Opposition Brief — Appalachian Power Co. v. Environmental Protection Agency

: —~\ Supreme Court, U.S.

~~ \

i) ip} aio

/

Nos. 00-445, 00-632, and 04-633 JAN 4 2001

IN THE | CLERK

Supreme Court of the Anited States

APPALACHIAN POWER COMPANY, et al.,

Petitioners,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petitions for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

(PROVINCE OF ONTARIO, CANADA)

IN OPPOSITION

BRUCE J. TERRIS

KATHLEEN L. MILLIAN *

KEVIN O. LESKE

TERRIS, PRAVLIK &

MILLIAN, LLP

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Counsel for Respondent

* Counsel of Record

TROT AACR ATEN | PAERERIRR IRATE ESPEN NCS PR SRM

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

i

QUESTION PRESENTED

Whether the court of appeals correctly concluded

that the Environmental Protection Agency ("EPA")

acted reasonably and in accordance with Section

110(a)(2)(D)(i)(1) of the Clean Air Act when it |

relied on its general rulemaking authority to

consider cost-effectiveness in ascertaining the |

amount of emissions from upwind states which

"contribute significantly" to non-attainment of

ozone pollution standards in downwind states.

ii

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES ....... iv

STATEMENT OF THE CASE ......-seeeeeeeces 1

1. NOx EMISSIONS FROM THE UNITED

STATES CAUSE INCREASED GROUND-

LEVEL OZONE IN ONTARIO ............ 1

2. GROUND-LEVEL OZONE HARMS

HUMAN HEALTH AND THE ENVIRON-

MENT IN ONTARIO ........cccecececece 3

3. ONTARIO HAS MADE SUBSTANTIAL

EFFORTS TO CONTROL ITS OWN

NOx EMISSIONS ........ccccecccceceees 5

REASONS FOR DENYING THE WRIT ......... 8

THE PETITIONS SHOULD BE DENIED

BECAUSE THERE IS NO CONFLICT

BETWEEN THE DECISION BELOW

AND ANY DECISION OF THIS COURT

OR ANY OTHER COURT OF APPEALS

ET a cée agen es ca beaeeseedeeses Linaaen ee 8

a onilict

w . isio i

EE cc oki dace eussereesenenés 9

b. The Decision Below Does Not Conflict

with Prior Decisi f the District of

n in vy.

iV

TABLE OF CASES AND AUTHORITIES

CASES: PAGE

American Trucking Ass'ns Inc. v. EPA,

17S F.34.1027 (DC, Cle I9O9) scnticivctinie deities 12

Chevron USA Inc. v. NRDC,

GGT ULE B57 CAFS ssctctsncentinciessnisestsssstmneoepibioata 17, 19

Trastes-v. PRIDE, 423 TB. GO CUGTIS) scnsnicccsstvissithanmsatasesins 18

Lead Industries Ass'n v. EPA,

647 F.2d 1130 (D.C. Cir. 1980) .................. 12, 13, 14, 15

Union Electric v. EPA, 427 U.S. 246 (1976) ........... 9,10, 11

STATUTES

UE ee ics sensipinabieniichtadibetdtdanidaatniabdanacaaaaaiaan ie

GUD PED sittietcstdocaknenieaine 12

GS UIA. FD einsns<iiisnsnisosnsintibibivendilesinibatiaeiicaniawaniaies passim

RULES AND REGULATIONS

G2 Fed. Rom. GOES Caw: F, VOGT) icssncssosssssssviscasverssaneanes 11

G3 FOd. Ham, 37.350 CO, 275 UG IOD scctcnicrnssccssetantaves passim

l

STATEMENT OF THE CASE

The Province of Ontario will adopt the Statement of the

Case in the Brief in Opposition filed by Respondent EPA. In

addition, Ontario presents the following suppiementary facts.

I. NOx EMISSIONS FROM THE UNITED STATES

CAUSE INCREASED GROUND-LEVEL OZONE IN

ONTARIO

The NOx SIP Call Rule upheld by the Court of Appeals

for the District of Columbia Circuit in this case (63 Fed. Reg.

57,356 (Oct. 27, 1998)) will have the effect of reducing

nitrogen oxide ("NOx") emissions and ground-level ozone

transported within the United States and, because of prevailing

winds, also transported to the United States’ neighbor, the

Province of Ontario, Canada.

