US Supreme Court Briefs

Supreme Court U.S.
FILED
SEP 11 2000
CLERK


Nos. 99-1257, 99-1426

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.,
Respondents

On Writ of Certiorari To The
United States Court of Appeals for The District of Columbia Circuit

BRIEF OF AMICUS CURIAE COMMONWEALTH OF VIRGINIA IN
SUPPORT OF RESPONDENTS

MARK L. EARLEY
Attorney General of Virginia

WILLIAM HURD
Solicitor General
ROGER L. CHAFFE
Senior Assistant Attorney General
STEWART T. LEETH
Assistant Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-6957 (voice)
(804) 786-0034 (fax)



TABLE OF CONTENTS



TABLE OF AUTHORITIES

INTRODUCTION
INTEREST OF AMICUS CURIAE 2
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 8
ARGUMENT.. 9
I. The Court of Appeals Was Correct In
Remanding The Rulemakings to EPA In
Order to Allow the Agency to Explain
Its Reasoning 9
II. EPA's Interpretation of 109 of the
Clean Air Act Leads to Absurd and
Unjust Results 12
III. EPA Must Consider Costs and Other
Social and Economic Factor When It
Identifies a Level of Ozone That Is
"Requisite" to Protect "Public Health." 15
CONCLUSION 16


TABLE OF AUTHORITIES

CASES

Amalgamated Meat Cutters v. Connally,
337 F. Supp. 737 (D.D.C. 1971) S

American Lung Association v. EPA, 134 F.3d 388 (p C
Cir 1998), cert. deniea~
1205.Ct.58(1999) 11

American Trucking Associations. Inc. v.
United States Environmental Protection Agency,
175 F.3d 1027 (D.C. Cir.), rehg denied,
195F.3d4(D.C Cir.1999) 1,5

Carter v Carter Coal Co.,
298 U.S. 238 (1936) ii

Holy Trinity Church v. United States,
143 U.S. 457(1892) 12

Industrial Union Department v. American Petroleum Institute,
448 U.S. 607 (1980) . 8,9, 11

International Union. UAW v. OSHA, 938F.2d1310(DC Cir
1991),on remand,
37F.3d665(DC Cir 1994) 11,14

Lead Industries Assn v EPA,
647F.2d1130(D.C.Cir. 1980.) 15

Loving v. United States,
517U.S. 748 (1996) . 8

Mistretta v. United States,
488 U.S. 361 (1989) 8
ii



Natural Resources Defense Council v. U S EPA,
824 F.2d 1146 (D.C. Cir. 1987) . ... 9

United States v. Kirby,
74 U.S. 482 (7 Wall. 482) 13

Virginia v. EPA,
108 F.3d 1397 (D.C. Cir. 1997) 4

STATUTES
42U.SC 7401 . 2
42U.SC 7407-7410 2
42 U.S C 7408(a)(2)(A) (b)(2) 7
42U.SC 7409(b) 2,8
42 USC 7410(a)(l) 6
42U.S.C.7509
8
42U.SC 7511(a) 3,7

National Ambient Air Quality Standards for Ozone:
Final Rule, 62 Fed. Reg. 38,855 (July 18, 1997). . 4, 5

National Ambient Air Quality Standards for Ozone:
Proposed Decision, 61 Fed Reg 65,728
(December 13, 1996) 5
56 Fed. Reg. 56694 (November 6, 1991) 3
Proposed Rule, 61 Fed. Reg. at 65727 5, 6





I

BRIEF OF AMICI CURIAE COMMONWEALTH
OF VIRGINIA

The the Commonwealth of Virginia ("the Amici State") submits this brief as amici curiae in support of the American Trucking
Association, Inc. and the States of Michigan, Ohio, and West Virginia. The Amici State supports the affirmation 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 (D.C. Cir.), reh'g denied, 195 F.3d 4 (D.C. Cir. 1999), which remanded the
Environmental Protection Agency's ("EPA's") revised national ambient air quality standards ("NAAQS") for ozone and fine particulate matter.

