US Supreme Court Briefs


No. 99-1257



IN THE
Supreme Court of the United States
r~ 2 ~ 2fl00




CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, et aL,
Petitioners,
V.


AMERICAN TRUCKING ASSOCIATIONS, INC., et al..
Respondents.


BRIEF OF AMICI CURIAE STATES OF NEW
YORK, CALIFORNIA, CONNECTICUT, MAINE,
MARYLAND, NEW HAMPSHIRE,
PENNSYLVANIA, RHODE ISLAND AND VERMONT
IN SUPPORT OF PETITIONERS




LISA FEINER
J. JAREL) SNYDER
Assistant Attorneys General
Environmental Protection
Bureau
ELIOT SPITZER
Attorney General of the
State of New York State
PRIYFA D. BANSAL
Solicitor General (('ounsel of record)
DANIEL X. SMIRLOCK
Deputy Solicitor General
The Capitol
Albany, NY 12224
(212) 416-8479
A ttornevs for the State of
iVew York

(('ounsel continued on inside cover)

TABLE OF CONTENTS
PAGE
BILL LOCKYER
Attorney General of
California
I 300 1 Street
Sacramento, CA 95814
PHILIP McLAUGHLIN
Attorney General of New
I Iatnpshire
33 Capitol Street
Concord, NH 03301-6397

RICHARD BLUMENTLIAL
Attorney General of
Connecticut
55 Elm Street
hartford. CT 06106

ANDREW KETTERER
Attorney General of Maine
6 State House Station
Augusta. ME 04333-0006

i. JOSEPH CURRAN, JR.
Attorney General of
Maryland
200 St. Paul Place
Baltimore, MD 21202
D. MICHAEL FISHER
Attorney (iieneral
Commonwealth oF
Pennsylvania
16th Fl. - Strawberry Square
Harrisburg, PA 1 7120

SHELDON WI IITEI lOUSE
Attorney General of Rhode
Island
State House Station #6
1 50 South Main Street
l~rovidence, RI 02903

WILLIAM IL SORRIYLL,
Attorney General of
Vermont
109 State Street
Montpelier. Vi 05609-1001
Table of AuthoTitieS


Interest of the Amici

Summary of Argument

Argument Pointi
Point II 14
Conclusion 22


CASES
iii
PAGE
PA(;E
11


TABLE OF AUTHORITIES






A lmend~irc: lorres 't'. (Inited Stales,
~23 U.S. 224(1998) 20


A merwan Trucking Associations,

Inc. i'. 1 Jnited Slates Lni'ironmental

Protection A~encv, 175 F.3d 1027

(1).C. Cir.). rehearing en hanc denied,

195 F.3d 4 (D.('. Cir. 1999) passim


American Textile Manu Awl urers Institute v.

I)onovan. 452 1.J.S. 490 (1983) 12. 13


Chevron (I. SA. Inc. v. Natural Resources I )e/cnse
('v~uncil, 467 U.S. 837 (1984) 20


Federal Trade Commission v. Mandel Brothers, Inc~.,
359U.S.385(1959) 20


c;riffi,i v. Oceanic Contractors, Inc.. 458 1 J.S.
564(1982) 21


Immigration & Naturalization Service v. National

('enter/br Immigrants Rights, Inc.. 502 U.S.
183 (1991) 20
Industrial Union I)eparunent, A FL-(iI()
v American Petroleum Institute, 448 U.S.
607 (1980) passim


Lead Industries Association v, (/nited States
Environmental I~rotection Agenci'. 647 F.2d
1130 (D.C. Cir.). cert. denied, 449 U.S.
1042(1980) 8-9
Mead Corp. V. 7'dlcv, 490 U.S. 714(1989) 20
Mistretta v. United States. 488 U.S. 361 (1989) 7


Smilev v. Cu'ihank (South I)akota), NA.. 51 7 U.S.
735 (1996) 21


United States v. Marine Shale Processors,

81 E.3d 1329 (5th Cir. 1996), cert denied, 519 U.S.
1055 (1997) 2


United States v. Ilaggar Apparel Co., 526 U.S. 380
(1999) 21
Yakus v. United States, 321 U.S. 414 (1944) 9

BRIEF OF AMICI CURIAE STATES OF
NEW YORK, CALIFORNIA, ('ON-
NECTICUJT, MAINE, MARYLANI), NEW
HAMPSHIRE, PENNSYLVANIA, RIIOI)E
ISLANI), AND VERMONT IN SUPPORT
OF PETITIONERS