Ontario has the largest population of any of the

Canadian provinces, and the majority of the Ontario population

is concentrated in the southern part of the Province, in the Great

Lakes region. This region receives the most transported NOx

and ozone from the United States.

Ontario and the states subject to the NOx SIP Call share

a common airshed. The airshed observes no state or

international boundaries. The United States contributes

91 percent of the NOx emissions to our common airshed, while

Canadian sources contribute only 9 percent. J.A. 2615.

A significant portion of ground-level ozone in Ontario

originates from emissions from the United States. The Ozone

Transport Assessment Group ("OTAG"), which was composed

of the 37 easternmost states, and industry and environmental

stakeholders, modeled the transport of air pollution in North

2

America. OTAG’s modeling shows that weather and wind

patterns in the ozone season result in NOx emissions and ozone

formed in the United States being transported to Ontario. J.A.

2620. In fact, 50 percent or more of Ontario’s ozone problem

originates in the United States. J.A. 3563.

The only locations in Ontario at which ground-level

ozone consistently exceeds the 120 parts per billion level (ppb)

(which is the United States one-hour ozone national ambient air

quality standard ("NAAQS")), are sites in the southern part of

the Province along the Great Lakes.” J.A. 2621. These high

ozone levels are caused by transport of ozone and its precursors

from the United States across Lake Erie and Lake Huron. Jbid.

Morever, modeling conducted by the State of Michigan shows

that the Toronto/London corridor in Ontario receives

significant contributions of ozone and ozone precursors from

southeastern Michigan. J.A. 2672.

Ozone problems in Ontario cannot be solved without

major reductions in NOx emissions from the United States.

Studies by Ontario scientists have shown that NOx and volatile

organic compound emissions originating in the United States

can, by themselves, cause Ontario's ambient air quality

criterion for ozone to be exceeded. Brief of Intervenor

Respondent Her Majesty the Queen in Right of Ontario

(Province of Ontario, Canada), August 27, 1999, D.C. Cir.,

Nos. 98-1497, ef al., Attachment 1, p. 5. Thus, even if all of

Ontario’s industries and utilities were not operating and no

automobiles were being driven in Ontario, ground level ozone

problems in Ontario would still exist because of transboundary

pollution from the United States.

‘We note that Ontario’s own ground-level ozone standard is more stringent

at 80 ppb. J.A. 2672.

3

2. GROUND-LEVEL OZONE HARMS HUMAN

HEALTH AND THE ENVIRONMENT IN ONTARIO

NOx emissions harm human health and cause

environmental damage. NOx emissions and volatile organic

compounds react in the presence of sunlight to form ground-

level ozone. 63 Fed. Reg. at 57,359. There does not appear to

be a "threshold level" for ground-level ozone below which no

health effects are observed. J.A. 3566.

The Ontario Medical Association summarized recent

research findings concerning the health effects of ground-level

ozone as follows (J.A. 3565):

In a review of available evidence for the

Canadian Smog Advisory Program, two expert

panels concluded that health and health-care

system effects of ground-level ozone at levels

that occur in Canada include lung

inflammation, decreased lung function, airway

hyper-reactivity, respiratory symptoms,

possible increased medication use and

physician/emergency room visits among

individuals with heart or lung disease, reduced

exercise capacity, increased hospital admissions

and possible increased mortality. [footnote

omitted]

Elevated levels of ground-level ozone, which occur on

hot, humid days, are a major ingredient of smog. Ozone in

smog has been shown to cause airway inflammation in both

healthy individuals, and those who suffer from respiratory

ailments such as asthma. J.A. 3553, 3568. Studies have shown

that even healthy outdoor workers have a measurable decrease

4

in lung function when exposed to low levels of ozone. J.A.

3566. In those who suffer from asthma, elevated ozone levels

cause increased frequency of asthma attacks, emergency room

visits, and hospital admissions. J.A. 3568. A study in Toronto,

Ontario, showed that increased ozone levels were associated

with increased mortality due to respiratory disease in those who

suffer from cardio-respiratory illness. J.A. 3569.

