Opposition Brief — Allied Local & Regional Manufacturers Caucus v. Environmental Protection Agency

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ae Court, U.S.

FILER

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APR 13 200!

No. 00-1125

FFICE OF THEO oRK

Jn the Supreme Court of the Gnited S

ALLIED LOCAL AND REGIONAL MANUFACTURERS

CAUCUS, ET AL., PETITIONERS

E,NVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor Gene ral

Counsel of Record

JOHN C. CRUDEN

Acting Assistant Attorney

Ce neral

ScoTT J. JORDAN

Attorney

Departme nt of Justice

Washington, D.C. 20530-0001

(202) 5]

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Bram d

QUESTIONS PRESENTED

1. Whether the court of appeals properly reviewed

Environmental Protection Agency’s interpretation of

Section 183(e) of the Clean Air Act, 42 U.S.C. 7511b(e),

under the principles of Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

2. Whether the court of appeals properly found the

regulation of the manufacture and sale of paint and

other architectural coatings under Section 183(e) of the

Clean Air Act to be within Congress’s power under the

Commerce Clause.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Chevron U.S.A. Inc. v. Natural Res. Defense

Council, Inc., 467 U.S. 837 (1984) ...........ccccccssssssesesenes

Christensen v. Harris County, 529 U.S. 576

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FDA v. Brown & Williamson Tobacco Corp.,

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Hodel v. Virginia Surface Mining & Reclamation

Anes, 4GB UB. BEG (IGRI) ...ccccccesseccsccsscsnsscescecescsncscescscsees

Jones v. United States, 529 U.S. 848 (2000) ...................

Southern Cal. Edison Co. v. FERC, 116 F.3d 507

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United States v. Lopez, 514 U.S. 549 (1995) .........cccesee

United States v. Morrison, 529 U.S. 598 (2000) ........

Whitman v. American Trucking Ass’ns, 1215S. Ct.

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Wickard v. Filburn, 317 U.S. 111 (1942) .................0000

Constitution and statutes:

U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) ............

Clean Air Act, 42 U.S.C. 7401 et seq. ..........sccssesseresesseneesens

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Miscellaneous:

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In the Supreme Court of the Gnited States

No. 00-1125

ALLIED LOCAL AND REGIONAL MANUFACTURERS

CAUCUS, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY

!

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-37a)

is reported at 215 F.3d 61.

JURISDICTION

The judgment of the court of appeals was entered on

June 16, 2000. A petition for rehearing was denied on

October 13, 2000 (Pet. App. 39a). The petition for a

writ of certiorari was filed on January 11, 2001. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

Petitioners seek review of a decision of the court

of appeals arising from an Environmental Protection

Agency (EPA) rulemaking under the Clean Air Act,

42 U.S.C. 7401 et seq.

1. The Clean Air Act establishes a comprehensive

federal program to protect and enhance the quality of

the nation’s air resources through, among other things,

the establishment of National Ambient Air Quality

Standards for harmful air pollutants. 42 U.S.C. 7408.

Ground-level ozone, which causes a variety of detri-

mental effects on humans and the environment, includ-

ing adverse health effects (such as labored breathing

and pulmonary inflamation), agricultural crop losses,

and damage to forests and ecosystems, is such a pollu-

tant.

When Congress amended the Clean Air Act in 1990,

it added various provisions aimed at mitigating the

problem of ground-level ozone. In particular, Section

183(e) of the Act, 42 U.S.C. 7511b(e), directed EPA to

regulate emissions of Volatile Organic Compounds

(VOCs) from consumer and commercial products in

order to help States achieve the National Ambient Air

Quality Standard for ozone. VOCs are a key consti-

tuent in the formation of ground-level ozone. Section

183(e) directed EPA: (1) to conduct a study of VOC

emissions from consumer and commercial products to

determine their potential to contribute to nonattain-

ment of the ozone standard, and to submit that informa-

tion in a report to Congress, 42 U.S.C. 7511b(e)(2)(A);

(2) to develop criteria for regulation of such products,

42 U.S.C. 7511b(e)(2)(A)(ii) and (B); (3) to use the crite-

ria to list and prioritize categories of products for

regulation, 42 U.S.C. 7511b(e)(3)(A); and (4) to promul-

3

gate a series of regulations, each focusing on reducing

VOC emissions from a particular product category, 42

U.S.C. 7511b(e)(3)(A).’