The States of New York, California, Connecticut.
Maine, Maryland. New I-Iampshirc. Pennsylvania. Rhode
Island, and Vermont respectfully submit this brief as amici
curiae in support of the petitioners United States Environmental
Protection Agency (EPA) and Carol Browner. Administratorof
EPA.
The amici States seek reversal of the decision of the United States Court of Appeals for the District of Columbia Circuit in American Trucking Associations, Inc. v. United States Environmental Protection Agency, 175 F.3d 1027 (1).C. Cir.), rehearing en hanc denied. 195 F.3d 4 (D.C. Cir. 1999), which overturned EPA's revised National Ambient Air Quality Standards (NAAQS) for ozone and fine particulate matter. These NAAQS were promulgated pursuant to section 109 of the Clean Air Act (the Act), 42 U.S.C. 7409, which requires that NAAQS be set at a level "requisite to protect the public health with an adequate margin of safety."

INTEREST OF THE A MI ('I


Residents of the amici states suffer from asthma and other respiratory illnesses aggravated by high levels of ozone and fine particulate matter in the ambient air. EPA promulgated the revised NAAQS for these pollutants after an
2 3

extensive study of' the latest scientific k nowledge revealed that the existing NAAQS for ozone and particulate matter did not sufficiently protect the public from adverse health effects and thus did not satisfy section 109 of the Act.
Ihe scientific record of the rulemaking at issue establishes that the revised standards will have a profoundly beneficial impact on public health, eliminating thousands of premature deaths attributable to air pollution each year, preventing tens of thousands of instances of respiratory illness attributable to exposure to ozone and fine particulate matter, and improving the quality of life of the children and adults who suffer from asthma. As parens patriae, the amici States have a paramount interest in protecting their residents from the debilitating and potentially life-threatening effects of asthma and other respiratory illnesses.
The States, however, face significant obstacles in attempting to protect their residents because air pollution is a national problem. Even if individual States were to set their own air quality standards, many would find their ability to meet their own standards undermined by dirty air blowing in from other States. Furthermore, economic pressures would prevent many States from enacting environmental requirements Imposing significantly greater costs on their businesses than imposed on businesses in other States. The amici States have an interest in avoiding the "destructive race among states to attract industry by adopting the least stringent emissions-limits." United States v. Marine Shale Processors, 81 F.3d 1329, 1355 (5th Cir. 1996),cert denied, 519 U.S. 1055 (1997). These scientific and political realities prevent most of the
States from unilaterally implementingor meeting state-speciFic standards; these same realities require the exercise of federal power, such as that at issue here.
Finally, the decision below has implications for the health and safety of the citizens of the States with respect to matters other than air pollution. By invoking the nondelegation doctrine to invalidate a broad congressional delegation of authority to a federal agency, the court below cast doubt on the validity of similar delegations in other areas. For example, the decision raises questions about the constitutionality of federal statutes governing pesticide residues in foods and hazardous waste transportation. See, e.g., 21 U.S.C. 346a(b) (EI~A may establish a tolerance for levels of particular pesticides on food if it determines 'That there i'~ a reasonable certainty" that no harm will result from exposure)~ 42 I, J.S.C. 6923(a) (requiring EPA to promulgate such standards for the transportation of hazardous waste "as may be necessary to protect human health and the environment"). EPA'~ discretion in adopting new or revised NAAQS is at least as circumscribed as the authority of the National Highway Traffic Safety Administration (NHTSA) to promulgate motor vehicle safety standards, which is limited only by the requirement that the standards be "practicable, meet the need for vehicle safety, and be stated in objective terms." 49 U.S.C. 30111(a); see also 49 U.S.C. 44701(d) (Federal Aviation Authority must act "in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation"). The amici States have a fundamental interest in seeing that the health and safety of their residents do not

4
S
suffer as a result of the disruption of regulation in these other areas, which also by their nature demand a leading federal role.

