Petition for Writ of Certiorari — Appalachian Power Co. v. Environmental Protection Agency

i Supreme Court, U.S,

on wom 2

\)

9813 30 FEB 18 1999 -

IN THE OFFICE GF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1998

No.

APPALACHIAN POWER COMPANY, et al.,

¥ Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID E. MENOTTI HENRY V. NICKEL

WILLIAM F’. PEDERSEN (Counsel of Record)

SHAW, PITTMAN, POTTS KEVIN L. FAST

& TROWBRIDGE LAUREN E. FREEMAN

2300 N St., N.W. MATTHEW F. GOLDBERG

Washington, D.C. 20037 HUNTON & WILLIAMS

(202) 663-8675 1900 K Street, N.W.

Counsel for American Washington, D.C. 20006

Petroleum Institute (202) 955-1500

Counsel for Appalachian

Power Company, et al.

G. WILLIAM FRICK

JOHN E. REESE

AMERICAN PETROLEUM INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8240

Counsel for American

February 18, 1999 Petroleum Institute

[Additional Counsel Listed Inside]

EE TONSA ELE

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C, 20001

S108

RUSSELL S. FRYE

Roy S. BELDEN

CHADBOURNE & PARKE LLP

1200 New Hampshire Ave., N.W.

Washington D.C., 20036

(202) 974-5600

Counsel for American Forest &

Paper Association, Inc.

ROBERT A. KIRSHNER

General Counsel

AMERICAN FOREST &

PAPER ASSOCIATION, INC.

1111 19th Street, N.W.

8th Floor

Washington, D.C. 20036

(202) 463-27000

Counsel for American Forest &

Paper Association, Inc.

MICHAEL H. LEVIN

NEAL J. CABRAL

MICHAEL MCGOVERN

McGuire, Woops, BATTLE

& BooTuHeE, L.L.P.

1627 Eye Street, N.W.

Washington, D.C. 20006

(202) 857-1700

Counsel for

Can Manufacturers Institute

WILLIAM H. LEwIs, JR.

MICHAEL A. McCorD

JOSHUA D. SARNOFF

MorGAN, Lewis & Bockius LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7145

Counsel for Clean Air

Implementation Project

Davip E. MENOTTI

WILLIAM F’. PEDERSEN

SHAW, PITTMAN, POTTS

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8675

Counsel for

Corn Refiners Association, Inc.

ROBERT L. BRUBAKER

JANET J. HENRY

KATERINA M. EFTIMOFF

PORTER, WRIGHT, MORRIS

& ARTHUR

41 South High Street

Columbus, Ohio 43215

(614) 227-2033

Counsel for Ohio Chamber of

Commerce, and Ohio

Chemical Couneil

LYNN L. BERGESON

BETHAMI AUERBACH

LISA CAMPBELL

BERGESON & CAMPBELL

1300 Eye Street, N.W.

Suite 1000 West

Washington, D.C. 20005

(202) 962-8585

Counsel for RSR Corporation

HOWARD B. MYERS

General Counsel

RSR CORPORATION

2777 Stemmons Freeway

Suite 1800

Dallas, Texas 75207

(214) 583-0238

Counsel for RSR Corporation

l.

2.

QUESTIONS PRESENTED

Whether, under the Constitution, an inferior court of

the United States can apply prudential doctrines of

justiciability—in this case, prudential “ripeness”—

as a basis for refusing to exercise jurisdiction that

Congress commanded the inferior court to exercise to

ensure prompt, pre-enforcement review of final legis-

lative rules promulgated by a federal agency?

Whether this Court’s decisions in Abbott Laboratories

v. Gardner, 387 U.S. 136 (1967) and its progeny

allow a Court of Appeals to apply prudential doctrines

of justiciability—in this case, prudential “ripeness”’—

to postpone judicial review of final legislative rules

promulgated by a federal agency under a congres-

sional statute that requires prompt, pre-enforcement

review of such rules by the Court of Appeals based

solely upon objections raised in rulemaking comments

and the administrative record in existence at the time

the rule is promulgated, and that explicitly precludes

judicial review of such rules in later enforcement

actions?

(i)

ii

PARTIES TO THE PROCEEDINGS

The following Petitioners were parties to the proceed-

ings below: Petitioner Appalachian Power Co., et al.

was petitioner in No. 97-1125. Petitioner Clean Air

Implementation Project was petitioner in No. 97-1117.

Petitioners American Petroleum Institute and American

Forest & Paper Association were petitioners in No. 97-

1130. Petitioner Can Manufacturers Institute was peti-

tioner in No. 97-1226. Petitioner Corn Refiners Associa-

tion, Inc. was petitioner in No. 97-1242. Petitioners Ohio

Chamber of Commerce, and Ohio Chemical Council were

petitioners in No. 97-1254. Petitioner RSR Corporation

was petitioner in No. 97-1261.+

Appalachian Power Co., et al.* is comprised of the

following petitioners:

Baltimore Gas and Electric Company

Carolina Power & Light Company

Central and South West Services, Inc.

Central Hudson Gas & Electric Corporation

Central Illinois Light Company

Central Illinois Public Service Company

Central Power and Light Company

CINergy Corp.

Cleveland Electric Illuminating Company

Columbus Southern Power Company

Commonwealth Edison Company

Consumers Power Company

1A list of parent companies, subsidiaries, and affiliates of Ap-

palachian Power Co., et al. and other petitioners is contained in

Appendix I to the Petition pursuant to Rule 29 of this Court.

2 The following petitioners in the D.C. Circuit have withdrawn

from the group that comprises Appalachian Power Co., et al. for

purposes of the petition for certiorari: Centerior Energy Corp.;

Consolidated Edison Company of New York, Inc.; Duquesne Light

Company; Long Island Lighting Co.; Montaup Electric Company;

New England Power Company; New York © ate Electric & Gas

Corporation; Niagara Mohawk Power Corporation; and PECO

Energy Company.

ee ee ee oo

aM A es NETRA! LOLI ROLLE FELINE NE EP ERLE PRT PE OY POD

111

Dayton Power & Light Company, The

Delmarva Power & Light Company

Detroit Edison Company, The

Duke Energy Corporation

Florida Power Corporation

Illinois Power Company

Indiana Michigan Power Company

Indianapolis Power & Light Company

Jacksonville Electric Authority

Kansas City Power & Light Company

Kentucky Power Company

Kentucky Utilities Company

Louisville Gas and Electric Company

Madison Gas and Electric Company

Minnesota Power Company

Monongahela Power Company

(dba Allegheny Power System, Inc. )

Northern Indiana Public Service Company

Oglethorpe Power Corporation

Ohio Power Company

Ohio Valley Electric Corporation

Otter Tail Power Company

Pacificorp Electric Operations

Pennsylvania Power & Light Company

Plains Electric Generation & Transmission;

Cooperative, Inc.

Potomac Edison Company, The

(dba Allegheny Power System, Inc. )

Potomac Electric Power Company

Public Service Company of New Mexico

Public Service Company of Oklahoma

Salt River Project

South Carolina Electric & Gas Company

Southern Company, The

Alabama Power Company

Georgia Power Company

Gulf Power Company

Mississippi Power Company

Savannah Electric & Power Company

iv

Southwestern Electric Power Company

Tampa Electric Company

Toledo Edison Company

Tucson Electric Power Company

Union Electric Company

Virginia Power

West Penn Power Company

(dba Allegheny Power System, Inc.)

