Petition for Writ of Certiorari — Allied Local & Regional Manufacturers Caucus v. Environmental Protection Agency
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Supreme
0011 ,
Tee 25 JAN 1 1 200
—— eee
IN THE
Supreme Court of the United States
ALLIED LOCAL AND REGIONAL MANUFACTURERS CAUCUS,
SMILAND PAINT COMPANY, CONCO PAINT COMPANY,
Petitioners,
Vv.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
WILLIAM M. SMILAND
Counsel of Record
SMILAND & KHACHIGIAN
601 West Fifth Street
Seventh Floor
Los Angeles, California 90071
(213) 891-1010
Attorneys for Petitioners
LPT A Se ON SL CNN MENTE TREN NSE LS REO
WILSON-EPES PRINTING COo., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
The questions presented by this petition for writ of
certiorari are:
(1) Whether the Environmental Protection Agency’s
interpretations as to how to implement the mandates of
Section 183(e) of the Clean Air Act (a) to make scientific
determinations about the compounds in products, (b) to
establish regulatory criteria considering five factors, and (c)
to list and schedule product categories for subsequent
regulation, shall be judicially reviewed under the two-step
approach of Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), under which a
court defers to an agency's reasonable interpretation of an
implicit delegation of discretion, or the principles recently
applied by this Court in Food and Drug Administration v.
Brown & Williamson Tobacco Corp., 120 S.Ct. 1291 (2000),
which holds that a Congressional delegation to an agency of
discretion to make policy decisions of great magnitude must
be explicit, and Christensen v. Harris County, 120 S.Ct. 1655
(2000), which holds that an agency interpretation of an
inexplicit statute manifested in pronouncements which lack
the force of law must be persuasive.
(2) Whether the Environmental Protection Agency had
constitutional power under the Commerce Clause, as
explicated in Hodel v. Virginia Surface Mining and
Reclamation Assn., 452 U.S. 264 (1981) or, alternatively, in
U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 120
S.Ct. 1740 (2000), to regulate pursuant to the rulemaking
provisions of Section 183(e) the manufacture of architectural
coatings for sale in the United States, in the absence of
legislative findings that the subsequent use of such coatings
will lead to the emission of organic compounds and their
reaction with nitrogen oxides to form ozone pollution in
states other than the state of usage.
(i)
i |
RULES 14.1 AND 29.6 STATEMENT
Petitioner Allied Local and Regional Manufacturers
Caucus is an unincorporated association of paint companies
and trade groups. Its members include petitioner Smiland
Paint Company, which manufactures in Los Angeles and
distributes the “Morwear” line of paint products through
several hundred retail dealers in the western United States
and company-owned outlets in San Francisco and Napa, and
petitioner Conco Paint Company, Smiland Paint Company's
wholly-owned subsidiary, which distributes the “Conco*Pro”
line through home center chains in the west and mid-west.
None of the petitioners has a parent company or a non-wholly
owned subsidiary. | Respondent is the United States
Environmental Protection Agency.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. .000.0.....ccecceccescesssssoseosess..... i
RULES 14.1 AND 29.6 STATEMENT......................... ii
TABLE OF AUTHORITIES 00.0......0ccccccsssscsoocesseosses..... vi
etapa 4 LA l
Sg, I I Ee l
CONSTITUTIONAL, STATUTORY, AND REGU-
LATORY PROVISIONS INVOLVED..................... I
STATEMENT OF THE CASE..u.0.....ccescesssossoseossoseess.... 2
A. Ozone Pollution, Organic C ompounds, and
(PINT seticlbeshgnitliinesbiveshdttmenantsusomesssesarecce s.. 3
B. Targeting Architectural C oatings Under
I ite 4
C. 1995 Report and Notice ....cc.cccccccsecescssssessesce. 4
D. EPA Architectural C. Oatings Rule ........0..0004. 5
REASONS FOR GRANTING WRIT..........ccc0000--.-...... 5
| THE CIRCUIT COURT APPLIED THE
WRONG STANDARDS OF REVIEW TO
EPA’S INTERPRETATIONS OF THE
STUDY, CRITERIA, AND LISTING MAN-
DATES OF SECTION 183(€). ....ccccccccsoeoeess..... 5
(ili)
iV
TABLE OF CONTENTS—Continued
A. The First Step of the Court's Review
Erroneously Assumed that Congress Made
an Implicit Delegation of Discretion to
EPA, and the Second Step Erroneously
Assumed that the Court Must Defer if
EPA's Interpretations Were Reasonable. ....
B. The Court Applied the Wrong Standards to
EPA’s_ Interpretations of Congress’
Vy Te ic cnicstncitibinistnnctananesaninnds
C. The Court Applied the Wrong Standards to
EPA’s_ Interpretations of Congress’
EF stenissiinesnstteneenneiansinnmans
D. The Court Appplied the Wrong Standards
to EPA’s Interpretations of Congress’
Economic Cost Mandate .......:...:c0sseeseeeeeees
E. The Court Applied the Wrong Standards to
EPA’s Interpretations of Congress’
Mandate To Consider Five Specified
POGUE .ccsecneinininsintadananiaaitinennasininiaiaatninatents
. EPA UNCONSTITUTIONALLY REGUL-
ATED THE MANUFACTURE OF PAINTS
FOR SALE IN THE UNITED STATES
WITHOUT EITHER CONGRESS OR EPA
HAVING FOUND THAT THEIR SUB-
SEQUENT INTRASTATE USE WILL
CAUSE COMPOUND EMISSIONS OR
OZONE POLLUTION WHICH CROSS
STATE LINES AND HAVE SUBSTANTIAL
COMMERCIAL EFFECTS IN OTHER
Page
12
16
17
20
Vv
TABLE OF CONTENTS—Continued
Page
A. EPA Lacked Constitutional Power Under
this Court’ s Commerce Clause
Jurisprudence in Effect Until 1995 to
Regulate the Manufacture for Sale of
POTD sciscssceseticinsieastintiltactinedt sige pts 20
B. The Court Misapplied the New
Jurisdictional Element C onsideration ......... 23
C. The Court Misapplied the New Economic
Activity CONSideration ......1..00ececeseseeeeeeeees.., 25
D. The Court Misapplied the New Legislative ?
Findings Consideration .0...c.cecccesssssesesssesss.. 26
E. The Court Misapplied the Causal Link
TNE a | VI 27
CEPOL Aa isintelinassisismcuciasie koi 28
vi
TABLE OF AUTHORITIES
CASES Page
Bennett v. Spear, 520 U.S. 154 (1997) ....cccccccecseees 15
Chemical Manufacturers Assn. v. EPA, 28 F.3d
SSSP GA. Gade FED ecscsesccccescccesesssncasscesusjescesse 16
Chevron, U.SA., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837
CT DEP cccenscecseenssncntnessnncinentnccsenntoventintevineniodintonan passim
Christensen v. Harris County, 120 S.Ct. 1655
(BBE cccssevtintinsenenintntitinciinanniapiaiaimenn passim
Dithiocarbamate Task Force v. EPA, 98 F.3d
SSBS CEA, Cae, FSG cenesceccevsscescccemnssasanmpenncccens 16
Environmental Defense Fund v. EPA, 852 F.2d
TSEG GAG. Gay TIED cercceerscesscsnssessnticntsctanssnsess 19
Equal Employment Opportunity Commission v.
Arabian American Oil Co., 499 U.S. 244
Food and Drug Administration v. Brown &
Williamson Tobacco Corp., 120 S.Ct. 1291
Flue-Cured Tobacco Cooperative Stabilization
Corp. v. EPA, 4 F.Supp.2d 435 (M.D.N.C.
SDD) ~scccccoscensesesetinnnntiniieitiiebeiistideiiaaiiaiietatiiinsanmatinie 19
Hodel v. Virginia Surface Mining and Reclam-
ation Assn., 452 U.S. 264 (1981) ......cccccccseeesees passim
Jones v. U.S., 120 S.Ct. 1904 (2000) .........ccccseee 24, 25, 26
MCI Telecommunications Corp. v. America
Telephone and Telegraph Co., 512 U.S. 218
(BPS) csccenvesnedstingsseunsnneivinainnerasintiniennestitneines 7
Motor Vehicle Manufacturers Assn. v. Costle,
647 F.2d 675 (6th Cir. 1981) ........c.cccccccccsreeeeees 19
Motor Vehicle Manufacturers Assn. v. State
Farm Mutual Automobile Insurance Co., 463
Te 8. SR eee ere 18
Vii
TABLE OF AUTHORITIES —Continued
Page
Pennsylvania v. EPA, 500 F.2d 246 (3rd Cir.
SP OOP inisiinstnictctncindansbiiildininsadee mT Lis | 20
Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 8
Solid Waste Agency v. US. Army Corps of
Engineers, _ __ U.S.__, 2001 WL 15333 (Jan.
| Senn ae et th ee ee 6, 24, 25
South Terminal Corp. v. EPA, 504 F.2d 646 (Ist
i eT NOLS SE eS Oe 20
U.S. v. Bishop Processing Co., 287 F.Supp. 6
(D.Md. 1968) affirmed 423 F.2d 469 (4th Cir.
1970), cert. denied, 398 U. S. 904, (1970)......... 20
U.S. v. Lopez, 2 F.3d 1342 (Sth Cir. ee ee 25
U.S. v. Lopez, 514 U.S. 549 (1995) .....cccccccccc-....... passim
U.S. v. Morrison, 120 S.Ct. 1740 Se ili dadidiody: passim
FEDERAL STATUTES
SS UBL. § TADS) cnccscccccccccececsencnsonecsesssstseeece. 26
42 U.S.C. § 7407(d)(1(A)(I) -o.ccceccececeeeeseceseeees...... 27
i EE Pel icsiiciusssietnseartenisecsemtunnc cos... 3
Se te ia cicincrtistictaitbihasttictaiitaie 3
lee tt ,. ener 26
dierent ¢.. , SotRRCS a Se 27
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ocean big nites SAREE TT TTA 27
ih! oS f RRRMST eT ae 1, 4, 26
cdecie A | A ee 27
en Oe rc eo!) 4
Fee COMME, FUME TG oc cceccencececctsernesnoses: eee... l
FEDERAL REGULATIONS
40 CPR. § S1QOO(S)(1) .n.cnceccecececcsecceceseeeeeee...... 3
Slee Ge asccasnnsiteciasnsnisnnentnnatiigssce 12
Vili
TABLE OF AUTHORITIES —Continued
SF ha B TD cccitistascttnserntgecenscccsncnssnsscnsences 1,24
Se, i i ectateninsniiticcniccatisteninsscsnsiibtaiiine 4
Te i eatci cts eccncnncnnncntinrnetencnseqiconsateds 14
GE: TREE ciietaiaterecccatscantsatincccininsitlinlintainisn 10
OE RR SI Pe Witicttsicnccnstccninsccscescnnnseenssaninnince
Re II sitcsirewisencctenesssncneccteensemsensciligiamtio
he Fs a OIE eitetntictensisinennstsnepentemnainniiinneinnse
OE re I aaditinartacinninnieciennsinsisiatiniticinensicnn
a Me Maiti ticitniniecipectibeneipciinsticninncsign
GR, BD re rst icctennccrecistaccccensetsnsassncinietoces
SP Es CI I clans cdctititdicctitnesnsinsnsnscnnensesinslensnie
SD Is TN OU bettetintcncsiintoninsecstnscenesapseeciineunesie 3,
a Be, Gar Alatetriictnctiininchllibininnaianntininncine
Filet taeinehsicticcinniinicinnnsintectittiian
a ne NR etsipeisncnsiscinesennsiionaniasecanisnenictes
GF FRG, Ga aticctencictentcctccinntcinnssiniintiinisesations
CF a a bteitinsncesileinsnnsisotiepeniienleontianpinies
Ge iy BN: SITE ciiccinneenecacenintesintinenncsotanesnensnansne
8 EN AE AO A ITO
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MISCELLANEOUS
Breyer, “Judicial Review of Questions of Law
and Policy,” 38 Adm. L. Rev. 363 (1986)........... 6
136 Cong. Rec. at H2846 (May, 23, 1990) (Rep.
Luken) 17 H.R. Rep. No. 101-490 at 251. 14... 9, 12
S. Rep. 101-228, 10ist Cong., 2nd Sess. (1990),
1990 U.S.C.C.A.N. 3385 at 3434 0... eseseesees 9
PETITION FOR WRIT OF CERTIORARI
Petitioners Allied Local and Regional Manufacturers
Caucus (“Allied”), Smiland Paint Company (“Smiland”), and
Conco Paint Company (“Conco”) respectfully petition for a
writ of certiorari to review the judgment of the Court of
Appeals for the District of Columbia Circuit.
OPINION BELOW |
The opinion of the Court of Appeais, reported at 215 F.3d
61, is reproduced hereafter. Appendix (“App.”) 1a-37a. The
Court’s order directing respondent Environmental Protection
Agency (“EPA”) to respond to petitioners’ petition for
rehearing and its order denying said petition are reproduced
hereafter. App. 38a-39a.
JURISDICTION
The appellate decision was rendered June 16, 2000, and the
order denying rehearing was filed October 13, 2000. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
The Commerce Clause of the Constitution provides in
relevant part that “Congress shall have power .. . to regulate
commerce . . . among the several states.” U.S. Const. Art. I,
§ 8. Section 183(e) of the Clean Air Act (“CAA”) is
reproduced hereafter. App. 40a-44a. Section 59.400(a) of
Subpart D of Part 59 of Title 40 of the Code of Federal
Regulations, one of the EPA’s three 1998 regulations under
Section 183(e), provides in relevant part that its provisions
“apply to each architectural coating manufactured . . . for sale
or distribution in the United States.”
2
STATEMENT OF THE CASE
In 1990 Congress enacted CAA Section 183(e), a major
new regulatory program which is destined to impact
thousands of products marketed by hundreds of industries and
used by millions of consumers. Congress directed that, as a
prelude to any regulation, EPA shail (1) make scientific
determinations about the organic compounds in consumer and
commercial products, (2) establish regulatory criteria
considering five specific factors and, based on such
determinations and criteria, (3) publish a list and schedule of
subsequent product regulations. The statute is not explicit as
to how EPA is to implement those three commands. EPA
interpreted the statute in a 1995 report and notice so as to
avoid most scientific determinations and establish criteria
based primarily on non-statutory factors. The Court of
Appeals upheld these expansive interpretations, applying the
usual standards of review. Petitioners ask this Court to grant
review and decide, instead, that Congress’ claimed delegation
of discretion had to be explicit and that EPA’s interpretations
had to be persuasive.
In 1998 EPA adopted the first three of 21 product
regulations scheduled in the 1995 notice, one of which
applies to all architectural coatings in the United States. The
Court below, applying both this Court’s pre-1995 and post-
1995 Commerce Clause jurisprudence, ruled that EPA had
constitutional power to so regulate based on _ general
legislative findings that some activities emit volatile organic
compounds which react with oxides of nitrogen and
substantially affect commerce in a state other than the state
where the activities occur. Petitioners pray that this Court
review the ruling and hold EPA’s paint rule unconstitutional,
because no legislative findings establish that water-borne
paints emit volatile compounds, solvent-borne paints emit
reactive compounds, nor paints have effects on interstate
commerce.
pee
3
A. Ozone Pollution, Organic Compounds, and Paints
Ground-level ozone is a criteria pollutant for which EPA
has issued national standards. 42 U.S.C. §§ 7408, 7409.
Ozone is caused primarily by combustive emissions of oxides
of nitrogen (“NOx”). Joint Appendix, Court of Appeals
(“J.A.”) 137-39, 173-99. At some times and places certain,
but not all, organic compounds may also play an indirect role
in ozone formation. /d.
The thousands of organic compounds contained in products
differ significantly as to their volatility. Compounds of low
volatility do not enter the air to any appreciable degree. J.A.
574.
The relative reactivities of individual organic compounds
can also differ by more than an order of magnitude. J.A. 165-
71, 391-93. Prior to 1990 EPA had exempted 23 compounds
or classes of compounds from regulation as “negligibly”
reactive pursuant to 40 C.F.R. § 51.000(s)(1), and by 1998
the list had grown to 44, 63 Fed. Reg. 48791, 48796, 48798
(Sept. 11, 1998); App. 14a-15a.
