Opposition Brief — Appalachian Power Co. v. Whitman
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Nos. 99-1426, 99-
In the Supreme Court of the United States —
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
CROSS-PETITIONERS
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, ET AL.
CITIZENS FOR BALANCED TRANSPORTATION, ET AL.,
CROSS-PETITIONERS
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
GARY S. GUZY Department of Justice
General Counsel Washington, D.C. 20530-0001
Environmental Protection (202) 514-2217
Agency
Washington, D.C. 20415
QUESTIONS PRESENTED
1. Whether the court of appeals properly reaffirmed
the long-standing principle that, in setting and revising
National Ambient Air Quality Standards (NAAQS)
under Section 109 of the Clean Air Act, the Environ-
mental Protection Agency (EPA) may not consider the
costs, technical feasibility, or other alleged effects of
implementing measures to attain the NAAQS (Nos. 99-
1426 and 99-1431).
2. Whether the court of appeals properly resolved
various claims, by postponing decision or rejecting
them outright, that EPA’s primary and secondary
NAAQS for fine particulate matter (PM,,) are inade-
quate to protect public health and welfare (No. 99-
1442).
(I)
TABLE OF CONTENTS
Page
Statement 2
Argument 5
Conclusion 23
TABLE OF AUTHORITIES
Cases:
American Lung Ass’n v. EPA, 134 F.3d 388 (D.C.
Cir. 1998) 8
American Petroleum Inst. v. Costle, 665 F.2d
1176 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034
(1982) 8
American Petroleum Inst. v. Gorsuch, cert. denied,
455 U.S. 1034 (1982) 8
Bob Jones Univ. v. United States, 461 U.S. 574
(1983) 15
California Div. of Labor Standards Enforcement
v. Dillingham Const., N.A., Inc., 519 U.S. 316
(1997) 21
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) 3,9
Industrial Union Dep’t v. American Petroleum
Inst., 448 U.S. 607 (1980) 14-15
Lead Indus. Ass’n v. EPA, 647 F.2d 1130 (D.C.
Cir.), cert. denied, 449 U.S. 1042 (1980) ............ 3,8,9,12,14
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307
(9th Cir. 1992; 10
Mistretta v. United States, 488 U.S. 361 (1989) ............. 6, 18
Natural Resources Defense Council, Inc. v. EPA:
824 F.2d 1146 (D.C. Cir. 1987) 8, 9, 12, 16, 17
902 F.2d 962 (D.C. Cir. 1990), cert. denied, 498 U.S.
1082 (1991) 3, 8, 12
St. Joe Minerals Corp. v. EPA, cert. denied, 449
U.S. 1042 (1980) 8
(IIT)
IV
Cases—Continued: Page
Shook v. District of Columbia Fin. Responsibility
Management Assistance Auth., 132 F.3d 775 (D.C.
Cir. 1998) 10
Red Lion Broad. Co. v. FCC, 395 U.S. 367
(1969) 15
Train v. Natural Resources Defense Council, Inc.,
421 U.S. 60 (1975) 7, 10, 13, 16
Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ........s00s000ee0e 7 4,
18, 16
Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) .........0+ 12
Statutes:
Air Quality Act of 1967, Pub. L. No. 9-148, § 2,
81 Stat. 485 7
Clean Air Act, 42 U.S. 7401 et seq.:
§ 108, 42 U.S.C. 7408 9, 10, 14, 18
§ 108(a)(2), 42 U.S.C. 7408(a)(2) 10
§ 109, 42 U.S.C. 7409 7,9, 14, 17, 18
§ 109(b), 42 U.S.C. 7409(b) 9
§ 109(b)(1), 42 U.S.C. 7409(b)(1) 7,9, 10
§ 109(b)(2), 42 U.S.C. 7409(b)(2) 5
§ 109(d)(2)(B), 42 U.S.C. 7409(d)(2)(B) 14
§ 109(d)(2)(C), 42 U.S.C. 7409(d)(2)(C) 14
§ 109(d)(2)(C)iv), 42 U.S.C. T409(d (2) CGV) .....secceeeees 4
§ 110, 42 U.S.C. 7410 2B
§ 110(k), 42 U.S.C. 7410(k) 12
§ 112,42 U.S.C. 7412 17
§ 160(1), 42 U.S.C. 7470(1) 23
§ 169A, 42 U.S.C. 7491 5
§§ 181-192, 42 U.S.C. 7511-7514a 15
§ 307(d)9), 42 U.S.C. 7607(d)(9) 19
Clean Air Act Amendments of 1970, Pub. L. No.
91-604, 84 Stat. 1676 7,10
§ 110, 84 Stat. 1680 12
§ 111(e)(1), 84 Stat. 1682 10
§ 111(a)(1), 84 Stat. 1683 10
Statutes—Continued: Page
§ 231(b), 84 Stat. 1704 10
Clean Air Act Amendments of 1977, Pub. L. No.
90-95, 91 Stat. 685 14
Clean Air Act Amendments of 1990, Pub. L. No.
101-549, Tit. I, 94 Stat. 2399 15
Occupational Safety and Health Act, 29 U.S.C. 651
et seq. 16
29 U.S.C. 655(b) 16
29 U.S.C. 655(b)(5) 16
29 U.S.C. 658-659 16
Miscellaneous:
36 Fed. Reg. 8186 (1971) 8
62 Fed. Reg.:
p. 38,652 5
p. 38,669... 22
pp. 38,669-38,671 22
pp. 38,653-38,688 8
p. 38,671 22
p. 38,676 22
p. 38,683 5
p. 38,685 14
p. 38,702 17
H.R. Rep. No. 490, 101st Cong., 2d Sess., Pt. 1
(1990) 15
H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) ...........ss+0+ 14
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) .........+ 12, 13, 16
S. Rep. No. 228, 101st Cong., Ist Sess. (1989) .........ccscseseees 15
—
In the Supreme Court of the Gnited States
No. 99-1426
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
CROSS-PETITIONERS
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 99-1431
APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, ET AL.