West Texas Utilities Company

Wisconsin Electric Power Company

Edison Electric Institute

National Rural Electric Cooperative Association; and

American Public Power Association

The following were petitioners in the proceedings below

and have not joined petitioners seeking a writ of certiorari:

American Automobile Manufacturers Association; Ameri-

can Iron & Steel Institute; Association of International Au-

tomobile Manufacturers; National Mining Association and

Coalition for Clean Air Implementation were petitioners in

No. 97-1130; National Environmental Development Asso-

ciation’s Clean Air Regulatory Project was petitioner in

No. 97-1142; Gas Processors Association was petitioner in

No. 97-1169; Specialty Steel Industry of North America

and Steel Manufacturers Association were petitioners in

Petition No. 97-1173; The Fertilizer Institute was peti-

tioner in No. 97-1179; The Society of the Plastics In-

dustry, Inc. was petitioner in No. 97-1190; Chemical

Manufacturers Association was petitioner in No. 97-1195;

National Oilseed Processors Association was petitioner

in No. 97-1241; Entergy Services, Inc. and Florida Power

& Light Company, Inc. were petitioners in No. 97-1253;

Corporate Environmental Enforcement Council was peti-

tioner in No. 97-1266; American Portland Cement Alli-

ance was petitioner in No. 97-1269; National Association

of Manufacturers was petitioner in No. 97-1273; Lead

Industries Association, Inc. was petitioner in No. 97-1278;

American Coke & Coal Chemicals Institute was petitioner

in No. 97-1281; Missouri Chamber of Commerce was

petitioner in No. 97-1282; National Grain & Feed Asso-

AE RR ORL RF

v

ciation was petitioner in No. 97-1283; Electronic Indus-

tries Association was petitioner in No. 97-1286; The

Aluminum Association was petitioner in No. 97-1289;

The Association of Battery Recyclers, Inc. intervened

below in petition No. 97-1259.

The United States Environmental Protection Agency

(EPA) was Respondent in all of the proceedings, and

Natural Resources Defense Council intervened on behalf

of Respondent.

TABLE OF CONTENTS

RU Sieh chiechapsnichdiahniatemisibisbidin i ligedibbcilin As tack

2, 8 8. aR aetna so Caren eRe eet

PPR, Gilneeicsishtn tnnsatcrhatnebies Disbialekish dilheieoress

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PROVISIONS INVOLVED . 0 .

STATEMENT OF THE CASE... Seicnalaciaties

A. The Constitutional and Statutory Context of

This Case .......... ip soeidacleuligUe DentaaucciinahredbiaeaslecidibecbetbaeCixouicsés,

B. EPA’s Credible Evidence Rule ..........

CG, Tee srecteanes Below

D. The D.C. Circuit’s Decision .......................... SAAT

REASONS FOR GRANTING THE PETITION..........

I. THE D.C. CIRCUIT’S DECISION CONTRA-

VENES CONGRESS’ PLAN FOR JUDICIAL

MET Ie OP tictashitea occas taclhdingsst ncens ecb dhcenebthdna ese

Il. THE D.C. CIRCUIT’S DECISION IS CON-

TRARY TO THIS COURT’S APPLICATION

OF RIPENESS PRINCIPLES .............0000...........

lil. THE D.C. CIRCUIT’S DECISION ESTAB-

LISHES A DANGEROUS PRECEDENT FOR

OTHER CIRCUIT COURTS WITH JURISDIC-

TION TO CONVUCT PRE-ENFORCEMENT

JUDICIAL REVIEW OF FINAL LEGISLA-

TIVE RULES AND CREATES HAVOC FOR

REGULATORY AGENCIES, REGULATED

ENTITIES AND THE PUBLIC AT LARGE...

(vii)

11

13

16

20

23

viii

TABLE OF CONTENTS—Continued

CONCLUSION

APPENDICES

ix

TABLE OF AUTHORITIES

FEDERAL CASES Page

Abbott Laboratories v. Gardner, 387 U.S. 1386

FS gh EAI EE NSE AGRE aN a Ee io aR passim

Association of American Railroads v. Surface

Transportation Board, 146 F.3d 942 (D.C. Cir.

pS tai a la Ra SE sah wn de tks neta So Aaa 20

Bell v. Hood, 827 U.S. 678 (19465) .......................... 18

Bennett v Spear, 117 S. Ct. 1154 (1997) 14,27

Township of Bensalem v. American Fidelity Fire

Insurance Co., 644 F.2d 990 (3rd Cir. 1981)... 4

Cary v. Clarke, 44 U.S. (8 How.) 236 (1845)... 17

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 887 (1984)... 13

Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40

eG eae pee iri Sl 22

Clean Air Implementation Project v. EPA, 150

Fa sooo Co tar. 5908) ee passim

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

RIES nee ee re kin et 2 Fe 18

Department of Commerce v. United States House

of Representatives, Nos. 98-404, 98-564, 1999

WL 24616 (U.S. Jan. 25, 1999) ......0 wo... 17

Fair Employment Council of Greater Washington,

Inc. v. BMC Marketing Corp., 28 F.3d 1268

SOey Ge BOOED othee eo 20

Harrison v. PPG Industries, Inc., 446 U.S. 578

pee SRA MAIS SMa OL SO ee a ter a NA i a passim

Havens Realty Corp. v. Coleman, 455 U.S. 363

CRE eiccinktnin sbatusiimacieagnsbacimenie cil aa 20

Independent Cosmetic Manufacturers and Distrib-

utors, Inc. v. United States Dep’t of H.E.W.,

of4 F.2a G66 (D.C. Cir. 1878) 22

Kennecott Copper Corp. v. EPA, 462 F.2d 846

C2 Te RTT ce ea Ne 5

Louisiana Environmental Action Network v.

Browner, 87 F.8d 1879 (D.C. Cir. 1996) 20

Lujan v. Defenders of Wildlife, 504 U.S. 555

Eg cj spc taeas ata bales ib. ta Ds Ss RMA Ph AR 11

TABLE OF AUTHORITIES—Continued

Page

Lujan v. National Wildlife Federation, 497 U.S.

9 eet } BO nee eNean aCe ems) S Yulee. ew Sen 20-21

Metropolitan Washington Airports Authority v.

Citizens for Abatement of Aircraft Noise, Inc.,

Se ELSE I TN SIRE SF

G01. TiS. Ba EAE cient eee 11

North Dakota State Board of Pharmacy v. Snyder’s

Drug Stores, Inc., 414 U.S. 156 (1978) -............. 11

Ohio Forestry Association, Inc. v. Sierra Club, 118

S. Ge cee Lee chi a et 21

Quackenbush v. Allstate Insurance Co., 517 U.S.

TOG TEOOOR oe a er a4 18

Raines v. Byrd, 117 S. Ct. 2812 (1997) .................. 17

Thomas v. New York, 802 F.2d 1443 (D.C. Cir.

