# 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, 2001
- **Citation:** 532 U.S. 903

## Text

DW @

“g YY Supreme Court, U.S.
Nos. 00-445, 00-632 and 00-633 FILED

IN THE ‘VAN 4 2001
Supreme Court of the Hurithd States ee

APPALACHIAN POWER COMPANY, et ai.,

Petitioners,

-and-

STATE OF MICHIGAN, et ai.,

Petitioners,

-and-

STATES OF OHIO AND INDIANA,
‘ Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, e¢ al.,

Respondents.

ON PETITIONS FOR WRIT OF CERTIORARI TO THE UNITED STATES
CourT OF APPEALS FOR THE District OF COLUMBIA CIRCUIT

BRIEF OF RESPONDENTS NEW YORK, CONNECTICUT,

MAINE, MARYLAND, MASSACHUSETTS, NEW

HAMPSHIRE, PENNSYLVANIA, RHODE ISLAND AND
VERMONT IN OPPOSITION TO PETITIONS

ELIOT SPITZER J. JARED SNYDER
Attorney General Assistant Attorney General

PrEETA D. BANSAL* Environmental Protection Bureau
Solicitor General The Capitol

DANIEL SMIRLOCK Albany, New York 12224
Deputy Solicitor General (518) 474-8010

PETER H. SCHIFF Counsel for the State of New York

Senior Counsel

* Counsel of Record

(Additional Counsel listed on signature page)

104479 @) Counsel Press LLC
(800) 274-3321 + (800) 359-6859

COUNTERSTATEMENT OF
QUESTIONS PRESENTED

1. Whether the United States Environmental Protection
Agency (EPA), in allocating equitably the burden of emission
reductions among “upwind” States found to contribute
significant!y to “downwind” States’ nonattainment of the
National Ambient Air Quality Standard (NAAQS) for ozone
pursuant to section 110(a)(2)(D) of the Clean Air Act, is
allowed to consider the relative cost to each upwind State of
emission reductions after first determining which States are
significant contributors based solely on air quality factors.

2. Whether the court below correctly held that EPA’s
exercise of its administrative authority to identify the upwind
States with emission levels that contributed significantly to
nonattainment of NAAQS in downwind States and determine
the amount of emission reductions required of upwind States
did not violate the non-delegation doctrine.

it

TABLE OF CONTENTS

Counterstatement of Questions Presented ........

‘Taeee Of Cameett . oT ih aaa we ee

A. Statutory and Regulatory Background:

Establishing and Maintaining the NAAQS

COR. ok ices baw chau rei eee

C. The Decision of the Court of Appeals .....

Reasons for Denying the Writ .................

I.

The Clean Air Act And Decisions Of This
Court Permit EPA’s Consideration Of Cost-
Effectiveness In Identifying The Emission
Reductions Required Of Each State. ......

A. The Court of Appeals’ Decision is Not
Inconsistent with Decisions of this Court
and the D.C. Circuit Prohibiting the
Consideration of Costs in Other
CHR. ho We ee

Page

10

ul

Contents
Page

1. Industry petitioners’ attempt to
create the appearance of an
inconsistency with other D.C.
Circuit cases does not provide a
basis for certiorari. ............. 11

2. Michigan’s argument that the Court
of Appeals’ decision is contrary to
this Court’s holdings in Union
Electric Co. and the holding of the
D.C. Circuit in Lead Industries
Association should be rejected
because it misconstrues those cases
and was not properly preserved for
this Court’s consideration. ....... 13

B. The Upwind States’ Argument that the
NO,, SIP Call Rule Violates Principles of
“Federalism” and “State Sovereignty” is
Meritless and does not Provide a Basis
Ne ear ce 5 tne ib hn ORS 17

II. The Court Below Correctly Rejected
Petitioners’ Nondelegation Arguments. .... 19

a ea wb 23

iv

TABLE OF CITED AUTHORITIES

Page
Cases:
American Petroleum Institute v. United States EPA,
D2 F356 VETS GA, GAR TRS ck cecsieersvecs 12
American Power & Light Co. v. SEC, 329 U.S. 90
CTI kis ora cbs roe ee eds co teehee ees 20, 21
American Trucking Assns. v. EPA, 175 F.3d 1027,
modified on reh’g, 195 F.3d 4 (D.C. Cir. 1999),
cert. granted, 120 S. Ct. 2003, 120 S. Ct. 2193
Fo PE eee ee ee Pe a, 21,22
Browner v. American Trucking Ass ‘ns, U.S. Supreme
Court Nos. 99-1257, 99-1263 and 99-1265 (argued
ee EN rer eer e free 22
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)

‘ccs ek bny kp sneie Ake eee ea ate ee es 22
Davis v. United States, 417 U.S. 333 (1974) ...... 11
Delta Air Lines, Inc. v. August, 450 U.S. 346

CHDREE hvac cn cavihecskawees vad earck emis ces 14

Ethyl Corp. v. EPA, 51 F.3d 1053 (D.C. Cir. 1995)

Vv

Cited Authorities
Page
International Union, UAW v. OSHA, 37 F.3d 665
(D.C. Cir. 1994)... 1. cece e reece ener eee ees 10
Lead Industries Association v. EPA, 647 F.2d 1130
(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980)
er pp Pret yr ee ree 2, 13, 14, 15, 16
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000)
iil SS ee eek a ee Ree eS 5, 6, 7, 8, 10, 20
National Broadcasting Co. v. United States, 319 U.S.
190 (1943) 0... 2. cece cece ere eee cece eerees 19
Natural Resources Defense Council v. EPA, 824 F.2d
1146 (D.C. Cir. 1987) ....--- esse cece eee eees 7
SEC v. Chenery, 332 U.S. 194 (1947) ...---+-+-- 21
South Terminal Corp. v. EPA, 504 F.2d 646 (ist Cir.
| eee COPE EE EE foe oe te 21, 22
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.
5E1 C19GO) oo. i eee ee ece sete eeetees. 21
Touby v. United States, 500 U.S. 160 (1991) ...... 19, 20
Union Electric Co. v. EPA, 427 U.S. 246 (1976)
eS aha via Os ta eee 3,9, 11, 13, 14, 15, 16, 17

United States y. Mistretta, 488 U.S. 361 (1988) ... 19

vi

Cited Authorities
Page
United States v. Southwestern Cable Co., 392 U.S.