No. 99-1442
CITIZENS FoR BALANCED TRANSPORTATION, ET AL.,
CROSS-PETITIONERS
Vv.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION
(1)
2
STATEMENT
The federal government’s petition for a writ of
certiorari (No. 99-1257) seeks review of the court of
appeals’ ruling that the Environmental Protection
Agency (EPA) has interpreted the Clean Air Act
(CAA) in a way that effects an unconstitutional dele-
gation of legislative power. 99-1257 Pet. I. The petition
also challenges the court of appeals’ premature and
mistaken ruling limiting how EPA may implement one
of the two remanded National Ambient Air Quality
Standards (NAAQS) at issue—the ozone NAAQS.
Ibid. The cross-petitions seek to introduce two sets of
unrelated issues involving particular details of the
underlying rulemakings.
First, two groups of industrial interests, the Ameri-
can Trucking Associations, e¢ al. (ATA), and Appala-
chian Power Company, et al. (APC), ask this Court to
review the court of appeals’ unanimous statutory ruling
that, in setting and revising NAAQS, EPA is precluded
from considering the economic costs and effects of
implementing those standards. ATA Cross-Pet. i; APC
Cross-Pet. i. That ruling reaffirms EPA’s 20-year-old
construction of the CAA and a series of unanimous
judicial decisions stretching over 20 years. See 99-1257
Pet. App. 19a-21a. |
Second, a group of environmental interests, Citizens
for Balanced Transportation, e¢ al. (CBT), seeks review
of particular challenges to EPA’s selection of the 24-
hour primary NAAQS for particulate matter (PM) of
2.5 microns or less (PM,,) and its selection of the
secondary NAAQS for PM,,;. CBT Cross-Pet. i. The
court of appeals concluded that it could not reach most
of those issues in light of its remand to the agency. See
99-1257 Pet. App. 4a-5a.
3
We describe below the court’s reasoning on the
issues raised by the cross-petitions.
1. The court of appeals’ decision in this case ad-
dresses a broad range of industry and environmental
challenges to EPA’s ozone and PM NAAQS. Among
other things, the decision reiterates the long settled
principle that, “in setting NAAQS under § 109(b) of the
Clean Air Act, the EPA is not permitted to consider the
cost of implementing those standards.” 99-1257 Pet.
App. 19a. The court of appeals has consistently held
that EPA must set NAAQS based on the “health
effects relating to pollutants in the air” and not on
alleged costs or other effects that may result from
implementation of the NAAQS. Natural Resources
Defense Council, Inc. v. EPA, 902 F.2d 962, 973 (D.C.
Cir. 1990) (EPA need not consider alleged health effects
associated with unemployment), cert. denied, 498 U.S.
1082 (1991); see also Lead Indus. Ass’n v. EPA, 647
F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042
(1980).
The court expressly considered and rejected ATA’s
and APC’s arguments that it should reconsider its
decision in Lead Industries because that case was
decided without the benefit of this Court’s decision in
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). The court explained:
The Lead Industries decision was made in Chevron
step one terms, * * * as the post-Chevron progeny
of Lead Industries have made clear. [Natural
Resources Defense Council, Inc. v. EPA], 902 F.2d
[962,] 973 [(D.C. Cir. 1990), cert. denied, 498 U.S.
1082 (1991)] (“Consideration of costs . . . would be
flatly inconsistent with the statute, legislative his-
tory and case law on this point”); NRDC v. EPA,
4
824 F.2d 1146, 1158-59 (D.C. Cir. 1987) (in banc)
(“Vinyl Chloride”) (“[S]tatute on its face does not
allow consideration of technological or economic
feasibility.”).
99-1257 Pet. App. 19a-20a.
The court of appeals additionally considered and
rejected the argument that, even if EPA could not
consider costs in initially setting NAAQS, it could do so
when revising NAAQS. 99-1257 Pet. App. 20a. Finally,
the court rejected the industrial groups’ argument that
Congress’s directions to the Clean Air Scientific Advi-
sory Committee (CASAC) to advise EPA on, among
other things, “any adverse public health, welfare, social,
economic, or energy effects which may result from
various strategies for attainment and maintenance” of
NAAQS, CAA, § 109(d)(2)(C)(iv), 42 U.S.C.
7409(d)(2)(C)(iv), signals that EPA should consider
those factors in revising NAAQS. 99-1257 Pet. App.
Zla. Instead, the CAA directs CASAC to provide that
advice in light of EPA’s separate duty to give the
States information on control strategies. Ibid.
2. CBT challenged as arbitrary and capricious
EPA’s decision not to set a more stringent 24-hour pri-
mary NAAQS and more stringent 24-hour and annual
secondary NAAQS for PM,;. Because the court of
appeals remanded the PM,,; NAAQS on nondelegation
grounds, the court of appeals did not rule on CBT’s
claims except in one narrow respect. 99-1257 Pet. App.
