US Supreme Court Briefs

No. 99-1257

In the Supreme Court of the United States

CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY,ET AL., PETITIONERS
v.
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI


SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID J. KAPLAN
MARY F. EDGAR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


GARY S. GUZY
General Counsel
ROBERT G. DREHER
Deputy General Counsel
GERALD K. GLEASON
MICHAEL L. GOO
AMEY W. MARRELLA
JAN M. TIERNEY
KEVIN W. MCLEAN
Attorneys
Environmental Protection
Agency
Washington, D.C. 20460



QUESTIONS PRESENTED

1. Whether Section 109 of the Clean Air Act, 42 U.S.C. 7409, as interpretedby the Environmental Protection Agency (EPA) in setting revised NationalAmbient Air Quality Standards (NAAQS) for ozone and particulate matter,effects an unconstitutional delegation of legislative power.

2. Whether the court of appeals exceeded its jurisdiction by reviewing,as a final agency action that is ripe for review, EPA's preliminary preamblestatements on the scope of the agency's authority to implement the revised"eight-hour" ozone NAAQS.

3. Whether provisions of the Clean Air Act Amendments of 1990 specificallyaimed at achieving the long-delayed attainment of the then-existing ozoneNAAQS restrict EPA's general authority under other provisions of the CAAto implement a new and more protective ozone NAAQS until the prior standardis attained.


PARTIES TO THE PROCEEDING

1. Petitioners are the respondents in the court of appeals: Carol M. Browner,the Administrator of the Environmental Protection Agency, and the EnvironmentalProtection Agency (EPA).

The following parties intervened in support of EPA in the court of appeals:the American Lung Association, the Commonwealth of Massachusetts and theState of New Jersey.

The following States appeared as amici curiae in support of EPA in the courtof appeals: New York, Connecticut, New Hampshire and Vermont.

2. Respondents are the petitioners in the court of appeals:

Alliance of Automobile Manufacturers (formerly American Automobile ManufacturersAssociation)

American Farm Bureau Federation
American Forest and Paper Association
American Iron and Steel Institute
American Petroleum Association
American Portland Cement Alliance
American Public Power Association
American Trucking Associations, Inc.
Appalachian Power Company
Baltimore Gas and Electric Company
James Bassage
Burns Motor Freight, Inc.
Carolina Power & Light Company
Centerior Energy Corporation
Central and South West Services, Inc.
Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central Power & Light Company
Chamber of Commerce of the United States of America
Chemical Manufacturers Association
CINergy Corporation
Citizens for Balanced Transportation
Cleveland Electric Company
Columbus Southern Power Company
ComEd Company
Consumers Energy Company
Dayton Power & Light Company
Delmarva Power & Light Company
The Detroit Edison Company
Duke Energy Company
Duquesne Light Company
Edison Electric Institute
Equipment Manufacturers Institute
FirstEnergy Corporation
Florida Power Corporation
Garner Trucking, Inc.
Genie Trucking Line, Inc.
Gloucester Company, Inc.
Michael Gregory
Idaho Mining Association
Illinois Power Company
Indiana Michigan Power Company
Indianapolis Power & Light Company
Jacksonville Electric Authority
Judy's Bakery, Inc.
Kansas City Power & Light Company
Kennecott Energy and Coal Company
Kennecott Holdings Corporation
Kennecott Services Company
Kentucky Power Company
Kentucky Utilities Company
Louisville Gas and Electric Company
Madison Gas and Electric Company
David Matusow
Brian McCarthy
Meridian Gold Company
The State of Michigan
Midwest Ozone Group
Minnesota Power
Monongahela Power Company
National Association of Manufacturers
National Association of Home Builders
National Automobile Dealers Association
National Coalition of Petroleum Retailers
National Indian Business Association
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners Association
National Rural Electric Cooperative Association
National Stone Association
National Small Business United
Nevada Mining Association
Newmont Gold Company
Non-Ferrous Founders Society
Northern Indiana Public Service Company
Oglethorpe Power Corporation
The State of Ohio
Ohio Edison Company
Ohio Power Company
Ohio Valley Electric Corporation
Oklahoma Gas & Electric Company
PacifiCorp
Phoenix Cement Company
Plains Electric Generation & Transmission Cooperative, Inc.
The Potomac Edison Company
Potomac Electric Power Company
PP&L Resources
Public Service Company of New Mexico
Richard Romero
Salt River Project Agricultural Improvement & Power District
Small Business Survival Committee
South Carolina Electric & Gas Company
Southern Company
Tampa Electric Company
Toledo Edison Company
Union Electric Company
United Mine Workers of America, AFL-CIO
Virginia Power
Western Fuels Association
West Penn Power Company
The State of West Virginia
West Virginia Chamber of Commerce
Wisconsin Electric Power Company
The following parties intervened in support of petitioners American TruckingAss'ns, et al., in the court of appeals:
American Road and Transportation Builders Association
Atlantic City Electric Company
Texas Gas Transmission Corporation
The following persons appeared as amici curiae in support of petitionersAmerican Trucking Ass'ns, et al., in the court of appeals:
Representative Tom Bliley
Senator Orrin G. Hatch



In the Supreme Court of the United States

No. 99-1257

CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY,ET AL., PETITIONERS
v.
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.


ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of Carol M. Browner, Administrator of theEnvironmental Protection Agency, et al. (EPA), respectfully petitions fora writ of certiorari to review the judgments of the United States Courtof Appeals for the District of Columbia Circuit in these two sets of identically-captionedconsolidated cases.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-69a) is reported at 175F.3d 1027. The opinion on petitions for rehearing and dissenting statementson denial of rehearing en banc (Pet. App. 70a-102a) are reported at 195F.3d 4.

JURISDICTION

The decision of the court of appeals was entered on May 14, 1999. Petitionsfor rehearing were granted in part and denied in part on October 29, 1999.The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED

Article 1 of the United States Constitution states in pertinent part asfollows:

All legislative Powers herein granted shall be vested in a Congress of theUnited States.

The relevant sections of the Clean Air Act, 42 U.S.C. 7401 et seq., areset forth in the Appendix at Pet. App. 105a-126a.

The EPA rules at issue in this case are set forth in the Appendix at Pet.App. 102a-104a.

STATEMENT

Respondents American Trucking Associations, Inc., et al. (ATA), petitionedunder Section 307(b) of the Clean Air Act (CAA), 42 U.S.C. 7607(b), forreview of two final EPA rules establishing revised National Ambient AirQuality Standards (NAAQS) for particulate matter and ozone under Section109 of the CAA, 42 U.S.C. 7409. On May 14, 1999, the court of appeals issueda single opinion for the two sets of consolidated cases. No. 97-1440 (particulatematter); No. 97-1441 (ozone). A divided panel found that Section 109 ofthe CAA, 42 U.S.C. 7409, as interpreted by EPA in setting the ozone andparticulate matter NAAQS, effected an unconstitutional delegation of legislativeauthority. The court remanded both rules with instructions that EPA shouldarticulate an "intelligible principle" for determining the degreeof residual risk to public health permissible in setting revised NAAQS.Although EPA had taken no final agency action to implement the revised ozoneNAAQS, the court also issued an opinion, later modified, on the scope ofEPA's implementation authority.

