Cross Petition — Appalachian Power Co. v. Whitman

49143 1 FEB 2 8 2099

No.

IN THE

Supreme Court of the United States

APPALACHIAN POWER COMPANY, et al.,

Cross-Petitioners

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Cross-Respondent

On Conditional Cross-Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

DAVID E. MENOTTI HENRY V. NICKEL

WILLIAM F. PEDERSEN F. WILLIAM BROWNELL

JEFFERY A. KNIGHT (Counsel of Record)

SHAW PITTMAN LUCINDA MINTON LANGWORTHY

2300 N Street, N.W. HUNTON & WILLIAMS

Washington, D.C. 20037 1900 K Street, N.W.

(202) 663-8675 Washington, D.C. 20006

Counsel for American (202) 955-1500

Forest & Paper Counsel for Appalachian Power

Association and American Co., et al., American Public

Iron & Steel Institute Power Association, and

National Association of

Home Builders

February 28, 2000

[Additional Counsel Listed Inside}

(TUR rar aa: Ancetan t SR CNRS RS oS

WILSON-Epes PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20003

Aye ft

NEWMAN R. PORTER

LEWIS AND ROCA

40 N. Central Avenue

Phoenix, AZ 85004

(602) 262-5786

Counsel for Nevada Mining

Association, Newmont Gold

Company, and Meridian

Gold Company

RUSSELL S. FRYE

COLLIER, SHANNON, RILL &

Scott, PLLC

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

(202) 342-8878

and

RICHARD WASSERSTROM

AMERICAN FOREST & PAPER

ASSOGIATION, INC.

1111 19th Street, N.W.

8th Floor

Washington, D.C. 200386

(202) 463-2582

Counsel for American Forest

& Paper Association, Inc.

GRANT CRANDALL

General Counsel

UNITED MINE WORKERS OF

AMERICA, AFL-CIO

8315 Lee Highway

Fairfax, VA 22031

(703) 208-7200

and

EUGENE M. TRISKO

P.O. Box 596

Berkeley Springs, WV 25411

(304) 258-1977

Counsel for United Mine

Workers of America,

AFL-CIO

DAVID F. ZOLL

ALEXANDRA DAPOLITO DUNN

CHEMICAL MANUFACTURERS

ASSOCIATION

1300 Wilson Boulevard

Arlington, VA 22209

(703) 741-5165

Counsel for Chemical

Manufacturers Association

G. WILLIAM FRICK \

M. ELIZABETH Cox

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8250

Counsel for American Petroleum

Institute

HAROLD P. QUINN, JR.

NATIONAL MINING

ASSOCIATION

1130 17th Street, N.W.

Washington, D.C. 200386

(202) 463-9793

Counsel for National Mining

Association

MARCELLE SHOOP

Vice President Law and

General Counsel

KENNECOTT CORPORATION

8315 West 3595 South

P.O. Box 6001

Magna, Utah 84044-6001

(801) 252-3000

Counsel for Kennecott Holdings

Corporation, Kennecott

Energy and Coal Company,

and Kennecott Services

Company

PETER S. GLASER

SHOOK, HARDY & BACON

600 14th Street, N.W.

Suite 800

Wasshington, D.C. 20005

(202) 639-5627

Counsel for Western Fuels

Association, Inc.

MAURICE H. MCBRIDE

NATIONAL PETROCHEMICAL &

REFINERS ASSOCIATION

1899 L Street, N.W.

Washington, D.C. 20036

(202) 457-0480

Counsel for National

Petrochemical & Refiners

Association

Davi M. FLANNERY

JACKSON & KELLY

P.O. Box 558

1600 Laidley Tower

Charleston, WV 25822

(804) 340-1017

Counsel for Midwest Ozone

Group; and West Virginia

Chamber of Commerce

KurRT BLASE

KILPATRICK STOCKTON LLP

700 Thirteenth Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 508-5800

Counsel for Kennecott Holdings

Corporation, Kennecott

Energy and Coal Company,

Kennecott Services Company

and National Stone

Association

TIMOTHY L. HARKER

THE HARKER LAW FIRM

9500 Accord Drive

Potomac, MD 20854

(801) 988-0964

and

THOMAS J. GRAVES

NATIONAL PAINT AND COATINGS

ASSOCIATION, INC.

1500 Rhode Island Ave., N.W.

Washington, D.C. 20005

(202) 462-6272

Counsel for National Paint and

Coatings Association

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1850 I Street, N.W.

Suite 700

Washington, D.C. 20005

(202) 789-6000

Counsel for Phoenix Cement

Company

QUESTION PRESENTED

Whether, when the EPA Administrator makes risk

management decisions under § 109 of the Clean Air Act, 42

U.S.C. § 7409, she must ignore the broad economic,

environmental, and indirect public health consequences of

her decision to select a new NAAQS from a range of

standards that reflect uncertain and indistinguishable health

risks.

li

PARTIES TO THE PROCEEDINGS

1. CAA Industry Cross-Petitioners are petitioners in one or

both of the two consolidated cases addressed by this

conditional cross-petition for a writ of certiorari:

American Trucking Ass’ns, Inc. v. United States

Environmental Protection Agency, D.C. Cir. No. 97-1440

(and consolidated cases), and American Trucking Ass'ns,

Inc. v. United States Environmental Protection Agency,

D.C. Cir. No. 97-1441 (and consolidated cases).

American Forest & Paper Association

American Iron & Steel Institute

American Petroleum Institute

American Public Power Association

Appalachian Power Co., et al. is comprised of the

following:

Baltimore Gas and Electric Company

Carolina Power & Light Company

Central and South West Services, Inc.

Central Power and Light Company

Public Service Company of Oklahoma

Southwestern Electric Power Company

West Texas Utilities Company

Central Illinois Public Service Company

CINergy Corp.

Columbus Southern Power Company

Conectiv (petitioned as Delmarva Power &

Light Co. and intervened as Atlantic City

Electric Co. in the cases below)

Consumers Energy Company

Dayton Power and Light Company, The

Detroit Edison Company, The

ill

Duke Energy Co.

FirstEnergy (petitioned as Ohio Edison Co. and

Centerior Energy Co., (with Centerior Energy

Co. subsidiaries Cleveland Electric

Illuminating Co. & Toledo Edison Co.) in the

cases below)

Florida Power Corporation .

Illinois Power Company

Indiana Michigan Power Company

Indianapolis Power & Light Company

Jacksonville Electric Authority _

Kansas-City Power & Light Company

Kentucky Power Company

LGE Energy Corp. (petitioned as Kentucky

Utilities Company and Louisville Gas &

Electric Co. in the cases below)

Madison Gas and Electric Company

Minnesota Power Company :

Monongahela Power Company,

dba Allegheny Power System, Inc.

Northern Indiana Public Service Company

Oglethorpe Power Corporation

Ohio Power Company

Ohio Valley Electric Corporation

Otter Tail Power Company

PacifiCorp

PPL Electric Utilities Corporation

dba PPL Utilities (petitioned as

Pennsylvania Power & Light Corp.)

Plains Electric Generation & Transmission

Cooperative, Inc.

Potomac Edison Company, The

|

iv

dba Allegheny Power System, Inc.

Potomac Electric Power Company

Public Service Company of New Mexico

Salt River Project

South Carolina Electric & Gas Company

Southern Company

Alabama Power Company

Georgia Power Company

Gulf Power Company

Mississippi Power Company

Savannah Electric & Power Company

Tampa Electric Company

Union Electric Company

Virginia Power

West Penn Power Company

dba Allegheny Power System, Inc.

Wisconsin Electric Power Company

and

Edison Electric Institute

National Rural Electric Cooperative Association

Chemical Manufacturers Association

Kennecott Energy and Coal Company

Kennecott Holdings Corporation

Kennecott Services Company

Meridian Gold Company

Midwest Ozone Group

National Association of Home Builders

National Mining Association

National Paint and Coatings Association

National Petrochemical & Refiners Association

(petitioned as National Petroleum Refiners

Association in the case below)

Vv

National Stone Association

Nevada Mining Association

Newmont Gold Co.

Phoenix Cement Company

United Mine Workers of America, AFL-CIO

West Virginia Chamber of Commerce

Western Fuels Association, Inc.

2. The following parties are petitioners in one or both of the

two consolidated cases addressed by this conditional

cross-petition for a writ of certiorari, but have not joined

CAA Industry cross-petitioners in filing this conditional

cross-petition.