Two independent studies in Ontario show that there is

a correlation between elevated ozone levels and hospital

admissions for acute respiratory disease. J.A. 3574. Asthma

hospital admissions for children on the day after Ontario’s

ozone levels had exceeded the 80 ppb standard were

consistently higher than such admissions on other summer

days. /bid.

Children are particularly at risk from ground-level

ozone and are, in fact, the largest group sensitive to ozone air

pollution. Children tend to be active outdoors in the summer

when ground-level ozone levels are highest. J.A. 3570. The

breathing pattern of children is different from that of adults,

causing them to inhale and retain greater quantities per unit

body weight than adults. Jbid Studies, including those

conducted in Ontario, show a measurable decrease in lung

function of healthy children exposed to ozone. J.A. 3570-3571.

"Ozone makes asthmatics more responsive to an allergen." J.A.

3571. Further, a six-year study in Ontario found that 15

percent of summer respiratory hospital admissions for infants

were pollutant-associated. J.A. 3574.

Ground-level ozone also damages the environment.

EPA has found that ground-level ozone causes "significant

agricultural crop yield losses" and visible damage to the foliage

of many crops, trees, and ornamental plants. 63 Fed. Reg. at

5

57,359. Current ambient ground-level ozone levels are causing

harm to forests and ecosystems. Ibid.

b ONTARIO HAS MADE SUBSTANTIAL EFFORTS

TO CONTROL ITS OWN NOx EMISSIONS

Ontario’s air quality standard for ozone is 80 ppb (one-

hour average) (J.A. 2672), which is more stringent than the

United States’ one-hour ozone standard of 120 ppb. In a June

2000 agreement among the federal, provincial, and territorial

governments of Canada, Ontario agreed to a Canada-Wide

Standard of 65 ppb (eight-hour average) air quality standard for

ozone to be achieved by 2010.7

Ontario’s emissions of NOx for 1998, the most recent

year for which data are available, were less than 1990 levels by

17.4 percent.*

)

Ontario has also set 2 goal to reduce projected

emissions of NOx by 25 percent from 1990 levels by 2005.“

As just stated, by 1998, Ontario had already achieved a 17.4

percent reduction in NOx emissions from 1990 levels. By

comparison, Ontario scientists expect the NOx SIP Call Rule

to reduce NOx emissions in the covered states by

approximately 25 percent on average from 1990 levels by 2007.

See 63 Fed. Reg. at 57,450.% Ontario has further pledged to

achieve a 45 percent reduction in NOx emissions from 1990

levels by 2015.

2/See http://www.ec.gc.ca/special/aqa_2000_e.pdf.

*/See http://www.ene.gov.on.ca/envision/news/factnoxvoc.htm.

“’/See http://www.ene.gov.on.ca/envision/news/00600MB.html.

*/See http://www.ec.gc.ca/special/aqa_2000 e.pdf.

_

6

Under the NOx SIP Call Rule, the states are free to

choose their own methods of meeting the requirements of the

Rule. See 63 Fed. Reg. at 57,358-57,359. Ontario understands

that most NOx emissions reductions in the midwestern states

will come from the electrical generating sector.” The average

rate of NOx emissions per megawatt hour ("MWH") of

electricity produced in 1996 was 2.6 pounds for the

northeastern states and 6.6 pounds for the midwestern states.

J.A. 2650. Since the record closed below, NOx emissions data

for 1998 have become available. The 1998 data show that

Ontario’s electricity sector emits less than one (1) pound of

NOx per megawatt hour of electricity produced” In 1998,

Ontario emitted less NOx per megawatt hour of electricity

produced than the States of Michigan (3.85 Ibs./MWH), Ohio

(4.71 Ibs..MWH), Indiana (5.46 Ibs./MWH), Illinois (3.43

lbs./MWH), and even New York (1.67 Ibs./MWH). In 1998,

Ontario emitted less than a pound (0.96 Ibs.) of NOx per

megawatt hour of electricity produced. /hid.

Ontario’s total NOx emissions from electrical |

generation in 1998 were also significantly less than emissions

from the electricity sector in each of the five states just

mentioned. In comparison to Ohio, Ontario’s NOx emissions |

are less by a factor of 5.7; in comparison to Michigan,

Ontario’s emissions are less by a factor of 3.2; in comparison

to Indiana, Ontario’s emissions are less by a factor of 5.2; in

comparison to Illinois, Ontario’s emissions are less by a factor

“We note that petitioners Appalachian Power Company, ef al., are

comprised almost exclusively of electrical power companies. See Petition

for a Writ of Certiorari, October Term 2000, No. 00-445, "Disclosure

Statement,” pp. x-xiii.