1. The CAA directs EPA to promulgate NAAQS, which establish the maximumpermissible levels, in the outside air, of a limited number of pervasivepollutants that have adverse effects on public health and welfare. CAA §109, 42 U.S.C. 7409. Section 109 directs EPA to promulgate "primary"NAAQS to protect human health and "secondary" NAAQS to protect"public welfare." See CAA § 109(b), 42 U.S.C. 7409(b). Seealso CAA § 302(h), 42 U.S.C. 7602(h) (defining welfare interests).EPA has promulgated NAAQS for six pollutants: sulfur dioxide, carbon monoxide,nitrogen oxide, lead, ozone, and particulate matter (PM).1

The CAA directs EPA to establish NAAQS at specific levels. Primary NAAQSmust be set at levels that, "in the judgment of the [EPA] Administrator,* * * and allowing an adequate margin of safety, are requisite to protectthe public health." CAA § 109(b)(1), 42 U.S.C. 7409(b)(1). SecondaryNAAQS must be set at levels that, "in the judgment of the Administrator,"are "requisite to protect the public welfare from any known or anticipatedadverse effects." CAA § 109(b)(1), 42 U.S.C. 7409(b)(1). In makingthose judgments, EPA must develop and rely on "air quality criteria"that "accurately reflect the latest scientific knowledge useful inindicating the kind and extent of all identifiable effects on public healthor welfare which may be expected from the presence of [a] pollutant in theambient air." CAA § 108(a)(2), 42 U.S.C. 7408(a)(2). EPA mustreview the air quality criteria and NAAQS every five years and revise themas "appropriate" in accordance with Sections 108 and 109. 42 U.S.C.7409(d)(1).

The CAA sets out an implementation process, resting on principles of federal-statecooperation, to ensure that the air throughout the Nation "attains"the NAAQS. Within three years of promulgating a new or revised NAAQS, EPAmust "designate" prescribed areas of the country as either attainmentareas or nonattainment areas for each NAAQS pollutant depending on whetherthe NAAQS has been met. CAA § 107(d)(1), 42 U.S.C. 7407(d)(1). OnceEPA designates an area as nonattainment for a NAAQS, EPA must establishthe date by which the nonattainment area must attain the NAAQS in question(the attainment date). See generally CAA § 172(a), 42 U.S.C. 7502(a).The States are generally responsible for determining what measures are necessarywithin their borders to achieve and maintain the NAAQS. The CAA allows eachState to develop, for approval by EPA, a State Implementation Plan (SIP)that sets forth pollution control measures necessary, among other things,for nonattainment areas within the State to attain all NAAQS by the applicableattainment dates. See CAA §§ 110, 172(c), 42 U.S.C. 7410, 7502(c).

Congress has amended the CAA on several occasions, including an extensiverevision in 1990. See Pub. L. No. 101-549, 104 Stat. 2399 (the 1990 Amendments).The 1990 Amendments recognized, among other things, that many areas of thecountry had failed to attain the existing NAAQS, including the primary ozoneNAAQS, set in 1979, of 0.12 parts per million (ppm) averaged over one hour(the one-hour standard). The 1990 Amendments revised the CAA's implementationprocess in certain respects, creating a new procedure for classifying nonattainmentareas based upon pertinent factors (such as the severity of the nonattainmentproblem) and revising the method for setting attainment dates. See generallyCAA § 172, 42 U.S.C. 7502. The 1990 Amendments also imposed specificimplementation measures for areas designated nonattainment for various pollutants.See CAA §§ 181-192, 42 U.S.C. 7511-7514a In the case of ozone,the 1990 Amendments established mandatory classifications and attainmentdates for the primary one-hour ozone standard. See CAA § 181(a)(1),42 U.S.C. 7511(a)(1).

2. In July 1997, after extensive rulemaking proceedings, EPA issued revisedNAAQS for particulate matter and ozone in light of new scientific knowledgeabout the adverse health effects of those pollutants. See NAAQS for ParticulateMatter, 62 Fed. Reg. 38,652 (1997); NAAQS for Ozone, 62 Fed. Reg. at 38,856.2

a. EPA found that the 1987 NAAQS for particulate matter, which employedthe indicator PM10 to regulate all inhalable particles (see note 1, supra),were inadequate to protect public health. EPA based its finding on morethan 60 epidemiological studies showing serious adverse health effects atparticulate matter concentrations below the 1987 NAAQS. Those health effectsincluded premature death, increased hospital admissions, and respiratoryillnesses, particularly among the elderly, people with respiratory and cardiovasculardiseases, asthmatics, and children. EPA found that the health effects observedat concentrations below the 1987 NAAQS were likely associated with "fine"particles (PM2.5) and therefore revised the 1987 NAAQS to establish newPM2.5 standards. EPA also revised the PM10 standards to continue to addressother health effects from larger (coarse) particles. See 62 Fed. Reg. at38-579-38,655.

b. Similarly, EPA found that the 1979 one-hour ozone NAAQS was inadequateto protect public health based on clinical studies and other evidence linkingprolonged ozone exposures (from six to eight hours) to numerous adversehealth effects, including decreases in lung function, coughs and chest pain,potential aggravation of asthma, lung inflammation, increased susceptibilityto respiratory infection, increased doctor and emergency room visits andhospitalizations, and possible permanent lung damage from repeated exposures.Children and asthmatics are particularly at risk. EPA therefore promulgateda more stringent ozone NAAQS of 0.08 ppm, averaged over an eight-hour period(the eight-hour standard). See 62 Fed. Reg. at 38,859-38,878.

3. Numerous industry groups, a public interest group, and several Statesand individuals challenged the revised particulate matter and ozone NAAQS.The court of appeals rejected many of the challenges, but nevertheless remandedthe revised NAAQS to EPA and instructed the agency to "develop a constitutionalconstruction of the act." Pet. App. 4a, 5a. Relying on a theory thatwas not extensively briefed by the parties, the court found that EPA's interpretationof Section 109 of the CAA "effects an unconstitutional delegation oflegislative power." Id. at 4a. The majority reasoned that, becausethere is no scientifically determinable "threshold" below whichadverse health effects from ozone can be ruled out, and because there "likely"is no similar threshold for PM, EPA must provide a "determinate criterionfor drawing lines" for any "non-zero" standard. Id. at 5a-6a.According to the majority, EPA's interpretation of the CAA leaves it "freeto pick any point between zero and a hair below * * * London's Killer Fog,"a notorious 1952 incident in which approximately 4000 deaths over four dayswere attributed to air pollution. Id. at 13a. Judge Tatel dissented fromthat portion of the opinion, emphasizing that the majority "ignore[d]the last half-century of Supreme Court nondelegation jurisprudence"upholding numerous congressional enactments containing fewer guiding principlesthan Section 109. Id. at 59a.

