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, ET AL.



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



REPLY BRIEF FOR THE PETITIONERS



SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
GARY S. GUZY
General Counsel
Environmental Protection
Agency
Washington, D.C. 20460


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, ET AL.



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



REPLY BRIEF FOR THE PETITIONERS



The federal government's petition for a writ of certiorari has promptedan extraordinary array of responses. The Commonwealth of Massachusetts andthe State of New Jersey (which have filed their own joint petition, No.99-1263 (Mass. Pet.)) and the American Lung Association (which has filedits own petition, No. 99-1265 (ALA Pet.)) fully endorse the government'spetition. Likewise, the States of New York, Connecticut, Maryland, Maine,New Hampshire, Pennsylvania, Rhode Island and Vermont, as amici curiae (EasternStates Am. Br.), unqualifiedly support review. The State of Ohio does notoppose review of the nondelegation issue, while the States of Michigan andWest Virginia support review to the extent urged by the American TruckingAssociations, et al. (Midwest States Br. 3). The American Trucking Associations,et al., which consists of a group of industrial interests, says that "[a]properly reformulated version of the Government's first question is worthyof review" (ATA Br. 1; see also Mfrs. Alliance Am. Br. 17). AppalachianPower Co., et. al. (APC) and the National Stone Association, et al. (NSA),which represent other industrial interests, and the Mercatus Center, anacademic organization, oppose review.

As these wide-ranging responses suggest, the court of appeals has decidedan extraordinarily important matter. The court ruled that Section 109 ofthe Clean Air Act (CAA), 42 U.S.C. 7409, as interpreted by EPA in settingrevised National Ambient Air Quality Standards (NAAQS) for ozone and particulatematter (PM), effects an unconstitutional delegation of legislative authority.Pet. App. 4a. In addition, the court has reached out to decide matters notyet before it and ruled that EPA may enforce the revised ozone NAAQS only"in conformity with" CAA provisions that were enacted to servea different purpose. Id. at 81a. The responses to the government's petitionleave no doubt that the challenged rulings, which divided the court of appeals,have great practical importance to the federal and state governments, industry,and the public at large. But of equal moment, those rulings present fundamentalissues respecting the power of federal courts and the scope of judicialreview. This case clearly warrants the Court's review.

1. The majority of responses to the government's petition agree that thisCourt should review the nondelegation ruling. That ruling deeply dividedthe court of appeals-five of the nine judges who participated in the enbanc poll voted in favor of en banc review. Those judges not only concludedthat the ruling raised a question of exceptional importance, see Fed. R.App. P. 35(a), but also condemned the ruling in strong terms, calling it"fundamentally unsound," Pet. App. 92a (Silberman, J., dissentingfrom denial of rehearing en banc), and a "depart[ure] from a half centuryof separation-of-powers jurisprudence," id. at 99a (Tatel, J., dissentingfrom denial of rehearing en banc). Correspondingly, the suggestions by thosewho oppose review that the court of appeals' decision is actually "unexceptional,""pedestrian" and presents "nothing remarkable" (APCBr. 11, 13, 14) warrant some skepticism.

Although the industrial groups criticize the government rulemaking (andoffer less-than-balanced depictions of the government's decision and therulemaking record, e.g., APC Br. 4-5, 12; ATA Br. 4-7), neither they northeir amici attempt to defend the court of appeals' decision on its ownterms. For example, ATA suggests that "a properly reformulated versionof the Government's first question"- presumably, as ATA stated it (ATABr. i)-would be "worthy of this Court's review." Id. at 1. Butthe government's formulation of the question presented (Pet. I) is a virtualparaphrase of the court of appeals' express holding. The court stated, "wefind that the construction of the Clean Air Act on which EPA relied in promulgatingthe NAAQS at issue here effects an unconstitutional delegation of legislativepower." Pet. App. 4a. ATA's preferred formulation, by contrast, avoidsany mention of the court of appeals' nondelegation rationale. See ATA Br.i; see also Midwest States Br. i; APC Br. i.

There is good reason why respondents are unwilling to defend the court ofappeals' holding-that holding is indeed "fundamentally unsound."Pet. App. 92a (Silberman, J., dissenting from denial of rehearing en banc).ATA concedes, and APC does not question, that the CAA "itself"is constitutional. ATA Br. 15 (Section 109 is "undisputedly" constitutional);APC Br. 8 ("The court did not hold the statute itself unconstitutional.").To suggest otherwise would truly "depart from a half century of separation-of-powersjurisprudence." Pet. App. 99a (Tatel, J., dissenting from denial ofrehearing en banc). But ATA and APC must then face the quandary of explaininghow, under the nondelegation doctrine, an agency could make an "undisputedly"constitutional statute unconstitutional.

