D.C. Cir.

1979), aff'd in part, vacated in part sub nom. American Textile Mfrs. Inst.

v. Donovan, 452 U.S. 490 (1981); Union Oil Co. v. Federal Power

19

noted that Congress may provide for “considerably more

generous judicial review” by requiring courts to apply a

substantial evidence test based on a thorough consideration of

an entire administrative record, rather than the less searching

arbitrary and capricious test. Abbott Labs., 387 U.S. at 143.

It is likely that the rules petitioners challenged would not

have survived substantial evidence review under TSCA

§ 19(c)(1B)(i). The substantial evidence standard requires a

court to ask “whether a ‘reasonable mind might accept’ a

particular evidentiary record as ‘adequate to support a conclu-

sion.’” Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quot-

ing Consolidated Edison Co. v. National Labor Relations Bd.,

305 U.S. 197, 229 (1938)). The evidence in the record must

be “more than a mere scintilla.”” Consolidated Edison v.

National Labor Relations Bd., 305 U.S. 197, 229 (1938); see

Chemical Mfrs. Ass'n, 859 F.2d at 992; Environmental Def.

Fund, 636 F.2d at 1277-78 & n.27. The court below upheld

several Mega Rule provisions despite a complete lack of

record evidence supporting them. For example, the court let

stand a rule that reclassified painted metal surfaces as “po-

rous,” and required complete removal of PCB-contaminated

paint, because “there is no evidence in the record that sug-

gests that paint is not porous to spills of liquid PCBs and EPA

provides a sensible explanation for the rule change.” Pet.

App. 24a. Instead of requiring EPA to produce substantial

record evidence to support the regulations on painted sur-

faces, the court effectively required petitioners to produce

substantial evidence that EPA erred. Similarly, the court let

Comm'n, 542 F.2d 1036, 1041 (9th Cir. 1976); but see Association of

Data Processing Serv. Orgs. v. Board of Governors, 745 F.2d 677, 681-86

(D.C. Cir. 1984) (Scalia, J.) (holding the quantum of factual support

required under both standards, as they are stated in the APA, to be the

same, although recognizing that Congress may have intended for a more

scrutinizing standard where it expressly replaces the APA’s arbitrary and

Capricious standard in a particular statute with the substantial evidence

standard).

20

stand a rule creating a regulatory presumption that small

transformers must be regulated as PCB Transformers, not

because the rule was supported by substantial evidence, but

rather because there was no evidence in the record “that could

support the conclusion that the ... small transformers .. .

should not be classified as PCB Transformers.” Pet. App.

19a-20a. With no affirmative evidence supporting them,

these rules could not survive substantial evidence review.

2. In addition to TSCA, Congress has enacted a number of

statutes with provisions specifying a substantial evidence test

for review of agency rulemakings.'? With the solitary excep-

tion of the decision below, courts have uniformly abided by

the statutory language and applied the substantial evidence

test. For example, this Court in American Textile Manufac-

turers Institute v. Donovan, 452 U.S. 490, 522-23 (1981),

recognized that the substantial evidence standard applied to

review of an agency’s regulation based on the plain language

of the Occupational Safety and Health Act of 1970

(“OSHA”). See also Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst., 448 U.S. 607, 653 (1980) (re-

viewing OSHA regulation under substantial evidence stan-

dard). The courts of appeals, including the Fifth Circuit on

other occasions, have also followed the congressional man-

date, and reviewed rules under the substantial evidence

standard where the statute so provides."

'2 See, e.g., 15 U.S.C. § 57a(e)(3A) (Federal Trade Commission

Improvement Act of 1974); 15 U.S.C. § 1193(e)(3) (Flammable Fabrics

Act); 15 U.S.C. § 2060(c) (Consumer Product Safety Act); 29 U.S.C.

§ 655(f) (Occupational Safety and Health Act of 1970).

'3 See, e.g., Pennsylvania Funeral Dirs. Ass'n v. FTC, 41 F.3d 81, 85

(3d Cir. 1994) (Federal Trade Commission Improvement Act); Forging

Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1444 (4th Cir. 1985)

(OSHA); Katherine Gibbs Sch. (Inc.) v. FTC, 612 F.2d 658, 663-64 (2d

Cir. 1979) (Federal Trade Commission Improvement Act); D.D. Bean &

Sons Co. v. Consumer Product Safety Comm'n, 574 F.2d 643, 648 (ist

21

3. The Fifth Circuit erred in deviating from the plain lan-

guage of TSCA § 19(c)(1\B)i). This Court has repeatedly

emphasized “that courts must presume that a legislature says

in a statute what it means and means in a statute what it says.”

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54

(1992). Interpretation of a statute begins and ends with the

Statute’s language if that language is clear and unambiguous.

See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 432

(1999); Robinson v. Shell Oil Co., 519 U.S. 337, 340 ( 1997).

TSCA § 19(c)(1)(B)(i) is unambiguous in mandating the form

of judicial review: “the court shall hold unlawful [inter alia, a

TSCA § 6(e) rule] if the court finds that the rule is not sup-

ported by substantial evidence in the rulemaking record .. .

taken as a whole.” 15 U.S.C. § 2618(c\1)(BYXi) (emphasis

added). This provision leaves no room to conclude that two

standards of review are applicable to rules promulgated under

TSCA § 6(e).