In the ozone case, the court of appeals rejected the industry petitioners'argument that Congress's 1990 Amendments to the CAA, which established mandatoryclassifications and attainment dates for the primary one-hour ozone standardthen in effect, see CAA § 181, 42 U.S.C. 7511, precluded EPA from revisingthe ozone NAAQS. Pet. App. 34a-37a. That ruling resolved the issue beforethe court. The court of appeals nevertheless went on to direct what EPAmay and may not do when it proceeds-in the future-to implement the ozoneNAAQS. The court ruled that EPA cannot set nonattainment classificationsand attainment dates for the revised ozone NAAQS through Section 172 (42U.S.C. 7502), but must instead employ the classifications and attainmentdates set out in Section 181(a) (42 U.S.C. 7511(a)), and this precludedEPA from impleenting a more protective ozone NAAQS. Pet. App. 34a, 37a-44a.3

4. EPA and other parties filed petitions for rehearing and suggestions forrehearing en banc. The panel denied EPA's petition for rehearing on thenondelegation issue. Pet App. 72a. It expressly rejected EPA's view thatthe relevant provisions of the CAA, including Section 109(b)(1)'s directionthat NAAQS must be based on air quality criteria and "set at levelsrequisite to protect the public health," 42 U.S.C. 7409(b)(1), setout intelligible principles that limit the agency's discretion. Pet. App.72a-89a. Judge Tatel dissented. Id. at 89a.

In the ozone case, the panel granted rehearing in part, to modify its opinionregarding EPA's authority to implement the revised NAAQS. Pet. App. 71a-72a,76a-82a. The panel rejected EPA's argument that, because EPA had yet totake final action implementing the revised NAAQS, the court lacked jurisdictionto consider which provision of the CAA would govern EPA's implementation,including the specification of classifications and attainment dates. Id.at 77a-79a. The court found that EPA's statements on that issue in the regulatorypreamble accompanying the revised ozone NAAQS, made in response to industrycomments challenging EPA's authority to promulgate that standard, see 62Fed. Reg. at 38,884-38,885, constituted final agency action on the questionof implementation that was ripe for judicial review. Pet. App. 77a-79a.On the merits, the panel modified its opinion to state that "EPA canenforce a revised primary ozone NAAQS only in conformity with [Section 181]."Id. at 81a. Judge Tatel wrote separately because he disagreed with the panel'sreasoning. Id. at 83a-89a. He found the statute ambiguous and would havedeferred to EPA's interpretation. Id. at 84a. Judge Tatel nevertheless concurredin the judgment because, in his view, the modified decision allows EPA toimplement the revised ozone NAAQS in a nonattainment area once the areahas attained the one-hour standard in accordance with Section 181. Id. at89a.

The court also denied EPA's suggestion for rehearing en banc, with fiveof the court's eleven active judges (Chief Judge Edwards, and Judges Silberman,Rogers, Tatel, and Garland) voting in favor of rehearing en banc, and four(Judges Williams, Ginsburg, Sentelle, and Randolph) voting against it. Pet.App. 90a-92a. Judge Silberman and Judge Tatel each wrote a statement dissentingfrom the denial of rehearing en banc on the nondelegation issue. Id. at92a-96a (Silberman, J., dissenting); id. at 97a-99a (Tatel, J., dissenting).Chief Judge Edwards and Judge Garland joined in Judge Tatel's statement.Id. at 97a.

REASONS FOR GRANTING THE PETITION

The court of appeals has rejected EPA's revision of the particulate matterand ozone NAAQS, ruling that Section 109 of the CAA as interpreted by EPAeffects an unconstitutional delegation of legislative power. The court'sdecision presents an issue of immense practical importance to the healthof the American public. In addition, the court's ruling raises issues ofextraordinary governmental concern. First, the court's decision representsa radical departure from settled law respecting the nondelegation doctrine.The court's ruling conflicts with this Court's decisions upholding congressionalenactments containing far broader grants of authority than that containedin Section 109 and, as a consequence, raises questions respecting the constitutionalityof a broad range of federal statutes requiring agencies to draw lines basedon scientific judgments. Second, the court's approach would unjustifiablyexpand the role of the courts in reviewing agency action. In this instance,the court has directed EPA to revisit and artificially narrow the discretionthat EPA has previously been entitled to exercise under Section 109 of theCAA.4

The court's decision respecting EPA's authority to implement a revised ozoneNAAQS also warrants review. The court's ruling is not only important froma public health perspective, but also raises a core jurisdictional questionof far-reaching significance. The court adopted a test for finality thatis inconsistent with the test applied by this Court and other courts ofappeals. Furthermore, by asserting jurisdiction before the agency actionis ripe for review, the court of appeals has deprived EPA of the opportunityto develop fully its interpretation and to reconcile any tensions that mayarise in the future respecting implementation of the revised NAAQS.

The court's premature review of EPA's implementation authority has alsoresulted in an erroneous resolution of the merits, which additionally warrantsthis Court's review. The court's mistaken interpretation would inappropriatelyforce EPA to delay protecting the public from the very health consequencesthat warrant a NAAQS revision in the first place, until areas attain anair quality standard that EPA has concluded is inadequate to protect publichealth.

1. The court of appeals' rejection of EPA's revised NAAQS for particulatematter and ozone presents an important federal question with profound implicationsfor the health of the American public and the effectiveness of the CAA.Because the NAAQS are the foundation of key CAA programs, the current uncertaintyregarding the validity of the revised PM2.5 and ozone NAAQS will disruptfederal and state programs to achieve and maintain air quality. Based onthe latest scientific knowledge, EPA has determined that the pre-existingPM and ozone standards are inadequate to protect public health. The CleanAir Scientific Advisory Committee (CASAC)-a body created by Congress torender independent scientific advice on NAAQS decisions, 42 U.S.C. 7409(d)(2)(B)-hasconcurred in EPA's scientific findings in that regard. The court of appeals'decision frustrates EPA's efforts to revise the PM and ozone NAAQS and thusunnecessarily prolongs the exposure of millions of Americans to unhealthypollutant levels. See, e.g., Pet. App. 56a (finding that evidence in therulemaking record "amply justifies establishment of new fine particlestandards").

a. The court of appeals' decision is a striking departure from this Court'snondelegation jurisprudence. Section 109's grant of authority is "farmore specific than the sweeping statutory delegations consistently upheldby the Supreme Court for more than sixty years." Pet. App. 97a (Tatel,J., dissenting from denial of rehearing en banc); see also id. at 93a (Silberman,J., dissenting from denial of rehearing en banc) (Section 109 does not "raisea serious constitutional problem").5 The court has overlooked thisCourt's instruction that the starting point for analysis of a nondelegationclaim should be the statute's language, purpose, history, and context. AmericanPower & Light Co. v. SEC, 329 U.S. 90, 104 (1946).6 The majority brushedaside the CAA's terms in two conclusory sentences, holding that the statute,as interpreted by EPA, is unconstitutional because it does not provide a"determinate criterion for drawing lines." Pet. App. 6a.7