DST LOE vv oss baneehaee ewes SAE an 19
Yakus v United States, 321 U.S. 414 (1944) ...... 19
Statutes:

Clean Air Act Section 108,

OE Pais 1 Eb cbicw 6h bo eau koe kc kdde dean 2
Clean Air Act Section 109,

CUBA. SD PON os cbs Been ees k eee a tds be
Clean Air Act Sectivn 109(b)(1),

2 UDG. f POC) 66829 he RRA 2
Clean Air Act Section 110,

3 UDA. OS PRUE beh ia les iiass a, &' 43,43, 48, 22
Clean Air Act Section 110(a)(2)(A),

42 U.S.C. © TRUQRD bbc ccvcedcibasessee 3

Clean Air Act Section 110(a)(2)(D),
42 U.S.C. § 7410(aX(2)(D) .. i, 3, 7,9, 10, 11, 12, 13, 19

Clean Air Act Section 110(k)(5),
oop toe | Ree ye 13

Clean Air Act Section 307(b),
Ga CLG, O PEE | cab ee vvbvacsued beesieue 11

Clean Air Act Section 307(d)(7)(B),
42 USC. § TECTED ws nk cvisecucnavses 14

vii

Cited Authorities
Page
Other Authorities:
TLR. 95-294, 330 95" Cong. 1* Sess., reprinted in 4
A Legislative History of the Clean Air Act
Amendments of 1977, 2797 (1978) .--+++++++: 20
S. Rep. No. 95-127, reprinted in A Legislative
History of the Clean Air Act Amendments of 1977
(ADTRAN eat soe see es 3
S. Rep. No. 101-228 (1990), reprinted in 1990
U.S.C.C.A.N. 3389 2... ccc cces sc cccerenence 4
42 Fed. Reg. 8202 ........-seeeeeeeceercerees 2
63 Fed. Reg. 57356, et seq. (1998) ...--.+++++s: 1
63 Fed. Reg. 57363 .....:seeeeeereeereceeeers 14, 17
63 Fed. Reg. 57377 ...---ceeecsereeeeecrseeee 1
63 Fed. Reg. 57379 .....:ceeceeceeeecees os ae 8
63 Fed. Reg. 57386 .....---seeeeeeeeerrcceces 7
63 Fed. Reg. 57387-99 .......eseeeeeeerercees 5
663 Fed. Reg. 57387 .....----seeeeererceeteee 4

63 Fed. Reg. 57389-3911 ....--- ree rereereeee 7

vill

€ited Authorities

3. 8 Rs rr errr er Te
Gt PY 4k Sv eS Ed bho deeesincnanwe
On PO: A SPOOF iae a ee Varxusaawens
Air Quality Modeling Technical Support Document

eee

Breyer, et al., Administrative Law and Regulatory
Pee GS CA GE, TSO ok a so taleek epbe ences

Stern, et al., Supreme Court Practice 176 (7th ed.
PEE 0:0 bls SOO ENOS RES ees ee eee

oF 6 Oe enacr van emu iran wine he et som

10

11

l

The States of New York, Connecticut, Maine, Maryland,
Massachusetts, New Hampshire, Pennsylvania, Rhode Island,
and Vermont (collectively, the “respondent States”) oppose
the petitions for certiorari filed by petitioners Appalachian
Power Company, et al. (hereinafter “Industry petitioners”),
State of Michigan, et al. (hereinafter “Michigan’”’) and State
of Ohio, et al. (hereinafter “Ohio’’). The petitions seek review
of the March 3, 2000 judgment of the United States Court of
Appeals for the District of Columbia Circuit upholding the
bulk of EPA’s NO, SIP Call rule (the “Rule”). See Finding of
Significant Contribution and Rulemaking for Certain States
in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone; Rule,
63 Fed. Reg. 57356, et seq. (1998). For the reasons set forth
below, the petitions should be denied, thereby allowing timely
implementation of the Rule and enabling the downwind
States to meet their statutory obligation to ensure that their
residents breathe clean air.

COUNTERSTATEMENT OF THE CASE

In 1998, EPA promulgated the NO, SIP Call, which
requires that twenty-two States and the District of Columbia
revise their State Implementation Plans (SIPs) to reduce
emissions of nitrogen oxides (NO,). The Rule was based on
overwhelming evidence, undisputed in this case, that
emissions of NO, pollution from numerous sources in many
States in the eastern half of the United States contribute to
harmful levels of ozone, a pollutant that causes respiratory
distress, in many portions of the eastern United States.
See 63 Fed. Reg. at 57377. Recognizing that many States
would have difficulty in achieving the National Ambient Air
Quality Standard (NAAQS) for ozone without reductions in
the incoming pollution levels, EPA exercised its authority

2

under section 110 of the Clean Air Act (the “Act”’) to require
emission reductions in all States that contribute to the
problem of transported ozone pollution. Implementation of
the NO, SIP Call will ensure that residents of much of the
eastern half of the nation, including but not limited to
residents of the respondent States, will obtain the benefits
of clean air within the timetable set by Congress in the 1990
amendments to the Act.