Architectural coatings contain about 1% by volume of all
natural and man-made organic compounds. Those targeted
for elimination by EPA’s rule constitute about 2/10 of 1%
thereof. 63 Fed. Reg. 48850, 48855.
Three species of glycol compounds are used extensively in
water-borne paints. J.A. 812; App. 11a. Glycols are low-
volatility species. J.A. 814.
Eight species of long-chain alcanes and cycloalcanes,
referred to as mineral spirits, are used extensively in solvent-
borne paints. J.A. 812; App. lla. EPA acknowledges that
emissions of mineral spirits are “less reactive” than other
compounds. 63 Fed. Reg. 48797.
4
B. Targeting Architectural Coatings Under
Section 183(e)
In 1990 Section 183(e), part of new Subpart 2 of Part D of
the CAA, gave EPA authority in the area of direct regulation
of products. 42 U.S.C. § 7511b(e). As a prelude to any such
regulation, the statute directed EPA to make certain scientific
determinations about the volatility and reactivity of
compounds in products, establish regulatory criteria
considering five specified factors, and publish a four-part list
and schedule for the regulation of products.
EPA never formally identified glycols or mineral spirits as
ozone precursors. See 42 U.S.C. § 7602(g). Nevertheless,
long before publishing its 1995 report to Congress and its
1995 notice of its list and schedule, EPA had targeted
architectural coatings for regulation under Section 183(e).
63 Fed. Reg. 48850.
By July 1994 EPA had developed six regulatory criteria
supposedly based on the five factors specified in Section
183(e)(2)(B). It also developed a _ seventh criterion
(emissions mass) and, later, an eighth (past or current
regulatory activities) even though neither was so specified.
EPA used one of its standing committee’s advice to rank
products under the first seven criteria, and later exercised the
eighth criterion to establish a final ranking. J.A. 690-700,
705-710.
C. 1995 Report and Notice
In March 1995 EPA submitted its report to Congress
(“Report”) purporting to contain its scientific determinations
and regulatory criteria under Section 183(e). The manifest
deficiencies of the Report are discussed below.
On March 23, 1995 EPA published a Notice containing its
regulatory list and schedule (“Notice”). 60 Fed. Reg. 15264
OO ee Oe re ee ae oe
5
(Mar. 23, 1995). The inadequicies of the Notice are
discussed below.
D. EPA Architectural Coatings Rule
In 1996, EPA published the preamble and later the text of
its proposed paint rule. 61 Fed. Reg. 32729 (June 25, 1996);
61 Fed. Reg. 46410 (Sept. 3, 1996). In 1998 EPA
promulgated the final paint rule. 63 Fed. Reg. 48874 (Sept.
11, 1998).
REASONS FOR GRANTING WRIT
I. THE CIRCUIT COURT APPLIED THE WRONG
STANDARDS OF REVIEW TO EPA’S
INTERPRETATIONS OF THE STUDY,
CRITERIA, AND LISTING MANDATES OF
SECTION 183(e).
A. The First Step of the Courts Review
Erroneously Assumed that Congress Made an
Implicit Delegation of Discretion to EPA, and
the Second Step Erroneously Assumed that the
Court Must Defer if EPA’s Interpretations
Were Reasonable.
This Court established the general principles under which
the federal judiciary reviews an agency’s interpretation of a
‘In 1996 EPA proposed a rule regulating the volatile organic
compound content of 24 categories of consumer products. 61 Fed. Reg.
14531 (April 2, 1996). EPA targeted only those consumer products
containing organic compounds with relatively high volatility and
exempted those containing compounds of extremely low volatility. In
1998 EPA published the final rule regarding consumer products.
63 Fed. Reg. 48820 (Sept. 11, 1998). In 1996 EPA proposed a rule
regulating the volatile organic compound content of automobile refinish
coatings. 61 Fed. Reg. 19005 (April 30, 1996). In 1998 EPA published
the final rule. 63 Fed. Reg. 48806 (Sept. 11, 1998). On September 11,
1998 EPA also made the Notice final. 63 Fed. Reg. 48792.
6
Congressional statute it enforces in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). The now-familiar first step in a Chevron analysis 1s
whether Congress has directly spoken to the precise question
at issue. Jd. at 842. The judiciary must reject administrative
constructions which are contrary to clear congressional intent.
Id. at 843 n. 9.” If the legislative “delegation” to the agency
on the particular question is “implicit” rather than explicit, the
court moves to the second step in the analysis. /d. at 843,
844. In applying the second step, a court may not substitute
its own interpretation for a “reasonable” interpretation made
by the agency. /d. at 844.
In the case at bar, the D.C. Circuit applied the Chevron
standards. But, in two cases decided last term, this Court
explicated important qualifications or exceptions to both
steps, which should have governed here.
In Food and Drug Administration v. Brown & Williamson
Tobacco Corp., US. 120 S.Ct. 1291 (2000) the
Court struck down FDA’s interpretation of Sections 321, 353,
and 393 of the Food, Drug, and Cosmetic Act, under which it
had claimed authority to regulate the marketing of cigarettes.
The Court, under Chevron step one, inquired whether
Congress had directly spoken to the precise question at issue.
Id. at 1300, 1314. It held that, in an “extraordinary” case, one
which raises “important” or “major” questions (quoting
Breyer, “Judicial Review of Questions of Law and Policy,”
38 Adm. L. Rev. 363, 370 (1986)), deference is not
appropriate if the agency claims that Congress intended an
“implicit delegation” to fill the statutory gaps. /d. at 1314.
Active judicial review is warranted where the agency claims
that Congress implicitly delegated to it a policy decision of
“economic and political” magnitude. /d. at 1301, 1315.
Applying this principle, the Court held that Congress had
? See, e.g., Solid Waste Agency v. U.S. Army Corps of Engineers, ___
U.S. ___, 2001 WL 15333 (Jan. 9, 2001).
scene aaah
7
clearly expressed its intent that FDA did not have the
regulatory authority it claimed. /d. at 1297, 1300, 1301,
1315. It noted that the tobacco industry constituted “a
Significant portion of the American economy.” /d. at 1315. It
also noted FDA’s “expansive” and “extremely strained”
construction, -as well as the “breadth” of the authority it
claimed. /d. The Court was confident that Congress would
not have intended to delegate implicitly such a far-reaching
decision “in so cryptic a fashion.” Id?
Last term this Court also decided Christensen v. Harris
County, ___siU SS. —__, 120 S.Ct. 1655 (2000), which
explicates Chevron step two in certain situations.
Christensen involved an interpretation of Section 207(0)(5) of
the Fair Labor Standards Act by the Department of Labor.
Nothing in the statute expressly prohibited a county from
compelling employees to use compensatory time. /d. at 1660.
The statute was silent. /d. at 1661. The Department argued
that the Act implicitly barred this practice. Jd. at 1660. This
interpretation had been advanced in a Department opinion
letter and it argued that such interpretation should be enforced
based on deference to the reasonable basis therefor. This
Court rejected the Department’s position, holding that it was
“unpersuasive.” Jd. at 1660, 1663. Instead, it held that the
county had advanced a “better” reading. /d. at 1661. The
Court reasoned:
“Here, however, we confront an interpretation contained
in an opinion letter, not one arrived at after, for example,
a formal adjudication or notice-and-comment
rulemaking. Interpretations such as those in opinion
letters—like interpretations contained in policy
Statements, agency manuals, and enforcement
guidelines, all of which lack the force of law—do not
* The Court relied upon its earlier decision in MCI Telecommunications
Corp. v. America Telephone and Telegraph Co., 512 U.S. 218 (1994),
Id. at 1301, 1315.
8
warrant Chevron-style deference. [citations] Instead,
interpretations contained in formats such as opinion
letters are ‘entitled to respect’ . . . [citation], but only to
the extent that those interpretations have the ‘power to
persuade;’ [citation]” /d. at 1662-63."
In the case at bar, the D.C. Circuit, declining to apply FDA,
repeatedly concluded that nothing in Section 183(e)
unambiguously reflected Congressional intent to limit EPA’s
discretion as to the means of carrying out its scientific
determination, regulatory criteria, and product listing
commands. App. 10a, 12a-13a, 16a, 27a. Then, ignoring
Christensen, it repeatedly deferred to EPA’s interpretations as
to how to implement those mandates on the ground they were
all reasonable. App. 7a, 10a, 12a, 15a-16a, 22a, 24a, 27a.
This case raises the exceptionally important questions of
how the first step of Chevron should be applied, in light of
FDA, to the threshold policy decisions of EPA which will
affect hundreds of industries, and how the second step of .
Chevron should be applied, in light of Christensen, where
EPA’s interpretations were reflected in a report and a list and
schedule. These questions should be answered before 21
massive product regulations affecting the entire economy are
implemented.
B. The Court Applied the Wrong Standards to
EPA’s Interpretations of Congress’ Volatility
Mandates
As to the mandated scientific determinations, Section
183(e)(2)(A)(i) requires that EPA shall conduct a study of the
“emissions” of “volatile” organic compounds “into” the air
“from” products in order to determine their potential to
* The Court cited several of its prior decisions. Skidmore v. Swift &
Co., 323 U.S. 134 (1944); Equal Employment Opportunity Commission vy.
Arabian American Oil Co., 499 U.S. 244 (1991).
"Ene eee
9
contribute to ozone non-attainment. The legislative history
confirms this provision’s obvious purpose, “to identify the
products which emit VOCs, to estimate the contribution of
different products” to ozone non-attainment. S. Rep. 101-
228, 101st Cong., 2nd Sess. (1990), 1990 U.S.C.C.A.N, 3385
at 3434. EPA was to study “the causal relationship between
emissions of individual species and ozone non-attainment.”
H.R. Rep. No. 101-490 at 251.
EPA’s 1995 Report made the determination “collectively,”
and acknowledged that this approach was neither “rigorous”
nor “robust.” J.A. 526, 532. It conceded that “low volatility”
compounds have “little propensity to enter” the air. J.A. 534.
It noted that organic compounds with a vapor pressure more
than 80 mmHg at 20 C were deemed “high volatility”
compounds, and those below 0.1 mmHg at 20 C are too low
in volatility to report. J.A. 545,575. The Report focused on
the volatility of consumer products, a broad category
embracing 24,000 products, some of which were contained in
one of the 21 categories listed for regulation, and others in
one of the 15 expressly exempted. J.A. 517, 539-42, 570,
572-96. EPA said that consumer products often contain
ingredients which are of “extremely low volatility (i.e., some
ingredients evaporate at such a low rate that they do not enter
the air to any appreciable degree)” and are, thus, not
reportable. J.A. 574. The Report did not discuss the
volatility of glycols in architectural coatings. J.A. 570-71,
597-98, 600. Nor did it address relative volatility of any
other compounds, J.A. 570-71, 597-619. The Report treats
all organic compounds in products, except certain
unreportable compounds in consumer products, as volatile,
and equally so. EPA interpreted Section 183(e) to allow it to
defer any volatility determinations until later individual
rulemakings.
With respect to the mandate to establish regulatory criteria
under Section 183(e)(2)(ii), Section 183(e)(2)(B)(iii) provides
10
that, in so doing, EPA shali take into consideration those
products which “emit” highly reactive “volatile” organic
compounds “into” the air.
The Report did establish a criterion including the word
“fe}missions,” but it made no effort to distinguish between
products containing high volatility compounds and those
containing low volatility compounds. J.A. 562.
As to the listing of product categories for regulation,
Section 183(e)(3)(A) mandates that EPA shall list those
products it determines, “based on” the mandated scientific
determinations, account for at least 80% of “emissions . . .
from” products. It further directs that EPA shall divide the
list into four groups establishing priorities for regulation
“based on” the criteria established as required.
In 1995 EPA published its Notice. Exempted from any
regulation were 15 specified and numerous unspecified
categories. 60 Fed. Reg. 15268. It listed 21 categories for
regulation in four groups, including in group one architectural
coatings, 24 sub-categories of consumer products, and
autobody refinishing coatings. /d. at 15267. Again, these
decisions were made without having determined whether, or
to what extent, the compounds in the products exempted or to
be regulated were volatile.
The Court of Appeals declined to discuss EPA’s failure to
deal with relative volatilities in purporting to carry out its
scientific determination, regulatory criteria, and product
listing mandates. App. 23a-24a.° The Court decided to
* Rather than focus on what EPA failed to do in its Report and Notice
as to all compounds, the Court focused instead on what EPA did in 1998.
At that time, EPA discussed in its response to comments about the then
three-year-old Report its test method for one class of compounds in one
category of products. J.A. 723. It also discussed studies suggesting that
such compounds eventually become available, but at an extremely slow
rate. J.A. 729.
“defer” to EPA’s three self-serving interpretations. /d. at 24a
n.9. It found them to be “reasonable.” Jd. at 24a.
Congress did not explicitly grant EPA discretion to make
determinations, establish criteria, and publish its list without
reference to the volatility of any specific class of compounds
and then, three years later, write responses to comments
alluding to the volatility of one class of compounds. If
Congress had intended to delegate to EPA the power to meet
its commands in this belated and limited way, it did so
implicitly. But the power to so make policy decisions of such
scope and magnitude may not be deemed to have been
delegated implicitly. FDA, 120 S.Ct. at 1301, 1314-15. The
mandated ends of determining what products contain volatile
compounds, establishing criteria for regulating these
products, and listing products for regulation based on these
determinations and criteria preclude the tardy and incomplete
means EPA chose. Beginning a look at the volatility issue on
a piecemeal basis three years after the study, criteria, and
listing were over was simply too little, too late. Congress
could not possibly have so intended.
Furthermore, EPA’s interpretations of when and to what
extent it must assess volatility were manifested, not in any
formal rule or order, but in a report to Congress and lists of
product categories to be exempted or regulated in the future.
An agency’s statutory interpretation reflected in such
informal and non-legal documentation must be persuasive.
Christensen, 120 S.Ct. at 1662-63. EPA’s interpretations
were hardly persuasive. It put the regulatory cart before the
study, criteria, and listing horse. EPA listed the categories of
products it would regulate and when it would do so, as well
as some of those it would not regulate, in 1995 without
having any way of knowing whether the products it listed for
regulation or exempted were more or less volatile than others
or, indeed, sufficiently volatile at all. This can not be
reconciled with what Congress mandated.
12
C. The Court Applied the Wrong Standards to
EPA's Interpretations of Congress’ Reactivity
Mandates
Section 183(e)(2)A)(i) mandates that EPA shall conduct a
study of the emissions of volatile organic compounds into the
ambient air from products (or “any combination thereof”) in
order to determine “their” potential to contribute to ozone
non-attainment. The legislative history makes clear that this
command was intended to compel relative reactivity
determinations. The reactivity factor was intended to help
EPA “identify the relative contribution and importance” of
each category. H.R.Rep.No. 101-490 at 253. As stated by
one Congressman: “. . . [T]he language now emphasizes the
importance of photochemical reactivity as a key criterion to
be used by the Administrator in determining the categories of
emissions to be listed.” 136 Cong. Rec. at H2846 (May 23,
1990) (Rep. Luken).
EPA’s Report admitted that the statute “requires” taking
relative reactivities into account. J.A. 546. It acknowledged
that “ideally” it “should consider the relative photochemical
reactivity of individual species.” J.A. 523. As to how to
meet this requirement, EPA sub-divided the universe of
organic compounds into three classes, two of which were at
the extremes and small and one of which was in between
them and massive. EPA had previously determined, under
pre-existing regulations, 40 C.F.R. § 51.100(s), that a small
group of organic compounds, some of which may be
contained in products, are “negligibly” reactive. EPA also
specified in the Report a second group of 10 compounds or
classes of compounds as “highly” reactive. J.A. 552-53. The
vast bulk of the compounds in products remained in a default
group labeled simply as “reactive.” EPA treated all such
compounds “collectively,” whether or not EPA had identified
them as precursors of ozone under CAA Section 302(g). J.A.
a
13
526, 532. The Report conceded that this tripartite
was neither “robust” nor “rigorous.” J.A. 531, 532.
