US Supreme Court Briefs

No. 99-1257



IN THE SUPREME COURT OF THE UNITED STATES

CAROL M. BROWNER ADMINSTRATOR OF
ENVIORONMENTAL PROTECTION AGENCY

V.

AMERICAN TRUCKING ASSOCTIATION INC


MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION AND
CALIFORNIA CHAMBER OF COMMERCE IN SUPPORT
OF RESPONDENTS AMEIRCAN TRUCKING ASSOCIATIONS, INC., ET AL


FILED SEPTEMBER 11,2000



This is a replacement cover page for the above referenced brief filed at the I U.S. Supreme Court. Original cover could not be legibly photocopied


QUESTION PRESENTED

Whether the court of appeals correctly rejected the Environmental Protection Agency's standardless interpretation of Sections 108 and 109 of the
Clean Air Act, and remanded for EPA to fashion and apply a proper interpretation of the Act.


I

MOTION FOR LEAVE TO FILE
BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal Foundation and the California Chamber of Commerce respectfully request leave of the Court to
file this brief amicus curiae in support of Respondents, American Trucking Associations, Inc., et a?.' Counsel for American Trucking Associations and
fourteen other parties, as well as the Office of the Solicitor General, have consented by letter to the filing of this brief. Original letters of consent will be
lodged with this Court. However, not all parties have responded, necessitating the filing of this motion.

IDENTITY AND INTERESTS OF AMICI CURIAE

Pacific Legal Foundation (PLF) is a nonprofit, public interest organization with thousands of supporters nationwide. Since its establishment in 1973,
PLF has researched and litigated a broad spectrum of public interest issues. PLF advocates a balanced approach to agency rule making and believes that
governmental decisions and policies should reflect a careful assessment of the social and economic costs and benefits involved.

PLF devotes substantial resources to litigation involving environmental issues and becomes involved in cases that raise important public policy
considerations that may create significant legal precedents. PLF is a frequent litigant in this Court and believes its public policy perspective in support of
rational environmental protection and economic rights will provide a necessary viewpoint on the issues presented in this case.

The California Chamber of Commerce (Chamber) is the largest and most broadly based employer representative in California with a membership
base of more than 11,000


Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no counsel for any party in this case authored this brief in whole or part and that no
person or entity made a monetary contribution specifically for the preparation or submission of this brief.


2 3


businesses. These businesses represent every sector of
industrysmall, medium, and largeand employ roughly 1.9
million people.

The California Chamber of Commerce recognizes the
importance of clean air to protect human health and the
environment; however, the Chamber has serious concerns
about the economic impacts the Environmental Protection
Agency's (EPA) revised National Ambient Air Quality
Standards (NAAQS) for particulate matter (PM) and ozone
will have on California businesses. These rules have been
promulgated despite the fact that California's air is
significantly cleaner than it was 25 years ago and is getting
better all the time. In addition, California is already
operating under the most stringent air quality rules in the
nation which places California businesses at a competitive
disadvantage. These rules will only exacerbate this problem.

It will be more expensive for California to implement
these rules than other states because of the incremental costs
in making further emission reductions. Also, pollution
controls like best available control technology, onerous
permitting fees, and stringent enforcement practices will
make operations more 5ostly and complicated fur businesses
that are currently in compliance (or "attainment") areas, but
will fall into noncompliance (or "nonattainment") areas
because of the stricter rules.

Many of the new "nonattainment areas" have no
experience in dealing with such stringent regulations, thus
many businesses will move to "cleaner" districts or relocate
to other states. In California alone, at least three areas will
be added as "nonattainment areas" for particulate matter and
ten others for ozone. These areas will have to develop plans
by a specific date demonstrating how they will meet the new
standards. If these areas do not comply, California could lose
valuable highway funds. This will translate into job losses and
reduced economic opportunities. Higher costs incurred by
industries, including aerospace, electronics, energy, and
pharmaceuticals, will only discourage new businesses and the
expansion of existing facilities. One study predicts that
California could lose
over 10,000 jobs. Moreover, according to the Reason Public
Policy Institute, the new standards could cost California $9. I
billion to implement.