SUMMARYAffA.RG UMENT


In invalidating EPA's revised ozone and particulate matter (PM) NAAQS. the D.C. Circuit concluded that the constitutionality of Section 109's delegation of authority to EPA (lepends on whether the regulated substance is a threshold or a non-threshold pollutant and on the specific standards that ILPA selected to minimize their presence in the ambient air. There is nothing in this Court's jurisprudence to suggest that a statute's constitutionality can possibly depend on the specific scientific categorization of the regulated object or the rules promulgated to address it.
The l).C. Circuit's further insistence that the statute can only be "saved" if EPA devises a mechanistic regulatory principle that explains precisely why it selected one standard rather than another has never been imposed by this Court. Instead, this ('ourt has recognized, in other cases addressing non-threshold pollutants, that agencies implementing statutes to protect public health and safety in areas of scientific uncertainty must often make policy judgments when they select a regulatory point and should not be constrained by a mathematical straitjacket.
Finally, the D.C. Circuit's determination that EPA must enforce the revised eight-hour ozone NAAQS promulgated in 1997 in accordance with the classificationsand attainment dates adopted by Congress in 1990 ignored the unambiguous
congressional intent that EPA is required to update, adopt and enforce more stringent standards as necessary to protect public health. The D.C. Circuit's cramped decision will create innumerable practical problems for those seeking to implement the Nation's clean air goals. Indeed, the panel's determination is consistent only with its staunch refusal to address the realities of air pollution a reality amnici States confront every day.

ARGUMENT


I. THE I)ELEGATION OF AUTHOR-ITY TO THE EPA IN SECTION 109
OF THE CLEAN AIR ACT IS
CONSTITUTIONA I~.


'Ehe court below erred in concluding that section 109 is an unconstitutionaldelegation of congressional authority to an executive agency. In linding that section 109 does not contain the requisite "intelligible principle" to guide EPA's regulation of non-threshold pollutants, the court found an apparently constitutional difference in the type of pollutant being regulated and the degree of scientific knowledge available. In so doing. the D.C. Circuit departed from decades of precedent upholding substantially broader delegations, improperly limited con-gressional power to advance environmental health and safety, and crippled EPA's ability to effectuate Congress's intent.
Despite the D.C. Circuit's characterization of EPA's discretion as essentially unlimited. the Clean Air Act provides sufficiently tight reins on EPA's discretion to regulate air

6 7

pollution. EPA must set national ambient air quality standards that in its judgment are "requisite to protect the public health" with "an adequate margin of safety" based on criteria that "accurately reflect the latest scientific knowledge." Moreover, the standards must be based on the air quality criteria specified in 42 U.S.C. 7409(b)(l), which must themselves be "based on the latest scientific information regarding the "kind and extent" of effects on public health and environment of the pollutant at issue. 42 U.S.C. 7408(a)(2). Finally, EPA's discretion is further limited by the requirement that the proposed criteria and supporting documents be provided to the ('lean Air Science Advisory Committee (('ASAC) for review and that EPA justify any departure from ('A SAC's recommendations. 42 U.S.C. 7607(d)(3).'
Congress thus recognized in the Clean Air Act that it was ordering EPA to act on the very frontiers of scientific knowledge. While EI~A was given detailed guidance, and mandated to follow scientific advice, Congress recognized that, in the end. EPA would need to make a judgment call. This Court has noted and approved of Congress's need to direct agencies to operate in areas where practical limitations overwhelm scientific certainty. As the Court said in rejecting a recent nondelegation challenge to the authority given the Sentencing Guidelines Commission:



In this case, where the CASAC recommendations for the ozone standard all fall into the range of.08 to .09 parts per million (ppm). EPA was effectively timited to the choice of a standard within that very narrow range. 175 F.3d at 1059.
applying this 'intelligible principle' test to congressional delegations,ourjurisprudencehas been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.
Mistretta ~ United States, 488 U.S. 361, 371 (1989).

The decision below, however, rejects the wisdom of both Congress and this Court. It finds constitutional significance in the current scientific categorization of a pollutant and demands a level of scientific certainty that is simply unavailable. Where Congress understood it was ordering EPA to use its best judgment in light of available knowledge, the panel below prefers to pretend that no judgment is needed.
In invalidating EPA's revised ozone and PM, NAAQS, the D.C. Circuit seized on the fact that ozone and PM25 are characterized as "non-threshold pollutants," which must be treated as if exposure might cause some adverse health effects in some people at any point along a continuum beginning at just above zero. According to the D.C. Circuit. section 109 of the Clean Air Act unconstitutionally (lelegates legislative power to EPA if the agency selects a point along a continuum of risk at which to set a national standard for non-threshold pollutants without being able to precisely explain why that point is "requisite to protect the public health" whereas a point slightly more or less stringent is not. If however, EPA