A. Statutory and Regulatory Background: Establishing
and Maintaining the NAAQS

Under sections 108 and 109 of the Act, EPA is
responsible for identifying the pollutants that are harmful to
public health when present in the ambient air and for
establishing the ambient levels of such pollutants that the
States are required to achieve. The Act requires EPA to set
NAAQS for these “criteria pollutants” at levels that are
“requisite to protect the public health” with an “adequate
margin of safety.” 42 U.S.C. § 7409(b)(1). Under long-
standing EPA practice and the holdings of the D.C. Circuit,
EPA is to set the NAAQS without regard to the economic
ramifications of the levels chosen. See American Trucking
Assns. v. EPA, 175 F.3d 1027, 1038, modified on reh'g,
195 F.3d 4 (D.C. Cir. 1999), cert. granted, 120 S. Ct. 2003,
120 S. Ct. 2193 (2000) (ATA); Lead Industries Association
v. EPA, 647 F.2d 1130 (D.C. Cir.), cert. denied, 449 U.S.
1042 (1980).' EPA set the NAAQS for ozone at issue in this
case in 1979. See 44 Fed. Reg. 8202 (1979).

Section 110 of the Act requires each State to submit to
EPA a SIP that provides for the attainment of the NAAQS

1. The continuing validity of this principle is being reviewed
by the Court in ATA.

3

within the State. The SIP must demonstrate how State
regulations wil] result in the emission reductions necessary
to achieve the NAAQS. This Court has held that technical or
economic infeasibility does not excuse a State from its
obligation to achieve acceptable air quality for its citizens.
See Union Electric Co. v. EPA, 427 U.S. 246 (1976).

Congress recognized, however, that a State may be
prevented from attaining the NAAQS, or at least hampered
in its efforts to do so, by pollution transported from other
States. Accordingly, just as section 110(a)(2)(A) requires each
State to submit a plan to attain the NAAQS, section
110(a)(2)(D) requires each State’s plan to ensure that
emissions activities within its borders do not “contribute
significantly” to nonattainment downwind. This obligation
is “intended to equalize the positions of the States with
respect to interstate pollution by making a source at least as
responsible for polluting another State as it would be for
polluting its own State.” S. Rep. No. 95-127, reprinted in A
Legislative History of the Clean Air Act Amendments of 1977
(1978) at 1416 (the “1977 Senate Report”).

B. Transported Ozone Pollution and the NO, SIP Call

In promulgating the Clean Air Act Amendments of 1990,
Congress recognized that regional control strategies were still
needed to address the migration of ozone and its precursors:

The bill reflects an increasing understanding of
how ozone pollution is formed and transported.
Because ozone is not a local phenomenon but is
formed and transported over hundreds of miles
and several days, localized control strategies will
not be effective in reducing ozone levels.

— eee

4

S. Rep. No. 101-228 (1990), reprinted in 1990 U.S.C.C.A.N.
3389, 3399. To develop a regional control strategy for
attaining the NAAQS across the eastern half of the United
States, all States east of the Rocky Mountains (including the
District of Columbia) participated in the working group
known as the Ozone Transport Assessment Group (OTAG),
which tried to craft a solution to the problem of transported
ozone. Although the participating States endorsed OTAG’s
extensive and sophisticated technical analyses and recognized
that region-wide NO, reductions were needed, the divergent
interests of the OTAG States prevented them from agreeing
on the details of a control strategy, including the level of
NO, reductions required. In general, the northeastern States,
which are downwind of the bulk of the NO, emission sources,
advocated more stringent controls than Ohio, Michigan and
the other States joining in the petitions for certiorari, which
are host to many of the large NO, emission sources.

In the absence of a State consensus on all the elements
of a NO, control program, EPA used OTAG’s data and
analyses to develop the NO, SIP Call, the rule at issue here.
In doing so, EPA evaluated the contribution of NO, emissions
in thirty-seven States east of the Rocky Mountains to ozone
noncompliance in a number of eastern, southern and
midwestern locations, including the New York City
metropolitan area and other urban areas along the eastern
seaboard, the Atlanta, Birmingham, Chicago, Cincinnati,
Louisville, Pittsburgh and St. Louis metropolitan areas, and
southwestern Michigan. See 63 Fed. Reg. at 57387. Given
the number of source and receptor regions, EPA had to
consider hundreds of source/receptor combinations. Using
advanced air quality modeling techniques, EPA identified
twenty-two States and the District of Columbia as “significant

5

contributors” to ozone nonattainment in other States, based
on its evaluation of the magnitude, frequency and relative
amount of each State’s contribution to ozone non-attainment
in downwind States. See 213 F.3d at 675. EPA determined
that each of these States was making a significant contribution
to ozone nonattainment in at least two other States and, in
many cases, in numerous downwind States in different
directions and at different distances from the upwind State.
See 63 Fed. Reg. at 57394, Table II-4.? For example, EPA
found that Indiana contributes significantly to ozone
nonattainment in a number of eastern seaboard areas such as
New York City and Baltimore, as well as to the nonattainment
problems in Southwestern Michigan (to the north), Cincinnati
(to the southeast), Louisville (to the south), and Chicago (to
the northwest). Indiana’s contribution ranged from an average
of 17% to Louisville’s ozone levels, 11% to Cincinnati’s,
10% to southwestern Michigan’s and 9% to Chicago’s, to
average contributions in the range of 1-2% to ozone levels
in eastern seaboard locations.’

Once it identified the twenty-three jurisdictions that were
significant contributors to at least two downwind ozone
nonattainment areas, EPA determined the amount by which
each State’s NO, emissions should be reduced to mitigate
its significant contribution to numerous downwind States.

2. With the exception of Tennessee, West Virginia and the
Carolinas, each of the States identified as significant contributors
contains at least a portion of a nonattainment area within its borders.

3. Detailed listing of the contributions to downwind
nonattainment of each of the twenty-three jurisdictions subject to
the Rule are contained in the Air Quality Modeling Technical Support
Document for the Regional NO, SIP Call (September 21, 1998)
(which is part of the record before the court below) and summarized
at 63 Fed. Reg. at 57387-99.