The Pacific Legal Foundation and the California
Chamber of Commerce are particularly concerned about the
unwillingness of EPA to consider impacts on small business
and the lower court's determination that EPA must not
consider costs and technological feasibility in setting air
quality standards. This is particularly troubling because of
concerns that the rules are not based on sound science.

According to the National Center for Policy Analysis
(NCPA), BriefAnalysis, No. 236, July 17, 1997, even
members of EPA's own Clean Air Scientific Advisory
Committee (CASAC) disagree on the need for stricter
standards. Although the EPA Administrator claims the
science supporting the new rules is indisputable, CASAC was
split on what standards to set, if any. Some committee
members thought "no standards are justified because there is
no clear evidence that setting a standard would yield tangible
health benefits." Id. at 2. The remaining members of the
committee could not agree on whether current standards are
too strict or not strict enough. Id.

Also, NCPA reports that the public never had an
opportunity to review the relevant scientific data because the
primary studies used to justify the ozone standards had not
been released by the Harvard researchersnot even to the
EPA. Id. Moreover, there is evidence that the new standards
may have an adverse effect on public health and welfare.

Initially, the EPA estimated the new standard for
particulate matter alone would save annually more than
40,000 people from premature death. Id. But later, the EPA
"revealed that this figure is the total number of lives
estimated to be saved by all clean air regulations." Id. Then
the EPA claimed that 20,000 lives would be saved per year
by the new particulate matter standard50% less than its
original estimate. Id. Three months after proposing the
standard, "the EPA once again reduced its estimate after an
outside researcher found a simple mathematical error in one
of [EPA's] key studies." Id. "This time the EPA reduced the
estimated lives saved by another 25





4 5


percent, to 15,000." Id. "The discovery of this error has led
some analysts to question the EPA's entire statistical
analysis." Id. It was Dr. Kay Jones, former senior advisor on
air quality at the President's Council on Environmental
Quality during the Carter administration, who discovered
the error. Dr. Jones completely reanalyzed the EPA's
estimates and concluded the number is closer to 840 lives
saved. Id.
For the foregoing reasons, Pacific Legal Foundation
and the California Chamber of Commerce move to file a
brief amicus curiae in this case.

DATED: September, 2000.

Respectfully submitted,


Moreover, ground-level ozone has health benefits EPA
ignored. Ozone screens out potentially deadly ultraviolet
radiation. Id. According to the Department of Energy, the
required ozone reduction would: (I) "Increase malignant
cancers, causing 25 to 50 new deaths a year;" (2) "Cause as
many as 260 new cases of cutaneous melanoma and 11,000
new cases of nonmelanoma skin cancer;" and (3) "Cause
between 13,000 and 28,000 new incidences of cataracts
each year." Id.
M. REED HOPPER
Counsel of Record
Pacific Legal Foundation 10360 Old Placerville Road,
Suite 100
Sacramento, California 95827
Telephone: (916) 362-2833
Facsimile: (916) 362-2932
Counsel for Amici Curiae
Pacific Legal Foundation and
Caltfornia Chamber of commerce
Some analysts estimate that the revised ozone and PM
rules "will eliminate 220,000 jobs and cost the average
household about $1,200 per year in discretionary spending."
Id. According to the American Thoracic Society, poverty is
the number one risk factor fix asthma; therefore, the new
rules "will worsen health by increasing unemployment and
lowering household income." Id. This is the conclusion of
Dr. Wendy Gramm, former administrator of the Office of
Regulatory Affairs in the United States Office of
Management and Budget (0MB), and Susan Dudley, vice
president and director of environmental analysis at
Economists, Inc. Id. Based on 0MB estimates "that for
every $9 million to $12 million decline in aggregate
personal income one life is lost and EPA cost estimates for
the rules, Gramm and Dudley found that the new ozone
standard alone could result in 7,000 deaths a year." Id
This is the type of balanced analysis the EPA should
do, but has not done, to ensure its environmental regulations
are reasonable and beneficial. Clearly, this case will set a
precedent affecting numerous statutory schemes and
literally millions of lives. Regulations that impose
bureaucratically defined concepts for safety, environmental
protection, or economic relationships must take into
account the economic and social costs of those regulations.