Alliance of Automobile Manufacturers (petitioned as

American Automobile Manufacturers Association

in the cases below)

American Farm Bureau Federation

American Portland Cement Alliance

American Trucking Associations, Inc.

James Bassage

Burns Motor Freight, Inc.

Central Illinois Light Co.

Chamber of Commerce of the United States of

America

Citizens for Balanced Transportation

Commonwealth Edison

Duquesne Light Co.

Equipment Manufacturers Institute

Garner Trucking, Inc.

Genie Trucking Line, Inc.

Gloucester Company, Inc.

Michael Gregory

vi

Idaho Mining Association

Judy’s Bakery, Inc.

David Matusow

Brian McCarthy

National Association of Manufacturers

National Automobile Dealers Association

National Coalition of Petroleum Retailers

National Indian Business Association

National Small Business United

Non-Ferrous Founders’ Society

Oklahoma Gas & Electric

Richard Romero

Small Business Survival Association

State of Michigan

State of Ohio

State of West Virginia

3. Cross-Respondent United States Environmental

Protection Agency was the respondent in all of the

proceedings below. |

4. The following parties were intervenors in one or both of

the two consolidated cases addressed by this conditional

cross-petition for a writ of certiorari.

American Lung Association

American Road and Transportation Builders

Association

Atlantic City Electric Company

Commonwealth of Massachusetts

State of New Jersey

————

Vii

5. The following parties appeared as amici curiae in one or

both of the two consolidated cases addressed by this

conditional cross-petition for a writ of certiorari.

Representative Tom Bliley

Senator Orrin G. Hatch

State of Connecticut

State of New Hampshire

State of New York

State of Vermont

ERR rer renner serenerrermrn - — enn aaa

Vill

RULE 29.6 DISCLOSURE STATEMENT

1. The following list of CAA Industry Cross-Petitioners

hereby discloses the parent companies of cross-

petitioners and any publicly held companies that own

10% or more of Cross-Petitioners’ stock.

Alabama Power Company

(a subsidiary of Southern Company)

Appalachian Power Company

(a subsidiary of American Electric Power

Company, Inc.)

Baltimore Gas and Electric Company

(a subsidiary of Constellation Energy Group, Inc.)

Central and South West Services, Inc.

(a subsidiary of Central and South West

Corporation)

Central Illinois Public Service Company

(a subsidiary of Ameren Corporation)

Central Power and Light Company

(a subsidiary of Central and Southwest

Corporation)

Columbus Southern Power Company

(a subsidiary of American Electric Power Company,

Inc.)

Consumers Energy

(a subsidiary of CMS Energy Corporation)

Dayton Power & Light Company, The

(a subsidiary of DPL Inc.)

Florida Power Corporation

(a subsidiary of Florida Progress

Corporation) |

ix

Georgia Power Company

(a subsidiary of Southern Company)

Gulf Power Company

(a subsidiary of Southern Company)

Illinois Power

(a subsidiary of IIlinova Inc.)

Indiana Michigan Power Company

(a subsidiary of American Electric Power

Company, Inc.)

Indianapolis Power & Light Company

(a subsidiary of IPALCO Enterprises, Inc.)

Kentucky Power Company

(a subsidiary of American Electric Power Company,

Inc.)

Mississippi Power Company

(a subsidiary of Southern Company)

Monongahela Power Company

(a subsidiary of Allegheny Energy, Inc.)

Northern Indiana Public Service Company

(a subsidiary of NiSource Inc.)

Ohio Power Company

(a subsidiary of American Electric Power

Company, Inc.)

Potomac Edison Company, The

(a subsidiary of Allegheny Energy, Inc.)

Public Service Company of Oklahoma

(a subsidiary of Central and Southwest

Corporation)

Savannah Electric & Power Company

(a subsidiary of Southern Company)

xX

South Carolina Electric & Gas Company

(a subsidiary of SCANA Corporation)

Southwestern Electric Power Company

(a subsidiary of Central and Southwest

Corporation)

Tampa Electric Company

(a subsidiary of TECO Energy, Inc.)

Union Electric Co.

(a subsidiary of Ameren Corp.)

Virginia Power

(a subsidiary of Dominion Resources, Inc.)

West Penn Power Company

(a subsidiary of Allegheny Energy, Inc.)

West Texas Utilities Company

(a subsidiary of Central and South West

Corporation)

Wisconsin Electric Power Company

(a subsidiary of Wisconsin Energy Corporation)

2. The following CAA Industry Cross-Petitioners have no

parent corporations, and no publicly-held companies have

a 10% or greater ownership interest in these Cross-

Petitioners.

American Forest & Paper Association

American Iron & Steel Institute

American Petroleum Institute

American Public Power Association

Carolina Power & Light Co.

CINergy Corp.

Chemical Manufacturers Association

Conectiv

xi

Detroit Edison Co., The

Duke Energy Corp.

Edison Electric Institute

FirstEnergy Corp.

Jacksonville Electric Authority

Kansas City Power & Light Co.

Kennecott Energy and Coal Co.

Kennecott Holdings Corporation

Kennecott Services Company

LGE Energy Corp.

Madison Gas and Electric Co.

Meridian Gold Co.

Midwest Ozone Group

Minnesota Power

National Association of Home Builders

National Mining Association

National Paint and Coatings Association

National Petrochemical & Refiners

Association (formerly National Petroleum Refiners

Association)

National Rural Electric Cooperative Association

National Stone Association

Nevada Mining Association

Newmont Gold Co.

Oglethorpe Power Corp.

Ohio Valley Electric Corp.

Otter Tail Power Co.

PacifiCorp

PP&L Electric Utilities Corporation

dba PPL Utilities

Phoenix Cement Company

Xil

Plains Electric Generation & Transmission

Cooperative, Inc.

Potomac Electric Power Co.

Public Service Company of New Mexico

Salt River Project

Southern Company

United Mine Workers of America, AFL-CIO

West Virginia Chamber of Commerce

Western Fuels Association, Inc.

TABLE OF CONTENTS

PEPE LILIES PURMMET EIU? secessesscsnssssersenssesssossanasessonsce

PARTIES TO THE PROCEEDINGS ..............ceseeseee

RTT PTET seisdidbneccdinscipibidenttataesinadericcesnesnnieéonbann

CONSTITUTIONAL STATUTORY AND REGU-

LATORY PROVISIONS INVOLVED IN THE

dt ask shi dabedlanaikssicsunletandalieceacemnsisaebinriuasnnietenpdestbintns 2

SA RESNGRUR COR COUR CASES oo ccsniciscscscsscorcssssccsssoncees

REASONS FOR GRANTING THE PETITION.......... 14

I. THE DECISION BELOW INTRUDES ON THE

AGENCY’S ROLE IN’ DEFINING ITS

AUTHORITY, AND IGNORES THE

PURPOSES OF THE CLEAN AIR ACT ............... 17

Il. ONLY THIS COURT CAN CORRECT THE

SERIOUSLY FLAWED D.C. CIRCUIT LAW

REGARDING THE CLEAN AIR ACT’S

Pe i cassscnscsccsindassccenalinscinesonsataiens 24

IIIT icititts scecesandealtdnetunicinmdnakinmiaeaniatenanten 25

FE AD i nicensscnid nls shshiatatillainmenbanin Separately Bound

Xiil

XIV

TABLE OF AUTHORITIES

CASES Page

American Lung Association v.EPA, 134 F.3d

388 (D.C. Cir. 1997), cert. denied, 120

SAO, SB CHI ciiiniaiccciclisnhatiasttniiacitanacinadiiahicilapeiasii 21

American Petroleum Institute v. EPA, 665 F.2d

Ty yi tems | ee in Soe 8

American Trucking Associations, Inc. y. EPA,

175 F.3d 1027, modified 195 F.3d 4 (D.C.

Che, SDP). ssnnsisieasitisiaiiahbaiiasdaieiiimanmaiiiae . 4, 11, 14, 18

AT&T Corp. v. lowa Utilities Board, 119 S.Ct.

TRA (TDD .<csiscctsentadniiicaiimammiidianad deeds 18

Chevron, U.S.A. Inc. v. Natural Rawurces

Defense Council, Inc., 467 US. 837

(TDG) ccccsscanssinncsintnimnesiinaieaianinicans 9, 20, 21

Industrial Union Department, AFL-CIO vy.

American Petroleum Institute, 448 U.S.

GOT (RGD siccicnticisnniacceitadiiiiliatatntiens 16, 19

Lead Industries Association, Inc. v. EPA, 647

BAG 2 OSU GER Ce: PIRI cictcnasccsveninscisiiin passim

Motor Vehicle Manufacturers Association v.