6

In so doing, EPA recognized that each upwind State
contributes in varying degrees to ozone nonattainment in
several downwind States and that each nonattainment area’s
ozone originated in a number of upwind States. Thus, rather
than requiring an upwind State to reduce its emissions by
different amounts for each downwind area affected by its
emissions, EPA determined that a single level of emission
reduction would mitigate the impact of that State’s emissions
on all downwind States. EPA decided to require only the level
of emission reductions that could be obtained in a highly
cost-effective manner — that is, at a cost of $2000 per ton or
less. See 213 F.3d at 675. Rather than requiring each State
that contributed significantly to downwind nonattainment to
eliminate al] its NO, emissions, EPA concluded that it is
fair and consistent with the Act to require upwind States
“to reduce at least the portion of their emissions for which
highly cost-effective controls are available.” 63 Fed. Reg.
at 57379.

EPA based the $2000/ton figure on “NO, emissions
controls that are available and of comparable cost to other
recently undertaken or planned NO, measures,” including
“the types of controls EPA and States have needed to adopt
most recently because their previous planning efforts
have already taken advantage of opportunities for even
cheaper controls.” Jd. at 57400. In other words, the
$2000/ton figure was based on the costs of controls already
being incurred in the downwind States that are burdened by
ozone transport. EPA explained that its selection of the
$2000/ton criterion was a “first approximation” at
determining the level of controls that should be required of
upwind sources to eliminate significant contributions to
downwind nonattainment and that further reductions may be
required in the future if needed to achieve regional ozone
nonattainment. See id. at 57399.

7

On the basis of additional modeling, EPA determined
that the emissions reductions achieved through application
of highly cost-effective measures throughout the region
would allow nonattainment areas to make “appreciable
progress towards attainment,” but would not require more
reductions in upwind States than necessary to achieve
attainment in all downwind areas affected by those States’
emissions. Jd. at 57379, 57386 n.38, 57389-391. Thus,
without requiring any States to implement unduly costly
control requirements, the Rule enables all States in the eastern
half of the United States to obtain the benefits of clean air
for their residents.

C. The Decision of the Court of Appeals

The Rule was challenged by numerous utilities and
businesses and by several midwestern and southern states.
On March 3, 2000, the Court of Appeals issued its decision
upholding the bulk of the NO, SIP Call. See Michigan v.
EPA, 213 F.3d 663 (D.C. Cir. 2000). The court first upheld
EPA’s use of complicated air quality modeling in identifying
States as significant contributors. See id. at 673-74. It then
determined that EPA did not err in using costs in determining
the amount of emission reductions required from each State
that had been found to contribute significantly to downwind
nonattainment. In so doing, the court relied upon its own
longstanding precedent that an agency may consider costs
unless there is a “clear congressional intent to preclude
consideration of cost.” Jd. at 678 (quoting Natural Resources
Defense Council v. EPA, 824 F.2d 1146, 1163 (D.C. Cir.
1987)). The court concluded that the phrase “contribute
significantly” in section 110(a)(2)(D) does not express a clear
congressional intent to exclude consideration of cost.
See id. at 679. Without actually determining that the phrase

8

“contribute significantly” requires consideration of costs or
equitable factors, the court noted that it would be difficult to
draw a line between the level of emissions that are
permissible and those that are not without considering costs
and other equitable factors. See id. at 678. The court below
also rejected several other arguments, including a
nondelegation challenge. See id. at 680-81.‘

Petitions for rehearing and rehearing en banc were denied
on June 22, 2000.

REASONS FOR DENYING THE WRIT

None of the petitioners disputes the public health dangers
associated with high levels of ozone pollution. Nor do
petitioners contest EPA’s conclusion that the ozone
attainment problems throughout the eastern half of the nation
result from emission activity at hundreds of large and small
sources of NO, emissions across the region or its finding
that each source State individually contributes to NAAQS
non-attainment in numerous downwind States in widely
differing amounts. Furthermore, the petitioners agree that
EPA has authority under section 110 to require upwind States
to revise their SIPs to mitigate their contribution to downwind
ozone nonattainment.

4. The D.C. Circuit did vacate certain aspects of the Rule.
It determined that Wisconsin should not have been included in the
Rule and that the emission reductions required of Georgia and
Missouri should be based solely on the emissions from the portions
of those States found to contribute to downwind nonattainment.
See 213 F.3d at 681-85. It also determined that EPA did not provide
sufficient notice of the definition of an electric generating unit and
of the control level assumed for large stationary internal combustion
engines. See id. at 691-94.

9

Instead, the petitioners’ only complaint is with the level
of emission reductions required in Ohio, Michigan and the
other petitioning States. They claim that EPA misconstrued
the term “contribute significantly” in section 110(a)(2)(D)
of the Clean Air Act by including costs of controls among
the factors considered in determining the amount of emission
reduction required of each State that contributes to regional
ozone pollution. Although Ohio tries to inflate the importance
of the issue by suggesting that EPA’s analysis is
not “federalism-sensitive,” this issue involves routine
administrative application of a statutory standard that does
not merit review by this Court. In fact, although the various
petitioners do not agree on the reasons why EPA’s
consideration of costs violated the Act, some of them
recognize that costs can play a role in the analysis and argue
that EPA erred not in considering costs at all, but in the way
it considered costs. Industry Pet. at 12; Ohio Pet. at 10-11.°

5. Michigan adheres to the position that costs should play no
role in the analysis, despite acknowledging that the case on which it
chiefly relies, Union Electric, supra, recognizes a role for
consideration of costs under section 110. Michigan Pet. at 9 n.4.

10
I.

THE CLEAN AIR ACT AND DECISIONS OF THIS

COURT PERMIT EPA’S CONSIDERATION OF COST-

EFFECTIVENESS IN IDENTIFYING THE EMISSION
REDUCTIONS REQUIRED OF EACH STATE.