5a, 56a. In the final rule, EPA had announced its deci-
sion to address adverse effects that fine PM may have
on visibility by establishing secondary PM,, NAAQS
(at the same levels as the primary PM,, NAAQS) and
by implementing the Regional Haze Program described
in Section 169A of the CAA, 42 U.S.C 7491. 99-1257
5
Pet. App. 56a; 62 Fed. Reg. 38,652, 38,688 (1997). The
court of appeals rejected CBT’s argument that Section
109(b)(2), 42 U.S.C. 7409(b)(2), requires EPA to set sec-
ondary NAAQS that will eliminate all adverse effects
on visibility and deprives EPA of authority to address
some impairment of visibility through another program.
99-1257 Pet. App. 57a. The court explained that the
CAA included the Regional Haze Program to address
adverse effects on visibility that may persist in areas
such as national parks “notwithstanding attainment and
maintenance of all [NAAQS].” Ibid.
3. Neither ATA, APC, nor any other party sought
rehearing on the cost issue. CBT filed petitions for
rehearing and rehearing en banc as to all of its claims.
CBT’s petitions were denied without dissent. 99-1257
Pet. App. 71a, 101a.
ARGUMENT
As our petition for a writ of certiorari explains, the
court of appeals has erred in two fundamental respects:
(1) it remanded EPA’s revised PM and ozone NAAQS
based on an aberrant notion of the nondelegation doc-
trine (99-1257 Pet. 9-10, 11-19); and (2) it prematurely
and mistakenly decided how EPA should eventually
implement the ozone NAAQS (99-1257 Pet. 19-80). As
our reply brief explains, respondents have failed to
provide persuasive reasons against review. Instead,
they have recharacterized the court of appeals’ decision
in ways that obfuscate the issues. The cross-petitions
at issue here add another layer of complexity and con-
fusion. They raise no issue that would independently
warrant review or that would assist the Court in re-
solving the core nondelegation issue. To the contrary,
the cross-petitions would complicate the case with
issues that, on the one hand, have long been settled or,
6
on the other hand, the court of appeals had no occasion
to reach.
1. The flaws in the court of appeals’ nondelegation
analysis are not difficult to discern. This Court has
developed the nondelegation doctrine to preserve the
Constitution’s separation of governmental powers.
E.g., Mistretta v. United States, 488 U.S. 361, 371-372
(1989). It prohibits Congress from vesting its legislative
power in an executive branch agency. [bid. The court
of appeals erred becouse it misconceived the nondele-
gation doctrine as a ,udicial check on agency discretion.
See 99-1257 Pet. App. 14a. The court of appeals’ deci-
sion confuses two distinct lines of inquiry and, in the
process, wrongly sets aside legitimate agency action.
The Court should therefore correct that fundamental
misconception and remand the case to the court of
appeals with directions to review the EPA’s rules
under the correct standard of review. See 99-1257 EPA
Reply Br. 2-6.
ATA and APC urge a different course. They argue
that the Court should broaden the inquiry and use the
court of appeals’ mistake as a vehicle for setting aside
long-settled statutory principles that have guided
EPA’s implementation of the CAA for 30 years. They
specifically challenge the firmly established principle
that EPA should set NAAQS based on the public health
and welfare effects caused by the pollutant’s presence
in the ambient air and not on the potential economic
costs or other alleged effects of implementing the
NAAQS. See ATA Cross-Pet. 14-27; APC Cross-Pet.
14-25. The court of appeals was divided on the non-
delegation issue, but it unanimously rejected the indus-
trial groups’ arguments on this point and reiterated its
past holding that the CAA directs that questions of
economic costs and the other effects of implementing
7
NAAQS can be considered only as part of the imple-
mentation process. 99-1257 Pet. App. 19a-21a.
The Court should decline ATA’s and APC’s invitation
to complicate consideration of the nondelegation issue.
The court of appeals’ decision is correct as to the issue
they raise. Moreover, it rests on settled law that has
long guided the actions of EPA, Congress, and the
courts. Contrary to ATA’s urgings, the constitutional
question of whether Congress has vested EPA with
legislative power is not “tightly intertwined” (ATA
Cross-Pet. 7) with the statutory issue of whether
Congress directed EPA to set NAAQS based solely on
health and welfare effects of ambient pollution concen-
trations.
a. Congress introduced the NAAQS-based frame-
work through the enactment of the Clean Air Act
Amendments of 1970." Since that time, EPA has
consistently applied Section 109 according to its
terms, which require EPA to set primary NAAQS at
levels “requisite to protect the public health.” CAA
§ 109(b)(1), 42 U.S.C. 7409(b)(1). EPA has consistently
rejected the notion that, when promulgating NAAQS, it
may consider costs, technical feasibility, or related
factors.” ATA and APC ask this Court to overturn 20
1 As this Court has recognized, Congress was dissatisfied with
progress under the Air Quality Act of 1967, Pub. L. No. 90-148, § 2,
81 Stat. 485, and enacted the Clean Air Act Amendments of 1970 to
make far-reaching changes in the Nation’s approach to air pollution
control. Train v. Natural Resources Defense Council, Inc., 421
U.S. 60, 64 (1975); see Union Electric Co. v. EPA, 427 U.S. 246,
256-257 (1976).
2 When promulgating the first NAAQS, Administrator Ruck-
elshaus announced that no revisions were made to the proposed
NAAQS in response to comments questioning the feasibility of
their implementation. He stated that the CAA “does not permit
8
years of court of appeals precedent—decided in the
course of reviewing predecessor NAAQS—upholding
that interpretation.’
