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

No. 98-1330

In the Supreme Court of the Gitted- States <s0e

APPALACHIAN POWER COMPANY, ET AL., PETITIONERS

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

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney Ge

KAREN L. EGBERT

PATRICIA ROSS MCCUBBIN

Attorneys

meral

Department of Justice

Washington, at;

. 20580-0001

(202) 514-2217

Oe er AY aN RO ee TS este ee ane

QUESTION PRESENTED

Whether the court of appeals properly dismissed

petitions for review of the Environmental Protection

Agency’s “credible evidence” regulations as not ripe for

judicial review.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............ 5, 7,8, 11

American Iron & Steel Inst. v. EPA, 115 F.3d 979

I a ssmapacunbotianions oe 13

Association of Am. Railroads v. Surface Transp. Bd.,

146 FBG 942 (D.C. Cir. 1906) ..ccccsrcorccsvcccsssccosocovecesevee een 13

Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146

Sin OTIC: IIIT sh ttincetpecaons bGiaieaitpendeudniinesecsseubbaauienteeceuspeneete 13

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

I csupensunicnaonoene id 13, 14

Department of Commerce v. United States House of

Representatives, 119 S. Ct. 765 (1999) ..ccceecccseseeseeeeees 9

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905

I a ceccliatiemebumnetonieneiey 1]

Gardner v. Toilet Goods Ass'n, 387 U.S. 167

a scccesannnsdantant pepe 5.7.8

Geroge E. Warren Corp. v. EPA, 159 F.3d 616

(1998), amended, 164 F.3d 676 (D.C, Cir. 1999) .............. 12

Lujan v. National Wildlife Federation, 497 U.S. 871

EIITD aiiniidicgides achucanbeninistetn iilanamesilndinbenscisbesihaheibiogsbiaieantieeemess 9 11

Ohio Forestry Ass’n v. Sierra Club, 1188. Ct. 1665

I a eestianasede 8 1)

Raines Vv. Byrd, 521 U.S. 811 (1997) ....ccccccccsrsececcsccsssecseres 9

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 48

I a a a ad vediedenpeianleudiabningsonageneons 7-8

Texas v. United States, 52% U.S. 296 (1998) ............... 6,8, 10

(IIT)

IV

Cases—Continued: Page

Toilet Goods Ass'n v. Gardner, 387 U.S. 158

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Constitution, statutes, regulations and rule:

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

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Bo pip ty SR eae ae ire 9, 10, 11, 12

5 rere Ge Rts FO TUDD sictacchacenvontassiosiachoaunasaiaoas 4

§ 307(b)(1), 42 U.S.C. T607(b)(1) ................0005. 4, 10, 12-13

§ 307(b)(2), 42 UBC ts eR A 4, 5, 10

Resource Conse rvation and Recovery Act of 1976,

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10 C.F.R.:

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Miscellaneous:

62 Fed. Reg. (1997):

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i a a er ee ee 3

Jn the Supreme Court of the United States

No. 98-1330

APPALACHIAN POWER COMPANY, 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-16a)

is reported at 150 F.3d 1200.

JURISDICTION

The judgment of the court of appeals was entered on

August 14, 1998. A petition for rehearing was denied

on November 20, 1998 (Pet. App. 17a-20a). The petition

for a writ of certiorari was filed on February 18, 1999.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

The Environmental Protection Agency (EPA) admin-

isters the Clean Air Act (CAA), 42 U.S.C. 7401 et seq.

EPA has amended its CAA regulations to clarify that

EPA and the States may evaluate whether regulated

(1)

entities are in compliance with those regulations

through the use of any credible evidence bearing on

compliance, rather than through the use of only those

specific tests that are identified in EPA or state

regulatory standards. See 40 C.F.R. 51.212(c), 52.12(c),

60.11(a), (f) and (g) (the credible evidence provisions).

Petitioners, which are industrial entities subject to the

CAA regulations, filed petitions for review in the

United States Court of Appeals for the District of

Columbia Circuit to challenge the credible evidence

provisions. The court of appeals dismissed those peti-

tions for review on ripeness grounds, holding that the

validity of petitioners’ claims could not be evaluated in

the absence of a specific enforcement action. Pet. App.

la-16a.