9
8
had decided that zero was the only appropriate standard for non-threshold pollutants such as ozone and PM.,5, or if it had instead determined that ozone and PM) are threshold pollutants, its application of section 109 would, by the l).C. Circuit's own account, have survived nondelegation attack. See 175 IK3d at 1038.1' This rationale makes no constitutional sense. A statute's constitutionality cannot possibly depend on the specific standards selected to implement it. Nor can the distinction between threshold and non-threshold pollutants possibly determine the constitutionality of Congress's delegation of authority to regulate them.
Premising Congress's regulatory authority on that distinction also makes no scientific sense. The D.C. Circuit's insistence that EPA identify precisely how tall is "too tall" according to an imaginary yardstick of health effects demands a level of scientific certainty that is simply not available in the existing clinical and epidemiological evidence. As the court below has recognized in other cases, at the "frontiers of scientific knowledge," where the available information "may be insufficient to permit fully informed factual determinations." the EPA Adtninistrator'sdecisions must rest "largely on policy judgments where no factual certainties exist." J.eod Industries Association v. United States Environmental J~rotection Agency, 647 F.2d 1130, 1147 (D.C. Cir.), cert. denied, 449 U.S. 1042


2 Although a zero standard would have avoided the D.C.Circuit's perceived nondelegation problem, the absurdity of a zero standard was recognized by the court when it stated that particulate matter ~voutd remain in the atmosphere even if the country entirely deindustrialized See 175 F.3dat 1038 n.4.
(1980). ln such a situation, the court added, the Administrator should acknowledge the absence of scientific certainty and "go on to identify the considerations he found persuasive. Id. at 1147. Otherwise,EPA will be unable effectively to protect the public from these ubiquitous pollutants simply because the existing scientific evidence supports a narrow range of possibilities within which EPA selected a standard rather than a precise point along the continuum of risk.
The approach taken by the court below is not supported by any of this Court's nondelegation precedents, which have sustained administrative selection of standards along a continuum of possibilities without requiring Congress to provide a rigidly determinate principle to explain the precise point selected. See, e.g., Yakus v. United States. 321 U.S. 414 (1944) (upholding congressional delegation to agency to fix prices of commodities at a level that "will be generally fair and equitable" in order to prevent "abnormal"price increases, "abnormal" market conditions and inflationary reductions in the standards of living of people on fixed incomes).
This Court has upheld broad delegations made necessary not only by the exigencies of war, but also by the exigencies of our limited scientific knowledge. In Industrial Union Department. AJ~'L-( 'IC) v. American Petroleum Institute, 448 U.S. 607 (1980) (the "Benzene" case), this Court implicitly rejected the D.C. Circuit's view that EPA must justify its selection of a health standard along a spectrum of increasing harm with a precision that is unattainable on the basis of existing scientific evidence. Eight members of the Benzene

II
1 0
Court sustained section 3(8) of the Occupational Safety and health Act of 1970, authorizing the Occupational Safety and I Icalth Administration (OSI IA) to regti late workplace processes or pollutants if "reasonably necessary and appropriate to provide safe or healthful employment or places of employment." 29 U.S.C. 652. Four of those eight Justices construed the standard as first requiring the agency to find a "significant risk of harm" before regulations could be promulgated as '~reasonably necessary and appropriate." 448 U.S. at 642-43 (Stevens, J.. announcing judgment of the Court)) Four others saw no need to engage in this very modest judicial narrowing of the standard. See 448 U.S. at 708-11 (Marshall, J., dissenting). But all eight Justices agreed that ('ongress could delegate authority to 051-IA to select a regulatory point under either the statute's broad standard or one very slightly narrowed by judicial construction. Even though benzene is a non-threshold pollutant, like ozone and particulate matter, this ('ourt saw no constitutional problem with