APC and ATA ultimately defend the court of appeals' decision by recharacterizingit. APC suggests that "the constitutional 'nondelegation' rationalefor remand in this case might as well have been articulated as 'arbitraryand capricious' agency action" and that the Court should be satisfiedwith the end result here "[w]hatever the rationale." APC Br. 12,13 (footnote omitted). ATA argues that the court merely applied "constitutionalavoidance and nondelegation principles" as canons of statutory constructionand produced an outcome that is "functionally indistinguishable fromthe work-a-day remands courts issue every time they invalidate an unreasonableagency interpretation under Chevron [U.S.A. Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837 (1984)]." ATA Br. 10, 14. Those salvageefforts are unavailing.

Contrary to APC's and ATA's suggestions, the rationale of the court of appeals'decision does matter. The nondelegation doctrine, the arbitrary-and-capriciousstandard, and the Chevron doctrine each serve a different purpose. Theyare not interchangeable, and substituting one for the other ignores thelogic and diminishes the utility of each. See Pet. 16-17; Pet. App. 94a-96a(Silberman, J., dissenting from rehearing en banc). Moreover, even if rationaleswere of no moment, the court of appeals' ruling cannot be sustained on eitherof the bases that APC and ATA suggest.

It is quite clear from the court of appeals' decision that the panel majoritydid not equate its constitutional analysis with review under the "arbitraryand capricious" standard. The court of appeals noted it had repeatedlyheld, under the arbitrary and capricious standard, that

when there is uncertainty about the health effects of concentrations ofa particular pollutant within a particular range, EPA may use its discretionto make the "policy judgment" to set the standards at one pointwithin the relevant range rather than another. NRDC v. EPA, 902 F.2d 962,969 (D.C. Cir. 1980); American Petroleum Inst. v. Costle, 665 F.2d 1176,1185 (D.C. Cir. 1981); Lead Industries [Ass'n v. EPA, 647 F.2d 1130,] 1161(D.C. Cir. 1980).

Pet. App. 12a. The court imposed a constitutional requirement beyond whatthe arbitrary and capricious standard would call for-namely, a "determinatecriterion for drawing lines" (id. at 6a)-because, in the court's view,"none of those panels [in the previous cases] addressed the claim ofundue delegation that we face here." Id. at 12a. Plainly, the courtruled that the nondelegation doctrine imposes constitutional imperativesin addition to the requirements of the arbitrary and capricious standard.That holding also explains why the court found that it had to postpone afull review of the NAAQS under the arbitrary and capricious standard. Id.at 5a.

It is also quite clear that the court of appeals did not employ nondelegationprinciples merely as a "construction canon[]" (ATA Br. 10) toavoid a constitutional issue. ATA claims that the court "reject[ed]EPA's interpretation under Chevron" (ibid.), but the panel majority'sdiscussion does not even mention the Chevron doctrine, and the panel's opinionon rehearing does so only as an epilogue, suggesting that the agency hasdiscretion on remand to satisfy the court's nondelegation requirement. Pet.App. 75a-76a. Indeed, the panel specifically disclaimed departing from therelevant circuit precedent upholding EPA's interpretive discretion. SeePet. 10 n.4. But more fundamentally, ATA's argument is logically inconsistent.If the relevant provisions of the CAA are "undisputedly" constitutional(ATA Br. 15)-and they are, see Pet. 11-16-then there is no need for a courtto invoke the nondelegation doctrine to "avoid" a constitutionalissue. The issue before the court of appeals was whether the agency misinterpretedthe CAA or unreasonably exercised the discretion conferred by the CAA. Thenondelegation doctrine has no bearing on those questions.

In short, APC's and ATA's arguments highlight why the court of appeals'analysis is indefensible. Furthermore, they provide a preview of the Pandora'sBox of doctrinal issues that will emerge if the decision is left uncorrected.The Court should therefore grant the government's petition, make clear thatthe nondelegation doctrine should be confined to its proper role as a separation-of-powersconstraint on Congress, and remand the case for the court of appeals toanalyze the statutory and regulatory issues under the correct legal standards.See Pet. 16-17.