1. The CAA directs EPA to promulgate three pri-

mary types of nationally applicable standards relevant

to stationary sources of air pollution: National Ambient

Air Quality Standards (NAAQS); New Source Perform-

ance Standards (NSPS); and National Emission Stan-

dards for Hazardous Air Pollutants (NESHAP). The

NAAQS regulations specify the maximum permissible

concentrations of six “criteria” pollutants (ozone, sulfur

dioxide, lead, particulate matter, carbon monoxide, and

nitrogen dioxide), which are attained primarily through

state-designed control strategies set out in State Imple-

mentation Plans (SIPs). See CAA §§ 109-110, 42 U.S.C.

7409-7410; see also 40 C.F.R. Pts. 50-51. The NSPS

regulations establish numerical emission standards for

specific categories of stationary sources. See CAA

§ 111, 42 U.S.C. 7411; 40 C.F.R. Pt. 60. The NESHAP

regulations establish emission standards for stationary

sources of certain hazardous air pollutants for which

there are no ambient air quality standards. See CAA

§ 112, 42 U.S.C. 7412; 40 C.F.R. Pt. 61. The emission

standards are enforced through administrative, civil, or

criminal sanctions. F.g., CAA § 113, 42 U.S.C. 7413.

See Pet. App. 2a-3a.

When EPA first promulgated its SIP, NSPS, and

NESHAP regulations, it specified not only the

numerical value of the particular standards, but also

specific performance or reference tests to be used for

determining compliance with each standard. See Pet.

App. 3a. In 1997, EPA adopted the credible evidence

provisions at issue here, which state (in virtually

identical language) that nothing in the SIP, NSPS, and

NESHAP regulations “shall preclude the use, including

the exclusive use, of any credible evidence or informa-

tion, relevant to whether a source would have been in

compliance with applicable requirements if the appro-

priate performance or compliance test or procedure had

been performed.” 40 C.F.R. 60.11(g); see 40 C.F.R.

51.212(c), 52.12(c), 60.11(a) and (f). See 62 Fed. Reg.

8314 (1997); Pet. App. 3a-4a.

KPA adopted the credible evidence provisions to

address the practicalities of environmental enforce-

ment. EPA has determined, as a matter of experience

and technological developments, that various tests and

techniques can yield the same measurement of environ-

mental compliance as the performance or reference

tests set out in EPA’s regulations. As an example, a

“continuous opacity monitor” containing a calibrated

light source can provide compliance data with at least

the same level of reliability as an EPA reference test

known as “Method 9,” which requires that “a trained

visible emissions observer (VEO) view a smoke plume

with the sun at a certain angle to the plume in order to

properly illuminate it.” See 62 Fed. Reg. at 8319.

Under the credible evidence provisions, EPA can, in

appropriate circumstances, employ continuous opacity

4

monitoring, instead of Method 9, to evaluate com-

pliance. See Pet. App. 4a-5a.

The credible evidence provisions give EPA greater

flexibility to use substitute methodology, in light of

practical considerations and technological advances, to

evaluate environmental compliance. Nevertheless, the

specific reference test set forth in the applicable SIP,

NSPS, or NESHAP regulation remains the benchmark

for measuring compliance. EPA’s “credible evidence”

must relate to what the reference test would have

shown if it had been performed. Specifically, the sub-

stitute methodology must reliably measure the pollut-

ant in the same concentration or mass over the same

time period. See 62 Fed. Reg. at 8314-8315.

2. Petitioners challenged the credible evidence pro- |

visions by filing petitions for review in the United

States Court of Appeals for the District of Columbia

Cireuit in accordance with Section 307(b) of the CAA,

42 U.S.C. 7607(b), which provides for pre-enforcement

review of final agency actions in the appropriate court |

of appeals. Section 307(b)(1) states:

Any petition for review under this subsection shall

be filed within sixty days from the date notice of

such promulgation * * * appears in the Federal

Register, except that if such petition is based solely

on grounds arising after such sixtieth day, then any

petition for review under this subsection shall be

filed within sixty days after such grounds arise.