DUG DB sicsciscckcicachciprieisascss Gis aktnis seein Dincapitenbedta. 9

Train v. Natural Resources Defense Council, 421

Re. OD CRF occnse et a a ek 11

United States v. Nixon, 418 U.S; 683 (1974)........ 9

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ..... 22

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 485 U.S. 519

| RIO aga SRL Ra ED SAR ne Rn we 13

Warth v. Seldin, 422 U.S. 490 (1975) .......0000000.0...... 20

UNITED STATES CONSTITUTION

pee Me ee SR i Ripe tees or 2 Yael ne 4

Ril MNEs TO Ge MIB OE Be censiieibc cssuiincincsukocscosciuchelenade das 4

oR Sg eh Re Seen Ae ee 11

FEDERAL STATUTES AND REGULATIONS

pb Bee Re Bick oe 1 5 SRAM Ree eaeie: whanremeel wen 15

2G ULE. © Dee cee CG) cdc ci 14

BID Chaar ee CRIED huiicthas acute bucthcntiteemene 14

T6 USC. S$ Boece) CIE) on. tte ks 14

15 WG, BRIE a) ONE) se 15

stk toy fT GY} een a emer: 15

Sa EFF G ia: WS RR = sities tence cise Saconcnaiaednsonecsadipnns 15

BOP SGM Eck le 5: | | RAeamenennanT remunrr ne 15, 21

28 U.S.C. § 1254(1) (1994)

my

xi

TABLE OF AUTHORITIES—Continued

Page

2B U.S.C, § BB4R (4). (IODA): sisi ce asc eects 15

MOA G Beenie) (lOO) oie. ate 15

28 U.S.C. § 2842(8) (B) (1994) oe 15

28 U.S.C. § 2842 (6) (2004) occu ccc... 15

Pe ads Oe CLUE) i csakint Sib os tals 15

RIP. COM ETc URE GL | ) pemiaaniameyamtmenne ereivrec te tare 15

SD UF has A COD oc cschseta snr echaseccoasinecesocmsass 15

83 U.S.C. § 1869(b) (1) (1994) 220. 15

42 U.S.C. § 300j-7(a) (2) (1994) 00 15

42 U.S.C. § 4915 (a) (1994) 2. eee ccceteee eee 15

Be Cita Re TO UD. CLIIOD inecreverncescenedcdencvnrocenccit.: 15

ae Cosy OUD CRUD onsccneccss cs carded deco csaatnst 15

42 U.S.C. 8§ 7401 et seg. (1994) (Clean Air Act)

42 U.S.C. § 7408, CAA § 108 (1994) 7

42 U.S.C. § 7409, CAA § 109 (1994) . 7

42 U.S.C. § 7410, CAA § 110 (1994) 7,10

42 U.S.C. § 7411, CAA § 111 (1994) ............ 7, 9, 10, 25

42 U.S.C. § 7412, CAA § 112 (1994) 0. 7,9

42 U.S.C. § 7607, CAA § 307 (1994) passim

42 U.S.C. § 7607(b), CAA § 307(b) (1994)... passim

42 U.S.C. § 7607(d), CAA § 307(d) (1994)... passim

42 U.S.C. § 7607(e), CAA § 307(e) (1994) ....passim

43 U.S.C. § 1849(c) (8) (1994) oe 15

49 U.S.C. § 46110(a) (1994) nk... 15

40 CPR. §61.212(c) (1997) nc. 8

40 C.PR. § 62.12 (ce) (1997) nnn canescens cecnaseocosee 8

40 C.F. § 62.88(a) (1997) nce ces ceecceee 8

OO ae ct RRC) CADDO) cnn csinccesseepecndcepeeres 8

OU rae B OUAa te) C1007) 8

code LR SEC (Et 87 6 RAR uMel aera eer se na aiaae ee 8

a U2. § G1.12(6) (1907) 8

LEGISLATIVE HISTORY

S. Rep. No. 91-1196 (1970), reprinted in 1 Sen.

Comm. On Public Works, 91st Cong., 2d Sess.,

A Legislative History of the Clean Air Act

Amendments of 1970 (1974) ............................ 5,18

xii

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 95-294 (1977), reprinted in 1977

EI Mr eredad te” BONED ccnscsisisikenhe cknccenudkieeeutcladtoisactis 6

FEDERAL REGISTER

G2 Ved. Bae. SEi4 CiGST) cin eh cs pee

In THE

Supreme Court of the United States

OCTOBER TERM, 1998

No, -———

APPALACHIAN POWER COMPANY, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Appalachian Power Company, 57 other

individual electric utilities, Edison Electric Institute, Na-

tional Rural Electric Cooperative Association, American

Public Power Association, American Petroleum Institute,

American Forest and Paper Association, Can Manufac-

turers Institute, Clean Air Implementation Project, Corn

Refiners Association, Ohio Chamber of Commerce, Ohio

Chemical Council and RSR Corporation! respectfully

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the District of

Columbia Circuit entered in this proceeding on August

14, 1998.

1The Petitioners and their parent companies, subsidiaries, and

affiliates are listed in Appendix I to the Petition pursuant to Rule

29 of this Court.

2

OPINION BELOW

The opinion of the U.S. Court of Appeals in Clean

Air Implementation Project, et al. v. Environmental Pro-

tection Agency, Nos. 97-1117 et al. (D.C. Cir. August

14, 1998) is reported at 150 F.3d 1200. A copy of

the opinion appears in the Appendix (hereafter referred

to as “App. ———”) at la-16a.

JURISDICTION

The opinion of the U.S. Court of Appeals for the D.C.

Circuit was entered on August 14, 1998. A timely Peti-

tion for Rehearing and Suggestion for Rehearing In Banc

was denied on November 20, 1998. App. 17a-20a. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1)

(1994),

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The following constitutional, statutory and regulatory

provisions are set forth in the Appendix:

1. U.S. Constitution, Article I, § 8, cl. 9; Article

Ill, § 1 (App. 23a).

2. Clean Air Act §§ 110(a), (c) & (k), 111 (a)-

(c), 112(q) and 307(b), (d) & (e) (1994).

(App. 24a-52a).

3. 40 CF.R. §§ 51.212, 52.12, 52.33, 60.11 and

61.12 (1997) (as amended by the final legisla-

tive rule at issue in this case), and 40 C.F.R.

§ 60.11 (1996) (prior to promulgation of the

rule) (App. 53a-67a).

STATEMENT OF THE CASE

Legislative rules issued by administrative agencies pro-

vide the foundation for modern regulatory programs. They '

have binding future effect on the regulator, the regulated,

and the courts. Because of the importance of legislative

rules to the integrity of the regulatory programs they

shape, and their coercive effects on future conduct, Con-

3

gress has embraced a policy of repose in many modern

regulatory statutes requiring those adversly affected by

legislative rules to seek circuit court review promptly after

rules are promulgated and prior to their application in

individual cases.

This case involves such a statute and presents the

question whether the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) has the

authority to apply doctrines of judicial efficiency—in this

case the doctrine of “prudential ripeness”’—to defeat the

prompt judicial review of legislative rules commanded

by Congress under § 307(b) of the Clean Air Act

(“CAA” or “Act”).? Section 307(b)(1) grants the D.C.

Circuit exclusive jurisdiction to review “nationally appli-

cable” regulations promulgated by the U.S. Environ-

mental Protection Agency (“EPA” or “Agency”) and

directs that such review occur promptly (i.e., a petition

for review must be filed within 60 days of publication in

the Federal Register), and thereafter forecloses any chal-

lenge to the rules in any proceeding to apply or enforce

them.

In this case, hundreds of companies and trade asso-

ciations representing virtually every industry in the country

filed timely petitions in the D.C. Circuit to review legis-

lative rules adopted by EPA under the Clean Air Act.

The challenged regulations affect literally thousands of

emission standards adopted by EPA and the states over

the previous 25 years. Despite the clear congressional

directive for prompt judicial review set forth in § 307(b)

(1), the D.C. Circuit dismissed all petitions without re-

solving any of Petitioners’ facial challenges to the new

rule. The sole basis for the D.C. Circuit’s refusal to exer-

cise its judicial review responsibilities under § 307 is this

Court’s decision in Abbott Laboratories v. Gardner, 387

U.S. 136 (1967) (hereinafter “Abbott Labs’) and its

progeny.

242 U.S.C. § 7401 et seq. (1994) (hereinafter citations will be to

the Act itself unless otherwise noted).

4

A. The Constitutional and Statutory Context of This Case

Article III, Section 1 of the Constitution provides that

“(t]he judicial power of the United States, shall be vested

in one Supreme Court, and in such inferior Courts as

Congress may from time to time ordain and establish.”

App. 23a. Article I, Section 8, Clause 9 provides, in turn,

that “Congress shall have Power . . . [t]o constitute Tri-

bunals inferior to the Supreme Court.” App. 23a. In

accordance with these constitutional provisions, federal

courts have long recognized that the scope of “inferior”

court jurisdiction, including that of the Courts of Ap-

peals, “is constitutionally committed to the discretion of

Congress.” *

Exercising its constitutional authority, Congress estab-

lished the Courts of Appeals and vested them with ex-

clusive jurisdiction to review final legislative rules or

orders under various regulatory statutes.* One such pro-

vision is § 307 of the Clean Air Act. App. 44a-52a.

CAA § 307(b)(1) requires pre-enforcement judicial re-

view of final legislative rules promulgated by EPA under

the Act, with strict limits on both the timing and the

record for review. Any nationally applicable final legis-

lative rules promulgated by the EPA Administrator are

subject to review only in the D.C. Circuit. To obtain

review, a petition for review must be filed within sixty

days after notice of the final rule appears in the Federal

Register.®

Under § 307(d)(7), the record for review of a final

rule consists exclusively of material in the rulemaking

record. Consistent with that provision, § 307(d)(6)(C)

3 See Bensalem Tp. v. American Fidelity Fire Ins. Co., 644 F.2d

990, 994, n.6 (3rd Cir. 1981).

