US Supreme Court Briefs

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


ii
TABLE OF AUThORITIES

CASES

Amalgamated Meat Cutters v. Connally,
337 F. Supp. 737 (D.D.C. 1971) 8
American Lung Association v. EPA,
134 F.3d 388 (D.C. Cir. 1998), cert. denied,
120 S.Ct. 58(1999) 11

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

Carter v. Carter Coal Co.,
298 U.S. 238 (1936) 11

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,
938 F.2d 1310 (D.C. Cir. 1991), on remand,
37 F.3d 665 (D.C. Cir. 1994) .... 11,
14

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

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

Mistretta v. United States,
488 U.S. 361 (1989) 8
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.S.C.7401 2
42U.S.C.7407-7410 2
42 U S C 7408(a)(2)(A), (b)(2) 7
42U5C 7409(b) 2,8
42 U.S.C. 7410(a)(1) 6
42U.S.C.7509 8
42U.S.C.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.1

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.
("C AA"), 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
2
million ("ppm"). 42 U.S.C. 75 11(a). 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

2 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
nonattainment 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 "marginal," "moderatej' "serious,"
'severe," or "extreme." CAA 181(a)(l); 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
modem 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 //www epa..gov/oar!aqwnd96/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. VR
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 tip 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)(1)(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)(10) (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 l10(a)(1); 42
U.S.C. 7410(a)(l). The SIP must "include enforceable emission
limitations 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. 7410(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 $311,000,843
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. Connally, 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 NA.AQS "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)(I). 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." Benzene,
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. US. 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
1
1
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 modern 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, UAW v. 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 iS.

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.

H. EPA's Interpretation of 109 of the Clean Air Act Leads
to Absurd and IJnjnst 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, UAWv. OSHA, 37 F.3d 665,
668 (D.C. Cir. 1994).
III. 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,
COMMONWENLTH OF VIRGINIA


By Counsel



MARKL EARLEY
Attorney General of Virginia

WIILLIAJvIHURD
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)

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