42 U.S.C. 7607(b)(1). Section 307(b)(2) further provides:

Action of [EPA] with respect to which review could

have been obtained under paragraph (1) shall not

be subject to judicial review in civil or criminal

proceedings for enforcement.

aiid

42 U.S.C. 7607(b)(2).

Petitioners contended in their petitions for review

that EPA lacked statutory authority to adopt regula-

tions that allow use of credible evidence in lieu of the

performance or reference tests. Pet. App. 5a. They

further argued that EPA was obligated to conduct a

rulemaking on each of the NSPS and NESHAPS stan-

dards that would be affected by the credible evidence

provisions. See ibid. As the court of appeals explained,

“(tlhe heart of the argument is that the credible

evidence rule, by altering the means of determining

compliance for the [NSPS and NESHAP regulations],

increases the stringency of the underlying standards.”

Ibid. As the court also explained, “EPA’s short answer

is that there was no need for such proceedings [to

revise the NSPS and NAAQS standards] because the

standards have not been changed.” /bid. The court of

appeals did not resolve that dispute. Applying this

Court’s decisions in Abbott Laboratories v. Gardner,

387 U.S. 136 (1967); Toilet Goods Ass’n v. Gardner, 387

U.S. 158 (1967); and Gardner v. Toilet Goods Ass’n, 387

U.S. 167 (1967), the court of appeals ruled that petition-

ers’ challenges are not ripe for judicial determination

and dismissed the petitions for_review. Pet. App. 7a-

16a.

The court of appeals concluded that petitioners’ con-

tentions “have raised issues that are not purely legal,

issues that are not suitable for decision in the abstract.”

Pet. App. 8a-9a. The court explained that petitioners’

contentions present “too many imponderables” because

“application of EPA’s credible evidence rule in the

place of a reference test may potentially affect some

standards but not others.” Jd. at 9a-10a. The court

stated that “credible evidence is not a closed set” and

that, “[g]iven the universe[] of all possible evidence

6

that might be considered ‘credible,’ it is impossible for

us to decide now what impact the rule will have.” Jd. at

10a. “An enforcement action brought on the basis of

credible evidence would, we believe, provide the factual

development necessary to determine whether the new

rule has affected whatever existing standard is

involved.” Ibid.

In addition, the court of appeals found that peti-

tioners “cannot point to any great hardship” from

deferral of judicial review, particularly since the “rule

does not require [petitioners] ‘to engage in, or to refrain

from, any conduct.’” Pet. App. 10a (quoting Texas v.

United States, 523 U.S. 296, 301 (1998)). The court

compared the situation here to that in Toilet Goods

Ass'n, 387 U.S. at 164, where this Court concluded that-

the agency action was unripe for review. The court

noted that the petitioners “need not change their

behavior or risk costly Sanctions.” Pet. App. 10a.

“Source owners and operators are already under an

obligation to comply with EPA’s emission standards.”

Ibid. “If the credible evidence rule has in fact altered

these standards, petitioners can raise that as a defense

in an enforcement action.” Jbid.

The court of appeals also found unripe petitioners’

additional challenge that the credible evidence provi-

sions improperly convert “periodic’ standards to ‘con-

tinuous’ ones.” Pet. App. lla. The court concluded that

the effect of the credible evidence provisions on compli-

ance obligations “is difficult to assess without any in-

formation or experience showing how the rule operates

in particular settings.” Jbid. The court similarly re-

jected petitioners’ claims that the credible evidence

provisions improperly modify SIPs. The court noted at

the outset that “[i]t is not at all apparent that use of

credible evidence alters the emissions standards gov-

7

erning petitioners’ activities.” Jd. at 14a. It further

stated that “the effect of the credible evidence rule on

petitioners—that is, the effect of language in state

plans specifying that use of credible evidence is not

precluded—is highly uncertain for reasons already

mentioned.” Jbid. The court also observed that an

amicus brief submitted by state air pollution authorities

indicates that States already employ credible evidence

in enforcement actions. Jd. at 14a-15a. In light of those

considerations, the court concluded that “our judicial

appraisal ‘is likely to stand on a much surer footing in

the context of a specific application of the regulation.’”

Id. at 15a (quoting Toilet Goods Ass’n, 387 U.S. at 164).

ARGUMENT

The court of appeals reasonably concluded that peti-

tioners’ challenges to EPA’s credible evidence provi-

sions are not ripe for judicial review. The court of ap-

peals’ decision, which simply applies familiar legal prin-

ciples to a narrow and fact-bound regulatory context,

does not conflict with any decision of this Court or

another court of appeals. Indeed, the court of appeals’

decision merely postpones judicial review until the time

when the credible evidence provisions can be applied to

a concrete enforcement setting.