As ATA acknowledges (Cross-Pet. 5-6), this Court
has repeatedly declined to review the issue that ATA
and APC press here.‘ There is no reason to reach a
different result now. ATA offers no support for its
claim that the court of appeals itself “now lacks confi-
dence” in the holding of Lead Industries (Cross-Pet. 17-
18). To the contrary, the court of appeals has re-
peatedly rejected ATA’s and APC’s principal argu-
ments without a single dissent.’ The cross-petitions do
not raise a controversial issue; the entire District of
any factors other than health to be taken into account in setting
the primary standards.” 36 Fed. Reg. 8186 (1971). See also, e.g., 62
Fed. Reg. at 38,683-38,688 (detailed response to comments on this
issue in the PM rulemaking).
3 American Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir.
1998); Natural Resources Defense Council, Inc. v. EPA, 902 F.2d
962, 973 (D.C. Cir. 1990), cert. denied, 498 U.S. 1082 (1991);
American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir.
1981), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass’n v.
EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042
(1980); see also Natural Resources Defense Council, Inc. v. EPA,
824 F.2d 1146, 1158-1159 (D.C. Cir. 1987) (en banc) (Vinyl
Chloride).
4 See Pet. at 8-11, St. Joe Minerals Corp. v. EPA, cert. denied,
449 U.S. 1042 (1980) (No. 80-483); Pet. at 18-23, American Petro-
leum Inst. v. Gorsuch, cert. denied, 455 U.S. 1084 (1982) (No. 80-
871).
5 Since 1980, 15 judges of the District of Columbia Circuit—
including Judge Bork writing for the court en banc in Vinyl
Chloride—have expressed approval of EPA’s interpretation. Con-
trary to APC’s assertion (Cross-Pet. 24), nothing in any of the
decisions after Lead Industries remotely suggests that the court of
appeals felt “its hands were tied” by that decision. See cases cited
in note 3, supra.
9
Columbia Circuit has long viewed the matter as settled.
See 99-1257 Pet. App. 19a. Indeed, if ATA and APC
thought otherwise, they should have challenged the
panel’s unanimous ruling through a petition for re-
hearing en banc.
The court of appeals and EPA have correctly con-
cluded that Congress “has directly spoken to the pre-
cise question at issue.” Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842
(1984). Section 109(b)(1) of the CAA directs EPA to set
primary NAAQS at a level “requisite to protect the
public health.” See 42 U.S.C. 7409(b)(1). It does not
direct EPA to consider economic and other costs when
setting NAAQS, and there is no basis for inferring that
Congress intended those factors to be considered at
that initial stage of the regulatory process. The lan-
guage and structure of the 1970 CAA demonstrate that
the overriding purpose of NAAQS promulgation is to
determine, as the first step of the CAA regulatory
program, the ambient air quality standards that are
necessary to protect the public health and welfare.
Neither Section 108, which specifies the kinds of factual
information upon which NAAQS must be based, nor
Section 109, which contains the legal test NAAQS must
meet, discusses or otherwise suggests any considera-
tion of cost or technical feasibility. See Lead Indus.
Ass'n, 647 F.2d at 1149; Vinyl Chloride, 824 F.2d at
1158.
® The States of Ohio, Michigan, and West Virginia suggest in
their brief supporting the cross-petitions (Midwest States Br. 9-13)
that there is a broader inconsistency in the District of Columbia
Circuit’s case law with respect to whether administrative agencies
ever have authority to consider factors other than those explicitly
mentioned in enabling legislation. This alleged conflict goes
beyond any question presented in a timely petition or cross-peti-
10
Sectior 109(b)(1) specifically requires NAAQS to be
“based on” the air quality “criteria” that EPA issues
under Section 108. 42 U.S.C. 7409(b)(1). Section
108(a)(2), in turn, limits the kind of information to be
included in the “criteria” to “the latest scientific knowl-
edge” about effects on health and welfare “which may
be expected from the presence of such pollutant in the
ambient air.” 42 U.S.C. 7408(a)(2). Section 108(a)(2)
makes no mention whatsoever of effects from imple-
menting the NAAQS—it mentions only effects result-
ing from the presence of a criteria pollutant in the air.
That silence is telling in light of other sections of the
Clean Air Act Amendments of 1970 where Congress
expressly provided that EPA should consider costs and
similar factors in making decisions.’
The structure of the CAA also indicates that EPA
should promulgate NAAQS based on health and wel-
fare effects and not on the basis of costs or alleged
adverse effects that may result from their implemen-
tion. Moreover, the question cannot be addressed in such abstract
terms, because the answer depends on the purpose and context of
a particular statute. The principle of expressio unius est exclusio
alterius is merely one tool of statutory construction, not a rule of
law, see Shook v. District of Columbia Fin. Responsibility & Man-
agement Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998);
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.
1992), and therefore its application can be expected to differ from
one circumstance to another.
7 E.g., Clean Air Act Amendments of 1970, Pub. L. No. 91-604,
§ 110(e)(1), 84 Stat. 1682 (authorizing EPA to grant States up to a
two-year extension of a NAAQS attainment date if necessary
technology is not available); § 111(a)(1), 84 Stat. 1683 (requiring
consideration of economic and technological feasibility in establish-
ing standards of performance for new stationary sources); § 231(b),
84 Stat. 1704 (authorizing consideration of economic and technical
feasibility in establishing aircraft emission standards).
11
tation. As this Court recognized long ago, the CAA is a
“technology-forcing” statute that sets ambitious goals
to protect public health and welfare. See Train v.