The Court below ruled, as to the Chevron first step, that the
express references in the statute to “any combination thereof”
and “their” rendered it “impossible to regard the statute as
unambiguously expressing a Congressional intent that each
VOC be analyzed individually.” App. 10a. It also concluded
that “nothing in Section 183(e) declares that the only way to
‘determine’ potential is through the agency’s own studies.”
Id. at 12a.
Under Chevron step two, the Court ruled that certain
statutory references supported the “reasonableness” of
grouping virtually all compounds in one huge default class of
“reactive” compounds. /d. at 10a. It held that EPA
“reasonably” so interpreted the command in light of the
statutory time frame. /d. at Ila. It found nothing
“unreasonable” about EPA’s failure to conduct its own tests.
Id. at 12a. It acknowledged that petitioners’ interpretation
may be the “better” one, but held that it was bound to uphoid
EPA’s interpretation even against a more reasonable
interpretation. /d.
As to regulatory criteria, Section 183(e)(2)(B)(iii)
mandates that, in establishing them, EPA shall consider those
products which emit “highly reactive” compounds.
The Report considered this factor in establishing regulatory
criteria simply by identifying 10 compounds or classes
thereof as “highly” reactive. J.A. 552-53, 562-63. It
admitted that the distinction between the massive default
class of “reactive” compounds and the small class of “highly
reactive” ones can only be made with “considerable
arbitrariness.” J.A. 552.
Applying the two steps of Chevron, the Court of Appeals
held that EPA implemented the mandate to consider this
factor in compliance with the statute. App. 7a-8a, 13a.
14
As to the listing of product categories to be regulated,
Section 183(e)(3)(A) requires that EPA list those products
which, “based on” the scientific study, account for at least
80% of emissions, “on a reactivity-adjusted basis,” from
products in non-attainment areas. It also directs that EPA
shall divide the list into four groups “based on” the criteria
established in the regulatory study.
In July 1994 an EPA advisory committee had completed
scoring sheets to apply seven of the eight proposed criteria to
102 categories of products. J.A. 686-699. For example,
architectural coatings as a group were given 3 of 5 points on
one criterion because a few, but not many, coatings contain
xylene, one of the 10 “highly” reactive compounds, but
without any knowledge about the reactivity of mineral spirits,
the principal compounds in solvent-bore paints. J.A. 704.
The preliminary results of the committee’s ranking placed
autobody refinishing products fourth and architectural
coatings fifteenth, Numerous categories of consumer
products, not yet aggregated into one large group to be
regulated and another large group to be exempted, were
among the 102 categories ranked. J.A. 700-03. EPA
published its Notice eight months later. EPA explained that it
had “exercised” the eighth criterion, which was added in the
Report to the seven criteria the committee had applied. 60
Fed. Reg. at 15266. EPA repeated that “ideally” it should
have based its list and schedule on relative reactivity of
individual compounds. /d. EPA simultaneously conceded in
its Report that its adjustment methodology was “somewhat
simplistic.” J.A. 553. Nine months later EPA compiled its
final ranking results. J.A. 705-10. It stated: “C7 x 4
weighted.” J.A. 705. As a consequence of weighing the
seventh criterion (mass) four times and exercising the eighth
criterion (past or ongoing regulation), autobody refinishing
products dropped from fourth to ninth in the rankings and
architectural coatings rose from fifteenth to seventh. /d. No
reactivity adjustment whatsoever had been effected for 62 of
ei he
15
the 102 categories. J.A. 705-10. The other 40 were adjusted
for the presence of “highly” reactive compounds. For
example, the architectural coatings category was adjusted
upwards based solely on the xylene in a few such products.
J.A. 704, 705.
As to Chevron step one, the D.C. Circuit disagreed that
EPA’s interpretation of how to implement the reactivity
adjustment command was “inconsistent” with it. App. 14a.
The Court ruled that “nothing in the [CAA] unambiguously
requires the EPA to analyze the reactivity of each VOC on an
individual basis.” /d. at 16a.
Moving to the second step, the Court was “particularly
deferential” to EPA in upholding the “reasonableness” of
EPA’s interpretation of the third reactivity mandate. /d. at
I5a-16a. The Court dismissed concerns that EPA’s
interpretation would lead to Over-regulation. As to the risk
that some products which should have been exempted were
being regulated, the Court regarded the risk as “not likely
enough.” Jd. at 14a. As to the risk that some products were
being regulated too soon, the Court treated it as of no “great
moment.” /d. at 15a.°
Again, for two reasons, the D.C. Circuit applied incorrect
standards of judicial review of EPA’s interpretations of how
to carry out the three reactivity mandates. First, Congress did
not explicitly empower EPA to identify a few outliers at one
end of the spectrum as “negligibly” reactive and a few at the
other end as “highly” reactive and treat the vast bulk of
° As EPA had done, the Court in ignoring the concerns of erroneous
regulation and premature regulation was necessarily guessing. And, of
course, both EPA and the Court similarly had to ignore the equally
probable but opposite risks of tardy regulation and erroneous exemption.
Claims against the government which assert “over-enforcement” as well
as “under-enforcement” of environmental statutes are both properly
justiciable. Bennett v. Spear, 520 U.S. 154, 166 (1997).
16
widely-divergent compounds in between as_ simply
“reactive,” and equally so. Because the policy decision to use
this distorted approach impacts so many products made and
sold by so many industries, the Court erroneously permitted
EPA to claim an implicit delegation by Congress. FDA, 120
S.Ct. at 1301, 1314-15.’ Nor did Congress intend that EPA,
in carrying out the third reactivity mandate, would, based on
those 10, adjust for reactivity only 40 of the 102 categories it
exempted or listed for regulation.
Second, EPA’s interpretations of the three reactivity
commands were not manifested in formal rules or orders
adopted under administrative procedures and having the force
of law, but in a report purporting to make scientific
determinations and establish regulatory criteria and in a list
and schedule of future product regulations. Accordingly, the
Circuit Court should have imposed on EPA the burden of
showing that its interpretations of the means of performing
the reactivity mandates were persuasive. Christensen, 120
S.Ct. at 1662-63.
D. The Court Appplied the Wrong Standards to
EPA’s Interpretations of Congress’ Economic
Cost Mandates
Sections 183(e)(2)(%)(iv) and (v) direct that, in establishing
regulatory criteria, EPA “shall take into consideration” those
products which are subject to “the most cost-effective
controls” and the availability of alternatives thereto which are
of comparable “costs” considering health, safety, and
environmental impacts.
’ Reasoned decision-making requires EPA to screen ovt non-serious
from high-risk phenomena. Chemical Manufacturers Assn. v. EPA, 28
F.3d 1259, 1267-68 (D.C. Cir. 1994). It may aggregate members of a
class of compounds only if their known similarities allow a reasonable
inference of the presence of a common characteristic. Dithiocarbamate
Task Force v. EPA, 98 F.3d 1394, 1399, 1405 (D.C. Cir. 1996).
17
The Report gave these requirements short shrift. EPA
admitted it did not know the “cost” of alternative products.
J.A. 564. Accordingly, it adopted other factors as a
“surrogate” for the statutory factor. Id. Similarly, as to “the
most cost-effective controls” factor, data were “unavailable.”
J.A. 566. Thus, EPA substituted a “matrix” of other factors.
J.A. 567. EPA pledged that it will duly consider these factors
“at the time of rulemaking.” J.A. 524.
As to step one of Chevron, the Court held in conclusory
fashion that EPA considered both factors by expressly
including them in the wording of two of its regulatory criteria
in the Report and applying those criteria in establishing
priorities in the Notice. App. 25a-26a.
As to step two, the D.C. Circuit held that EPA
“reasonably” considered the economic cost determination
commands in establishing regulatory criteria. Jd. at 25a-26a.
The Court’s review of EPA’s interpretations of how to
implement these economic cost mandates was made under the
wrong standards. For one thing, the future regulations EPA
was establishing criteria for and listing were sure to impose
trillions of dollars of costs on hundreds of industries and
millions of consumers. There can be no implicit delegation
of power to make policy decisions of such magnitude. FDA,
120 S.Ct. at 1301, 1314-15,
For another thing, the Report and Notice contained no legal
mandate nor prohibition. Interpretations of inexplicit statutes
reflected in such informal sources must be persuasive to
survive judicial review. Christensen, 120 S.Ct. 1662-63.
E. The Court Applied the Wrong Standards to
EPA's Interpretations of Congress’ Mandate To
Consider Five Specified Factors
Section 183(e)(2)(B) mandates that, in establishing the
criteria for regulating products, EPA “shall take into
consideration each of the” five enumerated factors.
‘i 18
EPA interpreted the statute as implicitly delegating to it the
discretion to consider two non-statutory factors in
establishing regulatory criteria, organic compound mass and
prior or ongoing rulemakings. J.A. 567-69. Indeed, EPA
gave dominate weight to these two non-statutory factors. The
criterion based on mass was given quadruple weight. J.A.
705. And EPA “exercised” the criterion based on other
rulemakings to identify which products should be listed. 60
Fed. Reg. 15266.
The D.C. Circuit upheld EPA’s expansive construction. As
to Chevron step one, the Court recognized the rule of Motor
Vehicle Manufacturers Assn. v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 43 (1983) (an agency
may not rely on factors which Congress has not intended it to
consider). App. 7a, 17a, 26a-27a. But it said: “Nothing in
section 183(e) suggests that Congress intended to limit EPA’s
consideration to the five factors specified in the statute.” /d.
at 27a.
As to step two, the Circuit Court ruled that EPA’s
inference that it was not barred from considering non-
statutory factors was “reasonable.” /d. It also concluded that
the two factors on which EPA primarily relied, although not
specified by Congress, were “reasonable.” /d.
For two reasons, these were not the correct standards of
review to apply to EPA’s implementation of the regulatory
criteria and listing mandates of Section 183(e).
First, EPA was establishing regulatory criteria to be
applied to numerous future regulations affecting thousands of
products made and sold by hundreds of industries. The
power to base those criteria on factors other than those
specified by Congress cannot be conferred by implicit
delegation. FDA, 120 S.Ct. at 1301, 1314-15. Congress
could not have intended that EPA establish criteria based
primarily on mass when the words of Section 183(e), itself,
i
19
place primary focus on the volatility and the reactivity of the
compounds to be targeted. Quality, not quantity, was the
Congressional focus. Nor could it have intended that EPA
simply rubber-stamp any rulemaking approaches regulators
had followed before Congress’ decision to make product
regulation a part of the federal ozone control program. That
program was founded on new concepts, including the
scientific study, the regulatory criteria, and the product
listing.
Second, EPA’s interpretive reach was made, not in a
formal rule nor order, but in the Report and Notice. Such
interpretations are reviewed, not for reasonableness, but for
persuasiveness. Christensen, 120 S.Ct. at 1662-63. The idea
created by EPA and blessed by the Court—that Congress
cared almost exclusively about compound mass and little
about the volatility and reactivity properties thereof—lacks
any persuasive power. As to other rulemakings, the Court
thought is was “common sense” for EPA to list Categories it
could regulate “quickly.” App. 27a. But EPA’s inter-
pretation was not persuasive, because Section 183(e) is
crystal clear that substantive environmental and economic
factors, not speed nor ease, are what count.*
* EPA has no power to move to the rulemaking phase unless the
necessary prerequisites are first performed. Motor Vehicle Manufacturers
Assn. v. Costle, 647 F.2d 675, 677 (6th Cir. 1981); Environmental Defense
Fund v. EPA, 852 F.2d 1316, 1320, 1326, 1331 (D.C. Cir. 1988): Flue-
Cured Tobacco Cooperative Stabilization Corp. v. EPA, 4 F.Supp.2d 435,
462-63, 465-66 (M.D.N.C. 1998). Each regulation, including the
architectural coatings rule, was, consequently, not in accordance with law
and in excess of statutory authority and, therefore, should have been
reversed under CAA Section 307(d)(9)(A) and (C).
20
II. EPA UNCONSTITUTIONALLY REGULATED
THE MANUFACTURE OF PAINTS FOR SALE
IN THE UNITED STATES WITHOUT EITHER
CONGRESS OR EPA HAVING FOUND THAT
THEIR SUBSEQUENT INTRASTATE USE
WILL CAUSE COMPOUND EMISSIONS OR
OZONE POLLUTION WHICH CROSS STATE
LINES AND HAVE SUBSTANTIAL COM-
MERCIAL EFFECTS IN OTHER STATES
A. EPA Lacked Constitutional Power Under this
Court’s Commerce Clause Jurisprudence in
Effect Until 1995 to Regulate the Manufacture
for Sale of Paints
In the early days of federal clean air legislation, several
lower courts addressed, in the context of the then-current
Commerce Clause jurisprudence, the constitutionality of
several such statutes. U.S. v. Bishop Processing Co., 287
F.Supp. 624, 629-32 (D.Md. 1968), affirmed 423 F.2d 469
(4th Cir. 1970), cert. denied, 398 U.S. 904, (1970);
Pennsylvania v. EPA, 500 F.2d 246, 259 (3rd Cir. 1974);
South Terminal Corp. v. EPA, 504 F.2d 646, 677 (ist Cir.
1974).
In Hodel v. Virginia Surface Minning & Reclamation
Assn., 452 U.S. 264, 275-81 (1981), this Court rejected a
facial challenge under the Commerce Clause to the Surface
Mining Control and Reclamation Act. The Court added a
passage stating that the Commerce Clause permits
Congressionally authorized regulations of “activities causing
air... pollution . . . that may have effects in more than one
state,” citing in a footnote as authorities supporting this
proposition Bishop, Pennsylvania, and South Terminal. Id. at
282 n. 21.
The D.C. Circuit stated in the case at bar that the Hodel
passage continues to have “validity” today, and assumed that
“ pe Te Oe Serre a ee eet eee Aree! ae ee
21
EPA’s architectural coatings rule met the Hodel test in this
case, which challenges EPA’s application of Section 183(e)
in its paint rule. App. 36a-37a.
This Court should decide what continued validity, if any,
the early clean air cases and the Hodel passage and footnote
have in such a case in light of this Court’s Commerce Clause
jurisprudence of the past five years, discussed in detail below.
The proper approach is particularly important as to the three
rules adopted in 1998, as well as the 18 more scheduled to be
adopted thereafter pursuant to EPA’s 1995 Notice.
If the Hodel passage and footnote apply to the multiple
chemical-commercial causation chains covered by EPA’s
paint rule, the Court erred in upholding its constitutionality.
The “activities” regulated by EPA were those of
manufacturing all paints for sale in the nation. It is
undisputed that manufacturing and selling activities do not,
themselves, have the effect of “causing” air pollution. Any
“activities causing” air pollution, if paints cause it at all,
which is highly doubtful, are the activities of using them—
opening the can or pail, brushing, rolling or spraying the
coating on an interior or exterior wall or surface of a
structure, and letting it cure on the substrate. Any such use
usually occurs long after and far away from the time and
place of manufacture, or even that of the retail sale, and it is
made by a person other than the manufacturer or retailer.
Even if Congress had authorized EPA to regulate the
activity of using products, which Section 183(e) does not do,
and even if EPA had regulated the use of paints, which it
could not and did not do, three showings would have been
required to establish a constitutional ground for such
regulation under the Hodel test. Use of a product is an
activity “causing” air pollution if and only if the compounds
in that product are both volatile and reactive and if either any
22
organic compounds emitted or any ozone pollution formed
cross a State line.
First, Congress or EPA would have to show that the
glycols in the regulated water-borne paints were sufficiently
volatile to be emitted from cans into the air upon usage. In
1990 Congress directed EPA to determine volatilities of the
compounds in products. Scholars describe glycols in water-
borne paints as “low volatility” compounds. J.A. 814. EPA’s
1995 Report generally ducked the volatility issue. Its 1998
responses to comments about the Report discussed the
method it uses (heating) to calculate any emissions from
paints. J.A. 723. It also discussed studies showing the
extremely slow volatilization of glycols from water-borne
paints. J.A. 729.
Second, Congress or EPA would have to demonstrate that
any organic compound, once up in the air, was sufficiently
reactive to combine with NO, to form ozone pollution. In
1990 Congress directed EPA to make such reactivity
determination. EPA’s 1995 Report declined to do so as to the
vast bulk of compounds in products, including mineral spirits
in solvent-borne paints. Indeed, in 1998 it acknowledged that
such compounds are “less reactive” than _ others.