EPA submitted the statutorily required study to

Congress and published a preliminary list of product

categories in March of 1995. Following a notice-and-

comment rulemaking, EPA published its final listing

determination and regulations under Section 183(e) for

three product categories on September 11, 1998. In its

final determination, EPA identified and confirmed the

first three product categories, and explained the pro-

cess and bases for its decision to regulate those cate-

gories. 63 Fed. Reg. 48,792 (1998). On that same date,

EPA published final regulations specifying limits on the

permissible VOC content for the first three product

categories: automobile refinish coatings, 63 Fed. Reg.

at 48,806; certain household consumer products, 63 Fed.

Reg. at 48,819; and architectural coatings, 63 Fed. Reg.

at 48,848.

2. Petitioners, a trade association and several in-

dividual manufacturers of paint, filed petitions for

review of EPA’s regulations in the Court of Appeals for

the District of Columbia Circuit. Petitioners did not

directly challenge the VOC limits set in the rules for

the relevant product categories. Instead, they chal-

lenged the process by which EPA selected the three

categories for the first round of regulation. The court

of appeals denied the petitions. Pet. App. la-37a.

1 Under Section 183(e), EPA can also issue—instead of or along

with regulations—Control Guidelines Techniques (CGTs) to guide

States in regulating the use of specified products to reduce VOC

emissions in non-attainment areas. 42 U.S.C. 7511b(e)(3)(C). This

case does not involve the promulgation of CGTs.

4

Petitioners’ challenge, the court of appeals explained,

must be analyzed under the now-familiar two-step pro-

cess of Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). Pet. App.

7a. Under the first step, the court asks “whether Con-

gress ‘has directly spoken to the precise question at

issue,’ in which case” the court “‘must give effect to the

unambiguously expressed intent of Congress.’” J[bid.

(quoting Chevron, 467 U.S. at 842-843). “If ‘the statute

is silent or ambiguous with respect to the specific

issue,” the court explained, the court moves to Chev-

ron’s second step, under which the court “must defer to

the agency’s interpretation so long as it is ‘based on a

permissible construction of the statute’ * * * and is

‘reasonable in light of the Act’s text, legislative history,

and purpose.’” /bid. (quoting Chevron, 467 U.S. at 843,

and Southern Cal. Edison Co. v. FERC, 116 F.3d 507,

511 (D.C. Cir. 1997)). The court also noted that it has

the power to set aside a final rule if it is arbitrary,

capricious, an abuse of discretion, or otherwise notin

accordance with law. [bid.

Applying those standards, the court of appeals re-

jected petitioners’ claim that EPA had failed to con-

sider the extent to which various VOCs are “reactive,”

i.e., the relative degree to which VOCs contribute to

the formation of ground-level ozone. EPA, the court

explained, not only had considered reactivity but in fact

had established three categories of reactivity—

negligibly reactive, reactive, and highly reactive. Pet.

App. 8a. The court also rejected the claim that the

statute requires EPA to determine the reactivity of

each volatile compound individually, rather than by

using broad categories. The statute, the court pointed

out, merely directs EPA to study emissions of VOCs

“from consumer and commercial products (or any com-

ee ee

5

bination thereof) in order to . . . determine their po-

tential to contribute to ozone levels.” Jd. at 10a (quot-

ing 42 U.S.C. 7511b(e)(2)(A)). Congress’s express

reference to “any combination” of consumer and com-

mercial products, and its direction that EPA determine

“their” capacity (rather than “each’s” capacity) to con-

tribute to ozone, simply makes it “impossible to regard

the statute as unambiguously expressing an intent that

each VOC be analyzed individually.” Ibid.