ihree members suggested that this narrowing inierpretation averted nondelegation problems that might otherwise have arisen, see 448 U.S. at 646; another Justice expressed "no view" on whether a "different interpretation of the statute would violate the nondelegation doctrine." see 448 t iS. at 664, ii. I (Powell, J., concurring); and four Justices perceived no nondetegationproblemwith the statute as written, see 448 U S. at 723-24. (Marshall. J.. dissenting). Justice Rehnquist would have held that the nondelegation (loctrine was violated by the congressional grant of broad authority to 051-IA on grounds unrelated to this case (Rehnquist. J.. concurring in judgment). See ii.l0 at page 15, inJia. Although licuzene is not a constitutional holding. the nondelegation issue permeated the decision and its various opinions are relevant to the constitutional issue presented here.
Congress's delegation to OSHA of the authority to select the point on benzene's continuum of risk that should be characterized as "significant."
Indeed, as Justice Burger noted in concurrence, there is an implicit "policy judgment" in setting standards where there is no absolute scientific guidance. Moreover, he noted, it is acceptable for Congress to authorize the Secretary of Labor to make such policy judgments in determining whether a "risk of health impairments is significant in terms of the policy objectives of the statute." 448 U.S. at 663 (Burger. C.J., concurring).
Likewise, section 109 of the Clean Air Act acknowledges that the Administrator must make a policy determination, and explicitly authorizes her to do so, based on air quality criteria that reflect the latest scientific knowledge, as to whether existing or new standards are "requisite to protect the public health" with "an adequate margin of safety." Only by somehow conjuring up levels of scientific knowledge that are currently beyond our grasp, could Congress provide more detailed guidance to EPA or avoid havitig EPA exercise some policy judgment.
Nor has this Court ever held that a mechanistic regulatory principle, such as cost-benefit analysis, k reniuired in areas of scientific uncertainty in order to save an otherwise constitutional delegation to an administrative agency.4 To the


~ The D.C. Circuit below suggested that cost-benefit analysis could accomplish precise line-drawing, but held that that approach was not available to cure section 109's supposed constituiionat infirniity because
(continued...)

12 13

contrary. this ('ourt has clearly sustained Congress'sdelegation of authority to OSHA to regulate workplace hazards and pollutants under a broad standard of preventing "significant risk" while refusing to require cost-benefitor similar formulaic analyses to limit the agency's discretion in selecting which exposure level along a spectrum of increasing harm creates a risk that is "significant." Indeed, as the Benzene plurality noted, "the requirement that a 'significant' risk be identified is not a mathematical straitjacket"and imposes no regulatory duty to "calculate the exact probability of harm." Benzene, 448 U.S. at 655.
Similarly, in American Textile Manu/bcturers Institute

v !)onovan. 452 1. J S. 49t) (1 983) (the Cotton I)ust case) this ('ourt specifically rejected the argument that sections 3(8) and 6(b)(5) of the Occupational Safety and Ilcalth Act require OSIIA to determine, before setting the level for a harmful physical agent "which most adequately assures, to the extent feasible . . . that no employee will suffer tuaterial impairment


ontinued)
('ongress had prohibited EPA from considering costs under Section 109. 175 F.3d al 1038. However, quantifying the benefits of a lower death rate in the monetary terms necessary to compare those benefits with the costs of obtaining them is not the precise exercise apparently desired by the D.C. Circuit. In fact, cost-benefit analysis can be used by an agency to mask its policy judgments in the supposedly neutral balancing of costs and benefits. For example, the very program cited approvingl'. by the panel below --Oregon's allocation of medical treatment to the poor by dividing cost by "quality adjusted life years" --was initially disapproved by the United States l)epartment of Health and Human Services because it undervalued the quality of life of the disabled in violation of the Americans with Disabilities Act. 175 F.3d at 1039, n.4.
of health," 29 U.S.C. 655(b)(5). that the health benefits to textile workers of its cotton dust standard outweigh the standard's costs.5 The Court concluded that "Congress did not contemplate any further balancing by the agency for toxic material and harmful physical agents and we should 'not impute to Congress a purpose to paralyze with one hand what it sought to promote with the other. Id. at 513 (citation omitted).6
As this ('owl in ('otton Dust also made clear, "itihe judicial function does not extend to substantive revision of regulatory policy. That function lies elsewhere in Congressional and Executive oversight or amendatory legislation."' 452 U.S. at 540 (quoting Benzene, 448 U.S. at 663 (Burger,


Section 6(b)(5) ofOSlIA differs from section lt)9 of the ('lean Air Act because the OSHA Administrator, unlike the EPA Administrator. can broadly considercosts in determiningwhether its standard is "feasible." 29 U.S.C. 655(b)(5). However, the OSIIA Administrator must first determine the existence of a "significant risk" at a point along a spectrum of risk. Thus, OSHA and EPA must operate in the same areas of scientific uncertainty in determining the "significance" of a risk or what is "requisite to protect the public health" and must make judgments that cannot be supported with the degree of scientific certainty required by the D.C. Circuit.
6