2. APC, ATA, and the Midwest States argue that this Court should not reviewthe court of appeals' further ruling that "EPA can enforce a revisedprimary ozone NAAQS only in conformity with Subpart 2." Pet. App. 81a.As we explain in our petition, Subpart 2 of Part D, Subchapter I of theCAA, 42 U.S.C. 7511-7511f, provides a detailed statutory scheme, includingattainment deadlines, for implementing the ozone NAAQS standard that wasin effect in 1990. Pet. 4-5, 26. But Subpart 2 does not unambiguously addresshow to implement the revised ozone standards, which will necessarily requiredifferent attainment deadlines and implementation schedules. Pet. 27-29& n.16; see also Mass. Pet. 5-8, 21-25. The question of how to implementthe revised ozone NAAQS should be a matter for EPA and the States to addressthrough authoritative rules that are subject to notice, comment, and judicialreview. EPA has not yet conducted those rulemakings, and there was accordinglyno occasion for the court of appeals to make broad pronouncements limitingEPA's authority to implement the revised ozone NAAQS. Pet. 19-30.

APC's and ATA's defense of the court of appeals' action demonstrates whythe matter warrants this Court's review. They assert that the court of appealsreviewed final and ripe agency action, but the two sources of supposedlyfinal agency action on which they rely are: (1) EPA's preamble statementsresponding to industry comments that Subpart 2 provisions bar revision ofthe NAAQS; and (2) a final rule that was not at issue in the judicial proceedingsbelow. See APC Br. 22-23; ATA Br. 6, 24, 27-28. If judicial review couldbe predicated on such bases, there would be an enormous expansion in unfocusedchallenges to agency regulatory programs and a corresponding expansion inthe role of the courts in anticipating and supervising agency activities.

We explain in the petition why preamble statements generally-and especiallythe preamble statements that the court of appeals relied upon here (62 Fed.Reg. 38,856, 38,884-38,885 (1997))-do not constitute final agency action.Pet. 21-25. EPA has promulgated revised NAAQS that will be implemented throughlater rulemakings. See 40 C.F.R. 50.7 (revised PM NAAQS); 40 C.F.R. 50.10(revised ozone NAAQS). Respondents were entitled to challenge the revisedNAAQS, and they were entitled to take issue with EPA's reasoning, as expressedin the regulatory preamble, in making those challenges. But EPA's preamblestatements are only the agency's explanation of the agency's action-theyare not themselves agency actions that are independently reviewable. Thecourt of appeals accordingly had jurisdiction to affirm, set aside or remandthe NAAQS, but once it completed that task, it could not go further anddecide other issues that were not yet before it. See Pet. 21-25.

In arguing that this rulemaking involves more, APC and ATA point to a rulethat EPA issued in the ozone rulemaking, 40 C.F.R. 50.9(b), respecting futureenforcement of the 1-hour ozone NAAQS, which the revised 8-hour ozone NAAQSwill replace. See APC Br. 23; ATA Br. 27-28. That rule states:

The 1-hour standards set forth in this section will no longer apply to anarea once EPA determines that the area has air quality meeting the 1-hourstandard. Area designations are codified in 40 CFR part 81.

40 C.F.R. 50.9(b). EPA issued that rule to relieve areas that are in compliancewith the 1-hour ozone NAAQS from the obligation to comply with both theold 1-hour standard and the new 8-hour standard. See 62 Fed. Reg. at 38,873.1

APC characterizes 40 C.F.R. 50.9(b) (incorrectly, see note 2, infra) asan "embodi[ment]" of "EPA's legal conclusion" abouthow the revised ozone NAAQS should be implemented, and it argues that EPA'sissuance of that rule therefore subjects "EPA's legal conclusion"to judicial review. APC Br. 23. Respondents fail to reveal, however, thatno one challenged the validity of 40 C.F.R. 50.9(b), which was a minor componentof the ozone rulemaking. The court of appeals did not review, or even mention,that rule. Hence, the rule was certainly not the actual predicate for thecourt of appeals' ruling.2

The court of appeals was entitled to rule on how "EPA can enforce arevised primary ozone NAAQS" (Pet. App. 81a) only if the parties hadplaced before the court a specific challenge to final agency action enforcingthat NAAQS. No such challenge had been presented, and there accordinglywas no basis for the court to address that question. Its overreaching cannotbe justified by post hoc resort to the undiscussed implications of an unchallengedrule. That is particularly true where that rule merely addresses interimenforcement of the pre-existing NAAQS.3