INTRODUCTION

This is not a case about whether cleaner air should be a national priority. The Amici State agrees that it must be, and Congress has so declared it.
Instead, this is a case about how the standards for cleaner air shall be set. Are federal regulators to have unlimited discretion to set whatever arbitrary
standards they wish? Or shall they be held accountable for what they do by being required to explain their decisions and base them on facts? More specifically,
this case is a contest between two competing constructions of the key provision of the Clean Air Act, section 109, under which EPA is to set NAAQS "the
attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of


This brief focuses on the ozone rulemaking. In the relating particulate matter proceeding before the court of appeals, the court held also that EPA violated the
nondelegation doctrine. The Amici further supports the court's holding in this regard and believe that it dictates a similar conclusion in this case.


2
3
safety, [as] are requisite to protect the public health." 42
U.S.C. 7409(b). Presented with two possible
interpretations of 109 - one that allows EPA unconfined
and limitless discretion to alter the NAAQS and one that
affords "intelligible principles" upon which to base such a
change - the court of appeals was correct in adopting the latter.
That is, the court was wholly justified in forcing EPA to explain
its decision to revise air quality standards in such a manner as to
facilitate a court's review.

INTEREST OF AMICUS CURIAE

The protection of public health and the environment is of
manifest importance to the Commonwealth. In the
furtherance of this policy, it fully supports strict regulation of
air pollutants which threaten these interests. Congress
established under the Clean Air Act, 42 U.S.C. 7401, et seq.
("CAA"), a unique federal-state partnership for controlling air
pollution. Under this partnership, EPA sets and revises the
NAAQS under 109; the States maintain ~primary
responsibility for achieving these standards. CAA
107-110; 42 U.S.C. 7407-7410.

The Commonwealth has a unique interest in ensuring that
the 109 is construed in a way that best protects the public
health and welfare of Virginians as well as their social and
economic well being. It also strongly believes that the statute
must be construed to uphold Congress' federal-state partnership.
The Commonwealth is uniquely positioned to provide public
law and policy arguments on these points on behalf of its
citizens.

EPA's decisions in this case upset this federal-state
partnership. EPA set new air quality standards without
adequately articulating the health and environmental benefits of
such action. While the benefit to health is not clear, there is no
doubt that EPA's action would have vast and far ranging
consequences to the welfare of all Virginians. And,
as the State partner under the Act, it is left to enforce such
standards which may have been altered without adequate
justification.

This amicus brief is submitted under S. Ct. Rule 37,
which allow the States to file such briefs without permission of
the parties and without leave of court.

STATEMENT OF FACTS

The parties have submitted lengthy briefs setting
forth
the detailed statutory and factual background of this case.
The Commonwealth will not repeat that background here.
It is necessary, however, to draw attention to facts which
underscore the impact of EPA's standardless rulemaking in
this case.

In the 1990 Amendments to the Clean Air Act,
Congress revised the air quality standard for ozone at .12 part
per million ("ppm"). 42 U.S.C. 7511(a).2 Ozone, unlike many
other pollutants, is not directly emitted by sources. Instead,
it is formed from the mixture of two chemical precursors,
nitrogen oxides ("NOx") and a group of hydrocarbon
pollutants called volatile organic compounds ("VOCs").3


- As a result, States made designations for areas that did not
meet the Congress' standard ('~nonattainment areas") and EPA
designated approximately 100 areas in the country as
nonattamment for ozone. 56 Fed. Reg. 56694 (November 6, 1991).
Congress included in its Amendments specific attainment
deadlines for these areas; those deadlines are keyed to whether
areas were classified as either 'Tharginal," "moderate,"
~'serious," ~severe," or "extreme." CAA 181(a)(1); 42 U.S.C.
751 l(a)(l).

These precursors cook in the sun, during hot weather, and
produce ozone through a complex chain of chemical
reactions. The creation of ozone is a seasonal phenomenon,
with concentrations peaking in the summer, and as a diurnal
occurrence, with concentrations peaking during the afternoon
and






falling during the night. See Virginia v. EPA, 108 F.3d 1397
(D.C. Cir. 1997).