Natural Resources Defense Council, Inc., 421 U.S. 60,
91 (1975). In that respect, Congress has indicated ex-
pressly when and to what extent costs and implementa-
tion effects shall be considered in the regulatory
process. See Union Elec. Co. v. EPA, 427 U.S. 246
(1976).°
For example, States are entitled to develop State
Implementation Plans (SIPs) governing how NAAQS
will be implemented within their borders. See CAA
§ 110, 42 U.S.C. 7410. States may properly consider the
costs of NAAQS implementation when formulating the
SIPs, and EPA may not override those judgments so
long as the SIP will achieve attainment of the NAAQS.
See Union Elec. Co., 427 U.S. at 256-269.° The Court
also recognized that the CAA does not allow a State to
rely on those considerations at the expense of meeting
the statutory deadlines for attaining the national
health-based standards. Id. at 266-269..° The Court’s
8 See 427 U.S. at 269 (“Technology forcing is a concept some-
what new to our national experience and it necessarily entails
certain risks. But Congress considered those risks in passing the
1970 Amendments and decided that the dangers posed by uncon-
trolled air pollution made them worth taking.”).
® See, ¢.g., 427 U.S. at 266 (“Perhaps the most important forum
for consideration of claims of economic and technological infeasibil-
ity is before the state agency formulating the implementation plan.
So long as the national standards are met, the State may select
whatever mix of control devices it desires * * * and industries
with particular economic or technological problems may seek
special treatment in the plan itself.”).
10 See, ¢.g., 427 U.S. at 268-269 (“In short, the [Clean Air Act
Amendments of 1970] offer ample opportunity for consideration of
claims of technological and economic infeasibility. Always, how-
12
longstanding decision in Union Electric, describing the
CAA as a “technology-forcing” statute and explaining
how cost considerations are introduced into the regula-
tory scheme on a State-by-State basis in the imple-
mentation process, would make little sense if EPA had
to promulgate NAAQS based on an analysis of costs
and related implementation factors at the outset of the
regulatory process.”
As the court of appeals has repeatedly noted, the
legislative history of the 1970 Amendments confirms
the paramount importance of setting primary NAAQS
based solely on the health effects posed by the pollutant
in the ambient air. See Vinyl Chloride, 824 F.2d at
1158; Lead Indus. Ass’n, 647 F.2d at 1149. For exam-
ple, the Senate report accompanying the 1970 Amend-
ments states:
In the Committee discussions, considerable concern
was expressed regarding the use of the concept of
technical feasibility as the basis of ambient air
standards. The Committee determined that 1) the
health of people is more important than the question
of whether the early achievement of ambient air
quality standards protective of health is technically
feasible; and, 2) the growth of pollution load in many
ever, care is taken that consideration of such claims will not inter-
fere substantially with the primary goal of prompt attainment of
the national standards. * * * Congress plainly left with the
States, so long as the national standards were met, the power to
determine which sources would be burdened by regulation and to
what extent.”).
11 Section 110 of the 1970 CAA, which was construed by the
Court in Union Electric, has since undergone considerable revi-
sion, but the principles set forth above have not been altered. See
Virginia v. EPA, 108 F.3d 1397, 1407-1409 (D.C. Cir. 1997); 42
U.S.C. 7410(k).
13
areas, even with application of available technology,
would still be deleterious to public health.
Therefore, the Committee determined that exist-
ing sources of pollutants either should meet the
standard of the law or be closed down * * *.
S. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970). In
other words, the primary NAAQS should be based on
health effects rather than economic or technical feasibil-
ity, and as a result, the NAAQS have a “technology-
forcing” effect. See Train, 421 U.S. at 91; Union Elec.
Co., 427 U.S. at 257, 269.
At bottom, APC urges this Court to revisit the long-
settled question of whether EPA should consider costs
and other alleged implementation effects in setting
NAAQS because, in APC’s view, its preferred approach
would be “wise social policy.” See, e.g., APC Cross-Pet.
6-7. But Congress concluded otherwise, and Congress’s
choice was certainly a rational one. Congress reason-
ably concluded that NAAQS should be based on health
and welfare considerations alone so that Congress and
the public know that EPA’s judgments on the health
and welfare threats posed by particular criteria pollut-
ants are not compromised by considerations of eco-
nomic and technical feasibility. As this Court recog-
nized in Union Electric, Congress provided the States
with flexibility in the implementation process to
consider the economic and technical feasibility of
attainment, 427 U.S. at 266-269, but it reserved to itself
the prerogative of deciding — as a matter of legislative
choice — whether and how to alter the statutory scheme
14
if public health needs should prove to conflict with an
industry’s economic viability.”
Congress has since recognized and exercised that
prerogative. See 62 Fed. Reg. at 38,685. In the course
of formulating the Clean Air Act Amendments of 1977,
Congress was well aware that some areas of the
country had been unable to attain some of the NAAQS.
See, e.g., H.R. Rep. No. 294, 95th Cong., 1st Sess. 207-
217 (1977). It was also aware that some of the NAAQS
criteria pollutants might be non-threshold pollutants
and that significant scientific uncertainties are inherent
in setting health-based standards. See id. at 43-51, 110-
112. In response, Congress made significant changes in
the provisions for implementing the NAAQS, including,
for example, an extension of the deadline for attaining
the ozone NAAQS. It also amended Sections 108 and
109 of the Act to require periodic review and revision of
NAAQS and to establish CASAC. Nevertheless, Con-
gress did not change the substantive criteria for setting
and revising NAAQS. See 62 Fed. Reg. at 38,685 &
n.66 (describing the 1977 Amendments).”