A. The Court of Appeals’ Decision is Not Inconsistent
with Decisions of this Court and the D.C. Circuit
Prohibiting the Consideration of Costs in Other
Contexts.

Section 110(a)(2)(D) does not specify how EPA should
determine what emissions make a significant contribution
to downwind States. It does not say that cost-effectiveness
of controls or other economic factors are relevant
considerations. Nor does section 110(a)(2)(D) preclude the
consideration of cost-effectiveness of controls in determining
the amount of excess emissions in each State. Accordingly,
the Court of Appeals acted properly in concluding that EPA
may consider the costs of controlling emissions in
determining whether the risk posed by the emissions is
significant. See 213 F.3d at 677-78 (citing International
Union, UAW v. OSHA, 37 F.3d 665, 668-69 (D.C. Cir. 1994),
and Breyer, et al., Administrative Law and Regulatory Policy
65 (4th ed. 1999)).

Both the State petitioners and the Industry petitioners
misconstrue the role of costs in EPA’s analysis. They attempt
unsuccessfully to demonstrate an inconsistency between the
D.C. Circuit’s decision in this case, which upholds EPA’s
consideration of costs for the limited purpose of allocating
the burdens of emission reductions, and decisions of this
Court and the D.C. Circuit addressing EPA’s use of cost
considerations in unrelated contexts.

11

1. Industry petitioners’ attempt to create the
appearance of an inconsistency with other D.C.
Circuit cases does not provide a basis for
certiorari.

The Industry petitioners’ argument that the Court of
Appeals’ decision is inconsistent with prior D.C. Circuit cases
does not support the grant of certiorari in this case.
As an initial matter, an alleged conflict between decisions of
the D.C. Circuit does not provide a basis for certiorari.
Conflicts between decisions of a single court of appeals
should be addressed through petitions for rehearing en banc,
rather than through certiorari. See, e.g., Davis v. United
States, 417 U.S. 333, 340 (1974) (referencing earlier petition
for certiorari that had been denied when conflict was between
decisions of the same Circuit); see also Stern, et al., Supreme
Court Practice 176 (7th ed. 1993). Petitioners’ suggestion
that an inter-circuit conflict over a Clean Air Act issue cannot
possibly arise because the D.C. Circuit has sole jurisdiction
over appeals of actions and administrative proceedings under
the Act (Michigan Pet. at 19) is not only irrelevant but simply
wrong. EPA’s administrative determinations regarding the
compliance of SIPs with the requirements of section
110(a)(2)(D) are generally reviewed in the circuit for the state
whose SIP is being challenged. See 42 U.S.C. § 7607(b). In
fact, the challenge to the Missouri SIP in Union Electric,
upon which Michigan relies, was heard by the Eighth Circuit,
not the D.C. Circuit. See 427 U.S. at 252-53.

Furthermore, the decisions on which Industry petitioners
rely are inapposite to the present case. In Ethyl Corp. v. EPA,
51 F.3d 1053, 1060 (D.C. Cir. 1995), the D.C. Circuit held
that a regulation that allowed EPA to prohibit a fuel additive
only if it “cause[d] or contribute[d] to failure of any emission

12

control device” did not provide EPA with the authority to
bar the additive on the entirely unrelated ground that it may
cause adverse health effects. Likewise, in American
Petroleum Institute v. United States EPA, 52 F.3d 1113, 1120
(D.C. Cir. 1995) (“API”), EPA improperly promulgated fuel
content regulations that were directed at promoting the use
of renewable fuel sources, rather than at reducing emissions
of volatile organic compounds and toxic air pollutants, as
required by Congress. These decisions interpreted statutes
clearly barring the use of factors that had been erroneously
applied by EPA, whereas in this case section 110(a)(2)(D)
does not bar the consideration of costs. In fact, EPA’s
consideration of the relative costs of controlling emissions
is consistent with Congressional intent that the burden of
controlling interstate pollution be shared by all States that
contribute to the problem. See 1977 Senate Report at 1416.

Nor did EPA’s rule subordinate air quality factors to
considerations of cost-effectiveness. Industry petitioners
overstate the role of costs in EPA’s determination when they
contend that EPA “considered as its sole factor the cost-
effectiveness of emission reductions in determining whether
one state’s contribution to another state’s ozone
nonattainment air quality is ‘significant.’ ” Industry Pet. at
13. In fact, as the State petitioners recognize, EPA’s
determination of whether a State contributed significantly
to downwind nonattainment was based solely on air quality
factors, with costs playing a role only in determining the
amount of emissions to be reduced. Michigan Pet. at 5-6;
Ohio Pet. at 4-5.°

6. If Industry petitioners were right that cost of compliance was
the sole factor considered by EPA, the Rule would have encompassed
all thirty-seven States included in OTAG, rather than just the twenty-

(Cont'd)

13

Ultimately, Industry petitioners concede that EPA may
consider the relative costs of controls in determining the NO,,
reductions required of each State, albeit under section
110(k)(5) of the Act rather than section 110(a)(2)(D). Industry
Pet. at 18. This distinction, however, has no basis in the
language of the statute, because, like section 110(a)(2)(D),
section 110(k)(5) contains no specific reference to the
consideration of costs. If such consideration of costs is valid,
it is equally valid under both provisions.

2. Michigan’s argument that the Court of Appeals’
decision is contrary to this Court’s holdings in
Union Electric Co. and the holding of the D.C.
Circuit in Lead Industries Association should be
rejected because it misconstrues those cases and
was not properly preserved for this Court’s
consideration.