This Court has repeatedly held that Congress does not violate the Constitution"merely because it legislates in broad terms, leaving a certain degreeof discretion to executive or judicial actors." Touby v. United States,500 U.S. 160, 165 (1991); see, e.g., Yakus, 321 U.S. at 425 (Congress mayauthorize agencies to engage in activities that "call for the exerciseof judgment, and for the formulation of subsidiary administrative policywithin the prescribed statutory framework"). It is "'constitutionallysufficient if Congress clearly delineates the general policy, the publicagency which is to apply it, and the boundaries of this delegated authority.'"Mistretta v. United States, 488 U.S. 361, 372-373 (1989) (quoting AmericanPower & Light Co., 329 U.S. at 105); Skinner, 490 U.S. at 218-219.

Had the court fully considered the terms of the statute, its history, purpose,and context, the court would have found that Section 109 amply satisfiesthat test. Section 109(b)(1) of the Act requires that primary NAAQS be setat levels "requisite to protect the public health" with an "adequatemargin of safety." 42 U.S.C. 7409(b)(1). To warrant the setting ofa NAAQS, a pollutant must "reasonably be anticipated to endanger publichealth or welfare" and be emitted from "numerous or diverse ** * sources." CAA § 108(a)(1)(A)-(B), 42 U.S.C. 7408(a)(1)(A)-(B).Each NAAQS must be based on "air quality criteria" that reflect"the latest scientific knowledge," 42 U.S.C. 7408(a)(2), includinginformation on "variable factors" that "may alter the effectson public health," as well as interactions with other pollutants "toproduce an adverse effect on public health or welfare." 42 U.S.C. 7408(a)(2)(A)-(B).Further, the CAA establishes and prescribes the composition of CASAC andrequires EPA to develop the "criteria" with extensive CASAC review.CAA § 109(d)(2), 42 U.S.C. 7409(d)(2).8

Moreover, Congress has prescribed rulemaking procedures through Section307(d) of the CAA that ensure extensive public participation and the availabilityof arbitrary-and-capricious review for EPA's NAAQS decisions. See 42 U.S.C.7607(d). EPA must discuss the data, methodology, and major legal and policyinterpretations underlying proposed NAAQS and explain any significant departurefrom CASAC's advice, 42 U.S.C. 7607(d)(3); respond to significant comments,42 U.S.C. 7607(d)(6)(b); and provide a reasoned explanation adequate towithstand judicial review. 42 U.S.C. 7607(d)(9). The availability of suchreview weighs strongly in favor of the constitutionality of Section 109'sgrant of agency authority. See American Power & Light Co., 329 U.S.at 105 ("[p]rivate rights are protected by access to the courts totest the application of the policy in the light of the[] legislative declarations");Touby, 500 U.S. at 170 (Marshall, J., concurring); see also Schechter Poultry,295 U.S. at 532-533 (distinguishing cases upholding broad legislative authorizationsbecause, e.g., statutes provided notice and hearing procedures).

The CAA's legislative history, which the majority also failed to consider,provides further guidance to the agency. That history indicates that thehealth effects justifying a NAAQS must be "adverse," Lead Indus.Ass'n, 647 F.2d at 1152 (citing S. Rep. No. 1196, 91st Cong., 2d Sess. 10(1970)), and therefore must be medically significant and not merely detectable.To provide an "adequate margin of safety," standards must be "preventativeor precautionary," reflecting an emphasis on the "predominantvalue of protection of public health." Ibid. (quoting H.R. Rep. No.294, 95th Cong., 1st Sess. 49 (1977)); id. at 1155 (EPA must "err onthe side of caution"). EPA cannot consider the economic or technologicalfeasibility of attaining NAAQS. Id. at 1148-1151. Finally, public healthis distinct from individual health; NAAQS must protect "sensitive"populations, such as asthmatics, id. at 1152, but not the most sensitiveindividuals within those populations. See S. Rep. No. 1196, supra, at 10(EPA must consider effects by reference to "a representative sampleof persons comprising the sensitive group rather than to a single personin such a group."), reprinted in 1 Staff of the Senate Comm. on Pub.Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Act Amendmentsof 1970, at 410 (Comm. Print 1974).9

This Court's decisions on the nondelegation doctrine reflect "a practicalunderstanding that in our increasingly complex society, replete with everchanging and more technical problems, Congress simply cannot do its jobabsent an ability to delegate power under broad general directives."Mistretta, 488 U.S. at 372. The court of appeals lost sight of that crucialpractical understanding and, in doing so, opened to potential constitutionalattack not only Section 109 of the CAA, but also numerous other federalstatutes containing similarly broad grants of authority to administrativeagencies.

b. The court of appeals' decision departs from established law by transformingthe nondelegation doctrine from a means for preserving the separation ofpowers by ensuring that Congress has not abdicated, by delegating to anotherBranch or to private parties, its power to "make * * * Laws,"U.S. Const. Art. I, § 8, Cl. 18, into a basis for otherwise unwarrantedjudicial supervision of the exercise of administrative discretion. See Pet.App. 14a. The court directed EPA to "develop[] determinate, bindingstandards for itself" to reduce the likelihood that EPA would "exercisethe delegated authority arbitrarily" and to "enhance the likelihoodthat meaningful judicial review will prove feasible." Ibid. NeitherChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837 (1984), nor any other decision of this Court, justifies that novel utilizationof the nondelegation doctrine. See Pet. App. 92a (Silberman, J., dissentingfrom the denial of rehearing en banc) ("I do not think that [the nondelegation]doctrine can be employed to force an agency to narrow a broad legislativedelegation from Congress.").

As a practical matter, the court of appeals' decision would initiate a fundamentalchange in the nature of judicial review of agency standard-setting. Thecourt concluded that the nondelegation doctrine requires Congress, or agenciesinterpreting the intent of Congress, to delineate a "determinate criterionfor drawing lines" or, by implication, a quantitative rule for decidingthe precise degree of protection required for a given health or safety standard.See Pet. App. 6a. In effect, the panel demanded that either the CAA or EPAsupply a principle that would allow a reviewing court to conclude that EPAreached what is, in the court's view, exactly the "right" result.That approach would effectively supplant the concept that courts reviewagency determinations based on an arbitrary and capricious standard. AsJudge Silberman recognized, it would "implicitly assert[] a greaterrole for a reviewing court than is justified." Id. at 96a. See alsonote 4 , supra.

