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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0761%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1065

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0761%3A1. Public record. Not legal advice.