Michigan’s primary argument, that prior decisions under
sections 109 and 110 of the Act prohibit EPA from
considering costs in setting the NAAQS and in reviewing
SIPs for compliance with those NAAQS, was not presented
to the court below. The cases upon which Michigan now relies
— Lead Industries Association and Union Electric — are
cited nowhere in the Brief or Reply Brief filed below by
Michigan and other upwind States. The explanation for that
omission is simple: the premise of both Union Electric and
Lead Industries Association — that costs and economic
(Cont'd) :
two States and the District of Columbia that were ultimately included
in the Rule. In fact, those twenty-three jurisdictions were included
because the impact of their emissions on downwind States exceeded

a certain air quality threshold, not because they contained sources
that could be controlled at a cost of less than $2000 per ton.

14

factors cannot be used to weaken the public health protection
provided by the NAAQS — is inconsistent with Michigan’s
position before the Court of Appeals, where it argued that
the emission reductions required by the NO, SIP Call were
more extensive than needed. See, e.g. Reply Brief of
Petitioning States at 11-12. Now, in an effort to take
advantage of the Union Electric and Lead Industries
Association holdings, Michigan shifts gears, suggesting —
without any basis in the record and contrary to the results of
EPA’s modeling — that EPA’s consideration of costs
somehow weakened the public health protections of the Act.’

As an initial matter, this Court should reject Michigan’s
argument as a basis for certiorari because the argument was
neither presented to EPA during the public comment process,
as required by CAA section 307(d)(7)(B),® nor made to the
court below. See, e.g. Delta Air Lines, Inc. v. August,
450 U.S. 346, 362 (1981) (refusing to consider propriety of
award of costs because that issue was not raised in the court
of appeals). In fact, Michigan and its co-petitioners were
participants in OTAG, which recommended that cost-
effectiveness of controls be included as one of the criteria
for selection of a strategy to reduce transported ozone.
See 63 Fed. Reg. at 57363.

In any event, there is no conflict between the decision
below and decisions considering the use of costs to reduce

7. Notably, Ohio (the lead upwind State in the D.C. Circuit
proceedings) and Indiana do not join Michigan in this new argument.

8. Section 307(d)7)(B) provides that “[o]nly an objection to a
rule or procedure which was raised with reasonable specificity during
the period for public comment (including any public hearing) may
be raised during judicial review.”

15

protections against unhealthy air under other provisions of
the Clean Air Act. EPA’s consideration of costs did not reduce
the level of public health protection at all; in fact, the Rule’s
emission reduction requirements are the most stringent of
the range of possible reductions identified by OTAG Instead
of using cost considerations to reduce public health
protection, EPA used relative costs of NO, reductions to
allocate equitably the emission reductions needed to achieve
the preexisting public health goal of attainment of the
NAAQS. Thus, in the present case, unlike the decisions on
which Michigan relies, the consideration of costs is consistent
with, rather than contrary to, Congress’ intent to protect the
public from the adverse health effects of poor air quality.

In Lead Industries Association, the D.C. Circuit held that
EPA could not, in setting the health-based primary NAAQS,
consider the economic feasibility of attaining the NAAQS.
The court held that the language of section 109 evidenced a
clear Congressional intent that the NAAQS should be set
solely on the basis of the need to protect public health.
The court emphasized that the NAAQS are intended to be
“technology-forcing,” meaning that Congress understood and
intended that industry would have to develop new
technologies, at potentially great cost, to achieve the NAAQS.
See 647 F.2d at 1149. Similarly, in Union Electric, this Court
found that EPA need not consider the feasibility of
compliance with a SIP in evaluating the sufficiency of a SIP
under section 110 of the Act. In that case, Union Electric, an
electric utility located in Missouri, challenged EPA’s approval
of the Missouri SIP on the ground that compliance with the
emission limitations contained in the SIP was not
technologically and economically feasible. The Court held
that EPA may not allow claims of economic and technological

16

feasibility to excuse a State from submitting a SIP that
promotes attainment of the health-based NAAQS. See 427
U.S. at 265. Notably, however, the Court recognized that
economic factors may be considered as long as “consideration
of such claims will not substantially interfere with the primary
congressional purpose of prompt attainment of the national
air quality standards.” 427 U.S. at 266.

In the present case, by contrast, EPA’s consideration of
costs does not interfere with the prompt attainment of the
national air quality standards. Congress’ goal, as in Lead
Industries Association and Union Electric, is attainment of
NAAQS by specific dates. EPA set the requisite ozone
NAAQS without regard to economic factors, and EPA’s
consideration of costs does not reduce the protection provided
by the NAAQS to downwind States and their residents. To
the contrary, EPA’s modeling confirmed that the emission
reductions required by the Rule, after consideration of costs,
will enable downwind States, including some of the State
respondents, to make significant progress towards attainment
of the NAAQS.’ See 63 Fed. Reg. at 57379. The costs of
reducing NO, emissions to achieve these NAAQS were
considered only in allocating the burdea of reducing NO,
emissions among the various States that contribute to ozone

9. EPA recognized that the downwind States may have to bear
an additional burden in attaining the NAAQS because the emission
reductions required by the NO, SIP Call are sufficient to put the
NAAQS within reach of all States, but may be insufficient to bring
about attainment of the NAAQS in all locations without any further
reductions from the downwind States. Of course, EPA could have
provided for attainment by raising the cost cut-off from $2000 to a
higher level, perhaps $2500. It is the downwind States that support
the Rule that may have to implement the higher level of controls
themselves, not upwind States like Michigan.

17

nonattainment in the eastern United States, thereby
effectuating Congress’ intent to apportion equitably the
burden of emission reduction efforts. Far from “interfer[ing]}
with the primary congressional purpose of prompt attainment
of the national air quality standards,” the NO, SIP Call rule
makes such attainment possible throughout the eastern
portion of the United States without requiring any unneeded
emission reductions.'° In the absence of this Rule, regions
that are home to millions of Americans will not achieve the
NAAQS within the timetable set by Congress. Jd. at 57363.