4 See infra notes 18-27 and accompanying text.

5 Although § 307(b)(1) provides for limited post-60 day review, )

such a challenge can be heard only if based “solely on grounds ;

arising after” the 60-day period and only if the petition for review

is filed within 60 days after those grounds arise. (Emphasis

added).

ci ere mcrae ee

5

provides that legislative rules subject to review under

§ 307 “may not be based (in part or whole) on any in-

formation or data which has not been placed in the docket

as of the date of . . . promulgation” of such rules. More-

over, under § 307(d)(7)(B), only objections raised with

“reasonable specificity” during the rulemaking may be

raised during judicial review. Finally, in § 307(b)(2),

Congress determined that agency rules that are subject to

judicial review under § 307(b)(1) are not subject to

judicial review in enforcement proceedings.

The legislative history of § 307 explains why Con-

gress mandated expeditious, pre-enforcement review of

legislative rules adopted by EPA under the Act. Accord-

ing to the Senate Committee Report which accompanied

the original version of § 307 (the House had no com-

parable provision), “the integrity of the time sequences

provided throughout the Act” required that “[{ajdminis-

tratively developed standards, rules and regulations under

the Act” be subject to judicial review “within controlled

time periods.” App. 68a-69a.® Congress intended therefore

that “the adequacy of a promulgation of any standard or

regulation” would be “measure[d] . . . by the informa-

tion available at the time of such promulgation.” App.

70a (emphasis added).

In 1977, Congress extended the deadline for filing ju-

dicial review petitions from 30 to 60 days, expanded the

jurisdiction of Courts of Appeals to review all final

agency actions (thereby displacing previous district court

review of certain final actions),? and incorporated manda-

tory requirements for developing a rulemaking record

upon which judicial review must occur. With respect to

6 See also Kennecott Copper Corp. v. EPA, 462 F.2d 846, 849,

n.15 (D.C. Cir. 1972) (“Congress was significantly concerned with

expedition” of judicial review to assure that implementation of the

Act’s requirements “would not be needlessly delayed by litigation

in the courts.’’).

7See Harrison v. PPG Indus., Inc., 446 U.S. 578, 588-589

(1980).

6

the extension of the filing period, the House Committee

Report underlying the 1977 amendments (there was no

comparable Senate provision) explained that

[iJn extending to 60 days the time within which a

party may file a petition for review of certain EPA

actions, the committee wishes to reaffirm its intent

to strictly limit section 307 challenges to those which

are actually filed within that time. . . . [U]nless a |

petitioner can show that the basis for his challenge

did not exist or was not reasonably to be anticipated

before the expiration of 60 days, the court of appeals

is without jurisdiction to consider a petition filed

later than 60 days after the publication of the promul-

gated rule.’

The House Committee Report explained that the objec-

tive of the administrative record requirements in § 307(d)

was “to permit any court reviewing the rule under section

307(b) to be fairly apprised of the basis for the Adminis-

trator’s action.” App. 77a. Finally, reinforcing that Con-

gress intended strict adherence to the petitioning deadline,

the Senate Committee specifically rejected recommenda-

tions made by the Administrative Conference of the United

States® that would have allowed the legality of rules sub-

ject to judicial review under § 307(b) to be tested in

enforcement proceedings. App. 81a.

In short, Congress mandated expeditious, pre-enforce-

ment review of final legislative rules promulgated by EPA

under the Act based on whatever administrative record

EPA had developed in support of the rule. Congress re-

inforced the mandatory regime of prompt, pre-enforcement

review by explicitly barring review of those rules in en-

forcement proceeding. Congress contemplated later judi-

cial review of such rules by circuit courts only where

significant new and different information presented new

grounds upon which to challenge the rule, and then only

8 App. 77a-78a (emphasis added).

9 See 5 U.S.C. $§ 571-576 (1976).

i ct ca

7

within a short period after the new grounds arise. Supra

note 5.

B. EPA’s Credible Evidence Rule

The regulations at issue in this case arise under the Act,

which establishes a comprehensive program for the regu-

lation of air pollutants. With respect to stationary sources

of pollution, the Act divides responsibility for regulation

between the federal government and the states.

In $$ 108 and 109, Congress required EPA to set

“national ambient air quality standards” (“NAAQS”) to

protect public health and welfare. Congress then called

upon the states to take the lead in setting emission stand-

ards to achieve the NAAQS. Under § 110, each state

must adopt a “state implementation plan” (“SIP”) that

specifices the control measures needed to attain and main-

tain the NAAQS, and where a state fails to adopt an

appropriate SIP, EPA must develop a “federal implemen-

tation plan” (“FIP”).

In addition to requiring states to develop SIPs, the Act

since 1970 has required that EPA promulgate, under

§ 111, Federal “new source performance standards”

(“NSPS”) for significant new stationary sources of air

pollution and promulgate, under § 112, “national emission

standards for hazardous air pollutants” (“NESHAP”) that

apply to both new and existing sources. These emission

standards, like all stationary source emission standards

established under the Act, have two components: (1) a

numerical emission limit on the pollutants that may be

released; and (2) a test method for measuring compliance

with that limit. The criteria for establishing and revising

SIP, NSPS, and NESHAP standards are set out in §§ 110,

111, and 112 of the Act. App. 23a-43a.

On February 24, 1997, EPA issued what is known as

the “credible evidence” (“CE”) rule. 62 Fed. Reg. 8314

(1997). This final legislative rule fundamentally changed

the way in which NSPS and NESHAP standards are im-

plemented under the Act. Prior to the CE rule, prescribed

reference test methods for measuring regulated emissions

8

were the exclusive means for determining threshold com-

pliance and civil and criminal liability for violations of

the NSPS and NESHAP standards. For example, before

the CE rule, EPA’s regulations provided that, in the case

of NSPS, “[clompliance with standards in this part. . .

shall only be determined by performance tests established

in § 60.8, unless otherwise specified in the applicable

standard.” App. 55a (emphasis added).

The CE rule changed this regulatory regime in two

fundamental ways. First, EPA deleted regulatory language

(i.e., the word “only”) that expressly prohibited use of

anything other than the specified compliance test method

to measure compliance with the standards. App. 55a; 60a.

Second, EPA added essentially the same language to five

sets of regulations promulgated by EPA to implement

NSPS, NESHAP and SIP requirements.”

This new regulatory language authorizes use of test

methods or other evidence to measure compliance with

federal and SIP emission standards even though those

methods or evidence were not evaluated when the stand-

ards were originally developed (e.g., authorizing use of

short term data from continuous emission monitors

(CEMs) operating all the time to enforce standards that

were based on a limited number of short-term stack tests

conducted under controlled operating conditions). See

62 Fed. Reg. at 8319 (data from CEMs and continuous

opacity monitors (COMs) are credible evidence for pur-

poses of standards that were developed, and previously

enforceable, using data only from periodic reference

methods.) By expanding the evidence that can be used

to show civil or criminal violations of standards under the

Act, EPA fundamentally changed an essential component

10 The new language provides that nothing in the regulations,

as revised, “shall preclude the use, including the exclusive use, of

any credible evidence information, relevant to whether a source

would have been in compliance with applicable requirements if the

appropriate performance or compliance test or procedure had been

performed.” See App. 53a-55a; 65a-67a.

a?

9

of emissions standards promulgated by the Agency and

the states over more than 25 years.

Each of these revisions is a final legislative rule with

immediate effect and, absent new rulemaking, is binding

for the future on EPA, the states, courts, and affected

parties." In the preamble to the CE rule, EPA indicated

that the new regulations would have immediate and un-

qualified effect, noting that “[t]oday’s final action promul-

gates revisions to existing regulations, and are not con-

tingent upon future promulgation[s] ... .” 62 Fed. Reg.

at 8322 (emphasis added and in original).

Under the plain terms of § 307(b) each of the regu-

lations revised as part of the CE rule is subject to the

judicial review requirements established by that provision.

In addition, the revisions to Parts 52, 60 and 61 are also

subject to the corollary administrative record requirements

established by § 307(d). App. 45a-46a."

