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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1021

## Text

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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§ 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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Miscellaneous:
62 Fed. Reg. (1997):
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1294%3A3. Public record. Not legal advice.