TABLE OF CONTENTS
Page
QUESTION PRESENTED
TABLE OF AUTHORITIES xi
STATEMENT OF THE CASE
SUMMARY OF THE ARGUMENT 3
ARGUMENT 4

I. THE CLEAN AIR ACT DOES NOT PLAINLY
SATISFY THE NONDELEGATION DOCTRINE 5
A. This Case Involves a Sweeping Delegation
of Power on a Par with Schechter 5
B. Neither the Statute Nor EPA Provide Any
Guiding Principles to Determine the Level at
Which NAAQS Must Be Set 7
C. Because of a Lack of Guiding Principles the
EPA Acted Arbitrarily in Setting NAAQS for
Ozone and Particulate Matter 9
II. THIS COURT SHOULD READ THE STATUTE
TO AVOID A CONSTITUTIONAL ISSUE 11
III. AN INTELLIGIBLE PRINCIPLE CAN BE
EXTRACTED FROM SECTION 109 OF ThE
CLEAN AIR ACT THAT CHANNELS THE EPA'S
DECISION MAKING 17
CONCLUSION 19



II


TABLE OF AUTHORITIES

111


TABLE OF AUTHORITIESContinued
Page
Cases

ALA. Schechter Poultri' Corp. v. United States, 295 U.S.
495 (1935) 5

American Trucking Associations v. Environmental Protection
Agency, 175 F.3d 1027 (D.C. Cir. 1999). . . .
Califano v. Yamasaki, 442 U.S. 682 (1979) 15-16

City of Amsterdam v. Ilelsbv, 37 N.Y.2d 19,
371 N.Y.S.2d 404, 332 N.E.2d 290 (1975) 7
Greene v. McElroy, 360 U.S. 474 (1959) 13-14
Loving v. United States, 517 U.S. 748 (1996) 12

Mistretta v. United States, 488 U.S. 361 (1989) . . 12-13, 15
Natural Resources Defense council v.
Environmental Protection Agency,
824 F.2d 1147 (D.C. Cir. 1987) 19
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)
5
Statutes and Regulations
42 U.S.C. 7408(a)(l)(A)
I
7408-09
7409(b) 1
62 Fed. Reg. 38,688 (1997)
12
NI iscellaneous

Association of Particulate Matter Components with Daily
Mortality and Morbidity in Urban Populations, Part II,
Sensitivity Analysis, Research Report 95, Health Effects
Institute,
236 (August 2000) II

Kenneth CuIp Davis, Administrative Law
Treatise 176 (Second Printing 1979) 5-6, 17-18
Page

Kenneth CuIp Davis, Administrative Law
Treatise 211 (Second Printing 1979) 17

Michael Richard Dimino, D.C. Circuit Revives Nondelegation
Doctrine.. . Or Does It?,
23 Harv. J.L. & Pub. Pol'y 594 (Spring 2000) 7





I

STATEMENT OF THE CASE

The Clean Air Act sets up a scheme to regulate air pollutants the "emissions of which, in [the Administrator's] judgment cause or contribute to air
pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. 7408(a)(l)(A). The Administrator must publish "air
quality criteria" for these pollutants and establish national ambient air quality standards (NAAQS) based on these criteria. See id. 7408-09. The
standards are of two types "primary" and "secondary." A "primary" standard indicates a concentration level "requisite to protect the public health" with
an "adequate margin of safety." Whereas a "secondary" standard indicates a concentration level "requisite to protect the public welfare." Id. 7409(b).