See data summarized at http://www.ene.gov.on.ca.envision/new Vv

3charts2.pdf. The website reports emissions in kilograms. One kilogram

is approximately 2.2 pounds.

i ct i i RN

7

of 3.9; and in comparison to New York, Ontario’s emissions

are less by a factor of 1.4. Jbid.

Thus, the most recent data available show that Ontario’s

NOx emissions are less than emissions from each of the five

States discussed above per megawatt hour of electricity

produced and less than the identified states on an absolute

basis. Nonetheless, Ontario has also committed to adopt the

EPA standards for fossil-fueled electricity generating plants

when they are implemented, if their adoption will result in

lower emissions in Ontario.”

Since 50 percent of Ontario’s ozone originates in the

United States, controls on NOx emissions from the midwestern

states are critical in order for Ontario to improve its air quality

with respect to smog. Thus, Ontario strongly supports EPA’s

NOx SIP Call Rule, which will result in reduced NOx

emissions being transported as NOx and ozone to Ontario, as

part of an overall program to reduce ground-level ozone and

smog in Ontario.

The control of air pollution emissions in an airshed

which extends beyond state and international boundaries poses

extremely complex regulatory issues. Ontario had observer

status with OTAG, and scientists with Ontario’s Ministry of the

Environment have analyzed the technical basis of EPA’s NOx

SIP Call Rule, which was based closely on the work of OTAG.

Ontario’s scientists have concluded that the Rule is the result

of comprehensive scientific analysis of an extremely complex

air pollution problem and that it reflects sound policy choices.

Ontario submits that the NOx SIP Call Rule will lead to cleaner

air in both the United States and Ontario, Canada, and should

be allowed to take effect.

"See http://www.ene.gov.on.ca/envision/news/01400mb.html.

8

REASONS FOR DENYING THE WRIT

THE PETITIONS SHOULD BE DENIED BECAUSE

THERE IS NO CONFLICT BETWEEN THE DECISION

BELOW AND ANY DECISION OF THIS COURT OR

ANY OTHER COURT OF APPEALS DECISION

Section 109 of the Clean Air Act requires the

Administrator of the Environmental Protection Agency

("EPA") to set National Ambient Air Quality Standards

("NAAQS") for air pollutants in order to protect human health

and welfare. 42 U.S.C. 7409. Section 110(a) of the Act

provides that, after EPA promulgates these NAAQS, each state

is required to prepare a State Implementation Plan ("SIP")

which implements the NAAQS. 42 U.S.C. 7410(a). The SIP

is reviewed by EPA under Section 110. 42 U.S.C. 7410.

Section 110(a)(2) of the Act sets forth criteria that a SIP must

satisfy and provides that, if these criteria are met, EPA must

approve the proposed plan. 42 U.S.C. 7410(a)(2).

Section 110(k)(5) of the Act provides that, once EPA

determines that the "implementation plan for any area is

substantially inadequate to attain or maintain the relevant

national ambient air quality standard, to mitigate adequately the

interstate pollutant transport * * * or to otherwise comply with

any requirement of this chapter * * *," EPA must issue a rule

("SIP Call") that orders the state to revise and correct its SIP as

necessary. 42 U.S.C. 7410(k)(5). Section 307(d) of the Act

requires EPA, in issuing a SIP Call under Section | 10(k)(5) of

the Act, to adhere to its rulemaking procedures, including a

formal notice and comment procedure. Section 307(d), 42

U.S.C. 7607(d).

T . . . ¢@ . io

In Union Electric v. EPA, 427 U.S. 246, 256 (1976), in

considering the requirements for SIP’s under Section 1 10(a)(2)

of the Clean Air Act, this Court held:

After surveying the relevant provisions of the

Clean Air Amendments of 1970 and their

legislative history, we agree that Congress

intended claims of economic and technological

infeasibility to be wholly foreign to the

Administrator’s consideration of a_ state

implementation plan.