C. The Proceedings Below “

After EPA promulgated the CE rule, Petitioners chal-

lenged it on a variety of legal grounds, based on objec-

tions presented during the rulemaking as required by

§ 307(d)(7)(A)-(B). Among those were: (1) whether

the provisions of the Act addressing civil and criminal

enforcement authorized EPA to adopt the CE rule;

(2) whether EPA was required to conduct rulemakings

for each NSPS and NESHAP revised by the CE rule to

verify that enforcement of the standards using test meth-

ods different from those on which the standards were

based would be consistent with the statutory criteria in

§§ 111 and 112, respectively; (3) whether EPA unlaw-

11 See, e.g., United States v. Nixon, 418 U.S. 683, 695 (1974)

(“so long as this regulation is extant it has the force of law’):

Thomas v. New York, 802 F.2d 1448, 1446-47 (D.C. Cir. 1986)

(EPA bound to follow own regulations under the CAA).

12 EPA made a finding, authorized by § 307(d)(1)(V), that the

Part 51 CE revision was also subject to § 307(d) rulemaking re-

quirements. 62 Fed. Reg. at 8327.

10

fully delegated to district courts and administrative judges

authority reserved expressly by the Act to the EPA Ad-

ministrator to establish test methods for compliance with

NSPS and NESHAP emission standards; and (4) whether

EPA had authority under § 110 to promulgate revisions

to 40 C.F.R. Parts 51 and 52 that declare inadequate

(and limit the authority and discretion of a state to adopt)

any SIP that establishes a specific and exclusive method

for determining compliance with emission standards.

Although the CE rule could impact the stringency of

NSPS or NESHAPS by eliminating exclusive reliance on

the test method specified in a standard and authorizing use

of other test methods never evaluated by EPA in setting the

standard, supra 8, Petitioners did not ask the D.C. Cir-

cuit to determine, in their facial challenge to the rule,

whether the stringency of any particular standard had

been changed. Instead, Petitioners asked the Court to

determine first, whether the Agency had statutory authority

to issue the rule, and second, if so, whether the Agency

had complied with applicable legal and procedural re-

quirements of the Act when it promulgated the CE rule.’

With respect to the 40 C.F.R. Part 51 and 52 revisions,

Petitioners challenged those revisions because they violated

the Federal-state division of authority established in CAA

§ 110 (1) by requiring states to revise SIPs that EPA

had previously found were adequate under the § 110 cri-

teria, and that EPA had failed to demonstrate in the CE

rulemaking were inadequate under those criteria; and (2)

by precluding the states from establishing “exclusive”

methods for determining compliance when the federal

government had been establishing “exclusive” compliance

13 With respect to the NSPS revisions, for example, Petitioners

asked the lower court to find that since those revisions might in-

crease the stringency of an NSPS standard that applied to an

operating source, and since § 111 precludes application of a more

stringent NSPS to sources subject to an existing NSPS, EPA was

required to evaluate in a §111 rulemaking whether the CE rule

would make existing NSPS more stringent before it adopted the

CE rule.

~~

11

methods for the previous 25 years.* Petitioners also chal-

lenged the Part 51 and 52 revisions because they directly

revised some SIPs and FIPs without EPA having followed

statutorily mandated procedures.

D. The D.C. Circuit’s Decision

Under Article III, Section 2 of the Constitution, judicial

power extends only to “cases or controversies.” To deter-

mine whether an Article III case or controversy exists,

courts look to three general principles: standing, finality,

and constitutional ripeness.’* Separate from these Article

[II principles, courts also look to a variety of prudential

justiciability doctrines as a matter of their own self-

governance.’’ One of these doctrines is the prudential

ripeness doctrine set forth in Abbott Labs and its progeny.

The D.C. Circuit’s decision relies solely upon the pruden-

14 See supra 7-8. This Court has held that “so long as the ulti.

mate effect of a State’s choice of emission limitations is compliance

with the national standards for ambient air, the State is at liberty

to adopt whatever mix of emission limitations it deems best suited

to its particular situation.” Train v. NRDC, 421 U.S. 60, 69 (1975).

15 Separately, dozens of petitions for review have been filed in

the D.C. Circuit under the “grounds arising after” provision of

§ 307(b) (1) challenging individual NSPS and NESHAP standards

as modified by the CE rule revisions to Part 60/61. Relying upon

the D.C. Circuit’s decision in this case, EPA recently moved to dis-

miss each of the pending petitions as prudentially unripe for re-

view. Petitioners in those cases have opposed EPA’s motion, argu-

ing that the D.C. Circuit has an obligation under § 8307(b)(1) to

review the validity of those revised standards. The Part 51/52

revisions contained in the CE rule are not at issue in those’

petitions challenging individual federal standards, however, and

therefore will remain binding legal standards unless and until EPA

modifies those standards through new rulemaking.

16 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (standing); Metropolitan Wash. Airports Auth. v. Citizens

for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265, n.13

(1991) (ripeness) ; North Dakota State Bd. of Pharmacy v. Snyder’s

Drug Stores, Inc., 414 U.S. 156, 159 (i973) (finality).

17 See, e.g., Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997).

12

tial ripeness doctrine as the basis for dismissing the peti-

tions for review in this case.

In its decision, the D.C. Circuit does not dispute that

Petitioners had standing to challenge the CE rule (App.

10a, noting that “source owners and operators are... .

under an obligation to comply with EPA’s emission stand-

ards”), that the “purely legal” questions raised in the chal-

lenge were “presumably ripe” for review (App. 1la-12a),

or that the CE rule was final agency action (App. 8a-9a).

In fact, the D.C. Circuit correctly observed that Petition-

ers’ arguments were “that EPA promulgated the rule with-

out statutory authority, that the revisions are unlawful

because EPA failed to comply with proper rulemaking

procedures, and that EPA violated the Clean Air Act by

forcing states to rewrite their implementation plans.” App.

5a. Nevertheless, relying upon this Court’s decision in

Abbott Labs, the D.C. Circuit refused to resolve the legal

objections presented to it for review (all of which had

been raised during the rulemaking and resolved by EPA)

and dismissed each of the 25 petitions for review that had

been timely filed challenging the CE rule.

The D.C. Circuit reached this anomalous result be-

cause, in the court’s view, resolution of each of the legal

arguments presented by the Petitioners ultimately turned

on whether the CE rule did in fact alter the stringency of

the NSPS and NESHAP standards. App. 9a-lla. The

court explained that “[flor all we know, application of

EPA’s credible evidence rule in the place a reference test

may potentially affect some standards but not others.”

App. 10a. Moreover, “[g]iven the universe of all possible

evidence that might be considered ‘credible,’” the court

continued, “it is impossible for us to decide now what

impact the rule will have.” App. 10a. For this reason,

the court ruled that “[a]n enforcement action brought on

the basis of credible evidence would . . . provide the

factual development necessary to determine whether the

new rule has affected whatever existing standard is in-

volved.” App. 10a.

" Dees Oth

- aE ED, ee GO enrn h tee, a

13

Regarding Petitioners’ challenge to the Part 51 and

Part 52 regulations, the D.C. Circuit also found the “chal-

lenge unripe.” App. 14a. Although acknowledging that

“whether EPA had statutory authority” to promulgate the

Parts 51 and 52 revisions “is purely a legal one,” the D.C.

Circuit determined that “the effect of the language in state

plans specifying that the use of credible evidence is not

precluded—is highly uncertain for reasons already men-

tioned.” App. 15a. For this reason as well, the court

held that “our judicial appraisal ‘is likely to stand on a

much surer footing in the context of a specific application

of this regulation.’” App. 15a.

REASONS FOR GRANTING THE PETITION

The D.C. Circuit is the pre-eminent circuit court in the

field of federal administrative law because it has either

concurrent or exclusive jurisdiction to review actions of

virtually every federal administrative agency. As a con-

sequence, this Court’s seminal decisions governing federal

judicial review of administrative actions and the manage-

ment of such cases in the federal judicial system have

sprung from D.C. Circuit. In Vermont Yankee Nuclear

Power Corp. v. NRDC, Inc., for example, this Court

addressed the scope of relief that could be ordered on

remand of a legislative rule. 435 U.S. 519 (1978).