B. The Upwind States’ Argument that the NO, SIP Call
Rule Violates Principles of “Federalism” and “State
Sovereignty” is Meritless and does not Provide a Basis
for Certiorari.

The State petitioners contend that EPA misallocated the
burden of emission reductions among the States. Michigan
and Ohio (and their co-petitioners) evidently believe that
EPA’s method of apportioning the burden of compliance in
accordance with the costs of controlling the emissions results
in sources in those States bearing a greater share of emission
reductions than they would like. In an attempt to disguise
their challenge to EPA’s method as a subject that might merit

10. EPA’s use of costs in this case is similar to the waiver
process approved by this Court in Union Electric. The Court
determined that States are free to exempt facilities or industry groups
from control requirements under the SIP on grounds of economic
infeasibility so long as doing so does not interfere with attainment
of the NAAQS. See 427 U.S. at 266-67. Likewise, here EPA is free
to exclude sources that cannot be controlled in a highly cost-effective
manner from its calculation of State budgets, as long as doing so
does not interfere with attainment of the NAAQS.

18 pre
this Court’s review, Ohio contends, without supporting its
position and without citation to case law, that EPA’s
application of section 110 is somehow inconsistent
with unspecified principles of “federalism” or “state
sovereignty.”

Underlying this argument is the State petitioners’ failure
to recognize that each upwind State contributes to varying
degrees to numerous downwind States. For example, State
petitioners note that Indiana and Pennsylvania are being
required to reduce their emissions by approximately the same
amount, even though Pennsylvania’s impact on the downwind
New York City nonattainment area is greater. Ohio Pet. at
12-13; Michigan Pet. at 22-23. The State petitioners ignore,
however, that Indiana emissions have a much greater effect
than Pennsylvania emissions on other nonattainment areas
that are closer to Indiana, such as Louisville (to which Indiana
contributes an average of 17% of the ozone and Pennsylvania
less than 1%), Cincinnati (Indiana 11%; Pennsylvania 1% ),
Southwestern Michigan (Indiana 10%; Pennsylvania less than
1%) and Chicago (Indiana 9%; Pennsylvania less than 1%).
Thus, shifting the focus from New York City to Cincinnati,
Chicago or Louisville as a receptor area would mean that it
is Pennsylvania, rather than Indiana, that is being required
to obtain excess emission reductions under the Rule.
Considering that each upwind State contributes varying
amounts of ozone to numerous downwind States, EPA’s
approach recognizes the impossibility of requiring that a State
reduce its emissions by different amounts for each downwind
State to which it contributes.

Ultimately, EPA’s allocation methodology follows from
its recognition that nonattainment throughout the eastern half
of the United States is the result of the collective contribution

19

of countless sources throughout the area, a finding that is
being challenged by none of the Petitioners. In light of the
regional nature of the ozone nonattainment problem, the Rule
effectuates Congressional intent to allocate the burden of
compliance among the States containing sources that
contribute to the problem. Notwithstanding State petitioners’
attempt to disguise their challenge as a defense of federalism,
their argument that EPA could or should have allocated the
emission reductions differently does not implicate principles
of State sovereignty.

Il.

THE COURT BELOW CORRECTLY REJECTED
PETITIONERS’ NONDELEGATION ARGUMENTS.

The Industry petitioners’ effort to obtain review of the
D.C. Circuit’s nondelegation holding fails for several reasons.
First, and most fundamentally, the delegation at issue in this
case is narrower than the broad delegations that have been
upheld by this Court. See, e.g. Touby v. United States, 500
U.S. 160 (1991); United States v. Mistretta, 488 U.S. 361,
371-72 (1988); United States v. Southwestern Cable Co., 392
U.S. 157, 178 (1968); FPA v. Hope Natural Gas Co., 320
U.S. 591, 600 (1944); Yakus v United States, 321 U.S. 414
(1944); National Broadcasting Co. v. United States, 319 U.S.
190, 225-26 (1943).

Second, the Court of Appeals correctly concluded in this
case that the nondelegation doctrine does not require as
precise a delegation when the agency action is of more limited
scope than a broad legislative rule of nationwide application.
In this case, in exercising its authority under section
110(a)(2)(D), EPA did not issue a quasi-legislative rule, but

20

rather made quintessentially administrative, fact-specific
determinations regarding dozens of state-to-state
comparisons:

[A]s a practical matter EPA must make a number
of threshold determinations that in practice appear
to have confined the statute to a modest role.
Befcre assessing “significance,” EPA must find
(1) emissions activity within a state; (2) show with
modeling or other evidence that such emissions
are migrating into other states; and (3) show that
the emissions are contributing to nonattainment.

213 F.3d at 680. See also H.R. 95-294, 330 95" Cong.
1* Sess., reprinted in 4 A Legislative History of the Clean
Air Act Amendments of 1977, 2797 (1978) (describing the
interstate transport provisions of the Act as “a Federal
mechanism for resolving disputes which cannot be decided
through cooperation and consultation between the States or
persons involved”). Congress’ delegation of authority to make
this type of fact-specific, case-by-case determination does
not implicate the non-delegation doctrine, which bars only
the delegation of legislative power. See Touby, 500 U.S. at
165 (the nondelegation doctrine means “that Congress may
not constitutionally delegate its legislative power to another
branch of government.”).

Recognizing the limitations of the legislative process,
this Court’s precedent establishes that administrative
agencies must have ample leeway to apply Congress’ policy
choices on a case-by-case basis, as EPA did in this case.
In American Power & Light Co. v. SEC, 329 U.S. 90 (1946),
this Court recognized that Congress cannot oversee the
application of its policy choices to all the specific factual
circumstances that may arise:

21

The legislative process would frequently bog
down if Congress were constitutionally required
to appraise beforehand the myriad situations to
which it wishes a particular policy to be applied
and to formulate specific rules for each situation.
Necessity therefore fixes a point beyond which it
is unreasonable to compel Congress to prescribe
detailed rules; it then becomes constitutionally
sufficient if Congress clearly delineates the
general policy, the public agency which is to apply
it, and the boundaries of this delegated authority.