State Farm Mutual Automobile Insurance,

SBS US. BC isittiinsitetnaiiiaptiaiabihindins 21

Natural Resources Defense Council, Inc., v.

EPA ("PMj0"), 902 F.2d 962 (DC. Cir.

Natural Resources Defense Council, Inc. v.

EPA ("Vinyl Chloride"), 824 F.2d 1146

CODA... Ce, FE i ccsensistiintiiiniiataiiiniehiatanntalcaiaas passim

Phelps Dodge Corp. v. NLRB, 313 U.S. 177

(196) )......csassscscsinhenaiaaaaiaeiaaaaonnnes 20

Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir.

1976),vacated sub nom. Montana Power

Co. v. EPA, 434 U.S. 809 (1977) ...........000. 18

Sierra Club v. Ruckelshaus, 344 F. Supp. 253

(D.D.C.), affd per curiam, 4 E.R.C. 1815

(D.C. Cir. 1972), affd by an equally

divided Court, sub nom. Fri v. Sierra Club,

Pe i te ea ia cniithcsidnccibdcassnintsace 18

SEC v. Chenery Corp., 332 U.S. 194 (1947)..... 21

Smiley v. Citibank, 517 U.S. 735 (1996).......... 20, 21

Union Electric Co. v. EPA, 427 U.S. 246

SLi alsa dietician nhen sal addi enti ScoLesoiiceedaia 16, 17

Whirlpool Corp. v. Marshall, 445 U.S. 1

ST uistveisiachsniniinttenidasednindidiséninsiobiiisbnbinnsiio 18, 20

‘CONSTITUTION AND STATUTES

oh tckacendindan 3

Be iy CIS) vaiescticcccsscncscsncdssntiossone 2

Air Quality Act, Pub. L. 90-148, 81 Stat. 485

PE ehdlinditcacteittbasscedabnadahiiiasbcndgideabssissarannen 21

The Clean Air Act, (1990), 42 U.S.C. § 7401 et

seq. (1994)

CAA § 101(b), 42 U.S.C. § 7401(b) «0.00... 6

CAA § 101(b)(1), 42 U.S.C. § 7401(b)(1)..... 18, 22

Ce Oe Be eB Fay ecsciccccisisenscdsciccss passim

CAA § 108(a), 42 U.S.C. § 7408(a).....0000.000000. 23

CAA § 108(a)(2), 42 U.S.C. § 7408(a)(2).......... 5

CAA § 108(b), 42 U.S.C. § 7408(b) ...00.00.... 5, 17, Z3

CAA § 309, 42 U.S.C. © T4OD i o.cccccccecseseesssssss passim

CAA § 109(b), 42 U.S.C. § 7409(b) ......... passim

CAA § 109(d), 42 U.S.C. § 7409(d) ......... 18, 19, 24

CAA § 109(d)(1), 42 U.S.C. § 7409(d)(1).........

Xvi

CAA § 109(d)(2), 42 U.S.C. § 7409(d)(2).........5, 22

ove oe, Wort toe & Rneiannee 17

CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1) ...eee- 24

FEDERAL REGISTER 3

: 38 Fed. Reg. 18,986 (1973) ....ccccsscscsssssssssssseeeee 22

62 Fed. Reg. 38,861 (1997) ....cccccccccccsssssssssssesees 13

62 Fed. Reg. 38,873 (1997) .....cccccsccsssssssssseeesseee 12

62 Fed. Reg. 38,883 (1997) .....ccccccccccssssssssssssssee 12

LEGISLATIVE HISTORY

S. Rep. No. 90-403 (1967) ........... pr RO 21

S. Rep. No. 91-1196 (1970), reprinted in

Sen. Comm. on Env. and Pub. Works, A

Legislative History of the Clean Air

Amendments of 1970 (Comm. Print.,

FIFE ccivnsasissanenihiensinnnintilenddeaiaieoainaniils 5,6

Sen. Comm. on Env. and Pub. Works, A

Legislative History of the Clean Air Act

Amendments of 1977 (Comm. Print,

1978) (statement of Sen. Muskie)............... 6

H.R. Rep. No. 95-294 (1977), reprinted in

Sen. Comm. on Env't and Pub. Works, A

Legislative History of the Clean Air Act

Amendments Of 1977 (Comm. Print,

NP PHEE iii ibicnesictsabncraalsceiessniaitia ndidbeias pataesiies 5, 6, 19, 22

Hearings on S. 251, S. 252 and S. 253

Before Subcomm. on Environmental

Pollution of Senate Comm. on

Environment and Public Works, 9Sth

Cong., Ist Sess., Part 3 (1977).............. 6, 19-20

Tee eT

MISCELLANEOUS

speteeette Coneatt Rube 125 sesnnssscsesesocosasssvensesoncses

Arrow, K., et al., “Is There a Role for

Benefit-Cost Analysis in Environmental,

Health and Safety Regulation?”, 272

Science 221 (April 12, 1996)............cccceeeees

Stephen Breyer, Breaking the Vicious

CI EEE ieiiskacsaxoncosthajinsiateadessabhasees

Stephen Breyer & Richard Stewart,

Administrative Law & Reg. Policy (3d

UR; THe hicicnkscsiosntenatsseneisseiateemnnenisibis

Ralph L. Keeney and Kenneth Green,

Estimating Fatalities Induced’ by

Economic Impacts of EPA’s Ozone and

Particulate Standards, Reason Public

Policy Inst. Policy Study No. 225, (June

SOE D sickisashesliccnttita bon iiotaavnsantiadionsslacedipiaapeaais

R. Morgenstern, ed., Economic Analyses at

EPA (Resources for the Future,

Washington, D.C. 1997)..............cccscserrsceee

Craig Oren, “Run Over by American

Trucking Part I: Can EPA Revive Its

Air Quality Standards?”, 29 Envitl. L.

Rev. 10, G6Z COV. TSF9) avarccnesesssncnsscsescossie

David Schoenbrod, “Remarks to the Board

of Trustees of the Natural Resources

Defense Council,’ 20 Cardozo L. Rev.

PERE A. chain disdasailiaahaaibidibeisabitaes

United States Dept. of Commerce, Statistical

Abstract of the United States 1998..............

Anne E. Smith, et al., Costs, Economic

Impacts, and Benefits of EPA’s Ozone

and Particulate Standards, Reason

2

XVili

Public Policy Inst. Policy Study No. 226

CRUE TIF Pa csicesncsonnesranmnntilnsiuhighanciinnibeubeinicins 13

Wendy Wagner, "The Science Charade in

Toxic Risk Regulation," 95 Colum. L.

Rev. 1613 (1995) ..........ssccsscssscsssccsesscsscseesces 23

CONDITIONAL CROSS-PETITION FOR A WRIT OF

CERTIORARI

CAA Industry Cross-Petitioners' conditionally cross-

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

United States Court of Appeals for the District of Columbia

Circuit in American Trucking Associations, Inc. v. United

States Environmental Protection Agency, No. 97-1440 (and

consolidated cases), and American Trucking Associations,

Inc. v. United States Environmental Protection Agency, No.

97-1441 (and consolidated cases) (hereinafter “American

Trucking”). CAA Industry Cross-Petitioners include trade

associations representing most of the basic industries in this

country, including the utility industry, coal industry, mining

industry, oil industry, iron and steel industry, chemical

industry, paper industry, paint and coating industry and home

building industry; over 50 individual companies; and other

organizations identified on the cover of this petition.

OPINIONS BELOW

The opinion of the court of appeals (EPA App. 1a-69a) is

reported at 175 F.3d 1027. The opinions on the petitions for

panel rehearing and suggestions for en banc rehearing (EPA

App. 70a-101a) are reported at 195 F.3d 4.

JURISDICTION

The court of appeals entered its judgment on May 14, 1999.

Petitions for panel rehearing were granted in part and denied

in part, and suggestions for en banc rehearing were denied on

October 29, 1999. The petitions for certiorari were docketed

' Petitioners jointly filing this conditional cross-petition for a writ of

certiorari are listed on the cover.

2

on January 27 and 28, 2000.2 28 U.S.C. § 1254(1) and

Supreme Court Rule 12.5 provide the basis for jurisdiction

for this conditional cross-petition, which is timely filed under

Supreme Court Rule 12.5.