4
5
These precursors originate from a wide variety of natural and
man-made sources. Indeed, they come from virtually every
facet of modern American life, including operating
automobiles, trucks, buses, trains, manufacturing facilities,
and electrical power plants.

Congress' ozone scheme has been quite effective in
reducing ozone levels throughout the United States.
According to EPA data, between 1987 and 1996, ambient
ozone concentrations in the United States decreased by 15
percent; exceedances of the NAAQS decreased by 73
percent. Office of Air Quality Planning and Standards,
EPA, National Air Quality and Emissions Trends Report,
1996,
EPA Doc. NO. 454/R-97-013,
http /w'. epa..gov/oar/aq.trnd96/trendsfs_html.

Virginia's air quality has greatly improved under
Congress' mandate. In the early 1990s, Virginia designated
eleven counties and seventee cities in nonattainment for the
ozone NAAQS. yR 120-01, Appendix K, January 1, 1992.
Today, only the five counties and five cities in Northern
Virginia, surrounding Washington D.C., are in nonattainment. 9
VAC 5-20-204.

Against this backdrop of improving air quality, EPA
adopted new and far more stringent air quality standards for
ozone, reducing allowable levels from the .12 ppm standard to
.08 ppm measured over an 8-hour period. National Ambient Air
Quality Standards for Ozone: Final Rule, 62 Fed. Reg.
38,855 (July 18, 1997). EPA did so without pinpointing specific
health benefits, if any, of this radical change or demonstrating
why the change was required. EPA found it hard to differentiate
health benefits associated with this new standard or to
demonstrate the elimination of a
significant risk to public health. The Clean Air Scientific
Advisory Committee ("CASAC"), upon which EPA relies
in setting air standards, advised EPA that "there is no
'bright line"' distinguishing any of the alternatives as
"significantly more protective of public health." Letter
from George Wolff, Chairman, CASAC, to Carol
Browner, Administrator, regarding CASAC Closure on the
Primary Standard Portion of the Staff Paper for Ozone at 3
(November 30, 1995). It even highlighted a particular
study demonstrating "small" health differences between
"outdoor" children exposed to ozone at the existing .12
standard and those exposed to ozone at levels even more
stringent that the .08 standard at issue. Id. In fact, CASAC
was divided as to what ozone standard to adopt; a majority
of the members supported a standard less stringent than .08
ppm. National Ambient Air Quality Standards for Ozone:
Proposed Decision, 61 Fed. Reg. 65,728 (December 13, 1996).

Moreover, EPA seemingly ignored other important
public health information relevant to ozone. For example,
EPA acknowledged that, due to ozone's screening effect on
harmful ultraviolate radiation, the reduction in ozone levels
mandated by its new standard will increase malignant and
nonmelanoma skin cancers and cataracts. EPA, Calculations of
the Impact of Tropospheric Ozone Changes on UV-B Flux
and Potential Skin Cancers (Draft September, 1994). The
Department of Energy predicted literally thousands of new
cases of skin cancer and cataracts each year. Statement of
Marvin Frazier, DOE Office of Health & Environmental
Research, Before CASAC (March 21, 1995).

As a result, EPA offered only vague references to "the
nature and severity" of health effects, "the size of the sensitive
population(s) at risk," and the "kind and degree of uncertainties
that must be addressed." 175 F.3d at 1034-35, citing Ozone
Final Rule, 62 Fed. Reg. at 38,883. In short, EPA's decision is
not based on science. See Proposed Rule, 61 Fed. Reg. at
65727.