22 See Lead Indus. Ass’n, 647 F.2d at 1150 (“if there is a prob-
lem with the economic or technological feasibility of the lead stan-
dards, * * * any * * * party affected by the standards, must
take its case to Congress, the only institution with the authority to
remedy the problem”); 99-1257 Pet. App. 68a-69a (Tatel, J., in dis-
sent, noting the role of politically accountable States in imple-
menting NAAQS and the availability of congressional relief).
13 In addition to requiring CASAC to advise EPA on issuing
new or revised criteria and NAAQS, 42 U.S.C. 7409(d)(2)(B), Con-
gress separately charged CASAC with advising EPA on imple-
mentation effects, 42 U.S.C. 7409(d)(2)(C). But that does not mean,
as APC contends (Cross-Pet. 22), that EPA is to consider these
effects in setting or revising NAAQS. See 99-1257 Pet. App. 21a;
p. 4, supra. The legislative history removes any doubt on that
matter. The House Report indicates that Congress did “not intend
15
Congress exercised that prerogative again in 1990.
The Clean Air Act Amendments of 1990 responded to
persistent nonattainment problems by adjusting the
scheme for their implementation. See, eg., CAA
§§ 181-192, 42 U.S.C. 7511-7514a. Significantly, Con-
gress was fully aware of how NAAQS are promulgated,
and it did not change the legal standard on which
NAAQS are based. To the contrary, both the House
and Senate Reports accompanying the 1990 Amend-
ments expressly reflect the understanding that primary
NAAQS are to be “set at a level that ‘protects the
public health with an adequate margin of safety,’
without regard to the economic or technical feasibility
of attainment.” H.R. Rep. No. 490, 101st Cong., 2d
Sess., Pt. 1, at 145 (1990) (emphasis added); accord S.
Rep. No. 228, 101st Cong., Ist Sess. 5 (1989). Con-
gress’s actions confirm that the court of appeals and
EPA have correctly discerned congressional intent to
preclude consideration of economic and technical fea-
sibility in setting and revising NAAQS. Cf. Bob Jones
Univ. v. United States, 461 U.S. 574, 600-602 (1983)
(Congress “affirmatively manifested its acquiescence”
in IRS policy by articulating the policy in committee
reports accompanying related legislation); Red Lion
Broad. Co. v. FCC, 395 U.S. 367, 381 (1969) (“the con-
struction of a statute by those charged with its execu-
tion should be followed unless there are compelling
indications that it is wrong, especially when Congress
has refused to alter the administrative construction”).
this provision to be used as a basis for the Administrator to
disapprove any State’s plan,” but “may be of interest and
assistance to the States and to Congress in fashioning future
le gislation.” H.R. Rep. No. 294, supra, at 183.
16
ATA attempts to overcome the overwhelming evi-
dence of congressional intent by drawing analogies
from this Court’s decision in Industrial Union De-
partment v. American Petroleum Institute., 448 U.S.
607 (1980). See ATA Cross-Pet. 15-16. That case,
however, involves a different statute, with different
language, that creates an entirely different regulatory
program. The Occupational Safety and Health Act
(OSH Act), 29 U.S.C. 651 et seg., directs the Secretary
of Labor to establish “occupational safety and health
standard[s],” 29 U.S.C. 655(b), that are directly
applicable to industrial employers and that are directly
enforced by federal officials. 29 U.S.C. 658-659. The
OSH Act expressly requires the Secretary to consider
whether standards dealing with toxic materials or
harmful physical agents are “feasible.” 29 U.S.C.
655(b)(5).
The CAA’s NAAQS promulgation process, by con-
trast, is simply the first step in a federal-state regula-
tory program and does not create standards that are
themselves directly applicable to any air pollution
source. The CAA directs EPA to set NAAQS at levels
of air quality “requisite” to protect public health and
welfare, but the CAA empowers the States to deter-
mine appropriate emission limitations and other con-
trols on individual air pollution sources. See generally
Train, supra; Union Elec. Co., supra. Unlike the OSH
Act scheme, the CAA requires the Administrator to
determine, as an initial matter, the exposure limitations
necessary to protect health and welfare and leaves to
the States discretion to consider—consistent with their
obligation to meet the attainment deadlines—the eco-
nomic or technological feasibility of compliance. See
Union Elec. Co., 427 U.S. at 259 (quoting S. Rep. No.
1196, 91st Cong., 2d Sess. 2-3 (1970)).
17
ATA’s and APC’s reliance on the court of appeals’ en
banc decision in Vinyl Chloride, 824 F.2d at 1158-1159,
is similarly misplaced. See ATA Cross-Pet. 15-18; APC
Cross-Pet. 9-10, 19. That decision in no way “strongly
suggests” that the District of Columbia Circuit “now
lacks confidence” in its Lead Industries decision. ATA
Cross-Pet. 17-18. To the contrary, the court concluded
that EPA should consider economic and technical
feasibility when setting individual emission standards
for specific hazardous air pollutants under Section 112
of the CAA, 42 U.S.C. 7412. It expressly distinguished
Section 109’s method for promulgating NAAQS. Writ-
ing for the en banc court, Judge Bork explained that the
language and structure of the CAA support the conclu-
sion that “Congress simply did not intend the economics
of pollution control to be considered in [Section 109’s]
scheme of ambient air regulations.” 824 F.2d at 1159."