The court of appeals concluded in this case that "[i]n sum, there

is nothing in the text, structure, or history of Section

110(a)(2)(D) that bars EPA from considering cost in its

application." 213 F.3d at 679. Petitioners Michigan, Alabama,

West Virginia, South Carolina, and Virginia (hereafter

"Michigan") argue that the decision below conflicts with Union

Electric because, "in the absence of congressional intent,

economic and technological infeasibility shall not be

considered by the EPA under section 110(a)(2)." Petition for

a Writ of Certiorari, Oct. Term 2000, No. 00-632 (hereafter

"Mich. Pet."), p. 14.2

*/Michigan is the only petitioner who argues that EPA should be precluded

from using cost in Section 1 10(a)(2). See Petition for a Writ of Certiorari,

Oct. Term 2000, No. 00-633 of the States of Ohio and indiana (hereafter

"Ohio Pet."), p. 15 ("we argue that considerations of cost-effectiveness

should be a secondary factor to * * * air-quality factors under Section

110"); Petition for a Writ of Certiorari, Oct. Term 2000, No. 00-445 of the

Appalachian Power Company, ef a/., p. 12 ("Industry Petitioners do not

question that cost is to play a key role in the implementation of the CAA in

general and the implementation of the interstate pollutant transport

10

There is no conflict between Union Electric and the

decision below.’ Michigan incorrectly concludes that "if the

EPA was barred from reading cost considerations into the

original section 110(a)(2)(E) when approving SIP’s, it also

must be barred from injecting cost considerations into today’s

section 110(a)(2)(D)." Mich. Pet. 16. Michigan attempts to

extend broadly the Union Electric holding to cover any EPA

action that relates to Section 110(a)(2) in an attempt to

establish a conflict. Michigan’s attempt to extend the Court’s

holding is unpersuasive because both the function that EPA is

performing and the issues that are involved in this case are

completely different from those in Union Electric.

In Union Electric, this Court was called upon to

examine EPA’s approval of a SIP under Section 110(a)(2) of

the Act. The Court examined Section 110(a)(2) to decide

"whether the operator of a regulated emission source, in a

petition for review of an EPA-approved state plan filed after the

original 30-day appeal period, can raise the claim that it is

economically or technologically infeasible to comply with the

plan." 427 U.S. at 249. The Court concluded, based on the

"relevant provisions of the Clean Air Act amendments of 1970

and their legislative history," that EPA could not consider

claims of economic or technological infeasibility when it

reviewed a plan. 427 U.S. at 256. Thus, Union Electric

addressed only whether a state’s SIP met the criteria of Section

110(a)(2).

The present case involves EPA rulemaking under

Section 110(k)(5) of the Act, rather than EPA’s consideration

of a SIP under Section 110(a)(2). Consistent with its

provisions in particular").

“Significantly, Michigan did not even rely on Union Electric in its opening

or reply briefs in the court of appeals.

1]

rulemaking authority, EPA first issued a notice of proposed

rulemaking that found that emissions from 22 states and the

District of Columbia "significantly contribute" to downwind air

pollution problems. 62 Fed. Reg. 60,318 (Nov. 7, 1997). EPA

required these states to revise their SIP’s to "contain adequate

provisions" to prevent the emission of pollutants that contribute

significantly to the noncompliance of NAAQS’ in other states.

Ibid. The rule proposed that each state was required to

eliminate the NOx emission that could be reduced by highly

cost-effective measures. /bid. After an extensive notice and

comment period, including the issuance of revised and

supplemental public notices, EPA issued the finai rule on

October 27, 1998. 63 Fed. Reg. at 57,356. As the court of

appeals noted, "the fundamental dispute [in this case] is over

the clarity of the phrase ‘contribute significantly’" in Section

110(a)(2)(D) and how it was defined by EPA in its final rule.

213 F.3d at 679.

Michigan’s challenge is not affected by the Union

Electric holding that EPA cannot consider claims of economic

and technological infeasibility when it reviews SIP’s. The

approval or rejection of SIP’s involves an entirely different

function and is performed under an entirely different statutory

provision than the issuance of a SIP call, such as is involved in

this case.