The court's direction to EPA to develop "determinate, binding standards"to govern the agency's NAAQS decisions (Pet. App. 14a) is inconsistent withthis Court's instruction in American Power & Light Co., 329 U.S. at106:

Nor is there any constitutional requirement that the legislative standardsbe translated by [an agency] into formal and detailed rules of thumb priorto their application to a particular case. If that agency wishes to proceedby the more flexible case-by-case method, the Constitution offers no obstacle.

Cf. Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council,Inc., 435 U.S. 519, 543-545 (1978). The court's rationale for its approach-tomake arbitrary agency action less likely and to enhance meaningful judicialreview (Pet. App. 14a)-is adequately addressed through the arbitrary andcapricious standard for judicial review of agency action, including reviewto determine whether the agency has adequately explained any departuresfrom past practices or decisions. See id. at 68a (Tatel, J., dissenting)(those issues "relate to whether the NAAQS are arbitrary and capricious"and "ha[ve] nothing to do with our inquiry under the nondelegationdoctrine").10

Neither the Constitution, the CAA, nor any prior judicial decision requiresEPA to supply the "determinate criterion for drawing lines," Pet.App. 6a, that would produce the precision the majority demanded here. Seealso id. at 10a (standard prescribing "how much uncertainty is toomuch"). Instead, EPA must consider the factors that the CAA prescribesand provide a reasoned explanation, based on scientific evidence, for itsdecision. As this Court explained in reviewing rates set by the FederalPower Commission under a statute requiring rates to be "just and reasonable":

[T]here is no single cost-recovering rate, but a zone of reasonableness:"Statutory reasonableness is an abstract quality represented by anarea rather than a pinpoint. It allows a substantial spread between whatis unreasonable because too low and what is unreasonable because too high."

FPC v. Conway Corp., 426 U.S. 271, 278 (1976) (quoting Montana-Dakota Util.Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251 (1951)). That is alsothe approach the District of Columbia Circuit has followed in reviewingprior decisions under Section 109, such as the 1987 particulate matter standard.See Natural Resources Defense Council, Inc. v. EPA, 902 F.2d 962, 972 (D.C.Cir. 1990) (CAA does not require EPA to identify "the clear and soleappropriate standard," but rather a standard that is reasonable inlight of the record evidence).

The court of appeals' decision marks a profound change in the ground rulesthat shape not only EPA's air quality and other programs, but also thoseof other federal agencies. Many, if not most, of the rules and decisionsunder those programs are reviewed in the District of Columbia Circuit. ThisCourt should review the court of appeals' decision and determine, beforeEPA and other agencies refocus the analyses that they have traditionallyemployed under the arbitrary and capricious standard, whether those newground rules are appropriate.11

2. The court of appeals also significantly erred in assuming jurisdictionto decide the scope of EPA's authority to implement and enforce the revisedozone NAAQS. Pet. App. 37a-44a. Section 307(b)(1) of the CAA authorizesthe District of Columbia Circuit to review "action of the Administratorin promulgating any [NAAQS]" and other "nationally applicableregulations promulgated, or final action taken, by the Administrator."42 U.S.C. 7607(b)(1). Section 307(b)(1) further states, however, that theregional courts of appeals shall have authority to review "the Administrator'saction in approving or promulgating any implementation plan under [Section110 of the Act]." 42 U.S.C. 7607(b)(1). The CAA makes clear, by expresslydeferring challenges to EPA's classification decisions until EPA takes finalaction on a State's submission (or failure to submit) a SIP, that the questionof how to classify areas for purposes of setting attainment dates for therevised ozone NAAQS is reviewable only as part of the post-NAAQS-promulgationprocess of implementation planning. See CAA §§ 172(a)(1)(B), 181(a)(3),42 U.S.C. 7502(a)(1)(B), 7511(a)(3).

Consistent with the procedural steps set out in the CAA, EPA did not takefinal action in the 1997 ozone rulemaking to implement or enforce the revisedozone NAAQS. EPA has not, for example, designated areas as attainment ornonattainment for the eight-hour standard under Section 107(d), and it hasneither classified any nonattainment areas nor established attainment datesunder either Section 172(a) or Section 181(a)(1). See 42 U.S.C. 7502(a),7511(a)(1). The issue of implementation arose solely because ATA arguedthat Congress, by establishing a scheme in Section 181(a)(1) for implementingthe then-current one-hour ozone standard, implicitly prohibited EPA fromever promulgating any revised ozone NAAQS. EPA responded to that argumentin the rulemaking preamble (and later in its court of appeals brief) byexplaining, in the course of showing why the Section 181(a) scheme doesnot prevent EPA from promulgating a revised NAAQS, how it would implementsuch a standard. See 62 Fed. Reg. at 38,884-38,885. The only issue beforethe court of appeals, therefore, was whether the statutory provisions atissue precluded EPA from promulgating the revised standard. Once the courtanswered this question in the negative, Pet. App. 34a-37a, its task wasdone. It should not have gone on to consider prematurely whether and howEPA could implement the revised NAAQS.

The court of appeals' decision to address prematurely the question of NAAQSimplementation has important consequences that warrant this Court's review.The court of appeals has departed from the requirement that the reviewingcourt restrict its inquiry to the agency's final actions, and it has adopteda test for finality that is inconsistent with the test applied by this Courtand other courts of appeals. The court has also violated similarly well-establishedripeness principles and deprived the agency charged with implementing acomplex statute of the opportunity fully to develop its interpretation andresolve any tensions within the statutory scheme.

a. The panel erroneously concluded that the views that EPA had expressedin the rulemaking preamble regarding its implementation authority constitutefinal action. Pet. App. 77a-78a. In Bennett v. Spear, 520 U.S. 154 (1997),this Court explained that

two conditions must be satisfied for agency action to be "final":First, the action must mark the "consummation" of the agency'sdecisionmaking process * * *-it must not be of a merely tentative or interlocutorynature. And second, the action must be one by which "rights or obligationshave been determined," or from which "legal consequences willflow" * * *.

Id. at 177-178 (citations omitted). In this case, the court of appeals determined,notwithstanding Bennett, that preamble statements that merely express EPA'sfuture intentions are final agency actions. The court effectively reconfiguredeach prong of this Court's test in a way that would significantly broadenthe domain of final agency actions.