APC's reliance on 40 C.F.R. 50.9(b) would make sense only if this Courtaccepted the contention that judicial review is available on an open-endedbasis whenever the agency expresses a "legal conclusion" somewherein the rulemaking proceeding. Under that view, the party would not be requiredto challenge the particular rule that allegedly "embodied" thatconclusion-it would be enough for the party simply to take issue with theagency's general view of its regulatory authority. See APC Br. 23; see alsoATA Br. 27-28. That approach to administrative finality and ripeness isclearly unsound. The CAA predicates judicial review on challenges to finalagency action. See CAA § 307(b), 42 U.S.C. 7607(b). It does not givethe courts unrestricted license to critique regulatory preambles or to reviewthe general legal perspectives allegedly "embodied" in unchallengedregulations.

This Court therefore should grant review on the Subpart 2 issues. In ourview, the better course is to set aside on finality and ripeness groundsthe court of appeals' ruling limiting what actions EPA may take in futurerulemakings. But if the Court reaches the merits, there is ample reasonto declare the ruling wrong as a matter of law. See Pet. 27-30; Mass. Pet.21-25; ALA Pet. 24-26; Eastern States Am. Br. 6-11. This Court's resolutionof the matter is warranted based on its practical importance to the federalgovernment and the States. The Court's review takes on added importancein light of APC's incongruous interpretation of the court of appeals' obscurestatement that "EPA can enforce a revised primary ozone NAAQS onlyin conformity with Subpart 2" (Pet. App. 81a). In APC's view, thatstatement means that EPA can promulgate-but not enforce-a revised ozoneNAAQS.4

For the foregoing reasons and the reasons stated in the petition for a writof certiorari, the petition should be granted and consolidated with thepetitions in No. 99-1263 and No. 99-1265.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General
GARY S. GUZY
General Counsel
Environmental Protection
Agency


APRIL 2000

1 As a consequence of the court of appeal's decision, EPA has proposed amodification of 40 C.F.R. 50.9(b) to maintain the 1-hour standard in effectuntil the ongoing legal challenges are resolved. See 64 Fed. Reg. 57,424(1999).

2 An additional problem with respondents' argument is that 40 C.F.R. 50.9(b)is part of, and addresses enforcement of, the old ozone NAAQS. Compare 40C.F.R. 50.9 with 40 C.F.R. 50.10. Accordingly, it is not accurate to characterize40 C.F.R. 50.9(b) as implementing or enforcing the revised ozone NAAQS.The rule deals with only one aspect of the transition from the old ozonestandard to the new ozone standard.

3 Significantly, APC could have challenged 40 C.F.R. 50.9(b) in the proceedingsbelow, and it should have if it disagreed with that rule. But APC did notdo so because the rule is in industry's interest-the rule reduces the regulatoryburden on ozone sources. Since that time, an environmental group has broughta challenge to 40 C.F.R. 50.9(b), and the government opposed that challengebecause it was untimely. See Environmental Defense Fund (EDF) v. Browner,No. 98-1363 (D.C. Cir.). Contrary to APC's assertion (APC Br. 24), the government'sposition there is consistent with its position here. Any petitions to review40 C.F.R. 50.9(b) should have been brought within 60 days of promulgationof the final rule. See 42 U.S.C. 7607. Neither EDF nor APC nor anyone elsebrought a timely judicial challenge to 40 C.F.R. 50.9(b). Rather, APC andothers brought a timely judicial challenge to the revised ozone NAAQS, 40C.F.R. 50.10. The latter challenge put before the court the question whetherto affirm, invalidate, or remand the revised ozone NAAQS, but it did notentitle the court to address the subjects of future rulemaking- includinghow the revised ozone NAAQS would eventually be enforced.

4 Notwithstanding the panel's revisions of its opinion (Pet. App. 79a-82a)and Judge Tatel's explanatory concurrence (id. at 89a), APC asserts thatSubpart 2 "must preclude the EPA from requiring areas to comply eithermore quickly or with a more stringent ozone NAAQS." APC Br. 9, 28 (quotingpanel opinion, emphasis supplied by APC). APC's interpretation of the court'sruling would transform the promulgation of that NAAQS and judicial reviewof its promulgation into largely academic exercises.

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