In Couon I)ust and t3en:cne, then-Justice Rehnquist found a nondelegation problem with section 3(8) of OSHA because Congress did not decide whether cost-benefit analysis was authorized but instead left that decision to the agency. Sec 452 tiS at 547. He added, however, that no nondelegation issue would have ariseii it Congress had clearly authorized the Secretary of Labor to set exposure standards without "any kind of cost-benefit analysis." Cotton Dust. 452 U.S. at 545. Here, Congress. and not EPA, made the decision that EPA cannot consider costs in promulgating NAAQS for criteria air pollutants and iherefore satisfied lustice Rehnquist's concern.

15
14
C.J., concurring)). In invalidating EPA 's revised ozone and PM NAAQS, the D.C. Circuit has overridden this basic principle and improperly forced its view of sound environmental policy upon EI~A and the democratically elected Congress.
~lhe Clean Air Act effects a constitutional delegation of authority to EPA. Although the l).C. Circuit would have preferred EPA to rely on a mechanistic regulatory principle in setting the revised ozone and PM NAAQS, Congress's mandate that the agency exercise its judgment in areas of scientific uncertaintyto protect the public health was fully constitutional.

II. THE D.C. CIRCUIT ERREI) IN
FINDIN(; THAT THE NEW EIGHT-
HOUR OZONE STANDARD MUST
BE IMPLEMENTED IN
ACCORI)ANCE WITH THE
PROVISIONS AI~PLICABLE TO
IMPLEMENTATION OF TIlE OLD
ONE-IlOUR STANDARD.


The D.C. Circuit erred in holding that the provisions of subchapter I, part I). subpart 2 of the Act, intended to govern implementation of the old one-hour ozone standard, 42 U.S.C. 751 l(a)-(f), also govern implementation of the revised eight-hour ozone standard. The D.C. Circuit's conclusory finding that section 181 --~ a section within subpart 2 is applicable simply because it "clearly encompasses non-attainment designations" made under a new or revised ozone NAAQS, 175 F.3d at 1050, is inconsistent with the text of
section 181 and ignores practical realities. The classification scheme set forth in section 181 is incomprehensible when applied to the revised standard and its deadlines for compliance that passed in the I 990s are nonsensical when applied to a revised standard that would not be implemented until after
2000.
At the core of the D.C. Circuit's holding is its view of section 181(a)(l) of the Act, which is entitled "Classification and attainment dates for 1989 nonattainmentareas." 42 U.S.C. 751 I(a)(1). This section has as its centerpiece a table that lists the air quality classifications and attainment deadlines for meeting the .12 ppm standard in effect at the time of the 1990 Amendments to the Act:
(a) Classification and attainment dates for 1989
nonattainment areas
(1) Each area designated nonattainment for ozone pursuant to seLt ion 7407(d) Lie. 107(d)I of this title shall be classified at the time of such designation,under table 1, by operation of law, as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the Administrator most recently before November 15. 1990. For each area classified under this subsection, the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1. Lemphasis suppliedi.