63 Fed. Reg. 48797.
The third showing the government would be required to
make under the Hodel test, if it governs, is that any use of the
products causing air pollution may have “effects in more than
one state.” Any effects the use of paints might cause would
in many, if not most, instances occur in the state in which the
product was manufactured, sold and used and, thus, be wholly
intrastate. The intrastate use of paint would have commercial
effects in another state only if either (a) any emissions of the
compound traversed a state line, or (b) any ozone formed
from a reaction between that compound and NO, traversed a
state line.
SO ee eee ee ee ee ee oe ee ee ae
-
23
Neither Congress nor EPA made any of the three required
showings as to any sale of any paint. Therefore, EPA’s rule
is unconstitutional under the Hodel test and the early cases it
cited. The D.C. Circuit stated the Hodel test, but did not
correctly apply it to EPA’s paint rule. And, as shown in the
next four sections, the D.C. Circuit also misapplied each of
the four considerations this Court’s post-1995 Commerce
Clause jurisprudence has stood upon.
B. The Court Misapplied the New Jurisdictional
Element Consideration
In U.S. v. Lopez, 514 U.S. 549 (1995) this Court declared
unconstitutional under the Commerce Clause Section 922(q)
of the Gun-Free School Zones Act of 1990. The Court ruled
that the possession of firearms near a school is not an activity
which “substantially affects” interstate commerce. Id. at 554.
In so concluding, the Court applied four considerations.
Id. at 559-64.
In U.S. v. Morrison, _____ US. ate 100 SBE. 1748
(2000) which invalidated Section 13981 of the Violence
Against Women Act, the Court described these four
“significant considerations” as “the proper framework for
conducting the required analysis” in such a case. /d. at 1749.
It thereupon described the four Lopez considerations. Id. at
1749-51. Then, it applied these “principles underlying our
Common Clause jurisprudence as reference points,” to
resolve the case before it. Jd. at 1751, 1751-54.
The D.C. Circuit purported to apply the four considerations
applied in Lopez and Morrison to the facts of this case. App.
34a-36a. It opined: “Not one of those considerations
applies.” Jd. at 34a. As shown below, the Court erred in its
application of each of the four considerations. This Court
should review such applications, assuming the four
considerations govern, in order to determine the
constitutionality of EPA’s paint rule, as well as to provide
24
needed guidance as to all similar product rules it has adopted
or will adopt under Section 183(e).
One of the four considerations applied in Lopez was as
follows:
Ҥ 922(q) contains no jurisdictional element which
would ensure through case-by-case inquiry, that the
firearm possession in question affects interstate
commerce . . . § 922(q) has no express jurisdictional
element which might limit its reach to a discrete set of
firearms possessions that additionally have an explicit
connection with or effect on interstate commerce.”
514 U.S. at 561-62.
The statute struck down in Morrison also contained no
jurisdictional element, making clear an impermissible
legislative election “to cast § 13981’s remedy over a wider,
and more purely intrastate, body” of activity. 120 S.Ct. at
1752.
The Court below stated that “EPA’s regulation of VOCs is
expressly limited to entities that act in interstate commerce,”
citing Section 183(e)(1)(C). As a statement of what the
statute required, this was correct, as Section 183(e)(1)(C)
authorizes EPA to regulate manufacturers of products for
sale “in interstate commerce.” But as a statement of what
EPA’s paint rule actually did, it was decidedly not correct, for
that rule applies, much more sweepingly, to any paint
manufactured for sale “in the United States.” 40 C.F.R.
§ 59.400(a).”
* The rule’s application to paint manufactured for sale “in the United
States” clearly exceeds EPA’s statutory authority to regulate such
transactions “in interstate commerce” only. This is confirmed by the 4
canon that any ambiguity must be construed to avoid the Commerce
Clause issue. Lopez, 514 U.S. at 562; Jones v. U.S., __U.S. __, 120 S.
Ct. 1904, 1909, 1911-12 (2000); Solid Waste Agency, 2001 WL 15333
(2000).
25
It is manifest that EPA’s paint rule does not “ensure,
through case-by-case inquiry,” that any sale in question
affects interstate commerce. Lopez, 514 U.S. at 561. It
makes no effort to “limit its reach.” Jd. at 562. Instead, EPA
openly cast its remedy over the widest possible body of
activity, including all “purely intrastate” chemical-
commercial causal chains. Morrison, 120 S.Ct. at 1752.
C. The Court Misapplied the New Economic
Activity Consideration
Lopez analyzed the consideration of whether there was
intrastate “economic” or “commercial” activity which
substantially affects interstate commerce. In that case the fact
that there had been preliminary economic activity in the past
was constitutionally irrelevant. “Guns are . . . articles of
commerce .... Their possession is the consequence either
directly or indirectly of commercial activity.” 514 U.S. at
602-03 (Stevens, J., dissenting). Indeed, the defendant had
been paid $40 to deliver the gun to another student. See US.
v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993).
The question in Jones was whether, under 18 U.S.C.
§ 844(i), a private residence which had been used to secure an
out-of-state mortgage loan, been covered by an out-of-state
casualty insurance policy, and received natural gas from out-
of-state suppliers is “used in. . . any activity affecting .. .
commerce.” This ‘Court held that the statute did not so apply,
saying: “That qualification is most sensibly read to mean
active employment for commercial purposes, and not merely
a passive, passing, or past connection to commerce.”
120 S.Ct. at 1910."°
° The reach of the Commerce Clause is restricted “. . . in areas...
where States historically have been sovereign.” Lopez, 514 U.S. at 564.
The restrictions operate with particular force in an “area... of traditional
state concern.” Jones, 120 S.Ct. at 1911. As the Court stated two days
ago in Solid Waste Agency, 2001 WL 15333, Commerce Clause concern
26
The Court below said that “the same cannot be said” of
Section 183(e1)(C), which permits regulation only of
“manufacturers of products for sale.” App. 35a.
The Court erred by focusing on the fact that painting a
structure is the consequence of past economic activity. As in
Lopez and Jones, the question was whether the intrastate
event of direct concern, house painting, substantially affects
interstate commerce.
D. The Court Misapplied the New Legislative
Findings Consideration
In Lopez, no legislative findings had been made about the
effects upon interstate commerce of gun possession in school
zones. /d. at 562-63. Such findings would have enabled a
court to “evaluate” any such legislative judgment. /d. at 563.
In Morrison, by contrast, the statute was supported by
findings regarding the impact of gender-motivated violence
on victims and their families. But the Court held that the
existence thereof was “not sufficient, by itself,” to uphold the
statute. 120 S.Ct. at 1752.
In the case at bar, the Court below relied on the legislative
history of the CAA amendments of 1990 in two respects.
First, the Court noted that the legislative history “expressly
describes . . . [ozone’s] effects on the national economy.”
App. 35a-36a. In 1990 Congress made no findings that the
glycols in water-borne paints are sufficiently volatile, nor that
the mineral spirits in solvent-bore paints are sufficiently
is “heightened where the administrative interpretation alters the federal-
state framework by permitting federal encroachment upon a traditional
state power. [citation}.” The Court noted that the rule invalidated there
“would result in a significant impingement of the States’ traditional and
primary power over land and water use.” The Court could have added air
use. For more than two decades, products, including paints, have been
primarily regulated by state clean air regulators. Even since 1990, air
pollution control remains primarily the responsibility of the states.
42 U.S.C. §§ 7401(3), 7416, see also id. at §§ 751 1b(e(7),(9).
27
reactive, to warrant regulation and EPA’s 1995 Report made
no effort to fill those gaps. Second, the Court stated that the
legislative history “expressly describes the problem of
interstate transport of ozone.” Id. But the history it cites does
not relate to Section 183(e), let alone paints or the compounds
they contain. Indeed, Congress dealt with the ozone
problem in CAA sections other than 183(e). 42 U.S.C. §§
7407(d)(1 (Ai), 7506a, 7509a, 751 1a(j), 751 Ic.
E. The Court Misapplied the Causal Link
Consideration
Lopez rejected the government's arguments that possession
of a gun in a school zone substantially affects interstate
commerce because of crime costs, reduced travel, and a less
well-educated populace. It disagreed that “Congress could
regulate . . . all activities that might lead to violent acts,
regardless of how tenuously they relate to interstate
commerce.” Jd. at 564. It declined “to pile inference upon
inference,” as that would convert the limited Commerce
Clause power into a general police power. /d. at 567.
Morrison noted that the “link” between the activity at issue
and any substantial effect on interstate commerce may not be
“attenuated.” 120 S.Ct. at 1751. It rejected such “but-for
reasoning.” Jd. It said that “the but-for causal chain must
have its limits in the Commerce Clause area.”
Id. at 1753 n. 6.
The Court below held that there is “nothing attenuated”
about the interstate effects of the activity at issue here.
App. 36a. It cited three supposed commercial effects in other
States.
First, it noted that paint products “are distributed
nationally.” Jd. As discussed above, painting is a
consequence of past distribution, much if not most of it
intrastate. EPA’s justification for regulating in attainment
areas, which the Court cited, does not necessarily apply to
28
interstate commerce. 63 Fed. Reg. 48804. The Court further
noted that paints are “then applied by end-users in multiple
locations.” App. 36a. But do-it-yourself painters apply paint
in one location, and professional painters almost always
operate in one state only.
Second, the Court referred to “the heavy impact ozone
pollution has on national health care costs and national
agricultural production.” /d. This assumes that all paints are
both volatile and reactive and, therefore, ozone precursors.
But, of central importance in this challenge, neither Congress
nor EPA ever so found. The best evidence in the record is to
the contrary.
Third, the Court again noted the interstate nature of the
“ozone transport phenomenon.” /d. But the case it cited had
nothing to do with paints, glycols, or mineral spirits, the
subject of the challenged rule here.
CONCLUSION
For these reasons, the petition for a writ of certiorari should
be granted.
Respectfully submitted,
WILLIAM M. SMILAND
Counsel of Record
SMILAND & KHACHIGIAN
601 West Fifth Street
Seventh Floor
Los Angeles, CA 90071
(213) 891-1010
Dated: January 11, 2001 Attorneys for Petitioners
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APPENDIX A
UNITED STATES COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT.
Nos. 98-1526, 98-1527.
ALLIED LOCAL AND REGIONAL MANUFACTURERS
CAUCUS, et al.,
Petitioners,
Vv.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
NATIONAL PAINT & COATINGS ASSOCIATION, et al.,
Intervenors.
Argued Nov. 5, 1999.
Decided June 16, 2000.
Before: GINSBURG, TATEL, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge:
Petitioners in these consolidated cases challenge final
regulations promulgated by the Environmental Protection
Agency (EPA) to limit the content of volatile organic
compounds in architectural coatings, including paints. The
regulations were issued pursuant to section 183(e) of the
Ciean Air Act, which directs the agency to regulate emissions
from consumer and commercial products to help achieve the
national ambient air quality standard for ozone. Petitioners
are Dunn-Edwards Corporation, a large paint manufacturer,
2a
and Allied Local and Regional Manufacturers Caucus, an
association of manufacturers and distributors of architectural
coatings. Intervening on EPA’s side are other industry
groups--including the National Paint & Coatings Association,
a trade association of some 400 paint and coatings
manufacturers and distributors--which urge us to uphold the
regulations.
Petitioners challenge the regulations on a multitude of
grounds, including their asserted inconsistency with the Clean
Air Act, the Regulatory Flexibility Act, the Unfunded
Mandates Reform Act, and the Commerce Clause. We
conclude that EPA’s regulations are lawful and deny the
petitions for review.
I
The Clean Air Act, 42 U.S.C. §§ 7401 et seq., directs EPA
to establish national ambient air quality standards for harmful
air pollutants. See 42 U.S.C. § 7408(a). One of the
pollutants so identified and regulated by the agency is
ground-level ozone. See 40 C.F.R. § 50.9. Although in the
upper atmosphere ozone occurs naturally and forms a
protective layer that shields human beings from the harmful
effects of the sun’s ultraviolet rays, at ground level, man-
made ozone can have a wide array of negative effects on
human health, crops, and forests.’ See EPA, STUDY OF
' Reporting on the Clean Air Act Amendments of 1990, the Senate
Environment and Public Works Committee explained the impact of
ground-level ozone on human health: Ozone is fatal at high
concentrations. At lower concentrations found in many urban areas in the
United States, extensive research has shown that healthy adults and
children begin to exhibit adverse health effects. These include chest pains,
shortness of breath, coughing, nausea, throat irritation, and increased
susceptibility to respiratory infections. Potentially more troubling and less
well understood are the effects of long-term chronic exposure to
summertime ozone concentrations found in many cities. Regular out-of-
doors work or play during the hot, sunny summer months in the more
3a
VOLATILE ORGANIC COMPOUND EMISSIONS FROM
CONSUMER AND COMMERCIAL PRODUCTS, REPORT
TO CONGRESS 1- 1 (1995) (J.A. at 518) [hereinafter
REPORT].
S.REP. NO. 101-228, at 6 (1989); see also Consumer and
Commercial Products: Schedule for Regulation, Final
Listing, 63 Fed.Reg. 48,792, 48,793 (1998).
Section 183(e) of the Clean Air Act, added as part of the
1990 amendments to that Act, is aimed at mitigating the
problem of ground-level ozone. See Clean Air Act
Amendments of 1990, Pub.L. No. 101-549, § 183(e), 104
Stat. 2399, 2444-47 (codified at 42 U.S.C. § 7511b(e)).
Ozone is formed when nitrogen oxides (NOx) react with
volatile organic compounds (VOCs) in the presence of
sunlight. See REPORT at 1-1 (J.A. at 518). Section 183(e)
directs EPA to regulate emissions of VOCs from consumer
and commercial products in order to help states achieve the
national ambient air quality standard (NAAQS) for ozone.’
Section 183(e) contains a number of directions to EPA.
First, it instructs the agency to “conduct a study of the
emissions of volatile organic compounds into the ambient air
from consumer and commercial products (or any combination
thereof)” in order to “(i) determine their potential to
contribute to ozone levels which violate the national ambient
air quality standard for ozone” and “(ii) establish criteria for
regulating consumer and commercial products.” 42 U.S.C.
polluted cities may cause biochemical and structural changes in the lung,
paving the way for chronic respiratory diseases.
? The statute defines a “consumer or commercial product” as “any
substance, product (including paints, coatings, and solvents), or article
(including any container or packaging) held by any person, the use,
consumption, storage, disposal, destruction, or decomposition of which
may result in the release of volatile organic compounds.” 42 U.S.C.
§ 751 1b(e)(1(B).-
4a
§ 7511b(eX2)A). The section further directs that the study
be completed, and a report submitted to Congress, “not later
than 3 years after November 15, 1990.” /d.
Upon submission of the report, section 183(e) requires the
EPA to “list those categories of consumer or commercial
products that [it] determines, based on the study, account for
at least 80 percent of the VOC emissions, on a reactivity-
adjusted basis, from consumer or commercial products in
areas that violate the NAAQS for ozone.” /d.
§ 7511b(e)(3)(A). The statute then directs the agency “to
divide the list into 4 groups establishing priorities for
regulation” based on the criteria developed in the study. /d.
Finally, the statute requires the EPA to regulate one group
every two years until all four have been regulated. See id.
After passage of the 1990 amendments, EPA instituted a
formal regulatory negotiation process, aimed at achieving
consensus on the development of VOC regulations for paint
and architectural coatings. Representatives of the affected
industry were included on the negotiation committee.
Complete consensus could not be reached, however, and the
process was terminated in 1994. See National Volatile
Organic Compound Emission -Standards for Architectural
Coatings, Final Rule, 63 Fed.Reg. 48,848, 48,850 (1998)
[hereinafter Final Rule].
In March 1995, EPA submitted its statutorily-required
report to Congress. The report concluded that “[cjonsumer
and commercial products, while individually small sources of
VOC emissions, contribute significantly to the ozone
nonattainment problem.” REPORT at 2-1 (J.A. at 523).