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED IN THE

CASE

In addition to the constitutional, statutory and regulatory

provisions already set forth im the initial petitions for

certiorari and accompanying appendices, additional

provisions addressed in this Conditional Cross-Petition are

listed below and either set forth below or in the Appendix.

1. Article I, Section 1 of the United States Constitution

provides in pertinent part that “All legislative Powers herein

granted shall be vested in a Congress of the United States....”

2. The Clean Air Act §§ 101(b), 108(b), 181-185B, and

307(b), 42 U.S.C. §§ 7401(b), 7408(b), 7511-7511f, and

7607(b) (App. 1a-64a); and the Transportation Equity Act for

the 21st Century, Pub. L. No. 105-178, 112 Stat. 463,

§§ 6101, 6102 (App. 65a-68a).

> The original petitions for a writ of certiorari to the U.S. Court of

Appeals for the District of Columbia Circuit for these cases are Nos. 99-

1257, 99-1263 and 99-1265.

3

STATEMENT OF THE CASE

Under our system of government, executive branch

agencies may exercise only what power Congress has

delegated to them. U.S. Const., art. I, § 1. In areas that are

technically and scientifically complex, Congress often

delegates authority in broad terms. In such cases, this Court

has made clear that the agency must exercise its discretion to

fill out the terms of the delegation, consistent with Congress’

intent.

This petition seeks Supreme Court review of judicially

imposed restrictions on the range of factors that the

Environmental Protection Agency (“EPA”) may legally

consider in filling out the terms of a broad delegation of

authority under the Clean Air Act (“CAA”) to make risk

management decisions in establishing or revising National

Ambient Air Quality Standards (“NAAQS”). .

In § 109(b) of the CAA, EPA App. 111a, Congress directed

EPA to set NAAQS at levels that are “requisite to protect”

the “public health,” allowing an “adequate margin of safety.”

Once NAAQS are set, EPA must review them periodically

and revise them as “may be appropriate” in accordance with

§§ 108 and 109(b). EPA App. 112a.

In recent rulemakings to revise the ozone and particulate

matter (“PM”) NAAQS, EPA refused to identify in the CAA

any criterion for selecting among alternative pollutant levels

that present uncertain and overlapping risks of adverse health

effects.’ For this reason the lower court remanded the revised

* The background for EPA’s decision is discussed at greater length in the

CAA Industry Respondents’ Brief in Response to the Petitions for

Certiorari.

4

NAAQS to EPA, EPA App. 8a-11a, 18a, explaining that by

failing to state a principle for defining how much risk is “too

much” (i.e., how much is an “unacceptable” “public health”

risk), the Agency had “construed §§ 108 and 109 of the

_ Clean Air Act so loosely as to render them unconstitutional

delegations of legislative power.” EPA App. 5a.

At the same time, the court below prohibited EPA on

remand from _ considering the broad economic,

environmental, and indirect public health consequences of its

action, when it develops an “intelligible principle” to govern

the exercise of its risk management judgment under § 109.

According to the court, this prohibition flows from the plain

language of the statute. EPA App. 19a.

CAA Industry Cross-Petitioners agree with the lower court

that EPA interpreted § 109 in a way that raises nondelegation

concerns, and they agree also that the Agency must articulate

an “intelligible principle” to guide its exercise of discretion.

Cross-Petitioners disagree, however, with the lower court’s

holding restricting the factors that EPA may consider in

developing that intelligible principle. While we believe that

the scope of EPA’s authority to develop an intelligible

principle is an issue fairly within the scope of the initial

petitions for certiorari filed here, we request that if the Court

grants any of the initial petitions, it also grant this

Conditional Cross-Petition in order to focus its review

specifically on this fundamental issue of national importance.

1. The NAAQS Program -- Congress provided in §§ 108

and 109 of the Clean Air Act for regulation of air pollution

that “endangers” public health. Under § 109, EPA App.

11la, NAAQS are to be based on a “criteria document” that

“accurately reflects the latest scientific knowledge useful in

indicating the kind and extent of all identifiable effects on

5

public health or welfare expected from the presence of such

pollutant in the ambient air in varying quantities.” CAA

§ 108(a)(2), EPA App. 110a. “Simultaneously with the

issuance of [the] criteria” document, EPA must also issue

information on the “cost . . . and operation, energy

requirements, emission reduction benefits, and environmental

impact” of alternative methods for pollution control or

prevention. CAA § 108(b), App. 1a-2a.

Under § 109, primary NAAQS must be set based on the

criteria document, at a level that is “requisite to protect public

health,” and that allows an “adequate margin of safety.”

Once NAAQS are set, the Administrator must review them

and the underlying criteria document every five years and

revise them “as may be appropriate” in accordance with

§§ 108 and 109(b). EPA App. 111la-112a. To help with this

“appropriateness” determination, the Administrator must

obtain the advice of her independent science advisers (the

Clean Air Science Advisory Committee, or “CASAC’”) on

additional knowledge required to determine the “adequacy”

of existing standards and the “basis” for any revisions to

them, and on “any adverse health, welfare, social, economic,

or energy effects which may result from various strategies for

attainment and maintenance” of revised NAAQS. CAA

§ 109(d)(2), EPA App. 112a, (emphasis added).

In enacting these provisions, Congress emphasized the

importance of protecting “public health.“ But it also made

‘ See Lead Industries Ass'n, Inc. v. EPA, 647 F.2d 1130, 1149 (D.C. Cir.

1980); see also S. Rep. No. 91-1196, at 10 (1970), reprinted in 1 Sen.

Comm. on Env. and Pub. Works, A Legislative History of The Clean Air

Amendments of 1970 at 410 (Comm. Print, 1974) (hereafter referred to as

“1970 Legis. Hist.”); H.R. Rep. No. 95-294, at 49, (1977), reprinted in 4

Sen. Comm. on Env’t and Pub. Works, A Legislative History of the Clean

6

clear that “public health” protection does not embrace a “no-

risk philosophy” because that “ignores all social and

economic consequences and is impractical.”* Congress

therefore intended the “margin of safety” standard of § 109 to

reflect a “reasonable degree of protection” — not absolute

protection — in the face of uncertain science.° As Senator

Muskie, one of the architects of the Clean Air Act, explained

during hearings on the 1977 amendments, Congress intended

to set national standards only at levels necessary to protect

against “unacceptable risks” and “to insure that public policy

is wise policy, that we are protecting health and not

overprotecting it, to the degree of inhibiting economic growth

and the opportunities people need in order to enhance their

lives.”

In short, §§ 108 and 109 were intended to advance, not to

detract from, the congressional goal of achieving a balance

that would “promote [both] the public health and welfare and

the productive capacity of ... [the Nation’s] population.”

CAA §101(b), App. la (emphasis added). The court of

Air Act Amendments of 1977, at 2516 (Comm. Print, 1978) (hereafter

referred to as “1977 Legis. Hist.”) (stating that one of the purposes of the

Act is “to emphasize the predominant value of protection to public

health”).

> H.R. Rep. No. 95-294, at 127 (1977), reprinted in 4 1977 Legis. Hist.,

at 2594; cf. 3 1977 Legis. Hist. at 1038 (statement of Sen. Muskie)

(When there is “no threshold on health effects ... it [is] very difficult

then to apply absolute health protection.”).

*S. Rep. No. 91-1196, at 10, reprinted in 1 1970 Legis. Hist., at 410.

” Hearings on S. 251, S. 252 and S. 253 Before Subcomm. on

Environmental Pollution of Senate Comm. on Environment and Public

Works, 95" Cong., 1" Sess., Part 3, at 6-7 (1977).

7

appeals’ decision destroys that balance by forbidding

consideration of the overall impacts on society of EPA’s

NAAQS decisions.

2. EPA's Rulemaking And The D.C. Circuit’s Decision --

As NAAQS are revised to ever more stringent levels, the

incremental health benefits of a revised standard become less

certain, and harder to ascertain. At the same time, attaining

more stringent standards becomes more difficult and

expensive. The burdens on society that result from

implementation of revised NAAQS therefore increase. Those

burdens can include, for example, negative health effects

caused by implementation of the NAAQS itself.

As standard-setting becomes more difficult, therefore, the

costs to the public of mistakes -- including indirect public

health effects and economic costs --become heavier. The

only way to establish wise social policy in this situation is to

consider all of the impacts of that decision on society.* These

include not just the possible direct health benefits of a revised

standard, but also other types of “risks” that might be

increased or reduced as a result of standard revision. Only by

considering all of the burdens and benefits to society of a

decision to revise a NAAQS can the Agency conclude that

the “public health” will be advanced by a _— in the

regulatory status quo.