The court of appeals also rejected petitioners’ claim

that, under EPA’s methodology, some compounds that

should not be regulated might be regulated nonethe-

less. Pet. App. 14a-15a. That result, the court stated,

is not likely given that EPA has expressly exempted

from regulation those compounds determined to have

negligible reactivity, and is especially unlikely given

that pre-existing EPA regulations allow companies to

apply to have compounds excluded from the definition

of VOC. Ibid. The court also was not persuaded by the

argument that, in a perfect regulatory-scheme, archi-

tectural coatings would not have been among the first

products regulated. “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 con-

sumer and commercial products.” Jd. at 15a. As to the

precise ranking of architectural coatings as a priority,

the court explained, deference to EPA’s reasonable

methodology is particularly appropriate. Jbid.

The court of appeals also rejected petitioners’ claim

that, under United States v. Lopez, 514 U.S. 549 (1995),

and United States v. Morrison, 529 U.S. 598 (2000),

Congress lacks Commerce Clause authority to regulate

in this area. Pet. App. 33a-37a. The court of appeals

observed that, in Morrison, this Court identified four

6

considerations that had led to the invalidation of the

statute at issue in Lopez: that the statute had nothing

to do with commerce or commercial activities; that the

statute contained no express jurisdictional element re-

quiring a nexus to interstate commerce; that Congress

had made no findings about interstate effects; and the

great degree of attenuation between the regulated

activity and the effect on interstate commerce. /d. at

34a-37a.

Here, the court of appeals explained, each of those

factors supports Congress’s power to regulate. Unlike

the statute at issue in Lopez (which prohibited posses-

sion of a gun near schools), and the statute in Morrison

(which dealt with gender-motivated violence), Section

183(e) is directed at commercial activity, namely the

manufacture, sale, processing, and distribution of “con-

sumer or commercial products for sale or distribution in

interstate commerce.” Pet. App. 35a (quoting 42 U.S.C.

7511b(e)(1)(C)(i)). Second, Section 183(e) does require

an interstate nexus; for national regulations like those

at issue here, the statute limits EPA’s authority to

regulating manufacturers, processors, wholesale distri-

butors and importers of products for sale or distribution

“in interstate commerce.” /bid. Third, there are express

findings—by Congress, by EPA, and by the courts—

regarding the interstate impact of the regulated

activity. Ibid.

Fourth, here there could be no claim that the re-

lationship between the regulated activity and interstate

commerce is “attenuated.” Pet. App. 36a. “We our-

selves,” the court explained, “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.” Jbid. “And the rulemaking record

7

sustains the proposition that the large majority of

the products regulated by the rule are distributed

nationally.” Jbid. Finally, the court of appeals noted,

this Court had “agree[d] with the lower federal courts

that have uniformly found the power conferred by the

Commerce Clause broad enough to permit congres-

sional regulation of activities causing air or water

pollution, or other environmental hazards that may

have effects in more than one State.” Jd. at 36a-37a

(quoting Hodel v. Virginia Surface Mining & Reclama-

tion Ass’n, 452 U.S. 264, 282 (1981)).

ARGUMENT

The decision of the court of appeals is correct, and

does not conflict with any decision of this Court or any

court of appeals. Accordingly, further review is not

warranted.

1. Petitioners’ first claim is that the court of appeals

should not have reviewed EPA’s rulemaking under

the well-settled principles of Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). Instead, petitioners argue, the court of appeals

should have applied this Court’s decisions in FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120

(2000), and Christensen v. Harris County, 529 U.S.-576

(2000). Pet. 5-19. That contention is without merit.

a. In Brown & Williamson, this Court itself applied

the traditional two-step approach under Chevron to

determine the validity of the FDA’s tobacco regula-

tions. “Bevause this case involves an administrative

agency’s construction of a statute that it administers,”

the Court explained, “our analysis is governed by

Chevron.” 529 U.S. at 132. Applying the first step of

Chevron, the Court determined that Congress had

spoken to whether the FDA had authority regulate

8

tobacco. Carefully canvassing the political history of

tobacco, the Court concluded that Congress’s actions

over the previous 35 years “preclude an interpretation

of the” Food, Drug, and Cosmetic Act “that grants the

FDA jurisdiction to regulate tobacco products.” Jd. at

155. The Court took careful note that, throughout most

of its history, the FDA had disavowed any authority to

regulate tobacco. The Court concluded that Congress,

by passing a host of tobacco-specific laws following the

FDA’s disavowal, and by acting to preclude any agency

from exercising regulatory control over tobacco, had

“effectively ratified the FDA’s previous position that it

lacks jurisdiction to regulate tobacco.” /d. at 156.