14 We note that EPA attempts to estimate the costs and bene-
fits of implementing NAAQS as part of its Regulatory Impact
Analysis (RIA), but it does so only for informational and imple-
mentation planning purposes and not as a part of its standard
setting process. See 62 Fed. Reg. at 38,702; C.A. App. (PM) 3461-
3462. ATA and APC rely selectively on those estimates to create a
distorted picture of the potential costs and benefits of the NAAQS
in this case. For example, APC and ATA cite EPA’s estimate of
the cost of fully attaining the revised PM standards ($37 billion)
without mentioning EPA’s estimate that those standards would
produce quantifiable benefits of $20 to $110 billion. Compare APC
Cross-Pet. 13 n.23 and ATA Cross-Pet. 4 with C.A. App. (Ozone)
2925. Nor does either mention EPA’s estimate that the net
quantifiable benefits to be derived from only partial attainment of
the combination of the revised PM and ozone NAAQS would range
from $9.5 to $96 billion. C.A. App. (PM) 3488. Furthermore, it is
difficult, if not impossible, for EPA to account for the future
development of innovative control technologies when it sets or
revises NAAQS. C.A. App. (PM) 3471-3472. Because of the
technology-forcing character of the NAAQS, EPA has historically
18
b. As the foregoing discussion shows, the ATA and
APC cross-petitions do not present an issue that would
warrant review in its own right: The court of appeals
has repeatedly and correctly rejected ATA’s and APC’s
arguments; those rulings have not produced any dis-
sent; this Court.has repeatedly declined to review the
issue; and ATA and APC did not seek relief from the en
banc court before petitioning for a writ of certiorari yet
again. ATA nevertheless argues that this Court should
combine its review of the nondelegation issue and this
particular statutory issue because the issues are
“inextricably intertwined.” ATA Cross-Pet. 7; see also
APC Cross-Pet. 4 (cost issue is “fairly within the scope
of the initial petitions”). That assertion is correct only
in the haphazard sense that a fishing line might become
intertwined with a tree limb. Enlarging the grant
would complicate an already complex case and would
require the Court to disentangle inquiries that are
properly separate and that the court of appeals treated
as distinct. Indeed, the court of appeals panel was
divided on the nondelegation issue, but unanimous on
the supposedly “intertwined” statutory issue that ATA
and APC present.
ATA concedes, in response to our sskiiiess that Sec-
tion 109 of the CAA itself does not violate the nondele-
gation doctrine. 99-1257 ATA Br. 15 (Section 109 is
“undisputedly” constitutional); see also 99-1257 APC
Br. 8 (“The court did not hold the statute itself uncon-
stitutional.”). Significantly, ATA does not contest our
showing (99-1257 Pet. 11-16) that the CAA provides
EPA with sufficient statutory direction to avoid
delegating legislative power. See, e.g., Mistretta v.
overestimated the actual cost of their implementation and attain-
ment. See ibid.
19
United States, 488 U.S. 361, 372-373 (1989). Instead,
ATA defends the court of appeals’ decision on the
ground that EPA’s “interpretation” of the CAA
violates the nondelegation doctrine. See 99-1257 ATA
Br. 11; 99-1257 APC Br. 10-11, 18; see also 99-1257 Pet.
App. 4a (“we find that the construction of the Clean Air
Act on which EPA relied in promulgating the NAAQS
at issue here effects an unconstitutional delegation of
legislative power”).
Our petition takes specific issue with that proposi-
tion. See 99-1257 Pet. 16. The nondelegation doctrine
is a check on Congress’s grant of legislative powers and
not—as the court of appeals and cross-petitioners
would have it—a mechanism for controlling an agency’s
exercise of discretion. See ibid. We are hardly alone in
that view. See, e.g., 99-1257 Pet. App. 94a (Silberman,
J., dissenting from the denial of rehearing en banc)
(“Th{e] purpose [of the nondelegation doctrine] is, of
course, to ensure that Congress makes the crucial
policy choices that are carried into law.”); id. at 98a
(Tatel, J., joined by Edwards, C.J., and Garland, J.,
dissenting from denial of rehearing en banc) (“For
purposes of constitutional analysis, we thus have no
need to require that EPA state ‘a far more determinate
basis for decision’ beyond the intelligible principle
Congress provided in the Clean Air Act”.).
We urge the Court to correct that basic conceptual
error and, in accordance with its usual practice, return
the case to the court of appeals so that the court can
conclude its task of properly evaluating EPA’s rule-
makings under the statutory arbitrary and capricious
standard set out in Section 307(d)(9) of the CAA, 42
U.S.C. 7607(d)(9). The Court has no occasion to venture
further by undertaking belatedly to decide anew a
20
question of statutory construction that the court of
appeals and Congress properly settled long ago.
ATA presses the Court to go further based on its
inaccurate characterization of what the court >f appeals
decided. ATA argues that “the court below was forced
to consider constitutional nondelegation issues because
that court had misconstrued the Clean Air Act in Lead
Industries and subsequent cases.” ATA Cross-Pet. 5.
ATA’s characterization is fantasy. This case generated
six opinions on panel review and petition for rehearing
and rehearing en banc, and not a single judge on the
District of Columbia Circuit expressed ATA’s view of
the case. Rather, the panel majority and dissenting
judges treated the nondelegation issue and ATA’s
statutory issue as distinct and separate questions.