On July 18, 1997, the Environmental Protection Agency (EPA) adopted new, stricter national ambient air quality standards for ground-level ozone
(smog) and particulate matter (soot). Public outcry over the severity of these standards resulted in congressional oversight hearings and scores of suits
from industry, states, and other parties challenging the legality of the standards. Among others, the grounds for suit included an argument that the EPA
construed Sections 108 and 109 of the Clean Air Act "so loosely as to render them unconstitutional." American Trucking Associations v. Environmental
Protection Agency, 175 F.3d 1027, 1034 (D.C. Cir. 1999) (A TA). The Court of Appeals agreed:

Although the factors EPA uses in determining the degree of public health concern associated with different levels of ozone and PM [particulate
matter] are reasonable, EPA appears to have articulated no "intelligible principle" to channel its application of these factors; nor is one apparent
from the statute. The nondelegation doctrine requires such a principle. See .1. W Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 72 L. Ed.
624, 48 S.Ct. 348 (1928). Here it is as though Congress commanded EPA to select "big guys," and EPA announced that it would evaluate candidates
based on height and


2
3


weight, but revealed no cut-off point. The
announcement, though sensible in what it does say, is
fatally incomplete. The reasonable person responds,
"How tall? How heavy?"

ATA, 175 F.3d at 1034.

EPA regards ozone definitely, and PM likely, as
nonthreshold pollutants, or pollutants that have some
possibility of adverse health effects at any level above zero.
Thus, the court found EPA's explanations for choosing one
standard over another amounted to nothing more than
assertions that stricter standards mean less pollution and less
harm while less strict standards mean more pollution and
more harm. According to the court:

Such arguments only support the intuitive proposition
that more pollution will not benefit public health, not
that keeping pollution at or below any particular level
is "requisite" or not requisite to "protect the public
health" with an "adequate margin of safety," the
formula set out by 109(b)(l).

Id. at 1035.

Another ground for suit was the claim that the EPA
must consider costs, technological feasibility, and other
nonhealth factors in setting the ozone and PM standards.
However, the court rejected this claim. Specifically, with
respect to costs, the court held: "As this court long ago made
clear, in setting NAAQS under 109(b) of the Clean Air
Act, the EPA is not permitted to consider the cost of
implementing those standards. See Lead Industries, 647 F.2d
[1130,] 1148 (DC Cir. 1980)." Id. at 1040.

The court also rejected the argument that EPA erred in
failing to consider detrimental health effects that are
traceable to the cost of complying with the revised national
ambient air quality standards. Citing a previous decision in
the D.C. Circuit, the court held "it is only health effects
relating to pollutants in the air that EPA may consider." Id.
at 1041.
Nevertheless, the court did hold that EPA must
consider not only the maleficent effects of a pollutant but
also the beneficent effects. The court observed that the
presence of ground-level ozone causes respiratory problems
in some people but it also shields people from the deleterious
effects of ultraviolet radiation that can cause certain forms
of cancer. Id. at 1052.

Ultimately, the court determined that the standards not
only violated the nondelegation principle but that the ozone
standard could not be enforced due to restrictions in other
provisions of the Clean Air Act. The court also invalidated
the PM standard as arbitrary and remanded to the agency to
select a new standard.

Both sides filed petitions for writ of certiorari in this
Court. The EPA sought review of the nondelegation
determination, among other things, while the opposing
parties sought review of the scope of Section 109. Review
was granted in both instances and separate briefing is required
in each case. This case deals with the delegation issue.

SUMMARY OF THE ARGUMENT

Contrary to the claims of Petitioners, Section 109 of
the Clean Air Act does not plainly satisfy the nondelegation
doctrine. Rather, the nondelegation doctrine is not satisfied
because the authority granted EPA under the Clean Air Act is
as sweeping as that struck down by this Court in Schechter.
In addition, neither the EPA nor the Clean Air Act provide
the Administrator with an "intelligible principle" to channel
her discretion in setting NAAQS. And, as the court below
found, because of a lack of a guiding principle, the
Administrator acted arbitrarily when she adopted emissions
standards for ozone and particulate matter.