The Court in Brown & Williamson also observed

that its inquiry into whether Congress had spoken

directly to the issue was “shaped, at least in some

measure, by the nature of the question presented.” 529

U.S. at 159. In “extraordinary cases,” the Court ex-

plained, “there may be reason to hesitate before con-

cluding that Congress has intended” an “implicit dele-

gation” of power to regulate a certain segment of the

economy. J/bid. In the context of tobacco, the Court

explained, the unique political history of the product,

the distinct regulatory scheme governing it, Congress’s

repeated rejections of proposals to allow the FDA to

regulate tobacco, and Congress’s repeated actions to

preclude regulation of tobacco, all provided reason to

hesitate:

Owing to its unique place in American history and

society, tobacco has its own unique political history.

Congress, for better or for worse, has created a

distinct regulatory scheme for tobacco products,

squarely rejected proposals to give the FDA juris-

diction over tobacco, and repeatedly acted to

9

preclude any agency from exercising significant

policymaking authority in the area. Given this his-

tory and the breadth of the authority that the FDA

has asserted, we are obliged to defer not to the

[FDA’s] expansive construction of the statute, but

to Congress’ consistent judgment to deny the FDA

this power.

Id. at 159-160.

Brown & Williamson is inapposite, as the foregoing

description attests. Here, there are no “extraordinary”

circumstances casting doubt on the agency’s authority

to regulate. This is not a case in which the agency, for

the previous 35 years, disavowed power to regulate a

particular product. It is not a case in which Congress

effectively ratified the agency’s disavowal; in which

Congress repeatedly rejected proposals that would

have empowered the agency to regulate; or in which

Congress adopted proposals that created a distinct

regulatory regime for the product at issue, only to have

the agency later change its view. Instead, this

is a case in which Congress clearly and unequi-

vocally delegated to EPA the power to study and then

regulate consumer and commercial products—such as

architectural coatings—that release VOCs. 42 U.S.C.

7511b(e)(3)(A). Whatever Brown & Williamson adds to

the analysis to be performed under Chevron step one in

“extraordinary cases” like Brown & Williamson, 529

U.S. at 159, it has no application here.

Consequently, petitioners’ repeated claim that Con-

gress “did not explicitly empower EPA to” use three

reactivity categories, Pet. 15-16, or that there can be no

“implicit delegation of power” to adopt the regulations

at issue here, Pet. 17, are without merit. Brown &

Williamson does not replace traditional Chevron defer-

10

ence with a plain-statement test or with a requirement

that all regulatory decisions be the product of unam-

biguous statutory command.” To the contrary, Brown

& Williamson preserved the rule that, “if Congress has

not specifically addressed the question, a reviewing

court must respect the agency’s construction of the

statute so long as it is permissible.” 529 U.S. at 132.

The court of appeals properly applied that approach

when examining the validity of EPA’s architectural

coatings regulations, and nothing in Brown & William-

son undermines its judgment.

b. Petitioners’ reliance on Christensen is likewise

misplaced. In that case, this Court concluded that

Chevron deference does not apply to agency statutory

interpretations in opinion letters, policy statements,

manuals, and enforcement guidelines that are not

“arrived at after, for example, a formal adjudication or

notice-and-comment rulemaking.” 529 U.S. at 587. The

Court expressly stated, however, that “the framework

of deference set forth in Chevron does apply to an

agency interpretation contained in a regulation.” Jbid.

In the present case, petitioners are challenging regula-

tions promulgated through notice-and-comment rule-

making. As a result, under Christensen, traditional

Chevron deference is appropriate.