Similarly, in Chevron, U.S.A., Inc. v. NRDC, Inc., this

Court articulated the standard of review of statutory inter-

pretations supporting legislative rules. 467 U.S. 837

(1984). This case presents yet another opportunity aris-

ing from the D.C. Circuit to resolve a fundamental ques-

tion concerning the management of the federal system of

judicial review of administrative action—i.e., whether ju-

dicial review of final legislative rules can be denied on the

basis of judicial efficiency doctrines despite a clear and

unequivocal Congressional command that judicial review

of such rules occur promptly.

This case involves more than two dozen petitions for

review filed by more than one hundred petitioners repre-

senting virtually every industrial sector in the U.S. There

14

is, and has been, no dispute that the petitions at issue

represent legitimate “cases or controversies” or that Peti-

tioners filed timely petitions under § 307(b)(1) triggering

the D.C. Circuit’s exclusive jurisdiction to review the CE

rule. Nonetheless, the D.C. Circuit determined in the deci-

sion below that its judgment, not that of Congress, con-

trols when, if at all, Petitioners’ legal challenges can be

heard.

The Constitution grants to Congress, not the judicial

branch, exclusive authority to establish “inferior” courts

and to define the jurisdiciton of those courts in whatever

fashion Congress deems appropriate. In the exercise of

its constitutional authority, Congress saw fit to vest the

D.C. Circuit with exclusive jurisdiction to review nation-

ally applicable final legislative rules promulgated by EPA

under the Act whenever a petition to review is filed within

60 days of publication of the rule in the Federal Register.

The grant of this jurisdiction, which is embodied in § 307

(b)(1) of the Act, is without qualification.

This Court has long recognized that lower courts have

a “strict duty” to exercise the jurisdiction that is conferred

upon them by Congress. Accordingly, where Congress has

specifically directed that judicial review occur within a

specific time frame and under specified circumstances, this

Court has recognized that prudential justiciability doc-

trines, such as the Abbott Labs ripeness doctrine, do not

apply. The D.C. Circuit’s decision contravenes this basic

constitutional principle.

Whether the Courts of Appeals can rely upon doctrines

of judicial efficiency to defeat clear congressional com-

mands for prompt, pre-enforcement judicial review of regu-

latory actions has broad implications because Congress

has seen fit to vest the Courts of Appeals (and in this case

only the D.C. Circuit) with exclusive jurisdiction to review

administrative actions impacting nearly every facet of

modern life. For example, Congress has directed the

1815 U.S.C. §$1193(e), 1474(b), 2060(a) (1994) (Consumer

‘Product Safety Commission rules).

15

Courts of Appeals to conduct pre-enforcement review of

final agency actions arising under consumer product,!®

telecommunications,!® food, cosmetic and drug,” transpor-

tation, labor,” housing,” maritime, agricultural,?> bank-

ing,** and a wide array of environmental statutes.27

The impacts of the D.C. Circuit’s decision are sub-

stantial. Petitioners have been denied the opportunity to

obtain prompt judicial review of a binding legislative

rule adopted by EPA. Petitioners must therefore either

conform their behavior to ensure compliance with the

standards revised by the CE rule, or risk enforcement

action (and costly, continually mounting daily civil penal-

ties, or even criminal penalties) for violations based on

the revised standards.

By denying Petitioners their right to review in this case,

the D.C. Circuit has also established a precedent allow-

ing it and other circuit courts to replace the relatively

simple and easily understood processes for judicial re-

view established by Congress with an ill-defined and un-

certain review process that will inevitably spawn substan-

19 28 U.S.C. §§ 2342(1), 2344 (1994).

2021 U.S.C. §§ 355(h), 360g, 371(f) (1994) (Food and Drug

Administration orders).

21 49 U.S.C. § 46110(a) (1994).

2229 U.S.C. § 660(b) (1994) (Occupational Safety and Health

Administration rules).

23 28 U.S.C. § 2342(6) (1994).

24 Id. § 2342(3)(B) (1994).

25 Id. § 2342(2) (1994).

26 12 U.S.C. § 1818(h) (1994).

27 See, e.g., 15 U.S.C. § 2618(a) (1994) (Toxic Substances Con-

trol Act) ; 30 U.S.C. § 1276(a) (1994) (Surface Mining Control and

Reclamation Act); 33 U.S.C. § 1369(b)(1) (Clean Water Act); 42

U.S.C. § 300j-7(a)(2) (Safe Drinking Water Act); id, § 4915(a)

(1994) (Noise Control Act); id. § 6976(a) (1994) (Solid Waste

Disposal Act) ; id. § 9613(a) (1994) (Comprehensive Environmental

Response, Compensation, and Liability Act) ; 48 U.S.C. § 1349(c) (3)

(1994) (Outer Continental Shelf Lands Act).

16

tial litigation simply to define its contours. At the very

least, by suggesting that review could be relegated to

dozens of potential enforcement actions in numerous dif-

ferent district or state courts, the lower court has effec-

tively ensured unnecessary and confusing conflicts be-

tween circuits as to the validity of nationally applicable

legislative rules.

Only this Court (apart from the D.C. Circuit) is in a

position to address this fundamental question because of

the unique role of the D.C. Circuit in reviewing final legis-

lative rules of nationwide scope and effect. The normal

“conflict of circuit” route for obtaining review by this

Court and allowing this Court to manage the direction of

judicial trends is not adequate where one circuit court has,

as the D.C. Circuit does here, a disproportionate influence

on the administration of a particular area of federal law.

In short, review by this Court of the D.C. Circuit

decision is warranted for three reasons: (1) to reaffirm

the supremacy of duly-enacted congressional law defining

the jurisdiction of inferior courts, including the D.C. Cir-

cuit, and the obligation of those courts to adhere strictly

to the jurisdictional mandates established by Congress;

(2) to ensure that this Court’s decisions regarding the

application of the prudential ripeness doctrine established

in Abbott Labs and its progeny are not misunderstood as

as providing a basis for inferior courts to ignore the

supremacy of duly-enacted congressional laws defining

their jurisdiction; and (3) to ensure that the prudential

ripeness doctrine is not misapplied in numerous other

federal regulatory statutes that establish judicial seview

schemes similar to the one established in CAA § 307.

I. THE D.C. CIRCUIT’S DECISION CONTRAVENES

CONGRESS’ PLAN FOR JUDICIAL REVIEW.

Section 307(b)(1) of the Act vests exclusive jurisdic-

tion in the D.C. Circuit to review nationally applicable

rules under the Act and requires that such review occur

if a petition for review has been filed within 60 days of

publication in the Federal Register. Congress expressly

~~

17

required such pre-implementation judicial review of legis-

lative rules under the Act to allow the Executive Branch,

regulated parties, and others affected by implementation

of future binding regulatory requirements to avoid spend-

ing resources to conform to the rule before the rule’s

lawfulness could be tested in court. Harrison v. PPG

Industries, 446 U.S. at 592.

The D.C. Circuit’s decision to postpone review of Peti-

tioners’ facial challenges to these rules—challenges that

were based on objections raised by Petitioners in rule-

making comments and addressed by the Agency in re-

sponse to comments—ignores congressional intent in

favor of judicial convenience. This the D.C. Circuit

simply cannot do.

This Court has long recognized that “the Judicial power

of the United States .. . is . . . dependent for its dis-

tribution and organization, and for the modes of its

exercise, entirely upon the action of Congress... .” Cary

v. Clarke, 44 U.S. (3 How.) 236, 245 (1845). Congress

possesses “the sole power of creating the tribunals (in-

ferior to the supreme court) for the exercise of the judi-

cial power, and of investing them with jurisdiction either

limited, concurrent, or exclusive, and of withholding juris-

diction from them in the exact degrees and character

which to congress may seem proper for the public good.”

Id. Where Congress directs that judicial review occur

without consideration of prudential justiciability doctrines,

as Congress clearly has the authority to do, those doc-

trines do not apply.”8

28 See, e.g., Department of Commerce v. United States House of

Representatives, Nos. 98-404, 98-564, 1999 WL 24616, at *7 (U.S.

