# Reply Brief — Appalachian Power Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1199%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2001 - **Citation:** 532 U.S. 903 ## Text No. 00-633 In the Supreme Court of enh nite Wee \ ) ~ PA ee ee oupreme Court, ¥.§ “7 FILED JAN 16 200) THE STATES OF OHIO AND INDIANA, Petitioners, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit REPLY BRIEF OF PETITIONERS OHIO AND INDIANA STEVE CARTER Attorney General of Indiana STEVEN D. GRIFFIN Deputy Attorney General 402 West Washington St. Indianapolis, Indiana 46204 (317) 232-6226 BETTY D. MONTGOMERY Attorney General of Ohio DAVID M GORMLEY* State Solicitor *Counsel of Record FRANK J. REED, JR. BRYAN F. ZIMA ELISE PORTER Assistant Attorneys General 30 E. Broad St., 17th Floor Columbus, Ohio 43215 (614) 466-8980 © a i TABLE OF CONTENTS Page I ie ii EPA FAILED TO CONSIDER AIR QUALITY FACTORS AS REQUIRED BY SECTIONS 110(a)(2)(D)(i)(1I) AND (k)(5) OF THE CLEAN AIR ACT IN MAKING THE NOx SIP CALL..................... 1 ___ RSREERE TESTS ap eee OS ORE TOR SER MEE NAT Se 5 ii TABLE OF AUTHORITIES Cases Page General Motors Corp v. United States, SOG UB, BD Ce iaatetedatetseanetiits cacanthnndactuoaccsacancone 2 Natural Resources Defense Council v. EPA, SBS FF. Ded 2 RGB CA, Ca Bete Macacsancccdsctencenatanctuacsccseoans 5 Constitution, statutes and regulations Clean Air Act, 42 U.S.C. § 7401, et seq. Section 110(a)(2)(D)G)(D, 42 U.S.C. § 7410 (a2) DG)... 1, 2, 4,5 Section 110(k)(5), 43 U.S.C. FQ RIOD vvscsincessssesctevtecscnsicais 1, 2, 4, 5 63 Fed. Reg. 57356 (Oct. 27, 1998) (lodged with the Court by petitioners in No. 00-445) ............0.... 1 66 Fed. Reg. 1006 (lait. BER Boers vecccaisetsscnsceiccnwsccsapirestesses 3 Miscellaneous Air Quality Modeling Technical Support Document for the NOx SIP Call, U.S. EPA, Office of Air and Radiation, Sept. 23, 1998, reproduced in Joint Appendix of Industry Petitioners before the Court of Appeals, Vol. S, BOGB ...c For a period | modeled by EPA, New York had 1,924 grid hours of exceedances and Louisville had 166 grid hours. Air Quality Modeling Technical Support Document for the NOx SIP Call, U.S. EPA, Office of Air and Radiation, Sept. 23, 1998, at p. I-13, I-17. Joint Court of Appeals Appendix of Industry Petitioners, Vol. 3, 1048, at 1350, 1354. By this measure, 18 percent of New York’s ozone problem is a larger contribution than 17 percent of Louisville’s ozone problem. EPA’s uniform cost approach improperly amalgamates all these variations and denies a State the opportunity to comply with the “good neighbor” provision in a way commensurate with its contribution of pollutants to downwind States. EPA’s disregard of State-to-State variations in imposing the single $2,000-per-ton cost-effectiveness standard also cannot be excused on the basis of economic fairness. Contrary to EPA’s claim, EPA Opp. 13, the statutory mandates of Sections 110(aX2XD\iXI and (kX5) do not identify economic fairness as a factor that should be considered by EPA to “equally distribute the burdens borne by all the States”; at least, it should not be considered in disregard of the States’ relative contributions of downwind pollutants. Nor do the quoted ‘ For modeling purposes, downwind receptor areas are divided into grids. Ozone exceedances for each grid square are tallied for the receptor area for a given period. A higher number of “grid hours” over a period indicates an ozone problem in an area that covers a larger area, or is more frequent, or both, when compared to an area with a smaller number. Dn ee 5 passages from the legislative history support such a position. EPA Opp. 13, n. 10. The passage noting the need to “equalize the positions of the States with respect to interstate pollution by making a source at least as responsible for polluting another State as it would be for polluting its own State,” ties the responsibility for pollution control to the extent of pollution contributed. It does not suggest that costs be equalized regardless of the amount of pollution caused. In sum, EPA’s one-size-fits-all cost-effectiveness standard is not a reasonable application of Sections 110(aX2XD)\iXD) and (kX5). These Sections do not allow EPA to abandon so early and so completely the consideration of air quality factors in favor of a cost- effectiveness standard. When a statute includes an express factor, EPA must give that factor the greatest weight in interpreting the statute. Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1163 (D.C. Cir. 1987). Under the Section 110 mandates, EPA’s first concern must be to define how much contribution of ozone from a State to a downwind State’s nonattainment is “significant,” i.e., too much. The necessary mitigation required should be proportionate to that significant amount contributed. Petitioners Ohio and Indiana do not object to considering cost as a secondary factor, as when EPA assesses the adequacy of a revised SIP developed to reduce interstate NOx emissions. Cost should not be considered either in place of air quality factors or before “significant contribution” is first determined using air quality factors and the amount of pollution contributed. 6 CONCLUSION For the reasons stated above, the petition for a writ of certiorari should be granted. Respectfully submitted. STEVE CARTER BETTY D. MONTGOMERY Attorney General of Indiana Attorney General of Ohio STEVEN D. GRIFFIN DAVID M. GORMLEY* Deputy Attorney General State Solicitor 402 West Washington St. *Counsel of Record Indianapolis, Indiana 46204 FRANK J. REED, JR. (317) 232-6226 BRYAN F. ZIMA ELISE PORTER Assistant Attorneys General 30 E. Broad St., 17th Floor Columbus, Ohio 43215 (614) 466-8980 January 12, 2001 ees 4 a ; > : ¥ oe * | * * a ~ ts, * : A i : ¥ 4. | e | -: 2 { ? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1199%3A8. Public record. Not legal advice.