However, to avoid the harsh remedy of invalidating the
Clean Air Act, or one of its provisions, this Court should
adopt a construction of the Act that avoids the
constitutional conflict. In both Greene and Yamasaki, this
Court "assumed that Congress intended" to afford those
affected by the agency action certain constitutional
safeguards. This Court read into





4 5


the statute or law a construction that avoided a constitutional
issue. This rationale applies equally to the nondelegation
doctrine. This Court should assume, as it did in Greene and
Yamasaki, that, whether the statute expressly states so or
not, Congress intended EPA to apply the Clean Air Act in a
manner that would not allow EPA unfettered discretion to
usurp the role of Congress in making the basic policy choices
covered by the law. Congress intended, and the Act requires,
that EPA adopt an "intelligible principle" that upholds the
balance of power in our system of government and deters
arbitrary agency action. Therefore, Section 109 of the Clean
Air Act requires the Administrator of the EPA to base her
decisions on clearly articulable standards that demonstrate for
the court that EPA is acting consistent with the will of
Congress.

The court below believed an "intelligible principle"
could be extracted from Section 109 of the Clean Air Act and
even suggested some possibilities. One approach suggested by
the court, the most practical approach, would involve a cost-
benefit analysis. However, the court argued this approach was
precluded by the cases in the D.C. Circuit that held EPA may
not consider nonhealth factors in setting NAAQS. But these
cases are wrong. They don't adequately account for the plain
text of the Act that requires EPA to set emission standards
with an "adequate margin of safety." Where a pollutant, such
as ozone or particulate matter, poses a health risk at any
level above zero, the EPA must consider nonhealth factors,
including cost. For these reasons, this Court should require
EPA to identify determinate and binding principles to guide
the Administrator's decision making as to the level of
emissions required to protect public health and safety and
declare, as a matter of law, that cost-benefit analysis is such a
principle.

ARGUMENT

Petitioners claim that "[b]ecause Section 109 [of the
Clean Air Act] plainly satisfies the nondelegation doctrine,
there is no need to consider.., whether EPA should have read
Section 109 more narrowly to avoid a constitutional issue."
Brief for the Petitioners at 26 n.20. But Petitioners are
wrong. Section 109, at least as interpreted by EPA, does not
plainly satisfy the
nondelegation doctrine; therefore, this Court
should read the statute to avoid a
constitutional issue.

I

THE CLEAN AIR ACT DOES NOT PLAINLY
SATISFY THE NONDELEGATION
DOCTRINE
The nondelegation doctrine is not
satisfied in this case because (1) EPA exercises
unprecedented power through the Clean Air
Act; (2) neither the statute nor EPA provide
any guiding principles for determining the
level at which emission standards must be set;
and (3) because of a lack of guiding principles,
EPA has acted arbitrarily in setting NAAQS
for ozone and particulate matter.

A. This Case Involves a Sweeping Delegation of
Power on a Par with Schechter

In noting that this Court has only twice
struck down a statute based on
nondelegationPanama Refining Co. v. Ryan,
293 U.S. 388 (1935), and A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495
(1 935)Kenneth Davis argues that the key
may lie in the scope of the challenged law. As
to the Panama case, "parts of the Act
provided for 'delegation running riot.' "
Kenneth CuIp Davis, Administrative Law
Treatise 176 (Second Printing 1979). And,

[t]he Schechter case involved the most
sweeping congressional delegation of all
time. True, the standards, in the sense of
the statutory phrases expressing policy,
were the same as those in the Panama
casethe statements in Title I of the
National Industrial Recovery Act. But
the delegation was not merely of a small
power to determine
t
whether and when a prescribed provision
should become effective; the delegation
included power to approve detailed codes
to govern all business subject to federal
authority. Not the vagueness of all the
standards but the scope of the delegation
distinguishes the Schechter case from all
others. The Court's opinion is devoted
mainly to discussion of standards, but the
court did declare: "In view of the





6 7


scope of that broad declaration, and of the nature of the
few restrictions that are imposed, the discretion of the
President in approving or prescribing codes, and thus
enacting laws for the government of trade and industry
throughout the country, is virtually unfettered."

Id.