1. This Court’s decisions in Abbott Laboratories v.

Gardner, Toilet Goods Ass’n v. Gardner, and Gardner

v. Toilet Goods Ass'n, supra, articulate the fundamental

principle that courts shall not review agency action if

that action is not ripe for judicial review. The Court

has adopted that principle in light of the proper

institutional role of the Judicial Branch. Although ripe-

ness doctrine “is drawn from both Article III limita-

tions on judicial power and from prudential reasons for

refusing to exercise jurisdiction,” Reno v. Catholic Soc.

8

Servs., Inc., 509 U.S. 48, 57 n.18 (1993), the dispute in

this case focuses on the prudential aspects of the

doctrine.

The “basic rationale” of the prudential ripeness doc-

trine “is to prevent the courts, through avoidance of

- premature adjudication, from entangling themselves in

abstract disagreements over administrative policies,

and also to protect the agencies from judicial interfer-

ence until an administrative decision has been formal-

ized and its effects felt in a concrete way by the

challenging parties.” Abbott Labs., 387 U.S. at 148-149.

The ripeness doctrine requires courts “to evaluate both

the fitness of the issues for judicial decision and the

hardship to the parties of withholding court con-

sideration.” Jd. at 149; accord Toilet Goods Ass’n, 387

U.S. at 162; Gardner, 387 U.S. at 170. See Ohio

Forestry Ass’n v. Sierra Club, 118 S. Ct. 1665, 1690

(1998); Texas v. United States, 523 U.S. at 300-301.

Petitioners do not contend that the court of appeals

erred in applying the two-par’ test that this Court

articulated in Abbott Laboratories and has applied in

Toilet Goods Ass’n, Gardner, and numerous other

eases. Indeed, the court of appeals’ decision rests on a

routine application of the two-part test. The court ex-

plained that it found petitioners’ challenges to the

credible evidence provisions to be not currently fit for

judicial review because the court would need to evalu-

ate whether, as petitioners assert, the use of “credible

evidence” in place of a specific performance test actu-

ally modifies the various regulatory standards that may

be affected by those provisions. The court of appeals

concluded that a court cannot make that judgment in

the abstract, but must instead evaluate the effect of

using substitute methodology in the context of a

specific enforcement action. See Pet. App. 8a-11a, 14a-

9

15a. Furthermore, postponing review until the agency

actually uses the substitute methodology in a specific

case does not impose any meaningful hardship on the

parties because, as the court of appeals also explained,

the credible evidence provisions do not purport to

change the underlying regulatory standards. If they

have “in fact altered these standards, petitioners can

raise that as a defense in an enforcement action.” Id. at

10a. See also id. at 13a-14a. The court of appeals’

reasonable application of well established ripeness

doctrine to the regulations at issue here plainly does

not warrant this Court’s review. See Sup. Ct. R. 10.

2. Petitioners argue that this Court’s review is

nevertheless warranted because, in their view, Section

307 of the CAA, 42 U.S.C. 7607, which provides for pre-

enforcement review of final EPA action under the

CAA, absolutely precludes the court of appeals from

applying the ripeness doctrine. Pet. 16. According to

petitioners, Congress’s creation of a mechanism for pre-

enforcement judicial review should be treated as

categorically prohibiting the courts from considering

ripeness principles. Pet. 16-23. Petitioners’ contention

is unpersuasive and does not present an issue warrant-

ing this Court’s review.

a. Congress can require a federal court to resolve

Article III “Cases” or “Controversies” (U.S. Const.

Art. III, §2) without regard to the court’s self-imposed

“prudential” limitations on the court’s own powers,

including limitations arising from the prudential doc-

trine of ripeness. See Department of Commerce v.

United States House of Representatives, 119 S. Ct. 765,

772 (1999); Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997);

Lujan v. National Wildlife Federation, 497 U.S. 871,

894 (1990). The question here, however, is not one of

congressional power, but rather one of congressional

10

intent. Petitioners contend that, when Congress au-

thorized pre-enforcement review of CAA regulations

through Section 307 of the CAA, it must have intended,

sub silentio, entirely to preclude courts from applying

the pre-existing prudential doctrine of ripeness.