The D.C. Circuit initially addressed the scope of EPA’s

authority to establish NAAQS under CAA §§ 108 and 109 in

1980, in Lead Industries Ass’n, Inc. v. EPA (“Lead

* See generally Stephen Breyer, Breaking the Vicious Circle (1993);

David Schoenbrod, “Remarks to the Board of Trustees of the Natural

Resources Defense Council,” 20 Cardozo L. Rev. 767 (1999).

8

Industries”).’ In this challenge to the original lead NAAQS,

petitioners argued that EPA had improperly “refus[ed] to

consider ... economic and technological feasibility” of

pollution controls in establishing ambient standards for lead,

a “threshold” pollutant." EPA responded that it was not

required to consider these factors, and Judge Wright agreed,

explaining that Congress intended “to subordinate”

economics and technical feasibility to the public health goals

of § 109. /d. at 1149.

All the court was asked to decide in Lead Industries was

whether EPA was required to consider cost and feasibility,

and to the extent that the court’s decision is limited to that

holding it was not unreasonable: a requirement to consider

costs could allow costs to override public health. Judge

Wright went further, however, and observed broadly that “the

statute and legislative history make clear that economic

considerations play no part in the promulgation of air quality

standards under section 109.” /d. at 1148 (emphasis added).

In subsequent years, the D.C. Circuit applied this broad

dictum to bar consideration in setting NAAQS of the

attainability of a revised NAAQS", and the indirect public

health consequences of a NAAQS decision.”

* 647 F.2d 1130, 1148 (D.C. Cir. 1980).

'0 Id. at 1148; see id. at 1138-41 (describing “threshold level[{s]” for

various effects). Lead Industries therefore did not present the more

difficult risk management judgments called for by regulation of

“nonthreshold” pollutants, for which EPA assumes some level of risk all

the way to “zero” exposure; see also infra note 16.

'' American Petroleum Inst. v. EPA, 665 F.2d 1176, 1185 (D.C. Cir.

1981).

'? NRDC v. EPA (“PM,,”), 902 F.2d 962, 972-73 (D.C. Cir. 1990).

9

By contrast, the D.C. Circuit later took a very different

approach to a parallel statutory provision commanding an

even more precautionary approach to public health

protection. In NRDC v. EPA (“Vinyl Ch!oride’”’), 824 F.2d

1146 (D.C. Cir. 1987) (en banc), the court addressed

language in § 112 of the Act requiring reduction in emissions

of hazardous air pollutants to a level that protects public

health with an “ample margin of safety” — a term that would

appear to call for more restrictive public health policy

judgment than the § 109 term “adequate margin of safety”

(emphasis added).

Judge Bork, writing for the court, applied the approach

specified in Chevron U.S.A., Inc. v. NRDC" (a case decided

four years after Lead Industries), and found that the “margin

of safety” language does not provide determinate criteria for

standard setting. Rather, “the word ‘safety’ . . . is significant

evidence that [Congress] did not intend to require the

Administrator to prohibit all emissions of a non-threshold

pollutant,” because the term ““‘safe’ does not mean ‘risk-

free.’” 824 F.2d at 1153 (emphasis added).

Furthermore, the court in Vinyl Chloride observed that

while the requirement to provide an ample margin of safety

to protect public health “evinces an intent to make health the

primary consideration,” it does “not ... preclude

'? In 1984, in Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), the

Court observed that review of an agency’s interpretation of its enabling

statute begins with evaluation of whether “Congress has directly spoken

to the precise question at issue,” and has expressed a clear intention as to

its resolution. /d. at 842-43. “[I]f the statute is silent or ambiguous with

respect to the specific issue,” the agency (not the reviewing court) must

exercise its discretion to interpret the statute in light of the language,

legislative history and underlying policies of the statute. Id. at 843.

10

consideration of any factor.” Jd. at 1155 (emphasis added).

The court distinguished Lead Industries because that case

had rejected only an argument that EPA “must” consider cost

and technological feasibility. Jd. at 1157-58. In Vinyl

‘Chloride, on the other hand, the question was whether the

Administrator may consider these factors. Jd. (emphasis

added). Thus, Lead Industries and earlier cases do not stand

for the proposition that “cost and technological feasibility

may never be considered under the Clean Air Act unless

Congress expressly so provides.” Jd. at 1157 (emphasis

added).

Nevertheless, the Vinyl Chloride court observed that the

“Lead Industries court did note that the statute [i.e., § 109] on

its face does not allow consideration of technological or

economic feasibility.” Jd. at 1158-59. The court

distinguished Judge Wright’s broad conclusion regarding

CAA § 109 from its analysis of the parallel language of CAA

§ 112 based on differences in the structural aspects of the

ambient standards program (e.g., the role of States in

determining specific implementation measures for ambient

standards) and of the legislative history of § 109 (which Lead

Industries suggested established a clear intent to preclude

consideration of costs). Jd. at 1159. The D.C. Circuit

subsequently relied on the distinctions drawn by Vinyl

Chloride in declining to apply the reasoning of this case

when reviewing ambient stan e

By 1990, therefore, the jurisprudence of the D.C. Circuit

taught that, under the “adequate margin” language of § 109,

cost and technological feasibility need not be considered and

(according to the line of cases originating with the broad

'* See NRDC v. EPA, (“PM10”), 902 F.2d at 973.

11

dictum in Lead Industries) could not be considered. By

contrast, cost and technological feasibility could be

considered under the “ample margin” language in

§ 112(d)(4), according to the application of Chevron in Vinyl

Chloride. With that judicial background for guidance, EPA

launched the rulemakings to reassess the NAAQS for ozone

and PM that culminated in the decision below.

In these rulemakings, EPA replaced the existing 1-hour

ozone NAAQS with a more stringent 8-hour standard, and

the existing particulate matter NAAQS based on a “Ta,”

size indicator with “PM,” standards for fine particles and

“PM,” standards for coarse particles.'"* For each of these

“non-threshold” pollutants,"° EPA was presented with a

choice among alternative standard levels characterized by

uncertain and indistinguishable health risks, a choice calling

for the exercise of risk management judgment.

Regarding the revised ozone NAAQS, for example,

CASAC concluded that the scientific record established “no

‘bright line’ which distinguishes any of the proposed

standards (either the level or the number of allowable

exceedances) as being significantly more protective of public

'S The court of appeals vacated the coarse particle standard as arbitrary

and capricious, see EPA App. 57a-58a, because the PM,, indicator

included a variable amount of fine particulate matter. EPA has sought no

further review of this ruling.

'® See, e.g., Letter from Dr. George T. Wolff, Chair, CASAC, to Hon.

Carol M. Browner (Nov. 30, 1995), Ozone JA 237 (“[T]here is no

threshold concentration for the onset of biological responses due to

exposure to ozone above background concentrations.”). See also OAOPS

Staff Paper, PM JA 2068.

12

health.”'’ With respect to the revised PM NAAQS, CASAC

members could form no consensus regarding the level,

averaging time or form of a revised standard because of many

uncertainties regarding both the existence and nature of a

causal relationship between public health and the PM,,

indicator.'* The Administrator’s choice among alternative

standard levels therefore reflected “policy” judgment."

If the record was not clear about what level is “safe,” it was

quite clear that EPA’s choice of level would have profound

impacts on society. For example, replacing the existing 1-

hour ozone NAAQS, EPA explained, would require a new

ozone reduction program based on the general planning

requirements of Subpart 1 of the Act for certain areas of the

country.” This would disrupt existing control programs and

attainment planning that had been based on the specific

ozone control strategies and attainment deadlines established

'’ Letter from Dr. George T. Wolff, Chair, CASAC, to Hon. Carol M.

Browner (Nov. 30, 1995), Ozone JA 238. Similarly, EPA’s staff

concluded based on the extensive scientific record that an air quality level

equivalent to the existing 0.12 ppm 1l-hour NAAQS [i.e., .09] “would

reduce estimated exposures of the at-risk population sufficiently to

provide some margin of safety.”” EPA, Review of National Ambient Air

Quality Standards for Ozone: Assessment of Scientific and Technical

Information 167 (June, 1996), Ozone JA 1977. (emphasis added).

'® Letter from Dr. George T. Wolff, Chair CASAC, to Hon. Carol M.

Browner (June 13, 1996).