Morever, while EPA considered cost in promulgating

the NOx SIP Call Rule, it did not consider any claim of

"technological or economic infeasibility." To the contrary, the

types of emission control relied upon by EPA in making its

determinations in the rule-making were economically and

technically feasible. In fact, EPA found them to be “highly

cost-effective." 63 Fed. Reg. at 57,377. Thus, the cost issues

in the two cases are entirely different.

12

b. The Decision Below Does Not Conflict wit

Prior Decisions of the District of Columbia

Circuit

Michigan further asserts that the decision of the Court

of Appeals for the District of Columbia Circuit conflicts with

its prior decision in Lead Industries Ass'n v. EPA, 647 F.2d

1130 (D.C. Cir. 1980), and its recent decision in American

Trucking Ass'ns Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999).

Mich. Pet. 19. However, both of those cases involved Section

109 of the Act, not Section 110, which is the section at issue

here. The Clean Air Act is a highly complex statute. The fact

that in analyzing the statute, the court of appeals concluded that

costs may not be considered in setting NAAQS under Section

109, but may be considered in implementing Section 110,

creates no conflict among decisions of the Court of Appeals for

the District of Columbia Circuit.

In Lead Industries and American Trucking, which were

decided nearly 20 years apart, the court of appeals concluded,

based on the plain language of the "statute and its legislative

history[,] * * * [that] economic considerations play no part in

the promulgation of ambient air quality standards under Section

109." Lead Industries Ass'n v. EPA, supra, 647 F.2d at 1148;

accord American Trucking Ass'ns Inc. v. EPA, supra, 175 F.3d

at 1040 ("As this court long ago made clear, in setting NAAQS

under §109(b) of the Clean Air Act, the EPA is not permitted

to consider the cost of implementing those standards" (citing

Lead Industries and other cases)).

Section 109(b)(1) of the Act, 42 U.S.C. 7409(b)(1),

requires EPA to set national ambient air quality standards

“which{[,] in the judgment of the Administrator, based on such

criteria and allowing an adequate margin of safety, are requisite

13

to protect the public health." That statutory provision is not at

issue in this case. Therefore, the court of appeals’ conclusions

that the statutory language of Section 109, along with its

legislative history (Lead Industries Ass'n v. EPA, supra, 647

F.2d at 1149-1150), preclude EPA from considering costs in

setting NAAQS, is irrelevant to the statutory interpretation of

Section 110 of the Act, which is at issue here. Michigan can

point to no statutory language or legislative history which

would prohibit EPA from considering costs under Section

110(a)(2)(D)(i)(1) of the Act.

In attempting to show a conflict between the decision

here and Lead Industries, Michigan asserts that, in Lead

Industries, the court "reviewed Section 110" and stated that, "if

Congress had wanted the economics of pollution control

considered[,] it would have so provided in Section 110." Mich.

Pet. 20, citing Lead Industries, 647 F.2d at 1149, n. 37.

However, this statement in a footnote does not show any

conflict between Lead Industries and the decision here.

First, the footnote is dictum. Section 110 of the Clean

Air Act was not under consideration by the Court in Lead

Industries.

Second, even if the footnote were not dictum, taken in

context, it does not conflict with the decision below. In

relevant part, the footnote states (647 F.2d at 1149, n. 37):

Similarly, § 110, 42 U.S.C. 7410, provides that

once ambient air quality standards have been

promulgated, each state must prepare and

submit an implementation plan outlining the

measures to be taken to ensure that the

standards are met. It is these state

14

implementation plans which actually impose

pollution control requirements and,

consequently, if Congress had wanted the

economics of pollution control considered it

would have so provided in § 110. While states

id | technolosical

feasibility j lecting {1 af

levi ' ' ty inact hi

nterf itl

leadii ; x lard

Section 110(aX(2), 42 U.S.C. 7410(a)(2).

[emphasis added]

Michigan’s citation of the footnote from Lead Industries omits

the last sentence, which is emphasized above. This sentence is

obviously critical. The court of appeals explicitly stated that

under Section 110, “states may consider economic and

technological feasibility in selecting the mix of control devices

* * * only insofar as this does not interfere with meeting the

strict deadlines for attainment of the standards." 647 F.2d at

1149, n. 37.

In this case, the strict deadlines for attainment of the

NAAQS requirement for ozone have not been met. 63 Fed.