VOC emissions from these products, the report said,
constitute approximately 28% of all man-made VOC
emissions. See id. at 2-8 (J.A. at 530). In compliance with
Congress’ direction, the report also set forth “criteria for
regulating consumer and commercial products under tne
Sa
Act.” id. at 4-1 (J.A. at 557). The eight criteria listed by the
agency were:
(1) utility (2) commercial demand (3) health or safety
functions (4) emissions of ‘highly reactive’ compounds
(5) availability of alternatives (6) cost-effectiveness of
controls (7) magnitude of annual VOC emissions (8)
regulatory efficiency
Id. at 4-2 (J.A. at 558).
In March 1995, EPA also published the statutorily-
mandated list of categories of consumer or commercial
products that together account for at least 80% of VOC
emissions from such products in ozone nonattainment areas
On a reactivity-adjusted basis. See Consumer and Commercial
Products, Notice of Product Category List and Schedule for
Regulation, 60 Fed.Reg. 15,264 (1995) [hereinafter Notice of
Product Category List]. Per Congress’ instruction, EPA
divided those categories into four groups, establishing
priorities for regulation. Architectural coatings were included
in the first group, along with certain household consumer
products and automobile refinish coatings. EPA determined
that these three categories account for about 30% of the voc
emissions from all consumer and commercial products. See
Consumer and Commercial Products: Schedule for
Regulation, Final Listing, 60 Fed.Reg. 48,792, 48,793 (1998)
{hereinafter Final Listing]. According to EPA, the
architectural coatings category alone accounts for about 9%
of the emissions from all consumer and commercial products,
making it “one of the largest emissions sources among the
consumer and commercial products categories.” Final Rule,
63 Fed.Reg. at 48,850; see National Volatile Organic
Compound Emission Standards for Architectural Coatings,
’ The first six criteria were derived from five factors specified in the
statute. See 42 U.S.C. § 7511b(eX2B). The last two were added by the
agency. See infra Part IV.E.
6a
Proposed Rule, 61 Fed.Reg. 32,729, 32,731 (1996)
[hereinafter Proposed Rule}; REPORT at 2-6 (J.A. at 528).
In September 1998, EPA published its final rules and
listing. As proposed, the agency listed architectural coatings,
along with consumer products and automobile refinish
coatings, in the first group of consumer and commercial
product categories subject to regulation under section 183(e).
See Final Listing, 63 Fed.Reg. at 48,792. At the same time, it
issued a rule specifying limits on the permissible VOC
content of products in each of the categories. See National
Volatile Organic Compound Emission Standards for
Automobile Coatings, 63 Fed.Reg. 48,806 (1998); National
Volatile Organic Compound Emission Standards for
Consumer Products, 63 Fed.Reg. 48,819 (1998); National
Volatile Organic Compound Emission Standards for
Architectural Coatings, 63 Fed.Reg. 48,848 (1998).
Petitioners Dunn-Edwards and Allied challenge EPA's
initial study and report to Congress, as well as the list and
rule that followed.* They assert that EPA has misinterpreted
the Clean Air Act and that its regulations are arbitrary and
capricious. By contrast, intervenor National Paint & Coatings
Association, which, like Allied, participated in the
unsuccessful attempt at regulatory negotiation, supports
EPA’s regulations, describing them as a “comprehensive set
of reasonable limits that are tough but fair, and which can
contribute significantly to ozone emissions reductions as
mandated by the [Act].” NPCA Br. at 2-3.
* Dunn-Edwards challenges EPA’s decisions only insofar as they relate
to architectural coatings. Although Allied’s brief suggested a challenge
to the consumer products and automobile refinish coatings rules as well,
at oral argument counsel made clear that Allied’s attack on those rules is
identical to its attack on the architectural coatings rule. See Oral Arg. Tr.
at 78-79.
Ta
I
In assessing petitioners’ claim that EPA has misconstrued
the statute, we are guided by the standards set forth in
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). Under Chevron’ s first step, we ask whether Congress
“has directly spoken to the precise question at issue,” in
which case we “must give effect to the unambiguously
expressed intent of Congress.” /d. at 842- 43, 104 S.Ct. 2778.
If “the statute is silent or ambiguous with respect to the
specific issue,” however, we move to Chevron’s second step.
Id. at 843, 104 S.Ct. 2778. Under step two, we must defer to
the agency’s interpretation so long as it is “based on a
permissible construction of the statute,” id., and is
“reasonable in light of the Act’s text, legislative history, and
purpose,” Southern Cal. Edison Co. v. FERC, 116 F.3d 507,
511 (D.C.Cir. 1997).
As petitioners note, we also have the power to set aside a
final rule promulgated under the Clean Air Act if the rule is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). To
determine whether EPA’s rules are “arbitrary and capricious,”
we apply the same standard of review under the Clean Air
Act as we do under the Administrative Procedure Act (APA),
5 U.S.C. § 706(2)(A). See Ethyl Corp. v. EPA, 51 F.3d 1053,
1064 (D.C.Cir.1995); Chemical Mfrs. Ass’n v. EPA, 28 F.3d
1259, 1263-64 (D.C.Cir.1994), In that regard, we look for
guidance to Motor Vehicle Manufacturers Ass'n yv. State
Farm Mutual Automobile Insurance, 463 U.S. 29, 43, 103
S.Ct. 2856, 77 L.Ed.2d 443 (1983). Under the standard set
forth in that case, we must affirm the EPA’s rules if the
agency has considered the relevant factors and articulated a
“ ‘rational connection between the facts found and the choice
made.’ ” Id. at 43, 103 S.Ct. 2856 (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9
L.Ed.2d 207 (1962)).
In the following parts, we apply these standards to
petitioners’ challenge to the architectural coatings rule and
related EPA decisions.
Il
Petitioners’ principal argument is that the Clean Air Act
requires EPA to regulate VOCs according to their
“reactivity,” and that EPA failed to do so. “Reactivity,” as
defined by petitioners, is “ ‘the amount of ozone formed per
unit amount . . . of VOC added [to a given atmospheric
mixture].’” Dunn-Edwards Br. at 3 n.4 (quoting NATIONAL
RESEARCH COUNCIL, RETHINKING THE OZONE
PROBLEM IN URBAN AND _ REGIONAL AIR
POLLUTION 153 (1991) (J.A. at 165)) (alterations in
original). In petitioners’ view, EPA ignored reactivity and
instead regulated VOCs according to their “mass”—i.c.,
according to the amount of VOCs contained in a product.
In this blunt form, petitioners’ attack on the EPA is
factually incorrect. As the EPA notes, it did “consider[ ]
reactivity in prioritizing and selecting product categories to be
listed for regulation.” Final Listing, 63 Fed.Reg. at 48,795.
It did so by using available reactivity data to divide VOCs
into three groups: negligibly reactive, reactive, and highly
reactive. See id.
EPA designated as negligibly reactive those compounds
the data showed to have insignificant ozone-forming
potential. See id. To make that designation, EPA relied on
data derived from the “method now normally used for
identifying negligibly reactive VOC,” the so-called “kOH
method.” REPORT at 3-4 (J.A. at 549). “kOH reactivity
data,” the agency said, “have been obtained or estimated for
nearly all VOC species of interest.” Jd. at 3-5 (J.A. at 550);
see also id. at 3-4 (J.A. at 549) (describing kKOH method).
9a
Compounds determined to be negligibly reactive on the basis
of that data were excluded altogether from the VOC
emissions inventory and from the related regulations. See
Final Listing, 63 Fed.Reg. at 48,795.°
To differentiate between the remaining reactive VOCs,
EPA included data derived from the “Incremental Reactivity”
method, a method “more appropriate for rating reactive
VOC.” REPORT at 3-4 (J.A. at 549). EPA used this data to
identify ten classes of VOCs that are highly reactive under
most conditions. See Final Listing, 63 Fed.Reg. at 48,795-96.
The agency then identified the product categories known to
contain these highly reactive compounds, and estimated the
quantity of highly reactive compounds emitted by those
product categories. See id. at 48,796. Finally, EPA adjusted
the mass emissions figures for those product categories by
applying a reactivity adjustment factor to the mass emissions
of their highly reactive VOCs. See id.
Petitioners recognize that EPA did, at least in this tripartite
categorical form, regulate according to reactivity. Their
contention is that this is not enough. Rather, petitioners urge
that the statute requires EPA to determine the reactivity of
each individual VOC species, and to use each VOC’s reiative
reactivity in promulgating the final regulations. Petitioners’
argument is based on their analysis of three provisions of the
Clean Air Act.
A
Section 183(e) of the Clean Air Act directs EPA “to
conduct a study of the emissions of volatile organic
compounds into the ambient air from consumer and
commercial products (or any combination thereof) in order
to—{i) determine their potential to contribute to ozone levels
* EPA labeled a compound negligibly reactive if its KOH value was
lower than that of ethane. See REPORT at 3-5 (J.A. at 550).
10a
which violate the national ambient air quality standard for
ozone... .” 42 U.S.C. § 751 1b(e)(2)(A). Petitioners contend
that the phrase “potential to contribute” as used in this
provision is synonymous with the term “reactivity.” -
Accepting petitioners’ contention that the Clean Air Act
requires a determination of reactivity, however, does not
resolve the question of whether reactivity must be determined
on an individual VOC-by-VOC, rather than categorical, basis.
Allied contends that the above-quoted provision requires EPA
to determine the reactivity of “each” volatile compound. See
Allied Br. at 14. Had Congress used the word “each” in the
statute, the first step of the Chevron test might well dictate
victory for Allied. But Congress did not use that word.
Instead, it directed EPA to study emissions of volatile organic
compounds “from consumer and commercial products (or any
combination thereof) in order to . . . determine their potential
to contribute to ozone levels.” 42 U.S.C. § 7511b(e)(2)(A)
(emphasis added). The express reference to “any combination
thereof,” and the direction to determine “their potential”
rather than “each’s potential” (or even, “their potentials”),
renders it impossible to regard the statute as unambiguously
expressing an intent that each VOC be analyzed individually.
To the contrary, and moving to the second step of the
Chevron test, these references support the reasonableness of
EPA’s contention that Congress authorized the agency to
proceed on a category-by-category basis.
EPA’s reading of the statute is further supported by the
provision requiring EPA to complete its study and submit its
report within three years. See id. Relatively little data is
currently available on the comparative reactivity of individual
VOC species. See REPORT at 2-10, 3-5 (J.A. at 532, 550)
(noting that Incremental Reactivity data is only available for
“some 328 VOC species or groups of species”). According
to EPA’s figures, not seriously contested by petitioners, a
detailed reactivity study of a single VOC species would take
lla
two months to accomplish. See EPA, Response to
Comments on Section 183(e) Study and Report to Congress
2-75 (1998) (J.A. at 740) [hereinafter Response to
Comments]. As “there are approximately 1,000 different
VOC species associated with the architectural coating
industry alone,” id., EPA estimates that a truly species-
specific analysis of reactivities would require 166 years of
testing. Accordingly, EPA reasonably concluded that in light
of the three-year statutory timetable, Congress could not have
expected it to proceed on a species-specific basis.
In reply to this argument, Dunn-Edwards suggests that
EPA could have streamlined the task by confining its analysis
to the smaller universe of those VOCs most commonly found
in architectural coatings. “EPA need not,” Dunn- Edwards
says, “have determined the reactivity of every VOC.” Dunn-
Edwards Reply Br. at 6. Instead, a “reactivity-based
regulation could be implemented using information on only
the three VOCs accounting for almost all emissions from
waterborne architectural coatings and the eight VOCs
accounting for almost 80% of emissions from solventborne
architectural coatings.” Jd. at 6. Individual analyses of just
those eleven, Dunn-Edwards argues, could readily have been
completed within the statutory timetable.
This reply has two problems. First, Congress directed EPA
to study and regulate the VOC emissions from all “consumer
or commercial products,” not only from architectural
coatings. While the streamlined approach Dunn-Edwards
suggests might accomplish the task for the product category
of principal concern to petitioner, that does not answer EPA’s
contention that the agency would still have been unable to
meet the statutory deadline across the board.
Moreover, and more important, in making this suggestion
Dunn-Edwards effectively abandons the purity of the
argument it predicated on Chevron step one. By contending
that EPA could have accomplished its task within the time
12a
available by studying only eleven of the VOCs contained in
architectural coatings, Dunn-Edwards must accept that the
statute does not require a separate evaluation of each VOC’s
individual reactivity. And if the statutory languaye permits
the agency to regulate by analyzing only the eleven most
significant VOCs, it is hard to see why it bars EPA from
instead taking the analytical approach it preferred: excluding
from regulation those VOCs with negligible reactivity, giving
regulatory priority to product categories containing the ten
classes of most highly reactive VOCs, and regulating the
balance of reactive compounds according to the mass of their
emissions. It may be, as petitioners contend, that theirs is the
better approach; but that is not a question for this court.
Under Chevron, we are bound to uphold agency
interpretations as long as they are reasonable—” regardless
whether there may be other reasonable, or even more
reasonable, views.” Serono Lab., Inc. v. Shalala, 158 F.3d
1313, 1321 (D.C.Cir. 1998).
Finally, .Dunn-Edwards implicitly suggests that EPA was
unfaithful to section 183(e)(2)(A) because, rather than
“determine [VOCs’] potential to contribute to ozone levels”
by doing its own testing, the agency relied on a review of the
existing scientific literature. Sze Dunn-Edwards Br. at 12.
But nothing in section 183(e) declares that the only way to
“determine” potential is through the agency’s own studies—
something Congress did demand in other sections of the
Clean Air Act. See, e.g., 42 U.S.C. § 7511f (directing EPA
to study the role of ozone precursors in tropospheric ozone
formation, and commanding that the “Administrator shall
utilize all available information and studies, as well as
develop additional information, in conducting the study
required by this section”) (emphasis added). Nor is there
anything unreasonable about the agency’s conclusion that it
could “determine” VOCs’ potential to contribute by
examining data in the existing literature. To the contrary,
“EPA typically has wide latitude in determining the extent of
13a
data-gathering necessary to solve a problem. We generally
defer to an agency’s decision to proceed on the basis of
imperfect scientific information, rather than to ‘invest the
resources to conduct the perfect study.’ “ Sierra Club v. EPA,
167 F.3d 658, 662 (D.C.Cir.1999) (quoting American Iron &
Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997)).
B
As a second source of statutory support for their argument
that the Clean Air Act requires a VOC-specific approach,
petitioners note that in establishing “criteria for regulating
consumer and commercial products,” Congress directed EPA
to take into consideration “[t]hose consumer and commercial
products which emit highly reactive volatile organic
compounds into the ambient air.” 42 U.S.C.
§ 7511b(e)(2)(B)(iii). But EPA expressly complied with this
congressional command, adopting as one of its criteria
“emissions of highly reactive compounds.” See REPORT at
4-6 (J.A. at 562). As noted above, the agency implemented
this criterion by identifying ten classes of VOCs as “highly
reactive,” and using that classification to give priority to
consumer and commercial products that emitted those highly
reactive compounds. See Final Listing, 63 Fed.Reg. at
48,796. Accordingly, this statutory citation does not add to
the weight of petitioners’ challenge.
C
Finally, petitioners note that section 183(e)(3)(A) requires
EPA to “list those categories of consumer or commercial
products” that “account for at least 80 percent of the VOC
emissions, on a reactivity-adjusted basis, from consumer or
commercial products in areas that violate the NAAQS for
ozone.” 42 U.S.C. § 7511b(e)(3)(A). EPA is then directed to
“divide the list into 4 groups establishing priorities for
l4a
regulation,” and to regulate one group every two years until
all have been regulated. /d.
To comply with these requirements, EPA first used the
methodology we have described above: it divided VOCs into
three sets, exempting those with negligible reactivity and
applying an (upward) reactivity adjustment factor to the mass
emissions of products with highly reactive ingredients. After
ranking product categories based on eight regulatory criteria,
see supra Part I, EPA developed the required list of regulated
categories by starting with the highest ranked category and
proceeding through successive categories until the list
accounted for 80% of the emissions, adjusted for reactivity.