'? See, e.g., 62 Fed. Reg. 38,883 (1997) (“margin of safety determinations

. . are largely judgmental in nature, particularly with respect to non-

threshold pollutants, and may not be amenable to quantification in terms

of what risk is ‘acceptable’ or any other metric”).

© 62 Fed. Reg. 38,873 (1997), App. 74a-75a.

13

by Congress in Subpart 2 of the Act.”’ The record shows that

besides disrupting ongoing ozone reductions, more restrictive

NAAQS could increase unemployment, electricity rates, and

the costs of food and other consumer products.”

Indeed, by EPA’s own admission, the costs of full

attainment of the revised ozone NAAQS (estimated by EPA

at $9.6 billion per year) would outweigh its benefits

(estimated by EPA at $1.5 to 8.5 billion per year).”” Even at

*! See CAA Industry Respondents’ Brief in Response, Argument § II;

EPA’s science advisers therefore recommended against a decision that

would require different ozone NAAQS in different areas -- the

consequence of EPA’s final rule -- because of the confusion this would

cause. See, e.g., CASAC Tr. (Mar. 22, 1995), at 303, 308, Ozone JA

280, 282; CASAC Tr. (Sept. 19, 1995), at 235, Ozone JA 322; George T.

Wolff, Comments on February, 1995 Ozone Staff Paper (Mar. 27, 1995),

at 4, Ozone JA 383; Paulette Middleton, Ozone Criteria Document

Review (Mar. 29, 1995), Ozone JA 387; see also 62 Fed. Reg. 38,861

(“[R]eductions in risks from both short-term and prolonged exposures

can be achieved. . . with an averaging time of either 1 or 8 hours.”).

2 See, e.g., AFBF Comments (Mar. 12, 1997) 1-3, Ozone JA 3318-20

(impacts on agricultural sector and increased food prices); Comments of

Tennessee Valley Authority (filed Mar. 11, 1997), at 10, Ozone JA 3317

(11% increase in electric rates and job loss); Anne E. Smith, et al., Costs,

Economic Impacts, and Benefits of EPA’s Ozone and Particulate

Standards, Reason Public Policy Inst. Policy Study No. 226 (June, 1997),

at 9-12, Ozone JA 3323-26; Ralph L. Keeney and Kenneth Green,

Estimating Fatalities Induced by Economic Impacts of EPA's Ozone and

Particulate Standards, Reason Public Policy inst. Policy Study No. 225

(June, 1997), at i, 13, Ozone JA 3327-28 (unemployment and income

effects).

> See EPA, Regulatory Analyses for the Particulate Matter and Ozone

National Ambient Air Quality Standards and Proposed Regional Haze

Rule at ES-13, ES-19, 7-11, 9-1 (1997) (“RIA”), Ozone JA 2920, 2926,

2932, 2934. The cost of attaining the revised particulate standards was

14

these costs, EPA was unable to identify control techniques

for ozone and its precursors that would bring about

nationwide attainment. ~*

CAA Industry Cross-Petitioners argued below that prior

decisions of the D.C. Circuit should not be read to preclude

EPA in this case from considering the overall impacts of its

decision on society when deciding whether revising a

NAAQS is “appropriate,” and in choosing among alternative

standard levels that cannot be distinguished from a public

health protection standpoint when establishing an “adequate

margin of safety.” The court below briefly and emphatically

rejected these arguments under Chevron step one, concluding

based on Lead Industries that the CAA “on its face does not

allow consideration of technological or economic feasibility,”

and that this prohibition extends to all of the impacts on

society raised by CAA Industry Cross-Petitioners. EPA App.

19a.

REASONS FOR GRANTING THE PETITION

The holding of the court below that overall impacts on

society may never be considered in choosing among

alternative levels for a NAAQS presents an extreme and

also high, $37 billion each year. Jd. at 9-1, Ozone JA 2934. By contrast,

only $17 billion was spent on all medical research in the United States in

1996. U.S. Dept. of Commerce, Statistical Abstract of the United States

1998, 118 Table 165.

4 EPA therefore based its cost estimates for ozone on an assumed control

cost of $10,000 per ton of pollution removed and for PM on a cost not

exceeding $1 billion/ug/m*. RIA at ES-11 to ES-12, Ozone JA 2918-19.

EPA’s estimate of the cost to attain the PM,, standards reflected similar

problems in identifying feasible control strategies. Jd. at ES-12, Ozone

JA 2919.

15

illogical reading of the Clean Air Act that will prevent the

Agency from making sound risk management decisions on

remand, and that will have serious adverse impacts on public

health and welfare. It is a reading that is not compelled by

the statute.

EPA’s decisions regarding NAAQS are the single most

costly “public health” based regulatory decisions made by

any administrative agency. As EPA itself recognizes, the

standards challenged here would impose costs on society of

tens of billions of dollars each year. In the case of ozone,

even EPA concedes that these costs may outweigh the

benefits.

When, as here, scientific data does not clearly indicate the

magnitude of a pollutant’s impact on human health, EPA can

only make a rational decision regarding how much to

regulate -- or whether to revise an existing standard at all -- if

it can consider the practical impacts of alternative decisions.

A pollution level of debatable health significance might

warrant further regulation if it can be reduced easily, with no

collateral adverse effects. That same pollution level might

not warrant more stringent regulation in the name of “public

health” if regulation involved disrupting existing control

programs, extraordinarily high costs, and _ collateral

environmental damage. Yet the D.C. Circuit forbids EPA to

consider precisely such factors in determining whether

revision to an existing NAAQS is “appropriate,” and in

determining a standard that is “requisite to protect the public

health” with an “adequate margin of safety.”

Against this background, the lower court’s decision

disregards the need to protect public health on many fronts,

with finite resources. As members of this Court have

recognized, a profligate commitment of money and

16

technology to guard against one set of uncertain risks may

result in inadequate means to cope with other more serious

problems.” Furthermore, without consideration of the

unavoidable relationship between the costs of goods

produced and the capacity of the public to purchase such

goods, stringent margins of safety designed to protect against

hypothetical risks could have the effect of increasing the cost

of -- and perhaps even denying to the poor and those on fixed

incomes -- products such as electricity for heating and

cooling that are essential to a healthful environment.” The

lower court’s decision therefore accepts regulation that

produces only theoretical benefits for society while creating

the prospect of potentially greater harm that does not benefit

the “public.”

These ideas deserve consideration in any review of the

decision below. The pervasive reach of ambient standards

under the Clean Air Act and the inconsistency of the D.C.

Circuit’s approach to the “margin of safety” concept, coupled

with the fact that EPA already considers the broader impacts

of its NAAQS decisions sub silentio,”’ suggest that resolution

5 See, e.g., Stephen Breyer, Breaking the Vicious Circle 19 (1993);

Industrial Union Dep't., AFL-CIO v. American Petroleum Inst., 448 U.S.

607, 669-70 (1980) (Powell, J., concurring).

6 In his concurrence in Union Electric Co. v. EPA, 427 U.S. 246 (1976)

for example, Justice Powell recognized that “the shutdown of an urban

area's electrical service could have an even more serious impact on the

health of the public than that created by a decline in ambient air quality."

Id. at 272 (Powell, J., concurring).

27 See, e.g., David Schoenbrod, “Remarks to the Board of Trustees of the

Natural Resources Defense Council,” 20 Cardozo L. Rev. 767, 769

(1999) (In the 1970 CAA, Congress “wanted the agency to consider costs

without implicating them. EPA has done so under Republicans and

17

of the question presented in this Conditional Cross-Petition

has tremendous importance to the public and the American

economy. Indeed, removing the judicially-imposed bar on

consideration of factors other than possible direct health

effects when EPA is confronted with uncertain and

indistinguishable health risks would do no more than make

EPA publicly accountable for how it weighs these other

factors as a practical matter, and would allow judicial review

of the way in which these factors influence EPA NAAQS

decisions.

I. THE DECISION BELOW INTRUDES ON THE

AGENCY’S ROLE IN _ DEFINING ITS

AUTHORITY, AND IGNORES THE PURPOSES

OF THE CLEAN AIR ACT.

In some CAA provisions, Congress restricted the exercise

of the Administrator’s discretion to certain factors. Section

110 of the Act, for example, requires EPA to consider only

the factors listed in § 110 in approving state implementation

plans (“SIPs”).** In other provisions of the Act, however,

Democrats alike.”); see also CASAC Tr. (3/22/95) at 296-97, Ozone JA

278-79 (“a politically astute Administrator will certainly be mindful of

[cost calculations]”) ; Craig Oren, “Run Over by American Trucking Part

I: Can EPA Revive its Air Quality Standards?”, 29 Envel. L. Rev. 10662

(Nov. 1999) (“EPA decisionmakers have admitted that they examine cost

data when deciding on the levels of the standards.”). Evaluating the cost

of alternative regulatory options is, of course, required by CAA § 108(b)

and is the purpose of EPA’s Regulatory Impact Assessment (“RIA”). See

RIA, supra note 23, at ES-2 to ES-3.