The court of appeals ruled that EPA's statements respecting NAAQS implementationsatisfied the "consummation" prong because the court concludedthat EPA's description of how it would implement the rule would likely notchange. See Pet. App. 77a-78a. Under Bennett, however, the proper inquiryis not merely whether the agency has any present intention to alter itsposition. Rather, the question is whether the agency has completed its decisionmakingprocess under the governing statute for the specific agency action at issue.Here, EPA has not designated nonattainment areas, classified those areas,or set attainment dates in accordance with the CAA's statutorily prescribeddecisionmaking process. See, e.g., CAA §§ 107(d), 172(a), 42 U.S.C.7407(d), 7502(a). The court of appeals' approach of focusing on the certaintyof EPA's preamble statements, without considering whether the statementsconsummate the statutory decisionmaking process for implementing the ozoneNAAQS, distorts the Bennett test and conflicts with the finality jurisprudenceof other courts of appeals.12

The court of appeals' decision also distorts the second Bennett factor.The court concluded that EPA's preamble statements respecting the agency'sfuture implementation plans constitute final agency action even though nolegal consequences flow from EPA's expression of its views regarding thestatutory provisions that govern implementation of a revised ozone NAAQS.See Pet. App. 78a. ATA will not be affected by EPA's views on implementationof the revised ozone NAAQS until the agency takes actual steps to implementthe NAAQS by designating and classifying nonattainment areas and settingattainment dates. ATA will be able to obtain judicial review of EPA's judgmentson those issues-through the statutorily prescribed mechanism (see pp. 19-20,supra)-once EPA takes such final binding action on those specific matters.The court of appeals erred in overlooking these decisive considerationsand treating the legal effects of NAAQS promulgation as if they were a consequenceof EPA's preamble statements respecting implementation.13

b. Even if it is assumed that EPA's preamble statements respecting implementationconstitute final agency action, that action would not be ripe for judicialreview. The court of appeals' concern over how to reconcile Sections 172and 181 is not yet fit for review because the matter is too abstract andgeneral: EPA has neither fully developed its interpretation nor attemptedto exercise its implementation authority. See, e.g., Ohio Forestry Ass'nv. Sierra Club, 523 U.S. 726, 732-738 (1998); Abbott Labs. v. Gardner, 387U.S. 136, 148-149 (1967).14

The interplay among Section 107(d), Section 172, Section 181, and otherrelevant provisions of the CAA is complex. Judicial exploration of theseissues would be on much surer footing if the reviewing court had the benefitof EPA's full thinking and explanation of how and why it has implementeda NAAQS in a particular way, in a particular context, after the completionof the relevant decisional process (including public notice and comment)that actually implements the standard. Furthermore, deferring review wouldallow EPA the opportunity to work through the various implementation provisions,reconcile any conflicts, and make any policy judgments and apply its expertiseas necessary to resolve ambiguities in the statute. See Ohio Forestry Ass'n,523 U.S. at 733-734; Chevron, 467 U.S. at 842-845. The importance of sucha concrete setting for judicial review is underscored by the court's ownconfusion regarding EPA's interpretation, compare Pet. App. 43a, 44a, withid. at 80a-81a, and the extreme breadth and generality of the court's conclusionthat "EPA can enforce a revised primary ozone NAAQS only in conformitywith [Section 181]." Id. at 81a.15

3. In our view, the jurisdictional preconditions of final agency actionand ripeness should have prevented the court of appeals from reaching themerits of any NAAQS implementation dispute. But even if the court of appealscould have overcome those obstacles, its decision on the merits is wrong.Congress "has not directly addressed the precise question" ofthe relationship between Section 172 and Section 181 (see Chevron, 467 U.S.at 843); instead, it has left a gap for the agency to fill (id. at 843-844);and the question is whether EPA's conclusion that Section 172 and Section181 can be applied simultaneously "represents a reasonable accommodationof conflicting policies that were committed to the agency's care by thestatute" (id. at 845). We first describe the origins of the relevantprovisions, including the terminology of "Subpart 1" and "Subpart2." We then explain the difference between EPA's and the court's understandingof those provisions. Finally, we briefly summarize why, if the issue mustbe decided at this juncture, the court of appeals' understanding is flawed.

a. When Congress first enacted the CAA in 1970, and authorized EPA to promulgateand revise NAAQS, it expected that the various regions of the country wouldmeet the NAAQS in a relatively short period of time. Attainment proved moredifficult than expected, and when Congress enacted the 1990 CAA Amendments,it specifically addressed certain aspects of the nonattainment problem.First, Congress preserved (with some modifications) EPA's general authorityto revise NAAQS at five-year intervals and to designate nonattainment areas.See CAA §§ 107(d), 109(d), 42 U.S.C. 7407(d), 7409(d). Next, Congressenacted a new Subpart 1, Part D, Title I of the CAA, which granted EPA additionalauthority, set out in Section 172(a), to classify nonattainment areas andto set attainment dates under all new or revised NAAQS. 42 U.S.C. 7502(a).Section 172(a) makes clear that this authority applies unless "classifications[or attainment dates] are specifically provided under other provisions"of the Act. 42 U.S.C. 7502(a)(1)(C) and (2)(D). In addition, Congress enacteda series of other new Subparts, encompassing Sections 181 to 191 of theCAA, to address the problems raised by nonattainment of particular NAAQS.Subpart 2 addresses the ozone NAAQS. Section 181(a)(1) therein sets outa schedule establishing "classification and attainment dates for 1989nonattainment areas." 42 U.S.C. 7511(a). That schedule establishesthose classifications and attainment dates based on the one-hour ozone standardthen in effect and sets attainment dates that run from the enactment ofthe 1990 Amendments.

b. In response to public comments, EPA described the relationship betweenSection 107, Subpart 1, and Subpart 2. It stated in the ozone rulemakingthat, once EPA completes promulgation of a revised ozone NAAQS, those provisionscollectively require that EPA: (1) designate nonattainment areas in accordancewith Section 107(d), and establish classifications and attainment datesand take other implementing actions for the revised ozone NAAQS under Subpart1; and (2) simultaneously continue to implement the provisions of Subpart2 for areas that have not yet attained under the prior one-hour ozone standard.See 62 Fed. Reg. at 38,884-38,885. The court of appeals properly rejectedATA's argument that EPA lacked any authority to revise the ozone NAAQS inlight of the Subpart 2 classifications and attainment dates. Pet. App. 34a-37a.But the court went on to conclude (prematurely, in our view, see pp. 21-25,supra) that Subpart 2 precluded implementation of a more protective ozoneNAAQS. See id. at 37a-44a. When EPA explained on rehearing that the court'sconstruction would lead to irrational results, the court revised its decisionto state that "EPA can enforce a revised primary ozone NAAQS only inconformity with Subpart 2," id. at 82a, which apparently means thatEPA can enforce its revised ozone NAAQS under Subpart 1 once an area attainsthe one-hour standard under Subpart 2, id. at 89a (Tatel, J., concurring).See p. 8, supra.

c. The court of appeals' reasoning, even as modified on rehearing and interpretedby Judge Tatel, is flawed. Contrary to the court's suggestions, Pet. App.37a, the CAA does not precisely address how to reconcile Subpart 1-whichauthorizes EPA to set new classifications and attainment dates for revisedNAAQS-with Subpart 2-which establishes a specific timetable for compliancewith the one-hour ozone standard in effect in 1989. The CAA surely doesnot dictate the result the court of appeals has required.16