Jan. 25, 1999) (plain terms of judicial review statute eliminated

any prudential ripeness concerns) ; Bennett, 117 S. Ct. at 1161

(“prudential principles . . . can be modified or abrogated by Con-

gress”); Raines v. Byrd, 117 S. Ct. 2312, 2318, n.3 (1997) (“Con-

gress’ decision to grant a particular plaintiff the right to challenge

an act’s constitutionality . . . eliminates any prudential

limitations’’).

18

Congress exercised its “sole power” to establish the

jurisdiction of inferior courts when it enacted § 307 of

the Act. This Court has repeatedly made clear that “fed-

eral courts have a strict duty to exercise the jurisdiction

that is conferred upon them by Congress.” ** As Justice

Marshall observed long ago, federal courts “have no

more right to decline the exercise of jurisdiction which is

given, then to usurp that which is not given.” Cohens vy.

Virgina, 19 U.S. (6 Wheat.) 264, 404 (1821). In at

least four ways, however, the D.C. Circuit in this case

has “declined” to exercise its jurisdiction contrary to the

plain terms of § 307.

First, to ensure expeditious review of final legislative

rules, Congress directed that review could be obtained

only if a petition for review was filed within 60 days

after the rule’s promulgation. The plain language of

§ 307(b) and the relevant legislative history confirms that

Congress intended strict compliance with the 60 day dead-

line. Supra 4-6. The D.C. Circuit’s decision directs, by

contrast, that judicial review will commence, if at all, at

some undefined date in the future, well beyond the 60

day deadline established by Congress.

Second, Congress directed that judicial review of any

final legislative rule subject to § 307(d), which includes

the CE rule, must be based on objections contained in

the rulemaking “record” and that “[t]he promulgated

rule may not be based (in part or whole) on any infor-

mation which has not been placed in the docket as of the

date of such promulgation.” Supra 5. In direct con-

tradiction to this clearly stated limitation, the D.C. Cir-

cuit’s decision directs that judicial review, if it occurs at

all, must occur based on additional “factual development”

that, by definition, cannot conceivably be part of the

29 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).

See also, Bell v. Hood, 327 U.S. 678, 681-682 (1945) (where a

court’s jurisdiction has been properly triggered, the court “must

entertain the suit”).

19

§ 307(d) administrative “record” on which judicial re-

view must exclusively be based.*°

Third, § 307(b)(1) unequivocally provides that a legal

challenge not commenced within 60 days after notice of

promulgation of the rule “shall not be subject to judicial

review in civil or criminal proceedings for enforcement.”

App. 45a. Directly contravening this clearly and un-

equivocally stated congressional intent, the D.C. Cir-

cuit’s decision suggests that judicial review of the CE

rule can occur “in an enforcement action.” App. 10a.

Finally, Congress expanded the judicial review responsi-

bilities of circuit courts in 1977 to include all final agency

actions. At that time, Congress reaffirmed its intent to

control strictly how judicial review would occur under

the Act by providing in § 307(e) that “[n]Jothing in the

[Act] shall be construed to authorize judicial review of

regulations or orders of the Administrator under [the Act],

except as provided in this section.” App. 52a (emphasis

added). As the foregoing discussion illustrates, the D.C.

Circuit has seen fit to ensure that judicial review of the

CE rule will be allowed, if at all, in a fashion inconsistent

with the plain terms of § 307.

Notably, the D.C. Circuit neither acknowledges, nor ad-

dresses, the extent to which its decision contravenes the

plain terms of § 307. (This may be attributable, at least

in part, to the fact that ripeness was not briefed by the

parties below.) Instead, the court simply asserts in a con-

clusory and circular fashion that § 307 does not apply to

30 In a similar fashion, this aspect of the D.C. Circuit's decision

is also inconsistent with CAA § 807(d)(7)(B). App. 5la. That

provision directs that only objections raised with “reasonable

specificity during the period for public comment” on the proposed

rule can be the subject of judicial review. Whatever the scope or

content of objections raised in a subsequent enforcement proceed-

ing, those objections will not, by definition, have been made during

the “public comment” period on the proposed rule.

20

action which the court believes are not prudentially mpe

for review.*!

As noted above, Congress has the “sole power” to

determine the jurisdiction and “modes of exercise” of

judicial authority by “inferior” courts in the U.S. Supra

17. Congress has exercised this authority by enacting

§ 307 and directing prompt, pre-enforcement review of

legislative rules arising under the Act. The D.C. Circuit

has a strict duty to exercise its jurisdiction under § 307

(b) (1).¥ |

IL THE D.C. CIRCUITS DECISION IS CONTRARY

TO THIS COURT'S APPLICATION OF RIPENESS |

PRINCIPLES.

This Court’s decisions addressing the doctrine of pru-

dential ripeness make clear that the doctrine has no

application where Congress has mandated pre-enforcement i

review of legislative rules. In Lujan v. National Wildlife

Federation, for example, this Court stated that prudential

ripeness considerations do not apply “where Congress

31 See App. 8a (citing Louisiana Envtl. Action Network v.

Browner, 87 F.3d 1379 (D.C. Cir. 1996) (hereinafter referred to

as “LEAN”"); Association of Am. R.R.s. v. Surface Transp. Bd.,

146 F.3d 942, 946 (D.C. Cir. 1998). Neither of the cited cases

supports the D.C. Circuit’s interpretation of CAA § 307, however.

Unlike Petitioners in this case, for example, the petitioners in

LEAN were found to lack Article III standing to maintain their

action. LEAN, 87 F.3d at 1383-1384. Similarly, unlike the legisla-

tive rules at issue in this case, the guidelines at issue in Associa-

tion of American Railroads did not create any binding future legal

rights or obligations. 146 F.3d at 946-947. Conspicuously absent

from the decision is any discussion of the D.C. Circuit’s recognition

in other cases that “Congress is free to override” prudential

justiciability doctrines. See Fair Employment Council of Greater

Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir.

1994) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372

(1982); Warth v. Seldin, 422 U.S. 490, 501 (1975)).

32 See, e.g., Harrison v. PPG Indus., 446 U.S. at 593 (the re-

sponsibility of the courts is to “determine what Congress intended

when it vested the courts of appeals with jurisdiction under

§ 307(b)(1).”).

|

21

explicitly provides for our correction of the administra-

tive process at a higher level of generality.” 497 U.S.

871, 894 (1990). This Court acknowledged that “some

Statutes permit broad regulations to serve as the .. .

object of judicial review directly, even before the concrete

effects normally required for APA review are felt.” Jd.

at 891. Prudential ripeness considerations can arise only

where such provisions are “absent.” Jd.

This Court has repeatedly recognized that provisions

like CAA § 307(b) require judicial review “at a higher

level of generality.” Recently, for example, in Ohio For-

estry Ass'n, Inc. v. Sierra Club, a decision relied upon by

the Court below, App. lla, this Court unanimously

sanctioned application of the prudential ripeness doctrine,

but noted specifically that the legal challenge at issue in

that case had not arisen under a provision like CAA

§ 307(b)(1) where “Congress has specifically instructed

the courts to review [agency rules] ‘pre-enforcement.’”

118 S. Ct. 1665, 1672 (1998). Similarly, in Harrison v.

PPG Industries, this Court indicated that “the basic pur-

pose of § 307(b)(1) [is] to provide prompt, pre-enforce-

ment review of EPA action.” 446 U.S. at 592 (emphasis

added).

Nor are the decisions on which the D.C. Circuit relies

to the contrary. As this Court recognized in Abbott Labs,

the Food, Drug and Cosmetic Act (“FDCA”) contained

a separate, “special” provision requiring pre-enforcement

judicial review under specified circumstances * and ac-

knowledged that “when the special provisions apply, pre-

33387 U.S. at 141. The “special” judicial review provision to

which the Court referred in Abbott Labs is strikingly similar to

CAA §307(b). It provides that “[i]n a case of actual controversy

as to the validity of any order under subsection (e) of this section,

any person who will be adversely affected by such order if placed

in effect may at any time prior to the ninetieth day after such

order is issued file a petition with the United States court of

appeals .. . for a judicial review of the such order.” 21 US.C.