8 Union Electric, 427 U.S. at 257 (1976). Once factors are enumerated,

an agency may lack discretion to consider additional factors. For

example, in Union Electric v. EPA, this Court held that section 110(a)(2)

18

Congress did not specify the factors for EPA to consider.

Where factors are not specified, the Administrator must

consider all factors relevant to achieving the overall

objectives of the Act as stated in its purposes section and

legislative history.”

This petition turns on the question whether the “adequate

margin of safety” language of § 109(b), or the direction in

§ 109(d) that EPA revise NAAQS “as may be appropriate” in

accordance with §109(b), restricts the Agency’s

consideration of factors otherwise relevant to the exercise of

risk management judgment. The lower court held

emphatically that it does. EPA App. 19a-21a.

of the Act, which stated that the Administrator “shall approve” plans that

meet eight enumerated criteria, did not authorize the Administrator to

reject such plans on grounds of technological or economic feasibility.

?° See Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). In Whirlpool,

Justice Stewart, writing for a unanimous Court, analyzed the validity of

an agency's regulation by examining its conformance with the

“fundamental objective" of the Occupational Safety and Health Act. /d.

at 11. See also AT&T Corp. v. Iowa Utils. Bd., 119 S.Ct. 721, 734-35

(1999) (“The Act requires the FCC to apply some limiting standard

rationally related to the goals of the Act”). Previously the Court of

Appeals had itself illustrated the overriding importance of the purposes

section of the Clean Air Act by ruling that section 101(b)(1) imposed

upon the Administrator the obligation to establish a regulatory program

that was not mentioned in the operative provisions of the Act. See Sierra

Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976), vacated sub nom. Montana

Power Co. v. EPA, 434 U.S. 809 (1977); Sierra Club v. Ruckelshaus, 344

F. Supp. 253 (D.D.C.), aff'd per curiam, 4 E.R.C. 1815 (D.C. Cir. 1972),

aff'd by an equally divided Court, sub nom. Fri v. Sierra Club, 412 U.S.

541 (1973). Here Cross-Petitioners have urged that the purposes section

be used in a more traditional sense -- to define the contours of general

language in the Act's operative provisions.

19

But § 109 on its face contains no mandate that the Agency

ignore the overall public well-being. As Judge Skelly Wright

observed in Lead Industries, “[s]ection 109(b) does not

specify precisely what Congress had in mind when it directed

the Administrator to prescribe air quality standards that are

‘requisite to protect the public health.” 647 F.2d at 1152.

Likewise Congress did not elaborate on either the “adequate

margin of safety” language for setting NAAQS, or the “as

may be appropriate” language of § 109(d) for revising

NAAQS.

As the court of appeals observed in Vinyl Chloride, quoting

this Court’s opinion in Jndustrial Union Dept., 448 U.S. at

642, “‘safe’ does not mean ‘risk free,’” and a term like

“ample” leaves EPA “great latitude in meeting its

responsibility.” 824 F.2d at 1153. If so, surely the word

“adequate” in § 109 contemplates more latitude. Because the

word “ample” “does not indicate that Congress intended to

preclude consideration of any factor,” id. at 1155 (emphasis

added), the word “adequate” must allow consideration of a

broad range of factors as well.

When the court in Lead Industries rejected the argument

that § 109(b) “required the Administrator to consider

economic and technological feasibility,” 647 F.2d at 1148

(emphasis added), therefore, it was not because the language

of § 109 on its face compelled this result. Rather the court

relied on indicia of legislative intent that it drew from the

statutory context, legislative history and structure of the

Act.”

*° But see H.R. Rep. No. 95-294, at 127, reprinted in 4 1977 Legis. Hist.,

at 2594; Hearings on S. 251, S. 252 and S. 253 Before Subcomm. on

Environmental Pollution of Senate Comm. on Environment and Public

20

In Chevron, U.S.A. Inc vy. Natural Resources Defense

Council, however, this Court held that it is not for the

reviewing court to fill out the terms of a broad delegation of

regulatory authority. Rather, where Congress has delegated

in broad terms, it is for the agency to fill out the statutory

provision “within the limits of [the congressional]

delegation.””'

Lead Industries’ holding that § 109(b) does not “require”

EPA to consider the costs and feasibility of pollution controls

as factors that could override the basic public health

protection goal of § 109 is sound. However, reading the

Lead Industries to mean that EPA is forbidden from ever

Works, 95" Cong., 1" Sess., Part 3, at 6-7 (1977); (making clear that

Congress in § 109 rejected a “no-risk philosophy [that] ignores all social

and economic consequences” and intended § 109 to be sufficiently

flexible “to insure that public [health] policy is wise policy.”); see also id.

at 37 (statement of Sen. Muskie) (commenting that the national primary

and secondary standards “were written as the minimal burden we could

impose upon the dirty air areas of the country to clean up without

bringing their economies to a screeching halt.”), see also supra notes 5-7.

*' 467 U.S. 837, 865 (1984); see id. at 843 (holding that the court does

not impose its own interpretation of a statute when Congress has not

clearly spoken to the issue); see also Smiley v. Citibank, 517 U.S. 735,

740-41 (1996) (explaining that deference accorded under Chevron is

based on “presumption that Congress, when it left ambiguity in a statute

meant for implementation by an agency, understood that the ambiguity

would be resolved, first and foremost, by the agency, and desired the

agency... to possess whatever degree of discretion the ambiguity

allows.”) (emphasis added); Whirlpool, 445 U.S. at 11 (“the regulation is

entitled to deference unless it can be said not to be a reasoned and

supportable interpretation of the Act.”); Phelps Dodge Corp. v. NLRB,

313 U.S. 177, 197 (1941) (remanding and directing NLRB “to give clear

indication that it has exercised the discretion with which Congress has

empowered it.”’).

21

balancing uncertain health risks against other indirect health

risks as well as the costs and feasibility of controls when

making risk management decisions, as the court below has

done, is a mistake. Given the narrow issue presented in Lead

Industries, Judge Wright’s overbroad statement that

economic and technological considerations can “play no

part” in the promulgation of ambient standards should not be

read to resolve issues not yet presented to the court,

particularly in light of this Court’s subsequent decision in

Chevron. Rather, under Chevron, the Agency must look to

the intent of Congress to give content to the broad delegation

of authority in §§ 108 and 109 of the Clean Air Act.”

The fundamental objective of the Clean Air Act is to

protect the public health without losing sight of economic

and social realities. This objective is reflected in the Act’s

legislative history” and made explicit in its statement of

* 467 U.S. at 842-43; Smiley, 517 U.S. at 740-41; Motor Vehicle Mfrs.

Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 48 (1983) (noting that

the court has “frequently reiterated that an agency must cogently explain

why it has exercised its discretion in a given manner”); see also American

Lung Ass'n v. EPA, 134 F.3d 388, 392 (D.C. Cir. 1997) (“with its delicate

balance of thorough record scrutiny and deference to agency expertise,

judicial review can occur only when agencies explain their decisions with

precision, for ‘it will not do for a court to be compelled to guess at the

theory underlying the agency’s action. . . .”” (quoting SEC v. Chenery

Corp., 332 U.S. 194, 196-97 (1947)) (emphasis added).

” The legislative history reveals that fulfillment of the Act’s objectives

necessitates attention to economic and feasibility considerations. As

early as 1967, in enacting the first Air Quality Act, Pub. L. 90-148, 81

Stat. 485, Congress evidenced an intention that the development of air

quality standards “be influenced not only by a concern for the protection

of health or welfare, but also by economic, social and technological

consideration.” S. Rep. No. 90-403, at 28 (1967). In amending the Act

22

“purposes.” Thus, § 101(b)(1) of the Act states that the

purpose of the Act is “to protect and enhance the quality of

the Nation’s air resources so as to promote the public health

and welfare and the productive capacity of its population.”

-Clean Air Act § 101(b)(1), App. la (emphasis added).

Framing Agency action to accommodate the three different

statutory objectives calls for balancing.”