6
7
While there is not clear health benefit, there is no doubt
that this rulemaking would have vast and far ranging
consequences. Nationwide, the new standard will place
20% of American counties into nonattainment. Brobeck,
Phleger & Harrison LLP, Science and the High Cost of
Cleaner Air, October 19, 1997. EPA's own regulatory
impact analysis estimates the overall cost of complying
with the NAAQS to be $9.6 billion annually. Innovative
Strategies and Economics Group, EPA, Regulatory Impact
Analysis for the Particulate Matter and Ozone National
Ambient Air Quality Standards and Proposed Regional
Haze Rule ES-12 (1997). By contrast, EPA estimates total
yearly benefits from compliance at between $1.5 and $8.5
billion. Id at ES-17. Other studies are not so conservative.
The American Petroleum Institute estimates the cost of
achieving the new NAAQS ranging from $2.5 to 7.0
billion in the Chicago metropolitan area alone.
The Monetary Benefits of An 8-Hour 0.08 ppm Ozone
Standard in Chicago, Research Study # 085, August, 1996.
Another study suggests costs of $40 to $60 billion per year.
Science and the High Cost of Cleaner Air, Brobeck, Phleger &
Harrison LLP, October 19, 1997.

In Virginia, preliminary projections indicate that 17
counties and 21 cities will be in nonattainment under the .08
standard, including all of its major metropolitan areas.
This portends profound economic and social consequences
for the Commonwealth and its citizens.

In practical terms, States, which must implement the new
standard,4 will be required to limit emissions from "sources,"
including automobiles, trucks, buses, trains, manufacturing
facilities, refineries, and electrical power plants. A
manufacturing plant, for example, may be forced to reduce
emissions to meet State requirements by shifting capital
from plant expansion to the purchase of advanced
technology pollution control equipment or by reducing its
hours of operation. CAA 108(a)(2)(A), (b)(2); 42
U.S.C. 7408(a)(2)(A), (b)(2). Either option could cost
workers jobs and result in higher prices for consumers. An
electric utility may be forced to reduce emissions by
changing its fuel source to cleaner burning coal imported
from outside the region, thus driving up prices for
consumers. Ordinary citizens may be required to reduce
automobile emissions by submitting to emissions testing
and making expensive equipment upgrades for older
models. CAA 182(a)(2)(B)(i), (b)(4), (c)(3); 42 U.S.C.
7511. In some cases, States may even be required to
institute transportation control measures to offset growth
or bring emissions within projected levels. CAA 182
(c)(5, (d)(l)(A); 42 U.S.C. 7511 a. That is, citizens may
be required to curtail automobile travel and the use of
recreational vehicles and other mechanized equipment. In
addition, in nonattainment areas, businesses are unable to
locate or expand unless new emissions are offset by
reductions elsewhere. See CAA 182(a)(4), (b)(5), (c)(l0)
(d)(2), (e)(1); 42 U.S.C. 7511. Faced with a choice between
locating in a nonattainment or attainment area, businesses
will pass by the nonattainment area in favor of other areas.
Whole communities will be shackled from development,
stunting growth, development, and quality of life for its
citizens.





Once EPA revises an air standard, the Act requires that the
Commonwealth develop and submit to EPA a state
implementation plan ("SIP") under which it will
implement, maintain and enforce the new standard. CAA 1
l0(a)(l); 42 U S C 7410(a)(l). The SIP must "include
enforceable emission ltmttations and other control measures,
means, or techniques


(including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules
and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this
Act." CAA 110 (a)(2)(A); 42 U.S.C. 741 0(a)(2)(A).





8
9
The costs are even higher under the Act if a State fails
to implement such measures in nonattainment areas. The
Act allows the Administrator to choose between cutting of
federal highway funds and imposing additional emission
offset requirements for new source permits. CAA 179;
42 U.S.C. 7509. One estimate suggests that 72% of
highway construction jobs in Virginia would be threatened by
such sanctions and $3 11,000,843 in highway funds are at
stake. Economic Impact of Proposed EPA Ozone and PM
Standards on the US Highway Construction Industry,
ARTBA, (May, 1997).

Certainly, radical changes such as the new ozone
standard must be based on "intelligible principles" that will
facilitate a court's review. EPA failed to articulate such
principles. Rather, it hides behind laudable statutory goals; at the
same time, it conceals the real policy driven basis for the
regulatory actions at issue.