§ 371(f) (1).

22

sumably they must be used. . . .” ** Applying these prin- ;

ciples, the Second Circuit, unlike the D.C. Circuit, has .

observed that “decisions like Abbott Laboratories have

limited relevance . . . [where the underlying statute at

issue] specifically authorizes review in the Court of Ap-

peals . . . .” Ciba-Geigy Corp. v. Sidamon-Eristoff, 3

F.3d 40, 46 (2d Cir. 1993).

One practical consequence of the D.C. Circuit’s mis-

application of Abbott Labs is to preclude altogether Pe-

titioner’s right to seek judicial review of the Part 51

revisions that set forth binding standards for SIP develop-

ment. Requiring Petitioners to wait until action on a

particular SIP to raise their challenges to Part 51 post-

pones review to a point where the issue may become moot.

Once a state revises its SIP to conform to the CE rule

and thereafter submits it to EPA for approval, EPA can

argue that it is bound to approve it under the reasoning

in Union Electric Co. v. EPA,® despite Petitioners’ argu-

ment that it is more stringent than necessary to meet

§ 110.

The only explanation for the D.C. Circuit’s decision

may be that the D.C. Circuit viewed, as mere dicta, this

Court’s statement in Abbott Labs that lower courts “pre-

sumably” cannot defer judicial review under statutes like

§ 307(b)(1). In fact, as this Court has recognized in

other contexts, the requirement that lower courts exercise

their jurisdiction in accordance with relevant statutory

provisions enacted by Congress is not merely “presumed,”

but constitutionally required. This Court needs to make

34 Id. at 146. Subsequent to the Abbott Labs decision, the D.C.

Circuit observed, in construing the FDCA’s pre-enforcement review

provision, that “when Congress has specified a procedure for judi-

cial review of administrative action, that procedure is the exclusive

means of review ....” Independent Cosmetic Mfrs. and Distribs.,

Inc. v. United States Dep't of H.E.W., 574 F.2d 558, 554 (D.C.

Cir. 1978) (emphasis added).

35 427 U.S. 246, 264-265 (1976) (Administrator has no basis to

object to SIP that is more stringent than minimum requirements

of Federal law, as long as it meets the minimum criteria).

23

clear that its decision in Abbott Labs does not alter this

fundamental constitutional principle and that the pru-

dential ripeness doctrine has no application in cases

arising under statutory provisions such as § 307(b) where

Congress mandated prompt, pre-enforcement review of

the final legislative rules promulgated by EPA.

Ill. THE D.C. CIRCUIT’S DECISION ESTABLISHES A

DANGEROUS PRECEDENT FOR OTHER CIRCUIT

COURTS WITH JURISDICTION TO CONDUCT

PRE-ENFORCEMENT JUDICIAL REVIEW OF

FINAL LEGISLATIVE RULES AND CREATES

HAVOC FOR REGULATORY AGENCIES, REGU-

LATED ENTITIES AND THE PUBLIC AT LARGE.

For those subject to the D.C. Circuit's exclusive juris-

diction and those seeking review in circuits that may

follow the D.C. Circuit’s precedent in this case, the D.C.

Circuit’s opinion creates uncertainty about their right to

challenge the legality of newly promulgated legislative

rules that establish binding generic requirements governing

the course of future administrative and enforcement pro-

ceedings. At the same time, regulatory authorities will re-

main uncertain about the legality of the regulatory pro-

grams governed by such rules, long after Congress in-

tended such uncertainty to have been resolved by a circuit

court on review.

The D.C. Circuit’s decision replaces the simple and

easily understood review process established by Congress

with an exceedingly complex review process the most

obvious effect of which will be to ensure that the federal

circuit and district courts remain busy deciphering its im-

plications. One need merely begin with the simple

questions of “when,” “who,” “what” and “how” as per-

tains to the D.C. Circuit’s views on judicial review to get

36 If the D.C. Circuit finds it “impossible .. . to decide now what

impact the rule will have,” see App. 10a, how can those against

whom the rule will be applied possibly “know” how their com-

pliance obligations will be determined? This is one of the purely

legal issues the D.C. Circuit refused to resolve despite the clear

directive for such resolution under § 307(b).

24

|

a sense of the complexities spawned by the D.C. Circuit’s

decision. |

The D.C. Circuit has determined that the legal issues ,

presented by Petitioners in this case could be more readily i

resolved at the time of enforcement. App. 10a. When |

does the rule, however, become “ripe” for review? Is it |

when the target first learns that EPA is considering initia- |

tion of an enforcement action? Or should the target wait

for the Justice Department to seek a criminal indictment? |

Or must the target await a criminal conviction or imposi-

tion of a penalty in a civil or administrative enforcement |

action?

Assuming a target can determine “when” a challenge be-

comes ripe, “who” must resolve the challenge? Must the

target initiate a circuit court challenge to the CE rule, or a

challenge to the SIP or NSPS or NESHAP emission stand-

ard being enforced? If so, which Court of Appeals? The

circuit court in which the target of the enforcement action

resides? The D.C. Circuit? Or should the challenge be

resolved by an administrative law judge employed by

EPA in an administrative enforcement action? A district

court before which an enforcement action has been com-

menced? A state agency issuing a Clean Air Act oper-

ating permit or a state court?

And even if the questions “when” the proceeding should

commence and “who” should hear it are resolved, a sim-

ilar litany of questions applies to “what” must be the sub-

ject of judicial review. Is it the § 307(d) administrative

docket for the CE rule only? Is it the same docket sup-

plemented by the proceedings of an administrative adjudi-

cation? Supplemented by the proceeding of a district

court action?

Finally, even if the “when,” “who” and “what” of judicial

review subsequent to the D.C. Circuit’s decision can be

resolved, the question of “how” it will be resolved would

still remain. Enforcement actions differ by their very

nature from one “target” to another. Whatever the

.

25

appropriate forum for review, that forum might deter-

mine that reliance upon “credible evidence” pertaining

to compliance with a particular NSPS did not trigger an

obligation by the Agency to commence a rulemaking to

revise that NSPS under § 111 and § 307(d) because the

application of the CE rule to that NSPS did not change

its “stringency.” 37 In a subsequent action, however, in-

volving a different NSPS, the court might conclude that

reliance upon the CE rule would, in fact, change the

stringency of that NSPS. What then? Would it mean

that EPA should have initiated the § 111/ § 307(d) rule-

making as originally asserted by Petitioners in this case

before promulgating the CE rule? Or, would such a find-

ing mean only that the credible evidence rule is invalid

as applied to that NSPS, opening up “invalid as applied”

defenses in district courts to any rule or standard being

enforced under the Act?

In short, all of these questions arise from the D.C.

Circuit’s decision, but none of them is answered. How-

ever, none of these complexities arises if the D.C. Circuit

did what it is already obligated to do—namely, comply

with the will of Congress. All that Petitioners ask, and

ali that Congress commanded, is that the D.C. Circuit re-

ject or accept, but in all cases resolve, timely legal chal-

lenges made to final legislative rules under the Clean Air

Act and similar statutes. The alternative—forcing an al-

ready overburdened federal judiciary to address, on a

case-by-case basis, questions of the sort enumerated above

in order to invent a new judicial review system under the

Act and potentially many other regulatory programs with

similar judicial review regimes—is neither lawful, nor a

wise use of judicial resources.

37 The D.C. Circuit observed in its decision that if “the rule does

not change the standards, then it might be seen as a permissible

exercise of the agency’s general rulemaking authority under § 301

of the Act.” App. 12a n.5.

26

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari to the United States Court of Appeals for the

D.C. Circuit should be granted.

Respectfully submitted on

behalf of all Petitioners,

HENRY V. NICKEL

(Counsel of Record)

KEVIN L. FAST

LAUREN E, FREEMAN

MATTHEW F. GOLDBERG

HUNTON & WILLIAMS

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Appalachian

February 18, 1999 Power Company, et al.