Similarly, in reviewing existing NAAQS under § 109(d),

Congress required the Administrator to obtain, and by

necessary implication to consider, the advice of an

independent scientific review committee on “any adverse

public health, welfare, social, economic, or energy effects

which may result from various strategies for attainment and

maintenance” of such NAAQS. CAA § 109(d)(2). EPA

App. 113a. These factors cover the issues the Administrator

would have to address to ensure that her decision furthers the

purposes of the Act.

Finally, § 109(d)(1) calls for revision of standards as may

be appropriate in accordance with “section 108 of this title

and subsection (b)” of § 109. Section 108, in turn, calls for

in 1977, Congress again emphasized that its purpose was to “insure the

protection of the public health and the environment . . . while at the same

time considering the energy and economic needs of this Nation.” H.R.

Rep. No. 95-294, at 34-35 (1977), reprinted in 4 1977 Legis. Hist., at

2501-02 (emphasis added).

** The Administrator has long recognized the importance of economic

and other factors to fulfillment of the Act's objectives set forth in § 101

(b) (1). Thus, in proposing the prevention of significant deterioration

program the Administrator observed that the Agency cannot, and should

not, decide on a regulatory approach without “full consideration of its

economic and social implications." 38 Fed. Reg. 18,986 (1973)

(emphasis added).

23

development of information on “all identifiable effects on

public health or welfare which may be expected from the

presence of such pollutant in the ambient air’ and on the

overall impacts of available methods for “prevention and

control of air pollution.” CAA § 108(a), (b), EPA App. 110a,

App. 1a-2a (emphasis added).

Rather than forbidding the balancing of burdens and

benefits, all of this language contemplates a well-informed

policy decision that reflects the best balance of benefits and

burdens to society. This is the essence of decisions

formulating “public health” policy.

In sum, rational risk management decisions require that all

costs and benefits be considered insofar as possible.** As one

commentator observed, “camouflaging controversial policy

decisions as science assists the agency in evading political,

legal and institutional forces.”* In the absence of clear

statutory language establishing that Congress intended costs

along with all other burdens on society to be ignored, it is

unreasonable to assume that the Act bars consideration of

** See, e.g., Stephen Breyer & Richard Stewart, Administrative Law &

Reg. Policy 350 (3d ed. 1992) (“How can the significance of a risk be

determined in isolation from the cost of eliminating the risk?”); K.

Arrow, ef al., “Is There a Role for Benefit-Cost Analysis in

Environmental, Health and Safety Regulation?,” 272 Science 221 (April

12, 1996) (advocating the use of cost benefit analyses in regulatory

decisions on environmental protection); R. Morgenstern, ed., Economic

Analyses at EPA, ix-x (Resources for the Future, Washington, D.C. 1997)

(“T}hough it should never be the only factor on which to base a

regulatory decision, economic analysis in its many forms should always

be one of the factors.”).

*° Wendy Wagner, “The Science Charade in Toxic Risk Regulation,” 95

Colum. L. Rev. 1613, 1617 (1995).

24

these factors in all cases, especially in light of Congress’

broad statement of purposes and the specific information

requirements of § 109(d) described above.

If the court below had recognized the Agency’s authority to

fill out the congressional delegation based on the purposes of

the Act, therefore, it would have found unreasonable an

interpretation of the statute that bars consideration of social,

economic, and technological factors in making risk

management decisions, when the Agency is confronted with

a range of uncertain or indistinguishable health risks. The

court, however, concluded its hands were tied by its earlier

decision in Lead Industries. CAA Industry Petitioners

believe that this aspect of the lower court’s nondelegation

holding is worthy of review by this Court, and do not oppose

certiorari on the nondelegation issue if it is framed to address

the -D.C. Circuit’s mistaken ban on considering the very

factors most logically relevant to establishing an “intelligible

principle” for risk management decisions under §§ 108 and

109.

Il. ONLY THIS COURT CAN CORRECT THE

SERIOUSLY FLAWED D.C. CIRCUIT LAW

REGARDING THE CLEAN AIR ACT’S NAAQS

PROGRAM.

The Clean Air Act provides that petitions for review of

ambient standards may be filed only in the District of

Columbia Circuit. CAA § 307(b)(1). This provision ensures

that the issues presented in this petition will never be

presented for decision in a forum other than the D.C. Circuit.

Accordingly, review by this Court affords the only

opportunity to correct a D.C. Circuit decision that will have

profound and pervasive economic and social consequences if

left undisturbed.

CONCLUSION

For the reasons stated above, this Conditional Cross-

Petition for Certiorari should be granted if certiorari is

otherwise granted in this case.

DAVID E. MENOTTI

WILLIAM F. PEDERSEN

JEFFERY A. KNIGHT

SHAW PITTMAN

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8675

Counsel for American Forest

& Paper Association, and

American Iron & Steel

Institute

Respectfully submitted,

HENRY V. NICKEL

F. WILLIAM BROWNELL

(Counsel of Record)

LUCINDA M. LANGWORTHY

HUNTON & WILLIAMS

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Appalachian

Power Co., et al., American

Public Power Association,

and National Association of

Home Builders

26

NEWMAN R. PORTER

LEWIS AND ROCA

40 N. Central Avenue

Phoenix, AZ 85004

(602) 262-5786

Counsel for Nevada Mining

Association, Newmont Gold

Company, and Meridian Gold

Company

MAURICE H. MCBRIDE

NATIONAL PETROCHEMICAL

REFINERS ASSOCIATION

1899 L Street, N.W.

Washington, D.C. 20036

(202) 457-0480

Counsel for National

Petrochemical & Refiners

Association

DAVID M. FLANNERY

JACKSON & KELLY

P.O. Box 553

1600 Laidley Tower

Charleston, WV 25322

(304) 340-1017

Counsel for Midwest Ozone

Group; and West Virginia

Chamber of Commerce

DAVID F. ZOLL

ALEXANDRA DAPOLITO DUNN

CHEMICAL MANUFACTURERS

ASSOCIATION

1300 Wilson Boulevard

Arlington, VA 22209

(703) 741-5165

Counsel for Chemical

Manufacturers Association

G. WILLIAM FRICK

M. ELIZABETH COX

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005.

(202) 682-8250

Counsel for American Petroleum

Institute

HAROLD P. QUINN, JR.

NATIONAL MINING

ASSOCIATION

1130 17" Street, N.W.

Washington, D.C. 20036

(202) 463-9793

Counsel for National Mining

Association

KURT BLASE

KILPATRICK STOCKTON LLP

700 Thirteenth Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 508-5800

Counsel for Kennecott

Holdings Corporation,

Kennecott Energy and

Coal Company, Kennecott

Services Company, and

National Stone Association

RUSSEL S. FRYE

COLLIER, SHANNON, RILL &

ScoTT, PLLC

3050 K Street, N.W.

Suite 400

Washington, D.C. 20007

(202) 342-8878

and

RICHARD WASSERSTROM

AMERICAN FOREST & PAPER

ASSOCIATION, INC.

1111 19th Street, N.W.

8" Floor

Washington, D.C. 20036

Counsel for American Forest

& Paper Association, Inc.

MARCELLE SHOOP

Vice President Law and

General Counsel

KENNECOTT CORPORATION

8315 West 3595 South

P.O. Box 6001

Magna, Utah 84044-6001

(801) 252-3000

Counsel for Kennecott Holdings

Corporation, Kennecott

Energy and Coal Company,

and Kennecott Services Co.

TIMOTHY L. HARKER

THE HARKER LAW FIRM

9500 Accord Drive

Potomac, MD 20854

(301) 983-0964

and

THOMAS J. GRAVES

NATIONAL PAINT AND

COATINGS ASSOCIATION,

INC.

1500 Rhode Island Ave., N.W.

Washington, D.C. 20005

(202) 462-6272

Counsel for National Paint and

Coatings Association

28

GRANT CRANDALL

General Counsel

UNITED MINE WORKERS OF

AMERICA, AFL-CIO

8315 Lee Highway

Fairfax, VA 22031

(703) 208-7200

and

EUGENE M. TRISKO

P.O. Box 596

Berkeley Springs, WV 25411

(304) 258-1977

Counsel for United Mine

Workers of America, AFL-CIO

February 28, 2000

PETER S. GLASER

SHOOK, HARDY & BACON

600 14th Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 639-5627

Counsel for Western Fuels

Association, Inc.

DAVID M. FRIEDLAND

BEVERIDGE & DIAMOND

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005

(202) 789-6000

Counsel for Phoenix Cement Co.