Specifically, the panel majority declared EPA’s ac-
tions unconstitutional without reference to Lead Indus-
tries. 99-1257 Pet. App. 4a. The majority directed EPA
“to develop a construction of the act that satisfies this
constitutional requirement,” ibid., and it offered com-
ment respecting EPA’s options on remand, observing
that “[cjost-benefit analysis * * * is not available un-
der decisions of this court,” id. at 14a-15a. But the
panel considered ATA’s statutory issue as a separate
question, and the panel unanimously reaffirmed the
correctness of Lead Industries, id. at 19a-2la. ATA did
not challenge the panel’s reaffirmation of Lead Indus-
tries through a petition for rehearing en banc. There is
no merit to ATA’s assertion that the nondelegation is-
sue and the Lead Industries issue are “inextricably
intertwined.” ATA Cross-Pet. 7.
The fundamental question here remains whether the
nondelegation doctrine provides a constitutional limita-
tion on an agency’s action. See 99-1257 Pet. App. 4a. If
we are correct that the nondelegation doctrine imposes
21
a separation of powers limitation on Congress — and not
a limitation on an agency’s exercise of administrative
discretion—then this Court should reverse the court of
appeals’ decision and remand the case to that court to
reevaluate EPA’s actions under the proper legal stan-
dard with the care that befits these important rule-
makings. If, to the contrary, the court of appeals cor-
rectly applied the nondelegation doctrine, this Court
should affirm the court’s judgment remanding the cases
to EPA so that the agency can “develop a construction
of the act that satisfies this constitutional requirement.”
Ibid. In either event, there is no reason for this Court
to decide ATA’s statutory challenge. The nondele-
gation ruling and that statutory challenge involve two
distinct issues—one controversial and one not. They
are related only in the inchoate sense that “everything
is related to everything else.” California Div. of Labor
Standards Enforcement v. Dillingham Const., N.A.,
Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring).
2. CBT’s challenges to the 24-hour primary NAAQS
for PM,,; should be denied because the issues CBT
raises were not addressed by the court below. The
15 In deference to the Court’s certiorari standards, the federal
petitioners have limited their petition for a writ of certiorari to the
nondelegation and the “Subpart 2” issues. They have not chal-
lenged the court of appeals’ other adverse rulings, even though
those rulings — such as the court’s decision that EPA must evalu-
ate the alleged health benefits of smog (99-1257 Pet. App. 44a-49a)
— stand on a more dubious footing than the settled question that
ATA and APC seek to raise. The federal petitioners, unlike the
cross-petitioners here, have limited their petition to issues that
have broader importance and independently meet this Court’s
standards for certiorari. The constitutional and finality issues that
the federal petition presents raise fundamental issues that arise in
every case in which a court reviews a federal agency’s admini-
stration of a regulatory program.
22
court of app-als concluded that its remand of the ozone
and PM,, NAAQS on nondelegation grounds precluded
resolution of most of the other challenges before it,
including CBT’s challenge to the 24-hour PM,, primary
NAAQS. See 99-1257 Pet. App. 4a-5a. There is no war-
rant for this Court to address an issue that the court of
appeals did not reach.”
CBT’s challenge to the secondary standards for PM,,
should also be denied. The secondary PM,, NAAQS,
like the 24-hour primary PM,, NAAQS, were remanded
to EPA by the court of appeals for reconsideration in
light of that court’s holding on nondelegation. Thus, the
court below did not reach “the main thrust” of CBT’s
challenge, 99-1257 Pet. App. 56a, and there is no reason
16 CBT’s challenges are, in any event, without merit. CBT’s
assertion that the 24-hour PM,, primary NAAQS is inconsistent
with EPA’s risk findings rests on a misunderstanding of those
findings. In challenging the 24-hour PM,, primary NAAQS, CBT
largely assumes that EPA can address the risk from daily or short-
term peak exposures only through a short-term standard. To the
contrary, EPA found that it could most effectively reduce the risks
from both long-term and peak PM,, concentrations through an
annual standard of 15 yg/m*, together with a 24-hour standard to
address unusual circumstances. 62 Fed. Reg. at 38,669. The
studies on which EPA relied in setting the standard demonstrated
a statistically significant correlation between 24-hour PM,, concen-
trations and health effects in cities with annual PM,, concentra-
tions greater than about 16 yg/m’, but did not show such a correla-
tion in cities with annual PM,, concentrations below that level. Jd.
at 38,676. Thus in setting the annual standard just below that
level, i.e., at 15 yg/m*, EPA has addressed the statistically signifi-
cant association between health effects and 24-hour PM,, expo-
sures demonstrated by the studies in the record. Id. at 38,669-
38,671. The 24-hour PM,, primary NAAQS (65 g/m’) serves as an
additional margin of safety for localized or seasonal exposures that
might not be adequately controlled by the annual standard alone.
Id. at 38,671.
23
for this Court to address questions that the court of
appeals did not decide. The court of appeals did decide
one narrow issue that CBT raises here. The court con-
cluded, over CBT’s objection, that EPA may take into
account the mitigating effect of the Regional Haze Pro-
gram in setting the secondary PM,, NAAQS.
The CAA specifically provides that the purpose of
the Regional Haze Program is to address adverse visi-
bility impacts that remain “notwithstanding attainment
and maintenance of all national ambient air quality
standards.” 42 U.S.C. 7470(1) (emphasis added). That
provision makes clear that EPA is not required to set
the secondary NAAQS at a level that eliminates all
adverse effects on visibility. There is no reason for this
Court to review the court of appeals’ ruling, which is
clearly correct. EPA acted within the scope of its
authority in relying on the Regional Haze Program to
mitigate some of the adverse visibility effects associ-
ated with PM,;. 99-1257 Pet. App. 57a.
CONCLUSION
The conditional cross-petitions for a writ of certiorari
should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
GARY S. GUZY
General Counsel
Environmental Protection
Agency
APRIL 2000
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