Nor does the legislative history of TSCA suggest any in-

tention on the part of Congress to create a bifurcated standard

of review based on the nature of the petitioner’s claim. Both

the Senate and House versions of the bill called for review of

certain rules issued under TSCA pursuant to the substantial

evidence standard. See H.R. Conf. Rep. No. 94-1679, at 95.

The conference committee report makes clear that the confer-

ees expressly adopted the substantial evidence standard to

ensure that a reviewing court focus on the evidence in the

rulemaking record. See id at 96. The committee rejected

more restrictive language in the original House bill that would

have required substantial evidence to support only the “de-

termination or findings required to be made” by the Adminis-

trator. See H.R. Rep. No. 94-1341, at 55 (1976). Had

Congress intended different standards of review to apply

Cir. 1978) (Consumer Product Safety Act); Aqua Slide ‘N’ Dive Corp. v.

Consumer Product Safety Comm'n, 569 F.2d 831, 837 (Sth Cir. 1978)

(same).

22

depending on the nature of the challenge, it would have so

provided, particularly since TSCA itself includes some

provisions authorizing rulemakings that are not subject to

review under the substantial evidence test. See, eg, 15

U.S.C. § 2607(a), (c), (d).

B. The Fifth Circuit decision creates a strange and un-

workable framework for judicial review of TSCA PCB rules.

The decision below permits a petitioner challenging a rule as

too permissive to invoke a more exacting standard of review

than a party challenging the same rule as too restrictive.

Under the Fifth Circuit’s formulation, a court must attempt to

characterize the nature of both the provision at issue and the

challenge before the court can determine which standard of

review to apply. Are the conditions themselves being pro-

posed in order to tighten restrictions or loosen restrictions?

Was the challenge brought because the rule was perceived as

too lax or too stringent? Frequently, if not always, a rule

challenge will defy easy categorization. Even where the rule

and the challenge can be characterized, which standard

applies when one party challenges a rule as too stringent, and

another party claims that the rule is too lenient, a situation

that is not uncommon in the context of environmental regula-

tions?

In this case the challenged provisions authorized use of

PCBs, and thus were “departures” from the statutory ban on

using PCBs. Although the court of appeals held that such

“departures” should be reviewed under the substantial evi-

dence standard, it nonetheless applied the arbitrary and

capricious standard of review. Thus, the court did not even

follow its own novel approach when it declined to apply the

statutory standard of review to the new use authorization. As

the decision below itself demonstrates, the court’s approach

will sow needless confusion in the administrative and judicial

review process.

C. This Court should grant certiorari to résolve this im-

portant and recurring issue of statutory interpretation. Highly

23

contentious rulemakings involving PCBs have been

for more than two decades, and new rules are still under

active consideration. See EPA, Reclassification of PCB and

PCB-Contaminated Electrical Equipment (Jan. 16, 2001)

(signed by EPA Administrator Browner on January 16, 2001

but not yet published in the Federal Register); 65 Fed. Reg.

18,018 (Apr. 6, 2000) (extending comment period for pro-

posed rule authorized by section 6(e) of TSCA Originally

published in 59 Fed. Reg. 62,788 (Dec. 6, 1994)). Courts

should apply a single, workable standard of review to TSCA

regulatory challenges.

Moreover, the decision below creates an unsettling prece-

dent for future review of other agency rulemakings for which

Congress has expressly prescribed the standard of review.

The Fifth Circuit’s interpretation of the TSCA judicial review

provision encourages other courts to attempt to divine an

overriding purpose or intent of a statute, and to adjust the

degree of review afforded an agency’s rule according to that

purpose, notwithstanding clear statutory language mandating

a particular standard of review. *

For all the reasons outlined above, the Court should grant

the petition to answer these important and recurring questions

and resolve existing inconsistencies among the courts of

appeals.

24

CONCLUSION

For the reasons stated, the joint petition for a writ of certio-

rari should be granted.

Respectfully submitted,

DOUGLAS H. GREEN CARTER G. PHILLIPS*

JOHN L. MOORE, JR. ANGUS MACBETH

PIPER MARBURY RUDNICK & CHRISTOPHER L. BELL

WOLFE LLP TIMOTHY K. WEBSTER

1200 Nineteenth Street, N.W. SIDLEY & AUSTIN

Washington, D.C. 20036 1722 Eye Street, N.W.

(202) 861-3900 Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioners

Utility Solid Waste Activities | KATHERINE L. ADAMS

Group, Entergy Services, Inc., DAVIDH. E. BECKER

Mississippi Power Company, SIDLEY & AUSTIN

and American Electric Power 875 Third Avenue

Service Corporation New York, NY 10022

(212) 906-2000

STEPHEN D. RAMSEY 4

BRACKETT B. DENNISTON E.

Ill

PATRICIA K. CASANO

GENERAL ELECTRIC

COMPANY

1299 Pennsylvania Avenue,

N.W.

Washington, D.C. 20004

(202) 637-4228

Counsel for Petitioner

General Electric

Company

January 31, 2001 * Counsel of Record