SUMMARY OF ARGUMENT

A federal agency must explain its regulatory decisions in
such a manner as to allow "meaningful judicial review."
Amalgamated Meat Cutters v. ~Z'onnally,
337 F. Supp. 737, 759 (D.D.C. 1971) (three judge panel). E.g.,
Loving v. United States, 517 U.S. 748, 771 (1996); Mistretta
v. United States, 488 U.S. 361, 379 (1989). The
nondelegation doctrine "ensures that courts charged with
reviewing the exercise of delegated legislative discretion
will be able to test that exercise against ascertainable
standards." Industrial Union Dept. v. American Petroleum
Institute, 448 U.S. 607, 685-86 (1980) ("Benzene").

Under section 109(b), EPA is to set NAAQS "the
attainment and maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the
public health." 42 U.S.C. 7409(b). Attempting to alter a
Congressionally ratified standard for ozone, EPA adopted a
new, more stringent standard without the minimal finding that
the new standard was "requisite" or not requisite "to protect the
public health" with "an adequate margin of safety," the
formula set out by 109(b)(l). As a result, the court of
appeals was correct in concluding that EPA had not
articulated "intelligible principles" in deciding whether and
how to revise the ozone and particulate matter NAAQS.
The court of appeals' decision is consistent with precedent
and guarantees that the States and their citizens will not be
without recourse to challenge arbitrary government action.

ARGUMENT

I. The Court of Appeals Was Correct In Remanding
The Rulemakings to EPA In Order to Allow the
Agency To Explain Its Reasoning.

The nondelegation doctrine "ensures that courts
charged with reviewing the exercise of delegated
legislative discretion will be able to test that exercise
against ascertainable standards." Ben:ene, 448 U.S. at
685-86. As explained below, the court of appeals was
correct to remand the revised standards to the agency "to
give the agency an opportunity to extract a determinate
standard on its own. 175 F.3d at 1038.

Prior to EPA' s challenged rulemaking, Congress set
the ozone standard at .12 ppm. Section 109 of the Clean
Air Act dictates that EPA's revised standard must be at a
level "requisite to protect public health" with "an adequate
margin of safety." Ozone itself complicates this statutory
directive; it is a non-threshold pollutant meaning that there
is no level below which all health risks disappear. 175 F.3d
at 1034; 62 Fed. Reg at 38,863. See also Natural Resources
Defense Council v. U.S. EPA, 824 F.2d 1146, 1148 (D.C.
Cir. 1987) ("Vinyl Chloride") (a "non-threshold" pollutant is
one that "appears to create a risk to health at all non-zero levels
of





10 11



emission"). Thus, in order to change the level imposed by
Congress to something other than zero, EPA must explain why
it settled on a specific level, and not some other, because any
presence of ozone is presumed to present some threat to
health or the environment.

But EPA failed to provide the court of appeals with any
ascertainable standard which might have facilitated the
court's review of its action. It did not identify a level of air
quality that is "requisite" to protect public health. That is, EPA
does not elucidate why measuring ozone at .08 ppm is
requisite while other levels for example, .07 ppm or .09
ppm - are not. EPA did not explain how the level it chose
presents "an adequate margin of safety." The court of appeals
carefully reviewed the administrative record and found that
EPA's three primary reasons for its new NAAQS amounts
to nothing more than a reflection that lower levels moving
towards zero "are associated with lower risk to public
health." 175 F.3d at 1035. Given that ozone is created
naturally in the environment and that the results of EPA's
standardless revision have the potential of affecting nearly
every aspect of modem life, including the operation of
automobiles, trucks, buses, trains, manufacturing facilities, and
electrical power plants, the court was entirely correct.