329 U.S. at 105. See also SEC v. Chenery, 332 U.S. 194,
202-03 (1947) (“the problem may be so specialized and
varying in nature as to be impossible of capture within the
boundaries of a general rule. In those situations, the agency
must retain power to deal with the problems on a case-to-
case basis if the administrative process is to be effective”);
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,
399-400 (1940) (referring to the need for the agency to use
its expertise in applying the policy expressed in a statute to
particular factual circumstances).

Indeed, the D.C. Circuit understood in ATA that EPA’s
exercise of its authority to review efforts to implement
NAAQS, as in this case, did not implicate the same
non-delegation concerns as the establishment of the NAAQS.
In ATA, the Court of Appeals distinguished the decision of
the First Circuit in South Terminal Corp. v. EPA, 504 F.2d
646 (1st Cir. 1974), which, like the court below, upheld EPA’s
authority to determine the steps necessary to achieve a
NAAQS against a nondelegation challenge:

[T]he action challenged in South Terminal was
EPA’s adoption of a plan for ending or preventing

22

violations in Boston of already-established NAAQS,
not its promulgation of the NAAQS themselves.
Thus, it seems likely that the “means” were the
plan’s provisions ... and the “fairly precise[ly]
defin[ed]” goals were the NAAQS themselves.

ATA, 175 F.3d at 1057. As in South Terminal Corp., the action
challenged here is EPA’s adoption of a plan intended to end
violations of the NAAQS. Thus, both courts of appeals to
consider the issue have concluded that section 110 does not
present a nondelegation problem."!

Finally, notwithstanding petitioners’ claim that EPA’s
action is “unfettered by any obligation to obey Congress’
proscription against arbitrary and capricious action” (Jndustry
Pet. at 20), a reviewing Court is free to evaluate EPA’s
significant contribution determinations under an arbitrary and
capricious standard, after giving due deference to its
interpretation of the statute and its technical determinations.
See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)
(deferring to agency’s interpretation of statute that it was charged
with administering). The D.C. Circuit did just that when it
rejected EPA’s inclusion of Wisconsin and the “coarse grid”
portions of Georgia and Missouri in the rulemaking.
Accordingly, there is no basis to the petitioners’ non-delegation
challenges.

11. Furthermore, the decision in ATA upon which petitioners rely
was incorrect for the reasons set forth in the briefs filed by the EPA,
the northeastern States and other petitioners in Browner v. American
Trucking Ass’ns, U.S. Supreme Court Nos. 99-1257, 99-1263 and 99-
1265 (argued on November 7, 2000). Respondent Massachusetts seeks
reversal of the D.C. Circuit’s decision in ATA as a party in those cases
and respondents New York, Connecticut, Maine, Maryland, New
Hampshire, Rhode Island, and Vermont have all joined in an amicus
curiae brief in those cases, supporting reversal of ATA.

23

CONCLUSION
For all the foregoing reasons, the Court should deny the

petitions for certiorari.

*Counsel of Record

Respectfully submitted,

ELIoT SPITZzER

Attorney General

PREETA D. BANSAL*
Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General
PETER H. SCHIFF

Senior Counsel

J. JARED SNYDER

Assistant Attorney General
Environmental Protection Bureau
The Capitol

Albany, New York 12224
(518) 474-8010

Counsel for the State of New York

J. JOSEPH CURRAN, JR.

Attorney General

KATHY KINSEY

Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
MARYLAND DEPARTMENT OF THE
ENVIRONMENT

2500 Broening Highway
Baltimore, MD 21224

(410) 631-3954

Counsel for the State of Maryland

24

M. DuKEs PEPPER, JR.

PA Supreme Court I.D. 30140

DEPARTMENT OF ENVIRONMENTAL PROTECTION
9th Floor

RACHEL CARSON STATE OFFICE BUILDING

P.O. Box 8464

Harrisburg, PA 17105-7060

(717) 787-7060

Counsel for the
Commonwealth of Pennsylvania

RICHARD BLUMENTHAL
Attorney General

JUDITH MERRILL

JANET BROOKS

Assistant Attorneys General
P.O. Box 120

55 Elm Street

Hartford, CT 06141-0120
(860) 808-5250

Counsel for the State of Connecticut

ANDREW KETTERER
Attorney General
PAUL STERN
Deputy Attorney General
GERALD REID
_ Assistant Attorney General
Department of the Attorney General
6 State House Station
Augusta, Maine 04333-0006
(207) 626-8800

Counsel for the State of Maine

25

THOMAS F. REILLY

Attorney General

WILLIAM L. PARDEE

Assistant Attorney General
ENVIRONMENTAL PROTECTION DIVISION
200 Portland Street, 3rd Floor
Boston, Massachusetts 02114

(617) 727-2200

Counsel for the
Commonwealth of Massachusetts

PuiLip MCLAUGHLIN
Attorney General
MAurREEN D. SMITH
Assistant Attorney General
33 Capitol Street

Concord, NH 03301-6397
(603) 271-3679

Counsel for the
State of New Hampshire

SHELDON WHITEHOUSE

Attorney General

MICHAEL RUBIN

Environmental Advocate

TriciA O’HARE

JAMES BAUM

Special Assistant Attorneys General
Department of Attorney General
150 South Main Street
Providence, RI 02903

(401) 222-2424

Counsel for the
State of Rhode Island

26

WILLIAM H. SorRELL

Attorney General

RONALD A. SHEMS

Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
109 State Street

Montpelier, VT 05609-1001
(802) 828-3171

Counsel for the State of Vermont

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1603%3A2. Public record. Not legal advice.