Neither the text nor the purpose of Section 307, how-

ever, supports that extreme construction.

Section 307 of the CAA does not expressly address

the application of ripeness principles. Rather, Section

307(b)(1) directs that “[a]ny petition for review under

this subsection shall be filed within sixty days from the

date notice of such promulgation * * * appears in the

Federal Register.” 42 U.S.C. 7607(b)(1). Significantly,

Section 307 does not state that the court of appeals

must decide the petition on the merits without any

regard whatsoever to prudential principles governing

judicial review. To the contrary, Section 307 recognizes

that not every regulatory action will be susceptible to

immediate judicial review. Section 307(b)(2) states that

agency actions “with respect to which review could

have been obtained under paragraph (1) shall not be

subject to judicial review in civil or criminal proceed-

ings for enforcement.” 42 U.S.C. 7607(b)(2) (emphasis

added). Congress clearly understood that immediate

judicial review would not be available in some situa-

tions and that judicial review in those circumstances

would take place, as it traditionally does, when the

agency undertakes specific enforcement action. See

Texas, 523 U.S. at 302; Toilet Goods Ass’n, 387 U.S. at

164,

The court of appeals’ conclusion that Congress pre-

served the court’s authority to apply ripeness principles

when reviewing EPA regulations is consistent with the

objectives of Section 307. Section 307’s pre-enforce-

ment review provisions allow regulated entities to test

11

the validity of CAA regulations, within a strictly

limited time period, before those entities must conform

their conduct to new regulatory requirements. When

properly applied, the ripeness doctrine does not inter-

fere with Section 307’s core objective of providing an

avenue for judicial review of a regulation before it

affects primary conduct. That doctrine postpones judi-

cial review only if review is impractical and postponing

review would not impose a significant hardship on the

parties. See Abbott Labs., 387 U.S. at 148-149. As so

applied, the ripeness doctrine actually complements the

Section 307’s function. In granting the courts of

appeals jurisdiction to conduct pre-enforcement review,

Congress had good reason to preserve adequate

discretion in those courts to postpone review if the

reviewing court determined that it could not resolve

the pre-enforcement challenge in the abstract and that

postponing review until the agency takes enforcement

action would not harm the affected parties.

We recognize that the courts should fully take into

account Congress’s decision to authorize pre-enforce-

ment review as an important factor bearing on the

question of ripeness. See Ohio Forestry Ass’n, 118 S.

Ct. at 1672; National Wildlife Federation, 497 U.S. at

891. When conducting a ripeness analysis under Abbott

Laboratories, a court should give weight to Congress’s

general judgment that a particular regulatory program

would benefit from immediate review of agency regu-

lations. Congress’s conception of how a regulatory pro-

gram should operate is clearly relevant in assessing

whether a specific regulatory dispute is fit for judicial

review and whether postponing judicial review would

cause undue hardship to the parties. See, e.g., Hagle-

Picher Indus., Inc. v. EPA, 759 F.2d 905, 916-918 (D.C.

Cir. 1985). Indeed, lack of such hardship alone would

12

not ordinarily warrant postponement of congression-

ally-favored pre-enforcement review if the issues are fit

for adjudication at that stage. See, é.g., George E.

Warren Corp. v. EPA, 159 F.2d 616, 622 (1998),

amended, 164 F.3d 676 (D.C. Cir. 1999).

There is no reason to believe, however, that Con-

gress meant to deprive a reviewing court of any

latitude to make a judgment about ripeness in light of

the specific nature of the dispute before the court. This

case illustrates why that is so. The core dispute among

the parties is whether the credible evidence provisions

will or will not have any substantive effect on existing

standards and regulatory obligations. The court of ap-

peals reasonably concluded that this issue, which the

court found to depend on the nature of the particular

evidence at issue, cannot be evaluated in the abstract

and should be postponed until the agency attempts to

apply specific credible evidence in a concrete enforce-

ment setting. If Congress had intended the extraordi-

nary result that courts must conduct a pre-enforcement

review, even when the court reasonably concludes that

it cannot effectively do so and that no harm would come

from postponing review, then Congress presumably

would have said so in express terms.

b. Even if there were greater force to petitioners’

arguments, this case would not warrant review by this

Court. The question whether Section 307 entirely pre-

cludes a court from considering ripeness principles

presents a question of statutory construction, and this

Court does not ordinarily review such questions in the

absence of a conflict among the courts of appeals. Peti-

tioners can point to no such conflict on the question

presented here. A conflict is possible, because Section

307 provides for judicial review of agency actions in

courts of appeals other than the D.C. Circuit. See 42

13

U.S.C. 7607(b)(1). Nevertheless, no square conflict has

emerged.