The court of appeals decision to remand was not novel
or drastic. Indeed, it is entirely consistent with this Court's
jurisprudence. As Chief Justice Rehnquist has explained the
nondelegation doctrine serves important functions:

First, and most abstractly, [the nondelegation doctrine] ensures
to the extent consistent with orderly governmental
administration that important choices of social policy are made
by Congress, the branch of our Government most responsive to
the popular will. Second, the doctrine guarantees that, to the
extent Congress finds it necessary to delegate authority, it
provides the recipient of that authority with an "intelligible
principle" to guide the exercise of the
delegated discretion. Third, and derivative of the second,
the doctrine ensures that courts charged with reviewing the
exercise of delegated- legislative discretion will be able to
test that exercise against ascertainable standards.

Industrial Union Dept. v. American
Petroleum Institute, 448 U.S. 607, 685-86
(1980) ("Benzene").

This case does not involve the first or second
components of the Chief Justice's narrative. The court of
appeals has not determined that 109 delegated too much
power to a federal agency, e.g., Carter v.
Carter Coal Co., 298 U.S. 238 (1936) (striking
down Bituminous Coal Conservation Act of 1935), or failed
to set forth standards to constrain agency discretion.
Rather, this case involves the final component - the court
deployed the nondelegation doctrine as a tool of statutory
construction to prevent a federal agency from interpreting its
delegated authority so broadly as to give it unfettered, and
virtually unreviewable, discretion.

The court of appeals' decision is entirely consistent with
its own precedent. That court has not hesitated to require
federal agencies to explain their reasoning in order that
such reasoning could be reviewed. See, e.g., American Lung
Ass~n v. EPA, 134 F.3d 388 (D.C. Cir. 1998), cert. denied,
120 S.Ct. 58 (1999) (remanding for EPA to determine
what risks are tolerable); International Union, UA
Wv. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) (remanding
lockout/tagout regulation so that OSHA could articulate
principles constraining its application of rulemaking
authority under the OSH Act), on remand, 37 F.3d 665
(D.C. Cir. 1994) (approving regulations because agency
supplied sufficient list of principles).

The court of appeals decision also is workable. EPA itself
admits in its Petition for Certiorari that it might be able to
discern such intelligible principles under 109. For





12 13


example, EPA calls attention to the Clean Air Act's
legislative history, which requires EPA to focus on health
effects that are "medically significant," and not "merely
detectable," and which requires it to consider the "public
health," and not "individual health." Petition at 15.

In short, EPA did not articulate intelligible principles in
deciding whether and how to revise the NAAQS. EPA should
not be free to ratchet its standards ever more stringently based
solely on whim or conjecture. This Court should affirm the
court of appeals and require that EPA explain its reasoning
why its new standard is required.

II. EPA's Interpretation of 109 of the Clean Air Act
Leads to Absurd and Unjust Results.

Presented with two possible interpretations of 109
one that allows EPA virtually unlimited discretion to
alter the ozone NAAQS and one that precludes it - the
court of appeals was obligated to interpret it in a way that
avoids an absurd and unjust result.

This Court has long held that where a statute is
susceptible of more than one interpretation, a court must
avoid an interpretation that leads to an absurdity or an
unjust result, if an alternate, reasonable interpretation may
be found:

If a literal construction of the words of a statute be absurd,
the act must be so constructed to avoid the absurdity. The court
must restrain the words. The object designed to be reached by
the act must limit and control the literal import of the terms
and phrases employed.

Holy Trinity Church v. United States, 143 U.S. 457, 460
(1892). "General terms should be so limited in their application
as not to lead to injustice, oppression, or an absurd
consequence. It will always, therefore, be presumed
that the Legislature intended exceptions to its language, which
would avoid results of this character." United States
v. Kirby, 74 U.S. 482, 486-87 (7 Wall. 482) (1869).