See Final Listing, 63 Fed.Reg. at 48,796. The agency
identified architectural coatings as “one of the largest sources
of VOC emissions among categories of consumer and
commercial products,” id. at 48,797, and therefore included it
within the first group of regulated categories.
Because EPA did not evaluate each VOC’s individual
reactivity, petitioners contend that “products containing less-
reactive compounds were included in an early group when,
instead, they should have been exempted or regulated, if at
all, in later stages.” Allied Br. at 20. Petitioners argue that
these two possibilities—that some compounds were regulated
that should have been exempted, and that architectural
coatings as a category were given priority regulation when
they should have been regulated in one of the later groups—
render EPA’s methodology inconsistent with the statute’s
command to account for VOC emissions “on a reactivity-
adjusted basis.” We disagree.
First, the possibility that some compounds that were
regulated should not have been regulated at all is not likely
enough to undermine EPA’s methodology. As explained
above, EPA expressly exempted from regulation those
compounds determined .to have negligible reactivity.
Moreover, pre-existing EPA regulations allow companies to
15a
apply to have a compound excluded from the definition of
VOC, and thereby exempted from regulation, based on
evidence that it is negligibly reactive. See Final Listing, 63
Fed.Reg. at 48,798 (citing 40 C.F.R. § 51.100(s)). Working
with industry, EPA has exempted more than 100 VOC
species (42 compounds and 2 classes of compounds) under
this provision. See RESPONSE TO COMMENTS at 2-90
(J.A. at 755); Final Listing, 63 Fed.Reg. at 48,798. Since
data necessary to determine negligible reactivity are available
for “nearly all VOC species of interest,” REPORT at 3-5
(J.A. at 550), and since even petitioners concede that all
VOCs have some potential to contribute to ozone formation,
see Oral Arg. Tr. at 27; see also Final Listing, 63 Fed.Reg. at
48,797, petitioners’ challenge does not cast doubt on EPA’s
regulatory process.
Nor is the second possibility, that in a perfect regulatory
world architectural coatings would not be in the first group of
regulated products, of great moment in evaluating the
reasonableness of EPA’s method of regulation. There is no
serious argument that architectural coatings would not appear
somewhere on even a perfect regulatory list, given their status
as one of the largest sources of VOC emissions among
consumer and commercial products. Indeed, section 183(e)
directs the EPA to list those categories of consumer or
commercial products that account for “at least” 80% of VOC
emissions on a reactivity-adjusted basis—implying that it
could list categories accounting for 100% of such emissions.
As to exactly where on that list architectural coatings should
have ranked, we can only say what we have repeatedly said
before: An “agency is entitled to the highest deference in
deciding priorities among issues, including the sequence and
grouping in which it tackles them.” Associated Gas Distribs.
v. FERC, 824 F.2d 981, 1039 (D.C.Cir.1987); see Sierra
Club v. Thomas, 828 F.2d 783, 797 (D.C.Cir.1987).
Moreover, we must be particularly deferential in a case like
this, where Congress—by instructing EPA to set priorities
16a
using multiple, nondeterminative criteria’—has necessarily
indicated an intention to delegate substantial discretion to the
agency.
In sum, we conclude that nothing in the Clean Air Act
unambiguously requires the EPA to analyze the reactivity of
each VOC on an individual basis, and that EPA’s mare
categorical approach is a reasonable interpretation of the
reactivity-related requirements of the Act. Accordingly, the
architectural coatings rule survives review under the standard
set by the Supreme Court in Chevron.
D
Petitioners contend that even if the Clean Air Act does not
require EPA, as a matter of statutory construction, to regulate
VOCs based on an analysis of their relative individual
reactivities, the agency must nonetheless do so to avoid
regulating in an arbitrary and capricious fashion. As
petitioners note, EPA’s own report conceded that: “[t]o be
the most effective, ozone control strategies ideally should be
based not only on mass VOC and NOx emissions but should
consider the relative photochemical reactivity of individual
species.” REPORT at 2-1 (J.A. at 523); see also Notice of
Product Category List, 60 Fed.Reg. at 15,266. The key
words in the quoted sentence, however, are “to be the most
effective” and “ideally.” Indeed, in the sentence following
the one just quoted, EPA went on to state:
Reactivity data on VOC, especially those compounds
used to formulate consumer and commercial products, is
extremely limited. Better data, which can be obtained
only at great expense, is needed if the EPA is to consider
relative photochemical reactivity in any VOC control
° Congress directed EPA to establish regulatory priorities based on
criteria which “take into consideration” at least five listed factors. 42
U.S.C. § 751 1b(e)(2)(B); see also supra note 3; infra Part IV.E.
17a
Strategy. In the meantime, a practical approach is to act
on the basis of mass VOC emissions.
REPORT at 2-1 (J.A. at 523). In short, the agency
concluded that the methodology it adopted, and which we
have described above, was the “most appropriate way to meet
the statutory requirements, given the limitations and
uncertainties surrounding the reactivity issue.” REPORT at
3-10 (J.A. at 555).
Our role, of course, is to determine neither whether EPA’s
approach was “ideal,” nor whether it was the “most
appropriate,” but only whether it was reasonable. See Ethyl
Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.1976) (en banc) (“We
must look at the decision not as the chemist, biologist or
Statistician that we are qualified neither by training nor
experience to be, but as a reviewing court exercising our
narrowly defined duty of holding agencies to certain minimal
standards of rationality.”); see also State Farm, 463 U.S. at
43, 103 S.Ct. 2856. For the reasons discussed in Part III.A-C
above, we conclude that it was. See Animal Legal Defense
Fund, Inc. v. Glickman, 204 F.3d 229, 234 (D.C.Cir.2000)
(noting overlap between analysis under Chevron and State
Farm). We agree with the agency that its general reliance on
the mass of VOC emissions, coupled with the exemption for
those VOCs known to be negligibly reactive and the upward
adjustment for those known to be highly reactive, constitutes
a reasonable approach given both “the uncertainties and
inconsistencies of reactivity,” REPORT at 2-10 (J.A. at 532),
and “Congress’s direction that the EPA complete the study
within three years,” Final Listing, 63 Fed.Reg. at 48,796. In
reaching this conclusion, “[ojur analysis is guided by the
deference traditionally given to agency expertise, particularly
when dealing with a statutory scheme as unwieldy and
science-driven as the Clean Air Act.” Appalachian Power
Co. v. EPA, 135 F.3d 791, 801-02 (D.C.Cir.1998).
18a
IV
In this Part, we consider a number of additional,
miscellaneous charges leveled by petitioners against the
architectural coatings rule. Some raise questions of statutory
interpretation under the Clean Air Act, some charge EPA
with arbitrary and capricious decisionmaking under that Act,
and some involve a combination of the two.
A
Dunn-Edwards attacks the EPA study for “fail[ing] to
address the beneficial environmental and health effects of the
negative reactivity” of some VOCs. Dunn-Edwards Br. at 12.
There is evidence, the company contends, showing that the
emissions of certain types of VOCs actually reduce ozone
levels. The agency’s failure to consider the positive health
effects of a restricted pollutant, Dunn-Edwards continues,
constitutes both a violation of the Clean Air Act and
unreasonable agency action. See Dunn-Edwards Br. at 13
(citing American Trucking Ass'n v. U.S. E.P.A., 175 F.3d
1027, 1051 (D.C.Cir.1999), cert. granted,—U.S.—, 120 S.Ct.
2003, 1-46 L.Ed.2d 954 (2000)).
The answer to this challenge is that EPA did consider the
possible effects of negative reactivity. See RESPONSE TO
COMMENTS at 2-92 to 2-95 (J.A. at 757- 760). It
concluded, however, that the phenomenon was too rare and
unpredictable to warrant changes in the regulatory structure.
See id. at 2-92 to 2-93 (J.A. at 757-58) (concluding that
“reduction of ozone by VOC occurs in very limited
circumstances”). Negative reactivity, the agency determined,
occurs “only in very limited cases, with only a few specics of
VOC (not VOC species typically used in consumer and
commercial products), and under specific meteorological
conditions.” /d.. at 2-154 (J.A. at 802). Studies offered by
petitioners were not to the contrary. See, e.g., J.A. at 985-86
(study describing “slightly negative values” for two
19a
compounds in one-hour test in Los Angeles, but noting that
all compounds tested there showed positive values in eight-
hour tests). Because EPA reasonably considered, and
discounted, the phenomenon of negative reactivity, we reject
this challenge.
B
In a related attack, Dunn-Edwards contends that EPA’s
rule may also be counterproductive because it “has the
potential to increase ozone levels in two ways.” Dunn-
Edwards Br. at 21. First, because the rule imposes limits on
the mass of VOCs in a product, rather than on the type
(reactivity) of the VOCs, it “allows for the possibility” that
producers of architectural coatings may substitute more
reactive VOCs for less reactive ones. /d. Although the
reformulated products would then emit a smaller quantity of
VOCs as measured by mass, they would generate more ozone
over all. Second, Dunn-Edwards warns, “if performance is
compromised” by reducing the VOC content of architectural
coatings, the overall volume of such products used to attain
the same results will increase—in the form of more coats,
more touch-ups, and more frequent recoating. /d.
As the quoted portions of petitioner’s argument suggests, it
is framed more as a series of theoretical possibilities than of
fact-based predictions. Petitioners offer no evidence at all that
the VOC substitution they fear will occur. EPA’s own view
is that even if such substitution did occur, the benefit from
reducing the total mass of VOC emissions would outweigh
any differences in relative reactivities of different com-
pounds. See EPA, NATIONAL VOLATILE ORGANIC
COMPOUND EMISSION STANDARDS FOR ARCHIT-
ECTURAL COATINGS, BACKGROUND FOR PROMUL-
GATED STANDARDS 2-297 (1998) (J.A. at 437)
[hereinafter BACKGROUND]. In the absence of contrary
evidence, it is to the expert agency’s prediction, rather than to
the petitioner’s, that we must defer. See Her Majesty the
20a
Queen in Right of Ontario v. U.S. E.P.A., 912 F.2d 1525,
1534 (D.C.Cir.1990); New York v. U.S. E.P.A., 852 F.2d 574,
580 (D.C.Cir. 1988).
EPA also found “no evidence or documentation to support
the[ ] claims [that] increased thinning, more priming, more
topcoating, and more frequent painting” would result if the
VOC content of architectural coatings were reduced.
BACKGROUND at 2-293 (J.A. at 433). To the contrary, the
agency cited evidence that low VOC content coatings
perform weil and do not require additional coats to achieve
the same results as those with high VOC content. See
BACKGROUND at 2-293 to 2-297 (J.A. at 433-37);
Proposed Rule, 61 Fed.Reg. at 32,738; see also Final Rule,
63 Fed.Reg. at 48,869 (finding “no link between product
quality and VOC content since quality, high-performing
products are available in a wide range of VOC content levels
in many product categories”). In reply, Dunn-Edwards cites
a California survey indicating that between 1980 and 1990,
total VOC emissions from architectural coatings increased by
16%, notwithstanding that the VOC content of such coatings
decreased by 37% during the same period. See Dunn-
Edwards Reply Br. at 10. Poorer performance by the reduced
VOC paint “may be responsible,” Dunn-Edwards asserts. /d.
And it may be that Dunn-Edwards is right. But without
evidence of cause-and-effect, we cannot know. Dunn-
Edwards offers no evidence that the increase in VOC
emissions during the 1980s was due to the poorer
performance of the paints, rather than to the cause suggested
by the EPA: an increase in the volume of paints used during
that time, spurred by growth in the population, an improved
economy, and an increase in construction.
Cc
The architectural coatings rule regulates the manufacture
and sale of coating products nationwide. Allied contends that
this exceeds EPA’s authority, which it asserts is limited to
2la
regulating manufacture and sale within “nonattainment”
areas. A nonattainment area is one that either does not meet
the national primary or secondary ambient air quality
standard for ozone, or that contributes to ozone levels in a
nearby area that does not meet the standard. See 42 U.S.C.
§ 7407(d). Allied’s contention principally relies on two
subsections of section 183(e). First, subsection (2)(A)
requires EPA to study VOC emissions in order to determine
their potential “to contribute to ozone levels which violate the
national ambient air quality standard for ozone.” Id.
§ 7511b(e)(2)(A)(i). Second, subsection (3)(A) requires the
EPA to list, and then to regulate, those categories of products
that “account for at least 80 percent of the VOC emissions . . .
from consumer or commercial products in areas that violate
the NAAQS for ozone.” Id. § 751 Ib(e)(3)(A).
Neither of these provisions says anything about where the
regulated product itself must be manufactured or sold, or
about the geographic scope of EPA’s regulatory authority.
Rather, the first directs EPA to consider the potential of
emissions to contribute to ozone levels that violate the
NAAQS; the second instructs it to reguiate Categories of
products that account for a specified percentage of emissions
in nonattainment areas. As EPA concludes, this language
permits the agency to regulate nationwide in order to
accomplish emissions reduction in nonattainment areas.
EPA’s reading is bolstered by consideration of other
provisions in the same section. For example, subsection
(3)(A) also states that “[i]n order to Carry out this section, the
Administrator may, by regulation, control or prohibit any
activity, including the manufacture or introduction into
commerce, offering for sale, or sale of any consumer or
commercial product.” Id. § 7511b(e)(3)(A) (emphasis
added); see also id. § 7511b(e)(4) (“The regulations under
this subsection may include any system or systems of
regulation as the Administrator may deem appropriate.”’).
22a
Similarly, subsection (1)(C) defines “regulated entities” as
manufacturers and distributors of consumer or commercial
products for sale in_ interstate commerce “in _ the
United States,” without geographic limitation. /d.
§ 751ib(e)(1(C)i). Thus, although Congress did direct
EPA to regulate VOCs in order to improve conditions within
nonattainment areas, nothing in the statute limits its ability to
regulate the manufacture and sale of VOCs outside such areas
if such regulation is reasonably related to that end.’
| EPA readily persuades us that nationwide regulation is
| reasonably related to the statutory objective. First,
| architectural coating products are widely distributed and
easily transportable across area boundaries. See Final Listing,
63 Fed.Reg. at 48,804. End-users (e.g., commercial painters)
themselves may well utilize these products in different
locations from day to day. See id.* Accordingly, as EPA
reasoned, a national rule is necessary to “preempt
opportunities for endusers to purchase such consumer and
commercial products in attainment areas and then use them in
” For that reason, section 183(e) is different from Clean Air Act section
165(a), which we considered in Alabama Power Co. v. Costle, 636 F.2d
323 (D.C.Cir.1979). The latter section expressly limits EPA’s permit
authority to facilities “constructed in any area to which [Part C] applies,”
42 U.S.C. § 7475(a) (emphasis added). See Alabama Power, 636 F.2d at
365. Section 183(e) does not contain an analogous limitation.
* As the National Paint & Coatings Association wrote in its intervening
brief in support of the EPA:
A manufacturer or disributor, whether big or small, that sells an
architectural coatings product can never be sure where that product
will end up being used. For example, a small manufacturer in
Maryland who manufactures his paint solely in Maryland and sells
his paint to contractors only in Maryland may have his paint used in
Washington D.C. one day, Virginia the next day, West Virginia the
next day, and finally used to paint a weekend beach house in
Delaware the next day.
NPCA Br. at 24.
a . |
23a
nonattainment areas, thereby circumventing the regulations
and undermining the decrease in VOC emissions in
nonattainment areas.” Final Listing, 63 Fed.Reg. at 48,804.
A manufacturer or distributor, whether big or small, that
sells an architectural coatings product can never be sure
where that product will end up being used. For example, a
small manufacturer in Maryland who manufacturers his paint
solely in Maryland and sells his paint to contractors only in
Maryland may have his paint used in Washington, D.C. one
day, Virginia the next day, West Virginia the next day, and
finally used to paint a weekend beach house in Delaware the
next day. NPCA Br. at 24.
Second, just as coating products are easily transportable, so
too are the VOCs they release and the ozone the VOCs create.
Ambient VOCs and ozone do not obey geographic boundaries
and can flow freely between attainment and nonattainment
areas. See Final Listing, 63 Fed.Reg. at 48,804; see also
Virginia v. EPA, 108 F.3d 1397, 1400 (D.C.Cir.1997). Thus,
EPA reasonably concluded that “emissions in attainment
areas can contribute to nonattainment in adjoining
nonattainment areas,” and that a nationwide rule is therefore
consistent with its statutory mandate. Final Listing, 63
Fed.Reg. at 48,803.