Seeking to avoid that result, petitioners argue

that they, in effect, are challenging EPA’s 1995 report

to Congress. Although that report was required

by statute, it was not, they argue, an agency rule or

decision. Pet. 11. But the 1995 report to Congress,

which did not create binding rules governing peti-

2 Cf. Whitman v. American Trucking Ass’ns, 121 S. Ct. 903

(2001) (rejecting similar contentions under the non-delegation

doctrine).

11

tioners’ conduct, was not itself reviewable final agency

action; and petitioners, in any event, sought to in-

validate EPA’s 1998 determination and the resulting

regulations. Because the 1998 agency actions that peti-

tioners sought to invalidate were “arrived at after

* * * notice-and-comment rulemaking”—and repre-

sent the agency’s “interpretation contained in a regula-

tion’—Chevron deference was appropriate under

Christensen, 529 U.S. at 587.3

2. Petitioners also assert that EPA’s regulation of

the manufacture and sale of paint and other consumer

and commercial products to reduce VOC emissions falls

outside Congress’s constitutional authority to regulate

under the Commerce Clause. Petitioners do not

dispute that, in Hodel v. Virginia Surface Mining &

Reclamation Ass’n, 452 U.S. 264, 282 (1981), this Court

stated that “the power conferred by the Commerce

Clause” is “broad enough to permit congressional

regulation of activities causing air or water pollution, or

other environmental hazards that may have effects in

more than one State.” Nonetheless, petitioners ask

this Court to revisit that principle. In addition, peti-

tioners contend that Hodel cannot justify regulation of

the manufacture and sale of paints because the manu-

facture and sale do not themselves create pollution;

only the use of paint, they argue, creates air pollution.

Pet. 21.

Those arguments are without merit. Contrary to

petitioners’ claims (Pet. 21), this Court’s recent Com-

merce Clause decisions cast no doubt on Congress’s

power to legislate in this area. Petitioner relies largely

’ The remainder of petitioners’ Brown & Williamson- and

Christensen-based arguments (Pet. 8-19) are wholly factbound,

and we rely on the decision of the court of appeals rejecting them.

12

on Jones v. United States, 529 U.S. 848 (2000), United

States v. Morrison, 529 U.S. 598 (2000), and United

States v. Lopez, 514 U.S. 549 (1995). Not one of those

cases, however, involved the direct regulation of com-

mercial activity. In Morrison, the activity at issue was

gender-based violence, which Congress sought to regu-

late by providing a federal civil remedy for victims. In

Lopez, the regulated activity was gun possession near

schools; the statute made no effort to regulate the

manufacture or sale of guns. And in Jones, the court

held that arson of a home used as a private residence

was not covered by a statute that prohibited arson of

property “used in interstate or foreign commerce or in

any activity affecting interstate or foreign commerce,”

529 U.S. at 853, 859 (quoting 18 U.S.C. 844(i) (1994 &

Supp. IV 1998)); such arson, the Court reasoned, had

“merely a passive, passing, or past connection to

commerce.” Jd. at 855. Here, by contrast the regulated

activity—the manufacture or importation of paint for

sale or distribution by entities engaged in interstate

commerce—is undeniably commercial in nature. That

the regulated activity is itself commercial (7.e., it is

economic activity) is, of course, a critical factor when

evaluating Congress’s power under the Commerce

Clause. See Morrison, 529 U.S. at 610-612; Lopez, 514

U.S. at 561.

Moreover, as the court of appeals pointed out (and

petitioners do not dispute), ground-level ozone is a

problem of interstate dimension, Pet. App. 36a, and

the statute specifically requires a proper nexus to inter-

state commerce in any event. Section 7511b(e)(1)(C)

permits regulation of those entities that are manufac-

turers, processors, importers or wholesale distributors

of architectural coatings “for sale or distribution in

interstate commerce,” as well as those that supply such

13

entities with such products. 42 U.S.C. 7511b(e)(1)(C).

Those entities that do not make, process, import or

distribute the products for interstate sale or distribu-

tion (or supply the entities that do) are not covered.