Under Chevron, "if the statute is silent or ambiguous with respectto the specific issue, the question for the court is whether the agency'sanswer is based on a permissible construction of the statute." 467U.S. at 843. EPA has reasonably concluded that Congress intended that EPAwould implement a revised ozone NAAQS under Subpart 1 for all members ofthe American public, including those members that reside in nonattainmentareas governed by Subpart 2, "as expeditiously as practicable."See CAA § 172(a)(2), 42 U.S.C. 7502(a)(2); CAA § 181(a)(1), 42U.S.C. 7511(a)(1). There is no warrant for imposing a categorical requirementthat EPA must ensure compliance with the inadequately protective one-hourozone standard before it can require efforts to attain the more protectiverevised ozone NAAQS.17 To the extent that there is a conflict between Subpart1 and Subpart 2, it is up to EPA to harmonize the applicable provisions,and the courts must defer to EPA's reasonable judgment on the matter. Chevron,467 U.S. at 845.18

In our view, EPA's preliminary statements respecting implementation do notconstitute final agency action and are not ripe for judicial review. Butif the Court concludes otherwise, then it should proceed to address themerits of this important issue. On the merits, the court of appeals erredin ruling that the CAA categorically precludes the EPA from implementingthe revised ozone NAAQS under Subpart 1 until the nonattainment areas describedin Subpart 2 have attained Subpart 2's one-hour ozone standard.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID J. KAPLAN
MARY F. EDGAR
Attorneys


GARY S. GUZY
General Counsel
ROBERT G. DREHER
Deputy General Counsel
GERALD K. GLEASON
MICHAEL L. GOO
AMEY W. MARRELLA
JAN M. TIERNEY
KEVIN W. MCLEAN
Attorneys
Environmental Protection
Agency



JANUARY 2000

1 PM embraces airborne particles of varying size and composition. See NAAQSfor Particulate Matter, 62 Fed. Reg. 38,652, 38,653 (1997). PM10 denotesinhalable particulate matter up to approximately 10 micrometers in diameter,while PM2.5 denotes PM up to approximately 2.5micrometers in diameter. See62 Fed. Reg. at 38,654 n.1, 38,666-38,667.

2 Copies of those Federal Register notices have been lodged with the Clerkof the Court.

3 The court of appeals resolved some, but not all, of the other challengesto EPA's rules. See Pet. App. 4a-5a. The court concluded that "[t]heremaining issues cannot be resolved until such time as EPA may develop aconstitutional construction of the act (and, if appropriate, modify thedisputed NAAQS in accordance with that construction)." Id. at 5a.

4 As Judge Tatel observed, "[t]he Act has been parsed by [the Districtof Columbia Circuit] no fewer than ten times in published opinions delineatingEPA authority in the NAAQS-setting process." Pet. App. 59a. See, e.g.,American Lung Ass'n v. EPA, 134 F.3d 388, 389, 392 (D.C. Cir. 1998) (sulfurdioxide), cert. denied, 120 S. Ct. 58 (1999); Natural Resources DefenseCouncil, Inc. v. EPA, 902 F.2d 962, 969 (1990) (particulate matter), opinionvacated in part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991);American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981)(ozone), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n v. EPA, 647F.2d 1130, 1161 (D.C. Cir.) (lead), cert. denied, 449 U.S. 1042 (1980).The majority acknowledged that those decisions recognized EPA's broad discretionto make policy judgments in setting NAAQS, but summarily discounted theirrelevance on the ground that "none of those panels addressed the claimof undue delegation that we face here." Pet. App. 12a.

5 Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-219 (1989), citespertinent examples: Lichter v. United States, 334 U.S. 742, 778-786 (1948)(recovery of "excessive profits" on military contracts); AmericanPower & Light Co., 329 U.S. at 104 (prevention of "unfair[] orinequitable[]" distribution of security holder voting power); Yakusv. United States, 321 U.S. 414, 420 (1944) (setting of "fair and equitable"commodities prices); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600-601(1944) (determination of "just and reasonable rate"); NBC v. UnitedStates, 319 U.S. 190, 225-226 (1943) (regulation of broadcast licensingin "the public interest").

6 The threshold question in the Court's previous nondelegation cases, includingA.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), hasbeen whether Congress has authorized the agency to exercise nondelegablelegislative functions. Id. at 530 ("[W]e look to the statute to seewhether Congress has overstepped these limitations * * * [or] has itselfestablished the standards of legal obligation, thus performing its essentiallegislative function.").

7 See Pet. App. 5a ("EPA appears to have articulated no 'intelligibleprinciple' to channel its application of [public health factors]; nor isone apparent from the statute."); id. at 14a ("Where (as here)statutory language and an existing agency interpretation involve an unconstitutionaldelegation of power * * *.").

8 The CAA's directives plainly require a high degree of protection and cannotreasonably be construed, as the court claimed, to allow EPA such broad discretionas to authorize pollutant levels ranging from zero to "a hair below"the infamous London Killer Fog episode. Pet. App. 11a. For example, EPAfound, based on new evidence in the 1997 rulemaking, that the 1987 NAAQSfor particulate matter were inadequate to protect public health. That findingeffectively dictated that the upper bound for the Administrator's considerationfor revised standards had to be at least as protective as the 1987 NAAQS,which were set far below "Killer Fog" levels. See, e.g., 62 Fed.Reg. at 38,656-38,666, 38,674-38,675. EPA made a similar finding regardingthe inadequacy of the existing ozone NAAQS. 61 Fed. Reg. 65,716, 65,719-65,721(1996). In each instance, EPA established the lower limit based on an extensiveexamination of the best available scientific evidence of adverse healtheffects, see 62 Fed. Reg. at 38,674-38,677; 61 Fed. Reg. at 65,727-65,728,and the range of alternatives considered was far narrower than the rangesuggested by the court. See also Pet. App. 66a (Tatel, J., dissenting).

9 Drawing on the legislative guidance, EPA has developed "decisionalcriteria" that it considers in the course of developing NAAQS. Thepublic health factors considered include the nature and severity of healtheffects, the types of health evidence, the kind and degree of uncertaintiesinvolved, and the size and nature of the sensitive populations at risk.The District of Columbia Circuit first approved EPA's use of those factorsalmost 20 years ago, Lead Indus., 647 F.2d at 1161; EPA has since employedthem in numerous NAAQS rulemakings; and even the panel majority found themreasonable. Pet. App. 5a-7a.

10 The court's extraordinary, policy-based suggestion that EPA could employa quantitative "generic unit of harm" based on Oregon's approachto Medicaid (Pet. App. 16a-17a & n.5) would not solve the constitutionalproblem the court perceived; EPA would still have to draw lines. Even ifwe assume that such a quantitative approach were possible, the policy judgmentsnecessary to establish a "generic unit of harm" and to determinehow many such units are permissible under the CAA would be similar to thoseEPA has traditionally made in its NAAQS proceedings; these judgments wouldmerely be made under a different framework that would likely be more confusingand difficult for the public and a reviewing court to evaluate.