D
Dunn-Edwards contends that because section 183(e)
requires a study of “emissions of volatile organic compounds
into the ambient air,” 42 U.S.C. § 7511b(e)(2)(A), EPA
violated its directive by focusing its study and rule on VOC
content rather than emissions. That focus, petitioner suggests,
assumes without foundation that all VOCs contained in a
coating will be emitted into the ambient air. But EPA did not
assume that all of a product’s VOCs would be emitted.
Rather, it employed a test to determine the mass of solvents
24a
that would volatize, and limited its calculation of VOC
content to the latter alone.’
Dunn-Edwards also contends that even when VOCs are
emitted from a product, they may not become “available” in
the atmosphere to form ozone—for example, because they
may be emitted indoors rather than outside. , EPA considered
this assertion during the rulemaking, and responded by
pointing to recent studies suggesting that “close to 100
percent of the VOC from paint is eventually emitted into the
ambient air.” RESPONSE TO COMMENTS at 2-64 (J.A. at
729). Because this conclusion is supported by substantial
evidence, the agency’s decision to control VOC emissions
through the regulation of VOC content is reasonable.'°
E
* In EPA’s test, the paint sample is weighed, heated, and reweighed.
VOC content is calculated as the difference in the two weights, after also
subtracting the weight of water and any exempt compounds. Hence,
solvents that do not volatize under the test conditions are not measured as
VOC. See RESPONSE TO COMMENTS at 2-56 (J.A. at 723). Ina
footnote, Dunn-Edwards contends that because paints are not heated when
applied, this test “does not bear the necessary relationship to actual
conditions in which coatings are used.” Dunn-Edwards Br. at 16 n.16
(citing Chemical Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1264 (D.C.Cir.1994)).
EPA’s rejoinder is that heating simply accelerates the emissions of VOC,
but does not increase total emissions over time. In the absence of
contrary evidence, we defer to the agency’s expert opinion.
'° Dunn-Edwards also contends that EPA was required to account for
reactivity variation caused by differences in the makeup of the ambient air
in different airsheds, noting that the agency conceded that “ideally” ozone
control strategies should consider the conditions in specific airsheds. See
Dunn-Edwards Br. at 17 n.17 (citing REPORT at 2-1 (J.A. at 523)).
Nothing in the statutory language, however, requires airshed-by-airshed
analysis. Nor does this court’s authority extend to requiring EPA to
utilize the “ideal” strategy, particularly not when the agency concludes
that such a strategy is not practical in light of the limitations of the
existing data. See REPORT at 2-1 (J.A. at 523).
25a
Section 183(e) directs EPA to take into consideration five
factors in establishing criteria for regulating consumer and
commercial products, as well as in establishing regulatory
priorities among those products. See 42 U.S.C.
§ 7511b(e)(2)(B), (e)(3)(A). Allied contends that EPA erred
by failing to consider the last three factors listed in the
statute:
(iii) Those consumer and commercial products which
emit highly reactive volatile organic compounds into the
ambient air.
(iv) Those consumer and commercial products which are
subject to the most cost-effective controls.
(v) The availability of alternatives (if any) to such
consumer and commercial products which are of
comparable costs, considering health, safety, and
environmental impacts.
Id. § 751 1b(e)(2)(B)."! We reject this challenge.
First, EPA did consider the three listed factors. Each was
expressly included among the regulatory criteria adopted by
the agency, and was applied in establishing regulatory
priorities. See REPORT at 4-6 (J.A. at 562) (factor iii); id.
at 4-10 to 4-11 (J.A. at 566-67) (factor iv); id. at 4-8 to 4-9
(J.A. at 564-65) (factor v); see also Final Listing, 63
Fed.Reg. at 48,794 (listing criteria); Notice of Product
Category List, 60 Fed.Reg. at 15,266 (same); REPORT at 4-
12 to 4-13 (J.A. at 568-69) (describing application of the
criteria); EPA, NATIONAL AIR POLLUTION CONTROL
TECHNIQUES ADVISORY COMMITTEE MEETING ON
CONSUMER AND COMMERCIAL PRODUCTS 53 (1995)
'! The first two factors listed in the statute are: “(i) The uses, benefits,
and commercial demand of consumer and commercial products {; and]
(ii) The health or safety functions (if any) served by such consumer and
commercial products.” 42 U.S.C. § 7511b(e)(2)(B).
26a
(J.A. at 700) (describing EPA’s scoring of product categories
based on the criteria).
Second, EPA’s consideration of these factors was adequate
to constitute reasoned decisionmaking. As we have
discussed above, EPA considered the third factor by
assigning greater weight to those products that emit VOCs
from one of the ten classes of VOCs that are highly reactive,
an approach we regard as consistent with the statute and
neither arbitrary nor capricious. See supra Part Ill. EPA
reasonably considered the fourth factor by assigning a higher
priority to categories of products that can reduce VOC
emissions at lowest cost. See REPORT at 4-10 to 4-11 (J.A.
at 566-67).'* And EPA adequately considered the fifth factor,
the availability of alternatives at comparable costs, by
applying a criterion that evaluated the possibility of
reformulation of the product and the availability of
substitutes. See REPORT at 4-8 to 4-9 (J.A. at 564-65); see
also RESPONSE TO COMMENTS at 2-27 (J.A. at 714).”°
In addition to alleging that EPA failed to consider these
three statutorily-enumerated factors, Allied contends that
EPA impermissibly considered two further factors not listed
in the statute: “magnitude of annual VOC emissions” and
“regulatory efficiency and program considerations.” Final
Listing, 63 Fed.Reg. at 48,794; see supra note 3. Although
it is true that “an agency rule would be arbitrary and
capricious if the agency has relied on factors which Congress
has not intended it to consider,” State Farm, 463 US. at 43,
'2 EPA used cost-effectiveness data where it was available, and where
it was not, used a matrix that considered the availability of alternatives
and the mass of emissions from the product. See REPORT at 4- 10 to 4-
11 (J.A. at 566-67).
'S EPA reasonably relied on consumer acceptance, as measured by
market share data, as a surrogate for cost data which was of limited
availability. See REPORT at 4-8 to 4-9 (J.A. at 564-65); see also
RESPONSE TO COMMENTS at 2-27 (J.A. at 714).
27a
103 S.Ct. 2856, that is aot the case here. Nothing in section
183(e) suggests that Congress intended to limit EPA’s
consideration to the five factors specified in the statute.
Indeed, the structure of the section suggests the contrary.
Subsection (2)(A) first directs the agency to “establish
criteria”; subsection (2)(B) then directs that “{i]n establishing
the criteria,” the agency “shall take into consideration” the
five listed factors. The reasonable inference taken by EPA is
that while it must consider the five listed factors, it is not
barred from considering additional ones. See George E.
Warren Corp. v. US. EPA., 159 F.3d 616, 624
(D.C.Cir.1998) (noting this court’s “usual reluctance to infer
from congressional silence an intention to preclude the
agency from considering factors other than those listed in a
statute’).
Moreover, the two additional criteria are reasonable in light
of the use to which Congress wanted all of the criteria to be
put: establishing regulatory priorities among the categories of
consumer and commercial products. See 42 U.S.C.
§ 7511b(e)(3)(A). We have already considered, and judged
permissible, EPA’s accordance of greater regulatory priority
to product categories that emit greater masses of VOCs—the
first of the two additional criteria. See supra Part Il. The
agency's consideration of the second additional factor,
denominated as “regulatory efficiency,” seems nothing more
than regulatory common sense: in determining priorities,
EPA considered which categories it could regulate quickly
because, for example, the agency had ongoing or recently
completed rulemakings concerning them, or because they
raised factual issues in common with other categories. See
REPORT at 4-12 to 4-13 (J.A. at 568-69).
Vv
So far, we have considered challenges to the architectural
coatings rule based on the Clean Air Act. In this part, we
consider Allied’s claims that the rule is contrary to the
28a
Regulatory Flexibility Act (RFA)'* as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996
(SBREFA),'° and to the Unfunded Mandates Reform Act
(UMRA).'°
A
Section 603(a) of the RFA requires that an agency, at the
time of issuance of a notice of proposed rulemaking, publish
an initial regulatory flexibility analysis which “shall describe
the impact of the proposed rule on small entities.” 5 U.S.C. §
603(a). Section 603(c) requires that such an initial analysis
also describe “any significant alternatives to the proposed rule
which accomplish the stated objectives” of the applicable
statute while minimizing significant economic impact on
small entities. Jd. § 603(c). Allied contends that EPA failed
to comply with section 603(a) by failing to discuss two such
economic impacts: “stigmatic harm” allegedly arising from
the agency’s suggestion that it may impose more stringent
VOC limits in future regulations;'’ and asset devaluation, in
5 U.S.C. §§ 601 et seq.
'S Pub.L. No. 104-121, §§ 241-42, 101 Stat. 857, 864-68 (1996).
'© 2 U.S.C. §§ 1501 et seq.
'7 In announcing the architectural coatings rule, EPA stated that in the
future “an additional study for this category may be warranted to
determine the feasibility of additional reductions in VOC limits.” Final
Rule, 63 Fed.Reg. at 48,872. Allied contends not only that this
announcement imposes a “stigma” on manufacturers, but that EPA would
be without authority to issue such additional reductions. EPA replies,
inter alia, that this claim is unripe: The agency has not yet decided
whether it will issue any further regulations, and Allied has not
established that it will suffer any harm in the interim. We agree. See
Grand Canyon Air Tour Coalition vy. FAA, 154 F.3d 455, 471
(D.C.Cir.1998); Florida Power & Light Co. v. EPA, 145 F.3d 1414,
1419-21 (D.C.Cir.1998). Allied “will have ample opportunity later to
bring its legal challenge at a time when harm is more imminent and more
certain.” Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734, 118
S.Ct. 1665, 140 L.Ed.2d 921 (1998).
29a
that the coatings rule allegedly will render existing product
formulas valueless. Allied also contends that EPA failed to
comply with section 603(c) by failing to consider label
directions as an alternative to VOC limits.
We are without jurisdiction to consider these challenges to
EPA’s compliance with the initial regulatory flexibility
analysis requirements of section 603. Section 61 l(c) of the
RFA states that “[c]ompliance or noncompliance by an
agency with the provisions of this chapter shall be subject to
judicial review only in accordance with this section.” 5
U.S.C. § 611(c). Section 611(a) specifically lists the sections
of the RFA subject to judicial review, and section 603 is not
on the list.'* See id. § 611(a)(1), (2).
That, however, is not the end of the story. As Allied points
out, although we may not review EPA’s handling of these
issues in terms of the agency’s compliance with the RFA, we
may consider them in determining whether EPA complied
with the overall requirement that an agency’s decisionmaking
be neither arbitrary nor capricious. See Clean Air Act, 42
U.S.C. § 7607(d)(9)(A); see also APA, 5 U.S.C. § 706(2)(A).
That was the law prior to passage of SBREFA’s amendments
to the RFA, see Thompson v. Clark, 741 F.2d 401, 405
" In its reply brief, Allied notes that unlike challenges to an agency’s
compliance with section 603 (concerning initial regulatory flexibility
analyses), challenges to compliance with RFA section 604 (concerning
final regulatory flexibility analyses) are included in the jurisdictional list
of section 611. Allied suggests that the challenges noted in the above text
can be reformulated as challenges to compliance with section 604. In
relevant part, that section requires the agency to describe the steps it has
taken “to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including a
Statement of ... why each of the other significant alternatives to the rule
considered by the agency ... was rejected.” 5 U.S.C. § 604(a)(5)
(emphasis added). For the reasons noted in the text, Allied has not
established that the economic impacts and regulatory alternative it
contends EPA ignored can be classified as “significant.”
30a
(D.C.Cir.1984); Small Refiner Lead Phase-Down Task Force
v. U.S. E.P.A., 705 F.2d 506, 539 (D.C.Cir.1983), and it was
not altered by those amendments.'”
For an agency’s decisionmaking to be rational, it must
respond to significant points raised during the public
comment period. See Home Box Office, Inc. v. FCC, 567
F.2d 9, 35-36 (D.C.Cir.1977). EPA did so here. The agency
stated that it was not aware of any stigmatic harm of the kind
urged by Allied, and reasonably concluded that the comments
submitted on the subject had “not provided enough detail to
allow the EPA to _ consider the issue further.”
BACKGROUND at 2-334 (J.A. at 474). Allied’s unadorned
allegation in its brief, that “[s]uch impacts are significant,”
Allied Br. at 23, adds no further detail and no reason to
require further agency response. EPA also reasonably
rejected the contention that it was ignoring the regulation’s
impact on the value of existing product formulas, noting that
to the contrary it was directly considering that impact by
analyzing the effect of the regulation on annual profits per
product. See BACKGROUND at 2-334 (J.A. at 474).
To be regarded as rational, an agency must also consider
significant alternatives to the course it ultimately chooses.
See State Farm, 463 U.S. at 48-51, 103 S.Ct. 2856; Grand
Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 471
'? Prior to the amendments, section 61 1(b) stated: “When an action for
judicial review of a rule is instituted, any regulatory flexibility analysis for
such rule shall constitute part of the whole record of agency action in
connection with the review.” 5 U.S.C. § 611(b) (1994). In Thompson,
741 F.2d at 405, we held that those words “mean{ ] that the reviewing
court will consider the contents of the preliminary or final regulatory
flexibility analysis, along with the rest of the record, in assessing not the
agency’s compliance with the Regulatory Flexibility Act, but the validity
of the rule under other provisions of law,” particularly the APA. The
current version of section 611(b) contains the same words, with minor
stylistic alterations.
3la
(D.C.Cir.1998); Public Citizen v. Steed, 733 F.2d 93, 99
(D.C.Cir.1984). Allied contends that the agency should have
considered imposing a requirement that labels contain
directions for responsible use of coating products, as an
alternative to imposing VOC limits on such products.” But
the agency did consider the possibility of imposing label
directions as an addition to product reformulation, and even
in that respect found “it would be impossible to predict the
VOC reductions achieved by providing the consumer with
directions for use.” REPORT at 2-14 (J.A. at 536). Allied
offers no response to this defect in the labeling alternative,
and no reason to believe that such an approach would
accomplish the objectives of the Clean Air Act. Accordingly,
we reject Allied’s challenges under the RFA.”"
” The Clean Air Act authorizes, but does not require, “directions for
use” as one of numerous possible means of achieving emissions reduction.
42 U.S.C. § 7511b(e)(1)(A) (defining “best available controls” as the
degree of emissions reduction achievable through application of “the most
effective equipment, measures, processes, methods, systems or
techniques, including chemical reformulation, product or feedstock
substitution, repackaging, and directions for use, consumption, storage, or
disposal”).
2" Allied briefly raises two further RFA claims. First, it charges that
the agency failed to comply with the requirement of section 609(b) that it,
inter alia, convene a review panel prior to issuing the initial regulatory
flexibility analysis. This court, however, has no jurisdiction to review
challenges to an agency’s compliance with section 609(b). See 5 U.S.C.
§ 611(a)(1)-(2), (c). Second, Allied contends that EPA failed to comply
with the requirement of section 601(3) that it provide an opportunity for
public comment before adopting (as it did) a definition of the term “small
business” different from that referenced in the statute. See 5 U.S.C.
§ 601(3); 15 U.S.C. § 632(a). Although we do have jurisdiction to
review a section 601 challenge, see 5 U.S.C. § 611(a)(1)-(2), Allied’s
challenge fails on the merits because EPA did provide an opportunity for
public comment on its proposed definition. See National Volatile Organic
Compound Emission Standards for Architectural Coatings, Extension of
Public Comment Period, 61 Fed.Reg. 46,410, 46,411 (1996);
32a
B
Allied contends that EPA violated provisions of the
Unfunded Mandates Reform Act that require preparation of a
written cost-benefit analysis, see 2 U.S.C. § 1532(a)(2), and
selection of the “least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the
rule,” id. § 1535(a). UMRA itself expressly denies courts
jurisdiction to review compliance with the latter provision.