16
TABLE I
Area ('lass Design Value [ppm j Primary Standard Attainment I)ate
Marginal 0.121 tip to 0.138 3 years after No
vember 15, 1 99()
Moderate 0.138 up to 0.160 6 years after No
vember 15. 1990
Serious 0.160 tip to 0.180 9 years after No
vember 15, 1990
Severe 0.1 8t) up to 0.280 1 5 years after No
vember 15, 1990
Extreme 0.280 and above 20 years after No
vember I 5. I 990
~1~he crux of the D.C. Circuit s error lies in its unwarranted view of the cross-reference to 1 07(d) [42 U.S.C. 7407(d)I in the first sentence of 1 81 (a)( I). Section I 07(d)(4) provides for designations under specified standards, including the old one-hour ozone standard. See 42 ~ J.S.C. 7407(d)(4). Section 1 07(d)( I) provides for designations under a new or revised NAAQS. See 42 U.S.C. 7407(d)(1). Relying solely on the fact that the cross-reference is to section 107(d), rather than to section 107(d)(4) specifically, the court below concluded that section 1 81 (a)( I) unambiguously encompasses implementation of the revised .08 ppm standard. See 175 F.3d at 1048-50. Finding no ambiguity, the court below then shoved
17
a round peg in a square hole, insisting on its reading despite its clearly unworkable results.
First, under the panel's reading, the deadlines simply make no sense. Section l8l(a)(1 ) contains, on its lace, classifications and deadlines that are pegged to the one-hour .12 ppm standard existing at the time of the I 99() Amendments, rather than to the lower .08 standard.7 Attempting to apply these classifications and deadlines to the .08 standard has absurd consequences. For example, under the L).('. Circuit's holding, areas with ozone levels in the range of .1 20-. 138 and
.138-160 were required to comply with the new eight-hour standard in 1993 and 1996, respectively, even though that standard was not promulgated until 1997. On the other hand, because the section 1 81(a)(l) compliance schedule is geared towards compliance with the . 1 2 one- hour standard, it contains no deadlines for areas with design valties between .08 (the level of the new standard) and .12. This means that areas tn compliance with the old standard bitt out of compliance with the revised standard need never comply with the revised standard because they are subject to no deadlines under section 181(a)(l) for compliance with that standard. Requiring areas with design levels in excess of .1 2 to meet the new standard immediately (because the deadlines have already passed) while holding less polluted (but still noncompliant) areas to no compliance deadline at all is. at best, bizarre. It is also contrary to the intent of the section 181(a)(l ) deadlines to provide more


Even the D.C. Circuit recognized that the "design value' set forth in table I "is a rough measure of whether an area complies with the 0.12 ppm, 1-hour primary ozone standard." 175 E. 3d at 1046.

18 19

polluted areas with more, not less, time to come into compliatice.
Second, the panel's reading results in methodological incoherence, Section 181(a)(l) provides that pollution levels that form the basis for the classificatiofls (the "design value") should be calculated in accordance with the "interpretation methodology issued by the Administrator most recently before November 15, 1990." Jnder the D.C. ('ire nit's interpretation, FPA would be bound by potentially obsolete pre-1990 methodologies in calculating the design values applicable under revised standards promulgated years later. Similarly. the panel's insistence that section 181 applies to the new standards leaves the process for reclassification, from attainment to nonattainment. unworkable.8
Finally, the panel decision leaves the States and EPA in an enforcement quandary: what exactly cati they do wheti'(~


8 Under section 181 (b)( I)' areas that are reclassified to nonanainment with the old one-hour .12 standard are sublect to the classificationdates of section 181(a)(l). but with an extension equal to the time between enactment of the 1990 Amendments and reclassification as nonattainment. Thus, ifan area is redesignated from attainmentto marginal nonattainmentwith the one-hour standard in 2000(10 years after the 1990 Amendments), it will have until 2003 (ten years after the original 1993 attainment deadline for marginal nonattainment areas) to comply with the standard. However, section 181 (b)( I) specifies that this provision applies only to areas redesignated as nonattainment with the old one-hour standard under section 107(d)(3), not to areas redesignated as nonattainment with a new or revtsed ozone standard under section 107(d)(l). flow to handle classification of nonattainment with the new standard is left unclear.
9

The panel and Judge Tatel were unable to agree on a way to
(continued...)
The panel below could not agree on what EPA was left room to do; certainly almost any action will lead, at the least, to litigation and delay.
If the impracticalities of the result were not enough to show the error of the panel's decision, a broader look at the context of the provision makes the error plain Section 181(a) is entitled "Classification and attainment dates for 1989 nonattainment areas." (emphasis added).'0



ontinued)
conform the provisions of subpart I with the classifications and deadlines found in section 181. On rehearing, Judge latet concurred in the panel's decision, as modified. because it "leaves open the possibility that EPA can enforce the new ozone NAAQS without conflicting with subpart 2's classifications and attainment dates." 195 F. 3d at II. However, Judge Tatel'sbelief that "nothing precludes the enforcement of the new standard under subpart I," 195 F. 3d at 13, appears to conflict directly with the panel's holding that it is section 181 of"[s]ubpart 2, not subpart 1, Ithatl provides the classifications and attainment dates for any areas designated nonattainment under a revised ozone NAAQS," 175 F ..3d at I OSt) (emphasis supplied). Furthermore.Judge Tatel's interpretation that implementation of the revised standard under subpart I can begin in the vast majority of the nation that has attained the old standard is also inconsistent with the panel's determination, on rehearing, not to vacate the new standard pending remand "because the parties have not showti that the standard is likely to engender costly compliance activities in light of our determination that it can be enforced only in conformity with subpart 2." 195 F. 3d at tO.