This case involves a similarly sweeping delegation. To
meet its statutory mandate to establish NAAQS "requisite to
protect the public health" with an "adequate margin of
safety," the court below acknowledged that EPA could
eradicate health risks by setting emission limits to zero, even
if it meant dismantling the industrial state:

A zero-risk policy might seem to imply de-
industrialization, but in fact even that seems inadequate
to the task (and even if the calculus is confined to direct
risks from pollutants, as opposed to risks from the
concomitant poverty). First, PM (at least) results from
almost all combustion, so only total prohibition of fire
or universal application of some heretofore unknown
control technology would reduce manmade emissions to
zero. See PM [EPA] Staff Paper at IV- 1. Second, the
combustion associated with pastoral life appears to be
rather deadly. See World Bank, World Development
Report 1992: Development and the Environment 52
(1992) (noting that "biomass" fuels (i.e., wood, straw,
or dung) are often the only fuels that "poor households,
mostly in rural areas" can obtain or afford, and that
indoor smoke from biomass burning contributes to acute
respiratory infections that cause an estimated 4 million
deaths annually among infants and children").

ATA, 175 F.3d at 1038 n.4.

Likewise, in his article critiquing the case at bar,
Michael Dimino alludes to the broad scope of agency power
under the Clean Air Act and concludes:
[T]he delegation to the EPA in the Clean Air Act
authorizes the EPA to balance public health against the
entire industrial economy. This exceeds any delegation
of authority previously upheld under Article I.

Michael Richard Dimino, D.C. Circuit Revives Nondelegation
Doctrine. . . Or Does It?, 23 Harv. J.L. & Pub. Pol'y 594
(Spring 2000). See also City of Amsterdam v. Helsby, 37
N.Y.2d 19, 371 N.Y.S.2d 404, 332 N.E.2d 290, 299 (1975)
("the desideratum should be safeguards proportionate to the
grant; the larger the grant, the greater the safeguards
required").

Thus without some intelligible principle to guide the
Administrator's broad discretion under Section 109, the Clean
Air Actmuch like the statutory provisions involved in
Panama and Schechterdoes not plainly satisfy the
nondelegation doctrine.

B. Neither the Statute Nor EPA Provide Any Guiding
Principles to Determine the Level at Which
NAAQS Must Be Set

What the court below found most troubling about the
standard-setting process under Section 109 of the Clean Air
Act was the Administrator's failure to articulate an
"intelligible principle" to channel her consideration of the
various factors she must weigh in setting NAAQS. SeeATA,
175 F.3d at 1034. "The nondelegation doctrine," the court
concluded, "requires such a principle." Id. As the court
explained:

Here it is as though Congress commanded EPA to select
"big guys," and EPA announced that it would evaluate
candidates based on height and weight, but revealed no
cut-off point. The announcement, though sensible in
what it does say, is fatally incomplete. The reasonable
person responds, "How tall? How heavy?"

Id.

Although the court approved the factors the
Administrator considers to establish NAAQS, such as the
severity of effect, certainty of effect, and size of population
affected, the court





8 9


believed these considerations did not go far enough in
defining an acceptable level of risk.

These criteria, long ago approved by the judiciary, see
Lead Industries Ass 'n v. EPA, 208 U.S. App. D.C. 1,
647, F.2d 1130, 1161 (D.C. Cir. 1980)
("Lead Industries"), do not themselves speak to the
issue of degree.

ATA. 175 F.3d at 1035.

As the court points out, EPA is given to defending its
decision not to adopt a more severe emission limit on the
basis that there is greater uncertainty about health effects at
the lower levels. In this case, for example, EPA claims it is
inappropriate to reduce the ozone standard from 0.08 to
0.07 ppm because the more serious effects are less certain at
the lower limit and the lower limit is closer to background
levels. Id. at 1036. But, the court correctly observes that
"the increasing-uncertainty argument is helpful only if some
principle reveals how much uncertainty is too much." Id.
After all, the same could be said for the 0.08 ppm level as for
the 0.07 ppm level. 0.08 ppm has less certain health effects
than 0.09 ppm and it is closer to background levels too. The
principle EPA invokes to set each level of emissions is,
according to the court, simply that it is "possible, but not
certain" that health effects exist at that level. ATA, 175 F.2d
at 1036. But this principle could just as easily justify a
standard of zero. Id.