See id. § 1571(b)(1); see also id. § 1571(a). And while the
Act permits limited judicial review of compliance with the
requirement to prepare a written cost-benefit analysis,” that
requirement is not triggered unless the rule in question may
result in expenditures of $100 million or more in any one
year, see id. § 1532(a). Because EPA estimated the total cost
associated with the architectural coatings rule to be only $32
million per year, see Final Rule, 63 Fed.Reg. at 48,855, it
concluded that UMRA was inapplicable. See id. at 48,875-
76.
Allied challenges EPA’s cost estimate, but advances little
basis for such a challenge beyond the complaints we
considered above in the context of Allied’s RFA claim:
Petitioner contends that EPA ignored the “stigmatic” costs it
imposed through its suggestion that more stringent VOC
limits might be promulgated in the future, as well as the
impact of the coatings rule on the market value of existing
BACKGROUND at 2-373 to 2-375, 2-424 to 2-426 (J.A. at 480- 82, 490-
92).
22 UMRA, 2 U.S.C. § 1571(a)(2)(A), states that agency compliance
with section 1532 is subject to judicial review only under 5 U.S.C.
§ 706(1) (court may compel agency action unlawfully withheld). If an
agency fails to prepare the written statement required by section 1532, “a
court may compel the agency to prepare such written statement,” 2 U.S.C.
§ 1571(aX2)(B), but the failure may “not be used as a basis for...
invalidating or otherwise affecting [the] rule,” id. § 1571(a)(3).
33a
product formulas.”’ We concluded above that EPA dealt with
these issues in a reasonable manner and, given the limited
judicial review applicable to compliance with section
1532(a), see supra note 22, we have no warrant for inquiring
further under UMRA.”
VI
Finally, we consider Allied’s argument that in regulating
architectural coatings, Congress exceeded its constitutional
authority “[t]o regulate Commerce . . . among the several
States.” U.S. Const., art. I, § 8, cl. 3. Dunn-Edwards does
not join in this attack, and the intervenor National Paint &
Coatings Association actively opposes it, preferring uniform
national regulation to the “multiple, divergent state rules” that
would otherwise hold sway. NPCA Br. at 3. The crux of
Allied’s argument is that EPA’s regulation exceeds Congress’
* Allied’s brief also asserts, without elaboration, that EPA “excluded
from its calculus losses to (1) retailers, (2) contractors, (3) workers, and
(4) consumers,” and that each of these categories “may alone reach
$100,000,000 in any year.” Allied Br. at 25. But EPA did consider the
effect of the rule on many of these groups, see EPA,
DRAFT ECONOMIC IMPACT ANALYSIS AND REGULA-
TORY FLEXIBILITY ANALYSIS OF AIR POLLUTION REGULA-
TIONS: ARCHITECTURAL AND INDUSTRIAL MAINTENANCE
COATINGS 2-32 to 2- 40, 2-44 to 2-45 (J.A. at 33-41, 45-46);
BACKGROUND at 2-364 to 2-366 (J.A. at 1017-19), and Allied offers
neither support for nor explanation of the loss calculation it asserts.
* In a related argument, Dunn-Edwards contends that EPA must
consider costs in the course of examining “economic feasibility,” a factor
in the evaluation of “best available controls” under the statute, 42 U.S.C.
§ 7511b(e)(1)(A). Dunn-Edwards argues that EPA’s cost estimate was
arbitrary and capricious, largely because the agency reduced its initial
estimate after receiving cost estimates submitted by commenters without
determining the reliability of those estimates. In fact, EPA did evaluate
the reasonableness of the comments, utilizing data from only 11 out of 27
because the others suffered from incompleteness or lack of clarity, or from
a failure to provide cost information on a per product basis. See
BACKGROUND at 2-304 to 2-305 (J.A. at 444-45).
34a
authority under the Commerce Clause because there is an
insufficient nexus between coatings manufacture, which it
describes as an intrastate event, and the interstate
phenomenon of ozone formation.
Allied attempts to rely on the Supreme Court’s decision in
United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131
L.Ed.2d 626 (1995), striking down the Gun-Free School
Zones Act * which made it a federal crime knowingly to
possess a firearm in a school zone. In United States v.
Morrison,—U.S.—, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000),
handed down last month, the Court relied on Lopez in holding
that Congress also lacked authority under the Commerce
Clause to provide a federal civil remedy for the victims of
gender-motivated violence. In both cases, the Court agreed
that “ ‘Congress’ commerce authority includes the power to
regulate ihose activities having a substantial relation to
interstate commerce, . . . i.e., those activities that substantially
affect interstate commerce.’ “ /d. at 1749 (quoting Lopez, 514
U.S. at 558-59, 115 S.Ct. 1624). As Morrison explained,
however, four considerations contributed to Lopez's
conclusion that the Gun-Free School Zones Act did not fall
within that category of regulatable activity. Not one of those
considerations applies to section 183(e) of the Clean Air Act.
The Court held, first, that “in those cases where we have
sustained federal regulation of intrastate activity based upon
the activity’s substantial effects on interstate commerce, the
activity in question has been some sort of economic
endeavor.” /d. at 1750 (citing Lopez, 514 U.S. at 559-60, 115
S.Ct. 1624). Morrison noted that the criminal statute at issue
in Lopez “ ‘had nothing to do with “commerce” or any sort of
economic enterprise, however broadly one might define those
terms.’” Jd. at 1749 (quoting Lopez, 514 U.S. at 561, 115
S.Ct. 1624). It said that the same was true of the federal civil
5 18 U.S.C. § 922(q)(1)(A).
35a
remedy provision of the Violence Against Women Act
(VAWA).”° See id. at 1747. But the same cannot be said of
the Clean Air Act provisions concerning VOC emissions,
which permit regulation only of:
(i) manufacturers, processors, wholesale distributors, or
importers of consumer or commercial products for sale
or distribution’ in interstate commerce in the United
States; or
(ii) manufacturers, processors, wholesale distributors, or
importers that supply the entities listed under clause (i)
with such products for sale or distribution in interstate
commerce in the United States.
42 U.S.C. § 7511b(e)(1)(C).
Second, Morrison noted that in Lopez, the Gun-Free
School Zones Act, like VAWA, “contained ‘no express
jurisdictional element which might limit its reach to a discrete
set of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.’ ”
Morrison, 120 S.Ct. at 1751 (quoting Lopez, 514 U.S. at 562,
115 S.Ct. 1624). As quoted above, however, EPA’s
regulation of VOCs is expressly limited to entities that act “in
interstate commerce.” 42 U.S.C. § 7511b(e)(1)(C).
Third, Morrison pointed out that neither the Gun-Free
School Zones Act, “ ‘nor its legislative history contain{s]
express congressional findings regarding the effects upon
interstate commerce of gun possession in a school zone.’ ”
Id. (quoting Lopez, 514 U.S. at 562, 115 S.Ct. 1624). The
legislative history of the Clean Air Act Amendments, by
contrast, expressly describes the problem of interstate
transport of ozone, see, e.g., S.REP. NO. 101-228, at 3, 13, 49
(1989), U.S. Code Cong. & Admin. News at 3385, 3388,
6 42 U.S.C. § 13981.
36a
3399, 3435, as well as its effects on the national economy,
see, €.g., id. at 8-9.
Finally, according to Morrison, the “decision in Lopez
rested in part on the fact that the link between gun possession
and a_ substantial effect on interstate commerce’ was
attenuated,” Morrison, 120 S.Ct. at 1751, which the Court
said was true of gender-motivated violence as well, see id. at
1752. But, there is nothing attenuated about the interstate
effects of the activity regulated here. We ourselves have
noted the interstate nature of the “ozone transport
phenomenon,” and the way in which it may render any given
state unable to achieve attainment because of ozone created
hundreds of miles away. See Virginia v. EPA, 108 F.3d 1397,
1400 (D.C.Cir. 1997). The legislative history and EPA’s
report to Congress substantiate the heavy impact ozone
pollution has on national health care costs and national
agricultural production. See S.REP. NO. 101-228, at 8-9
(1989); REPORT at 1-1 (J.A. at 518). And the rulemaking
record sustains the proposition that the large majority of the
products regulated by the rule are distributed nationally, and
then applied by end-users in multiple locations, see 63
Fed.Reg. 48,792, 48,804—facts that are confirmed, and
stressed, by the National Paint & Coatings Association, see
NPCA Br. at 24.
In short, none of the considerations that led the Court to
find Congress’ authority wanting in Lopez and Morrison has
any application to section 183(e) of the Clean Air Act. In
Hodel v. Virginia Surface Mining and Reclamation Ass’ n—a
case cited with approval by the Supreme Court in both Lopez
and Morrison, see Lopez, 514 U.S. at 557, 115 S.Ct. 1624;
Morrison, 120 S.Ct. at 1748-50—the Court declared that it
“agree[d] with the lower federal courts that have uniformly
found the power conferred by the Commerce Clause broad
enough to permit congressional regulation of activities
Causing air or water pollution, or other environmental hazards
BOS "=~
37a
that may have effects in more than one State.” 452 U.S. 264,
282, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Contrary to
Allied’s assertion, nothing contained in the Court’s recent
Commerce Clause jurisprudence casts doubt on the validity of
that declaration here.
Vil
For the foregoing reasons, we reject petitioners’ challenges
to the architectural coatings rule and deny the petitions for
review.
38a
APPENDIX B
[Filed August 10, 2000}
UNITED STATES COURT OF APPEALS,
FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 98-1526
ALLIED LOCAL AND REGIONAL MANUFACTURERS
CAUCUS, et al.,
Petitioners,
Vv.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
NATIONAL PAINT & COATINGS ASSOCIATION, et al.,
Intervenors.
Consolidated with No. 98-1527
ORDER
Upon consideration of petitioners’ petition for rehearing
and petition for rehearing en banc filed on July 31, 2000, it is
ORDERED that respondent respond thereto and do so on
or before August 25, 2000.
A reply to the response will not be accepted by the court.
FOR THE COURT:
Mark J. Langer, Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk
39a
APPENDIX C
[Filed October 13, 2000]
UNITED STATES COURT OF APPEALS,
FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 98-1526
ALLIED LOCAL AND REGIONAL MANUFACTURERS
CAUCUS, et al.,
Petitioners,
Vv.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
NATIONAL PAINT & COATINGS ASSOCIATION, ef al.,
Intervenors.
Consolidated with No. 98-1527
Before: GINSBURG, TATEL, and GARLAND, Circuit
Judges.
ORDER
Upon consideration of petitioners’ petition for rehearing
filed July 31, 2000, and of the response thereto, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk
40a
APPENDIX D
STATUTES
42 U.S.C.A. § 7511b
§ 7511b. Federal ozone measures
(e) Control of emissions from certain sources
(1) Definitions
For purposes of this subsection—
(A) Best available controls
The term “best available controls” means the degree of
emissions reduction that the Administrator determines, on the
basis of technological and economic feasibility, health,
environmental, and energy impacts, is achievable through the
application of the most effective equipment, measures,
processes, methods, systems or techniques, including chemical
reformulation, product or feedstock substitution, repackaging,
and directions for use, consumption, storage, or disposal.
(B) Consumer or commercial product
The term “consumer or commercial product” means any
substance, product (including paints, coatings, and solvents), or
article (including any container or packaging) held by any
person, the use, consumption, storage, disposal, destruction, or
decomposition of which may result in the release of volatile
organic compounds. The term does not include fuels or fuel
additives regulated under section 7545 of this title, or motor
vehicles, non-road vehicles, and non-road engines as defined
under section 7550 of this title.
(C) Regulated entities
The term “regulated entities” means—
(i) manufacturers, processors, wholesale distributors, or
importers of consumer or commercial products for sale or
distribution in interstate commerce in the United States; or
4la
(ii) manufacturers, processors, wholesale distributors, or
importers that supply the entities listed under clause (i)
with such products for sale or distribution in interstate
commerce in the United States.
(2) Study and report
(A) Study
The Administrator shall conduct a study of the emissions of
volatile organic compounds into the ambient air from consumer
and commercial products (or any combination thereof) in order
to—
(i) determine their potential to contribute to ozone levels
which violate the national ambient air quality standard for
ozone; and
(ii) establish criteria for regulating consumer and
commercial products or classes or categories thereof which
shall be subject to control under this subsection.
The study shall be completed and a report submitted to
Congress not later than 3 years after November 15, 1990.
(B) Consideratior. of certain factors
_ In establishing the criteria under subparagraph (A)(ii), the
Administrator shall take into consideration each of the
following:
(i) The uses, benefits, and commercial demand of
consumer and commercial products.
(ii) The health or safety functions (if any) served by
such consumer and commercial products.
(iii) Those consumer and commercial products which
emit highly reactive volatile organic compounds into the
ambient air.
(iv) Those consumer and commercial products which
are subject to the most cost-effective controls.
42a
(v) The availability of alternatives (if any) to such
consumer and commercial products which are of
comparable costs, considering health, safety, and
environmental impacts.
(3) Regulations to require emission reductions
(A) In general
Upon submission of the final report under paragraph (2), the
Administrator shall list those categories of consumer or
commercial products that the Administrator determines, based
on the study, account for at least 80 percent of the VOC
emissions, on a reactivity-adjusted basis, from consumer or
commercial products in areas that violate the NAAQS for
ozone. Credit toward the 80 percent emissions calculation shall
be given for emission reductions from consumer or commercial
products made after November 15, 1990. At such time, the
Administrator shall divide the list into 4 groups establishing
priorities for regulation based on the criteria established in
paragraph (2). Every 2 years after promulgating such list, the
Administrator shall regulate one group of categories until all 4
groups are regulated. The regulations shall require best
available controls as defined in this section. Such regulations
may exempt health use products for which the Administrator
determines there is no suitable substitute. In order to carry out
this section, the Administrator may, by regulation, control or
prohibit any activity, including the manufacture or introduction
into commerce, offering for sale, or sale of any consumer or
commercial product which results in emission of volatile
organic compounds into the ambient air.
(B) Regulated entities
Regulations under this subsection may be imposed only with
respect to regulated entities.
(C) Use of CTGS
For any consumer or commercial product the Administrator
may issue control techniques guidelines under this chapter in
43a
lieu of regulations required under subparagraph (A) if the
Administrator determines that such guidance will be sub-
stantially as effective as regulations in reducing emissions of
volatile organic compounds which contribute to ozone levels in
areas which violate the national ambient air quality standard for
ozone.
(4) Systems of regulation
The regulations under this subsection may include any system
or systems of regulation as the Administrator may deem
appropriate, including requirements for registration and labeling,
self-monitoring and reporting, prohibitions, limitations, or
economic incentives (including marketable permits and auctions
of emissions rights) concerning the manufacture, processing,
distribution, use, consumption, or disposal of the product.
(5) Special fund
Any amounts collected by the Administrator under such
regulations shall be deposited in a special fund in the United
States Treasury for licensing and other services, which thereafter
Shall be available until expended, subject to annual
appropriation Acts, solely to carry out the activities of the
Administrator for which such fees, charges, or collections are
established or made.
(6) Enforcement
Any regulation established under this subsection shall be
treated, for purposes of enforcement of this chapter, as a
standard under section 7411 of this title and any violation of
such regulation shall be treated as a violation of a requirement
of section 741 1(e) of this title.
(7) State administration
Each State may develop and submit to the Administrator a
procedure under State law for implementing and enforcing
regulations promulgated under this subsection. If the
Administrator finds the State procedure is adequate, the
44a
Administrator shall approve such procedure. Nothing in this
paragraph shall prohibit the Administrator from enforcing any
applicable regulations under this subsection.
(8) Size, etc.
No regulations regarding the size, shape, or labeling of a
product may be promulgated, unless the Administrator
determines such regulations to be useful in meeting any national
ambient air quality standard.
(9) State consultation
Any State which proposes regulations other than those
adopted under this subsection shall consult with the
Administrator regarding whether any other State or local
subdivision has promulgated or is promulgating regulations on
any products covered under this part. The Administrator shall
establish a clearinghouse of information, studies, and
regulations proposed and promulgated regarding products
covered under this subsection and disseminate such information
collected as requested by State or local subdivisions.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.