The absence of a conflict is not surprising because, as

a general matter of administrative law, the issue of

ripeness of final agency rules under pre-enforcement

review statutes does not appear to arise with great

frequency. When the issue has arisen in other statu-

tory contexts, the D.C. Circuit has consistently applied

the Abbott Laboratories framework in the course of

conducting pre-enforcement review. Pet. App. 7a-8a.

See, e.g., Association of Am. Railroads v. Surface

Transp. Bd., 146 F.3d 942 (1998); American Iron &

Steel Inst. v. EPA, 115 F.3d 979, 999 (1997); Baltimore

Gas & Elec. Co. v. ICC, 672 F.2d 146 (1982). The only

court of appeals decision that petitioners cite as

contrary authority is the Second Circuit’s decision in

Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40, 46

(1993), which addressed an EPA permitting decision

under the Resource Conservation and Recovery Act of

1976 (RCRA), 42 U.S.C. 6901 et seg. The excerpt of

dictum that petitioners quote (Pet. 22), however, does

not fairly reflect the court’s ruling. The court re-

sponded to EPA’s contention that the dispute was not

ripe as follows:

Arguably, decisions like Abbott Laboratories have

limited relevance to Ciba’s challenges, since RCRA

specifically authorizes review in the Court of Ap-

peals of the “Administrator’s action (1) in issuing,

denying, modifying or revoking any permit under

section 6925 . . ., or (2) in granting, denying, or

withdrawing authorization or interim authorization

under section 6926.” 42 U.S.C. § 6976(b). Thus,

this may be a situation in which “Congress explic-

itly provides for our correction of the administra-

14

tive process at a higher level of generality,” see

Lujan v. National Wildlife Federation, 497 871, 894

(1990), than the usual ripeness test demands. But

see W.R. Grace & Co.— Conn. v. U.S. E.P.A., 959

F.2d 360, 364-67 (1st Cir. 1992) (applying general

test of ripeness to permit dispute reviewable under

42 U.S.C. § 6976(b)(1)).

Even under the general test, however, we believe

that the original permitting decision reviewed by

[EPA’s Environmental Appeals Board] is ripe for

review.

3 F.3d at 46 (parallel citations omitted). As the full

excerpt makes clear, the Second Circuit merely ob-

served that, “[a]rguably,” the general ripeness test set

out in Abbott Laboratories has “limited relevance” in

light of Congress’s provision of pre-enforcement review

provisions. The court nevertheless applied the “general

test” in that case. The Second Circuit did not hold, or

even suggest, what petitioners argue here—that pre-

enforcement review provisions bar the court from

considering ripeness principles.

Finaliy, there is no pressing need for this Court’s

review because the matter has not only failed to arise

frequently or to give rise to a circuit conflict, but the

effect of the court of appeals’ decision is merely to

postpone review in the context where the court of

appeals has explicitly concluded, after examining the

character of the specific dispute, that delaying review

until the agency undertakes enforcement action will not

impose substantial hardship on the parties. See, e.g.,

Pet. App. 10a-lla. Petitioners’ contrary hyperbole

that the court of appeals’ decision creates “a dangerous

precedent” that “creates havoc for regulatory agencies,

15

regulated entities, and the public at large” (Pet. 23) is

without support.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. :

SETH P. WAXMAN

Solicitor General

Lots J. SCHIFFER

Assistant Attorney-General

KAREN L. EGBERT

PATRICIA ROSS MCCUBBIN

Attorneys

MAY 1999

! Petitioners have also brought related challenges in the court

of appeals seeking to set aside numerous individual NSPS and

NESHAP regulations on the basis that the credible evidence pro-

visions changed those standards without appropriate rulemaking.

Appalachian Power Co. v. EPA, No. 97-1121 (D.C. Cir.). On April

29, 1999, relying on its decision in this case, the court of appeals

dismissed those petitions as not ripe for review.