Pet. App. 35a.‘

Petitioners also assert that EPA should not be per-

mitted to regulate the manufacture and sale of paints

because manufacture and sale do not create interstate

pollution; only using paint, petitioners declare, has that

effect. Pet. 21. It is hard to see how that has any

bearing on the Commerce Clause issue. The manu-

facture and sale of the paints constitute commercial

activity with a sufficient nexus to interstate commerce

to permit federal regulation, whether or not the activity

itself produces pollution. That is particularly true given

that, as the court of appeals noted, most paints are

manufactured and distributed nationwide. Pet. App.

36a. See Lopez, 514 U.S. at 558-559 (“Congress’ com-

* Petitioners’ contention that EPA’s regulations are broader

than the statute (Pet. 24-25) is not properly presented. The court

of appeals read EPA’s regulations as consistent with the statute,

and we see no reason to read them otherwise. In any event,

because the manufacture, processing, and sale of paint is com-

mercial activity, Congress may regulate that activity so long as it

has the requisite effect on interstate commerce, even if the

individual product at issue does not cross state lines. Lopez, 514

U.S. at 559 (“[W]Je have upheld a wide variety of congressional

Acts regulating intrastate economic activity where we have

concluded that the activity substantially affected interstate com-

merce,” including “intrastate coal mining” and “restaurants util-

izing substantial interstate supplies.”); Wickard v. Filburn, 317

U.S. 111 (1942). Here, EPA reasonably concluded that nationwide

regulations are necessary to prevent the use of products from

attainment areas in non-attainment areas, undermining the efforts

to reduce VOC emissions in non-attainment areas. Pet. App. 22a-

23a.

14

merce authority includes the power to regulate those

activities having a substantial relation to interstate

commerce, 7.e., those activities that substantially affect

interstate commerce”) (citation omitted); ef. Wickard v.

Filburn, 317 U.S. 111 (1942) (regulation of wheat grown.

for consumption at home permissible because of effect

on interstate commerce in the aggregate). Besides,

petitioners’ attempt to disassociate the manufacture

and sale of the paint from its ozone-producing use is

unpersuasive. The use of petitioners’ products is an

inevitable and intended consequence of their manu-

facture and sale. Nothing in the Constitution prohibits

Congress from addressing the problem of ozone pro-

duction by regulating the manufacture and trafficking

in products that, when used as intended, generate that

pollutant.

Alternatively, petitioners appear to argue that the

Commerce Clause would not permit Congress to regu-

late the use of paint by individuals. That claim is not

presented by this case. EPA’s national architectural

coatings regulations govern manufacturers, wholesale

distributors, and importers of paint, not paint users.

Pet. 21 (“The ‘activities’ regulated by EPA were those

of manufacturing all paints for sale in the nation.”). For

the same reasons, there is no reason in this case to

address petitioners’ claim that Congress and EPA did

not make sufficient findings to justify the regulation of

paint usage, Pet. 21-22; that house painting is not a

commercial activity, Pet. 27-28; or that house painting

does not have a sufficient impact on interstate com-

merce.” Here, Congress authorized EPA to regulate

° To a large degree, petitioners’ challenge is not really aimed at

the question of interstate commerce, but at the degree to which

particular compounds (glycols) contribute to ozone formation. See

15

the manufacture of particular consumer and commer-

cial products for sale and distribution—activities that

are undeniably commercial and that have an unmis-

takable effect on interstate commerce—because of the

effect on airborne pollutants.. Nothing in Lopez, Jones,

or Morrison casts doubt on Congress’s power to do so.

See Lopez, 514 U.S. at 560 (“Where economic activity

substantially affects interstate commerce, legislation

regulating that activity will be sustained.”); Morrison,

529 U.S. at 608-609 (similar).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

ScoTT J. JORDAN

Attorney

APRIL 2001

Pet. 22 (arguing that glycols are not volatile). As the court of

appeals explained, it is unlikely that EPA erred with respect to

specific compounds and, in any event, EPA’s regulations provide a

mechanism by which erroneously included compounds can be

exempted from regulation. Pet. App. 14a-15a.