Reg. at 57,446-57,447 (1998). EPA issued the NOx SIP Call

Rule because the states had failed in their existing SIP’s to

control adequately NOx emissions which prevent attainment of

the ozone NAAQS in downwind states. Thus, the very purpose

of the NOx SIP Call Rule is to ensure compliance with the

ozone NAAQS. Here, EPA’s use of cost considerations was

not in setting ambient air quality standards, but in determining

how the standards will be implemented.

15

There is nothing in Lead Industries to support

Michigan’s view that, after EPA has identified the states whose

NOx emissions are harming other states, EPA may not use cost

considerations in setting the level of controls to be applied.

EPA has concluded that applying the level of controls called

for in the NOx SIP Call Rule will have an “appreciable impact"

on downwind nonattainment, and that the required reductions

in NOx emissions are not "more than is necessary to ameliorate

downwind nonattainment." 63 Fed. Reg. 57, 403, 57,446-

57,447 (1998). EPA’s actions under Section 110 in this case

are therefore consistent with the dictum in Lead Industries.

Michigan makes no claim that the American Trucking

case even discusses Section 110 of the Clean Air Act. Mich.

Pet. 19-21. Instead, Michigan alleges that a conflict exists

because the court of appeals held that EPA may not consider

costs in setting standards to protect public health and welfare

under Section 109(d) of the Act in American Trucking, but that

it may consider costs in the context of Section 110 in this case.

Mich. Pet. 19-20. However, as we have seen, in Lead

Industries, supra, 647 F.2d at 1149-1150, which has been

consistently followed in the District of Columbia Circuit, the

court of appeals based its conclusion that costs may not be

considered in setting NAAQS under Section 109 on the

statute's plain language and legislative history. Michigan

makes no showing that Section 110’s plain language and

legislative history compel the same result. Therefore, no

conflict exists between this case under Section 110 and Lead

Industries and American Trucking under Section 109.

In any event, a conflict of decisions within a Circuit,

even if it existed, would be no basis for granting a writ of

certiorari. Such conflicts can be corrected by rehearings en

banc within the Circuit. Petitioners, in fact, asked for rehearing

16

en banc, but did not rely on the alleged intra-circuit conflict.

There is certainly no reason for a writ of certiorari to be granted

on this basis.

The Michigan and Ohio petitioners also argue broadly

that EPA intruded on state sovereignty and cooperative

federalism when it issued the NOx budget program in its Final

Rule. Mich. Pet. 22; Ohio Pet. 9.

Michigan and Ohio claim that state sovereignty and

cooperative federalism are offended because the NOx SIP Call

Rule may cause a state, which contributes less to a particular

area’s ozone nonattainment than another state, to have to

reduce more NOx emissions than the state which has

contributed more. Michigan and Ohio use the example that

Indiana contributes less than Pennsylvania to New York City’s

ozone nonattainment. Mich. Pet. 22-23; Ohio Pet. 12-13.

Indiana, whose NOx emitters have not applied the same level

of pollution control devices to their smokestacks as have

Pennsylvania’s emitters, will be able to achieve more highly

cost-effective reductions in NOx emissions than Pennsylvania.

Thus, under the budget set by EPA in the Rule, Indiana will be

required to reduce its NOx emissions more than Pennsylvania.

Michigan and Ohio argue that this effect on Indiana

offends state sovereignty and the system of cooperative

federalism set forth by Congress in the Clean Air Act. Since

Pennsylvania contributes more to New York City’s

nonattainment than does Indiana, Michigan and Ohio argue that

17

Pennsylvania should be required to reduce its emissions more.

Mich. Pet. 24-25; Ohio Pet. 12-13. Michigan bases its

argument on Section 110(k)(5) of the Act, 42 U.S.C.

7410(k)(5), which requires that once EPA has concluded that

a SIP is inadequate, "the Administrator shall require the State

as necessary to correct such inadequacies." Mich. Pet. 24.

Michigan asserts that EPA’s regulatory choices are "illogical"

because, under the budgets set in the NOx SIP Call Rule with

respect to New York City, Indiana will be controlling more

NOx than is "necessary" and Pennsylvania will be controlling

less NOx than is "necessary." /bid.