11 The court of appeals' decision cannot give rise to a square conflictamong the courts of appeals, because Section 307(b) of the CAA vests theDistrict of Columbia Circuit with exclusive jurisdiction to review EPA'sdecisions to promulgate and revise the NAAQS. See 42 U.S.C. 7607(b). Nevertheless,as Judge Tatel noted, the majority's decision is inconsistent with the reasoningof a First Circuit decision that addressed a nondelegation challenge inthe course of reviewing a CAA implementation issue (a transportation planaimed at achieving a NAAQS). See Pet. App. 60a-61a. See also pp. 19-20,infra (describing the CAA provisions that direct implementation challengesto the regional courts of appeals). The First Circuit stated, in that context,that Section 109's "requisite to protect the public health" standardis not an unconstitutional and excessive delegation of legislative authority.South Terminal Corp. v. EPA, 504 F.2d 646, 677 (1974).

12 For example, in Dow Chemical Co. v. EPA, 832 F.2d 319 (5th Cir. 1987),the court explained that "EPA's construction of [the regulatory provision]is 'final' only in the sense that no one at the agency currently plans torevise it. The same could be said of countless other instances of legal'interpretation.'" Id. at 323-324. Instead, to satisfy the definitivenessrequirement, the relevant administrative decisional process must be complete.American Airlines, Inc. v. Herman, 176 F.3d 283, 291-292 (5th Cir. 1999).Other courts of appeals have taken varying approaches to whether certaintyalone, or an evaluation within the broader statutory context, is necessaryto determine whether the first factor under Bennett has been satisfied.Compare, e.g., Hindes v. FDIC, 137 F.3d 148, 162 (3d Cir. 1998) (becausenotification issued by FDIC was the first step of a multi-step process,it did not constitute FDIC's definitive statement and thus was not final),and Mobil Exploration & Producing U.S., Inc. v. Department of the Interior,180 F.3d 1192, 1198-1199 (10th Cir. 1999) (although agency letter may haveconcluded that an audit should begin under the statute, that did not consummatethe decisionmaking process within the overall statutory scheme that wouldsatisfy the first prong for finality), with Western Ill. Home Health Care,Inc. v. Herman, 150 F.3d 659, 663 (7th Cir. 1998) (agency letter characterizingsituation as a joint employee relationship, establishing the agency's "enforcementposition," satisfies the first prong of finality because it is "notat all tentative").

13 The court suggested that EPA's statements were final action because by"promulgating a revised ozone NAAQS the EPA has triggered the provisionsof §§ 107(d)(1) and 172, which impose a number of requirementsupon the states * * * [and] those areas that do not comply will ultimatelybe required to do so." Pet. App. 78a. But the triggered events aresolely a consequence of promulgation of the revised NAAQS and have nothingto do with EPA's preamble statements respecting implementation.

14 Indeed, it is doubtful whether the dispute over implementation is sufficientlyconcrete to constitute a case or controversy within the meaning of ArticleIII. See Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57 n.18 (1993)(the ripeness doctrine "is drawn both from Article III limitationson judicial power and from prudential reasons for refusing to exercise jurisdiction").

15 The court, on rehearing, erroneously concluded that this issue "wouldnot benefit from a more concrete setting," apparently because the issueis legal in nature. See Pet. App. 80a. The presence of a legal issue doesnot, by itself, render review appropriate before the issue arises in a concretecase or controversy. See, e.g., U.S. Bancorp Mortgage Co. v. Bonner MallPartnership, 513 U.S. 18, 21 (1994).

16 The court believed that the CAA specifies how those provisions shouldbe reconciled because Subpart 1 provisions do not apply if "classifications[or attainment dates] are specifically provided under other provisions"of the CAA, see CAA § 172(a)(1)(C) and (2)(D), 42 U.S.C. 7502(a)(1)(C)and (2)(D). Pet. App. 37a. In the court's view, Subpart 2 provides classificationsand attainment dates for any ozone standard, including any revised ozoneNAAQS. That view, which is based on a highly technical argument, is wrong.The court reasoned that, because Section 181(a) of Subpart 2 states thatan "area designated non-attainment for ozone pursuant to [Section 107(d)]* * * shall be classified at the time of such designation" in accordancewith the table in Section 181(a); and because Section 107(d) addresses designationsunder both the one-hour ozone standard in effect in 1989 and future NAAQSrevisions; then Subpart 2 must govern the implementation of any ozone NAAQS.See id. at 38a-41a. That reasoning is flawed because Section 181(a)'s referenceto Section 107(d) is cabined by the context of Subpart 2. It is clear fromthe statutory context that Section 181(a) refers only to Section 107(d)designations of nonattainment areas under the one-hour ozone standard thatwas in effect in 1989. For example: (1) Section 181(a)'s caption denotesthat the Section addresses "Classification and attainment dates for1989 nonattainment areas" (emphasis added); (2) Section 181(a) basesattainment dates and classification on an area's "design value,"specifically codifying the methodology of the one-hour ozone standard thenin existence; (3) Section 181(a) provides classification and attainmentdates only for nonattainment areas with ozone levels in excess of .012 ppm- the "design value" in effect in 1989-1990 under the one-hourstandard; and (4) Section 181(a) bases attainment dates by reference to1990 and imposes attainment deadlines that, for most areas, have alreadypassed. See 42 U.S.C. 7511(a)(1). Hence, the text and context of Section181(a) indicate that Congress intended to provide classifications and attainmentdates only for nonattainment areas designated under Section 107(d) for thethen-current one-hour ozone standard. See 42 U.S.C. 7407(d)(1)(C) and (4)(A).

17 For example, it may be "practicable"-and preferable from animplementing State's perspective-to achieve both the one-hour ozone standardand the revised ozone NAAQS at the same time. There is no reason to believethat Congress intended to preclude that approach.

18 The court of appeals expressed concern that a practical conflict couldconceivably arise for the Los Angeles nonattainment area between Subpart1's attainment date for the revised ozone NAAQS and Subpart 2's attainmentdate for the one-hour ozone standard. In the court's view, Congress wouldnot have intended that Los Angeles comply with the revised ozone NAAQS beforeSubpart 2's statutory deadline for compliance with the one-hour standard.See Pet. App. 41a. That concern, however, is overstated. The time deadlinesset out in Section 181(a)(1) establish the outer time limits for attainingthe one-hour standard, see 42 U.S.C. 7511(a)(1). Los Angeles would be requiredto attain the revised NAAQS under Subpart 1 no later than the same yearthat marks the outer time limit for attaining Subpart 2's one-hour ozonestandard. Compare CAA § 172(a)(2), 42 U.S.C. 7502(a)(2), with CAA §181(a)(1) and (5), 42 U.S.C. 7511(a)(1) and (5). In any event, the questionof how EPA should reconcile any competing compliance deadlines is clearlythe type of issue that should first be addressed by EPA through the implementationprocess, including public notice and comment, and subject to judicial reviewin the appropriate regional court of appeals. See CAA § 307(b), 42U.S.C. 7607(b).

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