In J?rotherhood of Railroad Thainnien i'. Botuirnore & OR. ('o, 331 U.S. 519,528-29(1947). the Court held that the title of a section,which was "but a short-hand reference to the general subject matter involved." would not "take the place of the detailed provisions of the text." In the instant case, by contrast, it is the title that clearly and precisely limits the reach of a provision whose language is ambiguous.

20 21

This Court has found, under similar circumstances, that the title oI'a statute provides valuable evidence of congressional intent in enacting an otherwise ambiguous statute. In immigration & Naturalization Service v. National ('enter for Immigrants'Rights, Inc., 502 U.S. 183, 189 (1991), the Court interpreted a regulation that, on its face, prohibited any employment of deportable aliens. However, in light of the provision's title. "('ondition against unauthorized employment." the Court held that the regulation prohibited not any employment of deportable aliens, but only unauthorized employment of such aliens. See also Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998) (considering the title of a section, and its legislative history, in construing a statute); Mead ('orp. v. Tillet', 490 U.S. 714, 723 (1989) (holding that possible ambiguity of statute is resolved by the title of subsection at issue); Federal 7'rade Commission v. Mandel I?rothers, Inc., 359 U.S. 385, 388-89(1959) (the Title of an Act is "a useful aid in resolving an ambiguity").
Finally, the D.C. Circuit's decision is inconsistent with this Court's holding in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). that courts must defer to an agency's reasonable interpretation of ambiguous provisions in statutes they are charged with administering. Instead of deferring to an agency interpretation of section 181(a) of the Clean Air Act that is consistent with the substance and title of the provision, the l).C. Circuit elevates form over substance, substituting its own highly technical reading of the statute for the practical reading adopted by EPA. The cross-reference in section 1 81 (a)( I ) to section 107(d) rather
than just I 07(d)(4), which provides the entire shaky Ibundation for the D.C. Circuit's interpretation. creates at most an ambiguity in the statute, requiring that deference be given to EPA's reasonable interprelalion. ~ee Smilev v. ('itihank (South I)akota), NA., 517 U.S. 735, 739 (1996) (noting that "it would be difficult" to find a statute unamhigtioitS in light of two dissents and a conflicting opinion of another court). Under these circumstances, the I).C. Circuit should have deferred to EPA's reasonable interpretation of the provisions at issue an interpretation that effectuates the general statutory scheme, makes sense of the specific statutory provisions, and is consistent with the title of section 1 81 (a)( 1). See United States
v. Haggar Apparel Co., 526 U.S. 380, 392 (1999)
(reemphasizing the need to give deference to an agency interpretation that is "reasonable in light of the legislature's revealed design") (citation omitted).
The D.C. Circuit's interpretation of section 181 is unworkable and irrational, and has no basis in proper statutory construction. See Gri/jin v. Oceanic ('ontractors, Inc., 458 U.S. 564, 575 (1982) ("interpretations of a statute which produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available"). The D.C. Circuit should instead have deferred to EPA's reasonable interpretation of the Act.

22 23

CONCLUSION


The decision ot the ('ourt below should be reversed. Respectfully submitted,



Attorney (jeneral of the
State of New York


PREETA D. BANSAL
Solicitor General

(C 'ounsel of record)
DANILL X. SMIRLOCK
l)eputv Solicitor General
LISA FEINER
J. JARED SNYDER
Assistant Attorneys General
Environmental Protection
Bureau
The Capitol
Albany, NY 12224
(212) 416-8479
Attorneys/br the State of

New York
BILL LOCKYER
Attorney General of
California


RIC I-JAR 1) B LUMENTI JAL
Attorney General ot'
Connecticut

ANDREW KETThRER
Attorney (jeneral of Maine

J. JOSEPH CURRAN, JR.
Attorney General of
Maryland
PHILIP McI .AI. JGIll.IN
Attorney General of New
Hampshire


D. MICHAEl. FISI IliR Attorney Cieneral ot' l~ennsyl vania

ShELDON WHITELIOUSE
Attorney (jeneral of Rhode
Island

WILLIAM II. SORRELL
Attorney (jetieral of
Vermont
Of ('ounsel

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