Although Michigan and Ohio cast their argument as one

of state sovereignty and cooperative federalism, it is really an

argument concerning the wisdom of EPA’s regulatory

approach. In addressing the complicated problem of interstate

ozone transport, where each state’s NOx emissions have effects

on the attainment of ozone air quality standards in numerous

other states, it was appropriate for EPA to make the

determination of the amount of NOx emissions from a state

which "contribute significantly" and are necessary to be

reduced to correct the inadequacy of the state’s SIP. Under

Chevron USA Inc. v. NRDC, 467 U.S. 837, 845 (1984), the

courts may not substitute their judgment for that of the agency,

but must determine "whether the Administrator’s view that [the

regulatory choice] is appropriate in the context of this particular

program is a reasonable one." The court of appeals properly

concluded here that it had "no basis to upset EPA’s judgment."

213 F.3d at 680.

The well-established law concerning the federal-state

division of responsibilities under the Clean Air Act shows that

EPA has acted fully within that authority in issuing the NOx

SIP Call Rule. In 7rain v. NRDC, 421 U.S. 60, 79 (1975), this

18

Court recognized that EPA is "plainly charged by the Act with

responsibility for setting the national ambient air standards,"

but was "relegated by the Act to a secondary role in the process

of determining and enforcing the specific, source-by-source

emission limitations." The Court further stated that "so long as

the ultimate effect of a State’s choice of limitation is

compliance with the national standards for ambient air, the

State is at liberty to adopt whatever mix of emission limitations

it deems best suited to its particular situation." /bid. This is

exactly what EPA has allowed states to do in the NOx SIP Call

Rule.

EPA made clear that a state could use any emissions

control measure it wanted to achieve the NOx budget

requirement. See Final Rule, 63 Fed. Reg. at 57,368. Under

the budget plan, a state "may choose from a broader menu of

cost-effective, reasonable alternatives" including alternatives

that "may even be more advantageous in light of local

concerns." /d., pp. 57,369-57,370. Furthermore, EPA stated

that the states have "full discretion in selecting the controls, so

that [the states] may choose any set of controls that would

assure achievement of the budget." /d., p. 57, 378. Finally,

each state has the option to adopt an interstate trading program

that allows it to purchase NOx "allowances" from sources that

have elected to over-control, as well as the option, under certain

circumstances, of "banking" allowances from prior years so

that it can meet emissions limits. /d., p. 57,430. Thus, EPA

allowed the states substantial discretion in carrying out their

responsibilities under the Act.

Michigan argues in conclusion that certiorari should be

granted because, in its view, there are other ways to improve

public heath and the nation’s air quality than those to be

implemented under the NOx SIP Call Rule. Mich. Pet. 28.

19

Michigan is making a policy argument. This Court has made

clear that such arguments must be addressed to Congress or to

the agency, and not to the courts (Chevron v. NRDC, supra,

467 US. at 865):

In these cases, the Administrator’s

interpretation represents a reasonable

accommodation of manifestly competing

interests and is entitled to deference: the

regulatory scheme is technical and complex, the

agency considered the matter in a detailed and

reasoned fashion, and the decision involves

reconciling conflicting policies. [footnotes

omitted]

This is exactly the situation presented here and concerns the

same statute the Court considered in Chevron v. NRDC, supra.

The petitioners have presented no grounds for a grant of

certiorari.

Ontario and the majority of the states subject to the

NOx SIP Call Rule share a common airshed. Because of

geography, chemistry, and weather, Ontario is directly affected

by NOx emissions and ozone transported from the subject

states. While no government can change geography, chemistry

or weather, governments can work together to reduce emissions

of NOx into our common airshed and protect health and the

environment. The NOx SIP Call Rule is an important step for

such purposes. The Rule reflects sound and sensible policy

choices designed to ameliorate a complex air pollution

problem. Ontario strongly supports the Rule before this Court.

20

CONCLUSION

For these reasons, and for those set forth by the other

respondents, Ontario respectfully submits that the petitions

for a writ of certiorari should be denied.

Respectfully submitted,

BRUCE J. TERRIS

KATHLEEN L. MILLIAN *

KEVIN O. LESKE

TERRIS, PRAVLIK &

MILLIAN, LLP

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Counsel for Respondent

January 4, 2001 * Counsel of Record

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