In this case, the court of appeals' interpretation of
109, which precludes EPA from implementing new air
standards without adequately explaining why, avoids
absurd and unjust results. Indeed, following EPA's
reasoning to its logical conclusion, it is not difficult to
ascertain the absurdity of altering the existing standards
for ozone without such an explanation. First, as explained
above, ozone is a non-threshold pollutant meaning that
there is no level below which all health risks disappear.
Without being required to explain why its new standard is
"requisite" or not requisite to protect the public health"
with "an adequate margin of safety," the formula set out in
109, EPA conceivably is free to ratchet its standard ever
more stringently based solely on some incremental health
risk. Such a result could have, in practical terms,
devastating social and economic consequences. As
explained above, both the natural environment and
activities involving nearly every aspect of modern life result
in emission of the precursor elements for ozone, including the
operation of automobiles, trucks, buses, trains,
manufacturing facilities, and electrical power plants. In
light of the controls States are required to implement for
nonattainment areas, the consequences of setting an
exceedingly stringent ozone NAAQS are not hard to
conceptualize. They include reduced economic
development, wholesale reduction of business activities,
with the attendant increase in unemployment, higher
production and transportation costs, which will be passed on to
the consumer, higher utility costs and/or reduction in electrical
supplies, with attendant health consequences for those without
adequate climate control, and limitations upon the use of
personal automobiles. Surely Congress did not intend EPA to
exercise such power without identifying a standard against
which a court might gauge its merit.





14
15
The lower court's decision in International
Union illustrates the point. There OSHA issued new
regulations requiring that employers install safety devices on
machinery that could suddenly move and injure workers.
Employers were required to install locks to keep the
machines from starting or post warning tags. 938 F.2d at
1312. In remanding the standard to OSHA, the court was
particularly wary of the agency's reliance on incremental
improvement for workplace safety as justification for the
regulation. "The upshot is an asserted power, once significant
risk is found, to require precautions that take the industry to
the verge of economic ruin (so long as the increment
reduces a significant risk) ... or to do nothing at all. All
positions in between are evidently equally valid." 938 F.2d
at 1317 (citations omitted). Moreover, the court
recognized "the power to vary the stringency of the
standard is the power to decide which firms will live and
which will die. At the simplest level, for example,
compliance may involve economies of scale, so that a
tough standard will erase small, marginal firms and leave
the field to a small group of larger ones." Id. The Court
remanded the standard to OSHA and upheld it only after
remand when OSHA returned with a "Supplemental Statement
of Reasons" for the regulation, which included significant risk,
feasibility, and cost-effectiveness. International Union, UA Wv.
OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994).
m. EPA Must Consider Costs and Other Social and
Economic Factors When It Identifies a Level of
Ozone That Is "Requisite" To Protect "Public
Health."

For the reasons set out above, Amici submit that the
court of appeals was correct in remanding the ozone and
particulate matter standards to EPA in order to articulate
"a determinate standard on its own." 175 F.3d at 1038. If
the Court affirms the court of appeals on this issue, Amici
further submit that EPA must be able to consider social
and economic factors and indirect public health effects
forclosed by the court of appeals decision in Lead Industries
Asss 'n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980.) The cross-
petitioners in Case 99-1426 have already submitted
detailed briefs on this issue and Amici will not repeat those
arguments here. In short, "a standard-setting process that
ignored economic considerations would result in a serious
misallocation of resources and a lower effective level of
safety than could be achieved under standards set with
reference to the comparative benefits available at a lower
cost." Benzene, 448 U.S. at 670. Amici fully support
the positions stated in the briefs submitted by the States of
Ohio, Michigan, and West Virginia and the American Trucking
Associations.
The court's concerns in International Union are
equally applicable to the case at bar. Like the potential
power asserted by OSHA in International Union, EPA's
assertion of authority in this case allows it to adopt any level of
ozone with "[a]ll positions in between are evidently equally
valid." From a practical standpoint, EPA would have the
power to decide which communities will remain vibrant and
growing and which will not simply by picking a number.





16


CONCLUSION

EPA's rulemaking in this case stands as a stark example
_of a federal agency's unconfined and vagrant use of delegated power. The court of appeals should be affirmed.


Respectfully submitted,
COMMONWEALTH OF VIRGINIA


By Counsel



MARK L. EARLEY
Attorney General of Virginia

WILLIAM HURD
Solicitor General
ROGER L. CHAiFFE
Senior Assistant Attorney General
STEWART T. LEETH
Assistant Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-6957 (voice)
(804) 786-0034 (fax)

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