Opposition Brief — Appalachian Power Co. v. Whitman

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FILED

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Nos. GQ APR 1 2 zm

426 and 99-4431

CLERK

In The

Supreme Court of the United States

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AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Conditional Cross-Petitioners,

V.

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Conditional Cross-Respondents.

S

On Cross-Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

*

BRIEF IN OPPOSITION TO CONDITIONAL CROSS-

PETITIONS FILED BY AMERICAN TRUCKING

ASSOCIATIONS, INC., et al., No. 99-1426, AND

APPALACHIAN POWER COMPANY, et al., No. 99-1431

¢

Rosert E. YUHNKE*

2910-B County Road 67

Boulder, CO 80303

(303) 499-0425

JENNIFER B. ANDERSON

ARIZONA CENTER FOR LAW

IN THE Pustic INTEREST

202 E. McDowell Rd., Suite 153

Phoenix, AZ 85004-4533

(602) 258-8850

Counsel for Cross-Responients

Citizens for Balanced

Transportation, et al.

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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PRESS EDU Ge tat Catone n Mp gg a oa CR ee ne ee ne eee eR) ft Ne

1

BRIEF IN OPPOSITION TO CONDITIONAL CROSS-

PETITIONS FILED BY AMERICAN TRUCKING ASSO-

CIATIONS, INC., et al., No. 99-1426, AND APPALA-

CHIAN POWER COMPANY, et al., No. 99-1431

Citizens for Balanced Transportation, et al.,1 oppose

these cross petitions because they seek to expand the

Court’s review to decide constitutional arguments that

need not be addressed to resolve challenges to the lawful-

ness of EPA’s national ambient air quality standards. The

questions presented by U.S. Environmental Protection

Agency and other petitioners? seeking review of the D.C.

Circuit’s novel application to an agency decision of the

constitutional doctrine that bars the delegation of Con-

gress’ law making power, provide no occasion to deter-

mine whether, as the American Trucking Association

would have it, the Constitution bars EPA’s and the D.C.

Circuit’s longstanding construction of § 109(b) of the

Clean Air Act. The Industry petitioners seek to reopen a

long settled question of statutory interpretation by asking

the Court to review the 1980 decision by the D.C. Circuit

Court of Appeals holding that “the [Clean Air Act] and

its legislative history make clear that economic consider-

ations play no part in the promulgation of ambient air

quality standards under Section 109.” Lead Industries

Ass’n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.1980). Citizens

for Balanced Transportation, et al., oppose these cross

petitions because there is no clause of the Constitution

1 Citizens For Balanced Transportation, et al., filed a timely

Cross Petition, No. 99-1442, supporting the government’s

petition on the nondelegation question, and asking that the

Court also review the court of appeal’s failure to apply the

proper standard for review in accord with this Court’s teaching

in Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S.

29 (1983), requiring an agency to “articulate a satisfactory

explanation for its action. ... ”.

2 American Lung Association, the Commonwealth of

Massachusetts and the State of New Jersey.

2

that requires an agency to consider costs or feasibility in

setting standards for the protection of public health when

Congress decided not to require the agency to consider

such factors.

REASONS FOR REJECTING QUESTIONS PRE-

SENTED BY INDUSTRY PETITIONERS

None of the criteria for granting certiorari are met by

the Industry cross petitions. The court of appeals’ long-

standing holding affirming the EPA Administrator’s ini-

tial construction of § 109(b) -

1) has not been questioned by a revised con-

struction of the Act by the agency responsi-

ble for its implementation;

2) has been consistently applied by the Court

below, including the decision below in

American Trucking Associations v. EPA;

3) is not in conflict with any decision of this

Court or any other court;

4) was correctly decided even under the subse-

quent teaching of this Court in Chevron,

U.S.A., Inc. v. Natural Res. Defense Council,

Inc., 467 U.S. 837 (1984), because the Court

affirmed the agency’s reasonable interpreta-

tion of the Act;

5) was consistent with Congress’ enactment in

1977 of § 317, 42 U.S.C. § 7617, which inten-

tionally omitted NAAQS from the statutory

obligation imposed on EPA to consider an _

economic impact assessment when setting

other standards under the Act; and

6) was ratified by Congress’ 1990 decision to

enact a new requirement in § 312, 42 U.S.C.

§ 7612, directing EPA to report the costs and

benefits of NAAQS compliance, but not to

amend § 109(b) to require EPA to consider

costs as a relevant factor in setting or revis-

ing NAAQS.

3

For these reasons, there is no need to review the D.C.

Circuit’s holding in Lead Industries.

Most importantly, there is no need to review Lead

Industries to avoid reaching a constitutional issue. Indeed,

one of the basic flaws in the decision below was the

court’s determination of the nondelegation issue without

first deciding whether EPA’s standards were arbitrary

and capricious or consistent with law. Had the Court

pursued a traditional inquiry into CBT’s argument that

EPA failed, as in the case of the 24-hour NAAQS for fine

particles, to provide a rational basis for its selection of the

standards, then there would have been no occasion to

reach the constitutional claims on which the decision was

based. Granting the Industry cross petitions would per-

petuate and compound that unnecessary and inappropri-

ate inquiry. The Industry cross petitions should therefore

be denied.

In the interests of conserving the Court’s time and

petitioners’ resources, CBT adopts here, and relies upon,

the detailed analysis of these objections to granting the

Industries’ cross petitions for certiorari filed by the

American Lung Association, petitioner in No. 99-1295.

Respectfully submitted,

Rosert E. YUHNKE

Counsel of Record

2910-B County Road 67

Boulder, CO 80303

(303) 499-0425

Counsel for Cross-Respondents

Citizens for Balanced Transportation,

et al. |

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