In this case, EPA has provided no limiting principle,
nor pointed to such a principle in the statute. Rather, EPA's
explanations for its ozone and particulate matter standards
amount to mere assertions

that a less stringent standard would allow the relevant
pollutant to inflict a greater quantum of harm on public
health, and that a more stringent standard would result
in less harm. Such arguments only support the intuitive
proposition that more pollution will not benefit public
health, not that keeping pollution at or below any
particular level is ''requisite'' or not requisite to ''protect
the public
health" with an "adequate margin of safety," the

formula set out by 1 09(b)( 1).

Id. at 1035.

The result of the EPA's indefinite approach to setting
NAAQS is that the Administrator is "free to pick any point
between zero and a hair below the concentrations yielding
London's Killer Fog," whereby 4,000 deaths in one week are
attributed to high levels of soot in the air. Id. at 1037. Thus,
in the absence of an intelligible principle to guide the
Administrator in setting NAAQS, the statute does not plainly
satisfy the nondelegation doctrine.

C. Because of a Lack of Guiding Principles the EPA Acted
Arbitrarily in Setting NAAQS
for Ozone and Particulate Matter

In support of their claim that the Administrator is
cabined by strict standards, Petitioners recite the complexity
of the Clean Air Act, the opportunity for public input and
the specific criteria that the Administrator must consider to
set NAAQS. See Brief for the Petitioners at 24-25. But these
factors do not go to the crucial question of degree (critical to
the court below). Nor do they constitute a meaningful guide
for, or constraint on, agency rule making as evidenced by the
EPA's arbitrary adoption of ozone and particulate matter
standards in this case. The court below had good cause to find
the Administrator acted capriciously and remand the rules
back to the agency for reconsideration and adoption of
determinate and binding standards.

Although Petitioners imply the experts the
Administrator consulted were supportive of her adoption of
the 0.08 ppm ozone standard, nothing could be further from
the truth. Section 109(d) of the Act establishes the Clean Air
Scientific Advisory Committee or CASAC. This eminent
scientific committee reviews the evidence on which the
Administrator relies and makes recommendations for
NAAQS. With respect to the ozone standard, however, the
advisory committee was unable to make a scientific
recommendation. Citing lack of conclusive studies and the
fact that ozone is a nonthreshold pollutant that could have
adverse health effects at any




10 11


concentration, the committee acknowledged the selection of
an ozone standard above zero must be a matter of policy
rather than science. Thus, the CASAC members offered only
what they termed "personal preferences." Four experts
favored an ozone standard of at least 0.09 ppm, whereas
three experts favored 0.08 ppm, and one expert favored a
range of 0.08-0.09 ppm. See Brief for Cross-Petitioners
(related case 99-1426) at 7. The court below rejected the
CASAC "recommendations" as baseless. ATA, 175 F.3d at
1035-36.

Moreover, the EPA refused to allow CASAC to review
scientific literature that showed the positive health effects of
ground-level ozone. Brief for Cross-Petitioners at 8. The
United States Department of Energy sought to impress the
importance of this literature on CASAC with testimony that
the ozone standard proposed by the Administrator would
produce approximately 2,000 to 11,000 additional cases of
skin cancer per year, including 25 to 30 deaths per year, and
28,000 additional cases of cataracts annually. i'd. at 9. The
Office of Management and Budget also concluded that the
adverse effects of the Administrator's ozone standard would
be comparable in magnitude to the positive effects of the
standard. Id. CASAC members expressed an interest in
reviewing the literature on this subject and "EPA conceded
that DOE's concern 'could be big,"' but the Administrator
prohibited a consideration of the data. Id. This crabbed view
of what the Clean Air Act required caused the circuit court to
opine:

[I]t seems bizarre that a statute intended to improve
human health would, as EPA claimed at argument, lock
the agency into looking at only half of a substance's
health effects in determining the maximum level of
that substance.

ATA, 175 F.3d at 1052.

Scientific support for the EPA's particulate matter
standard was no greater than that provided for ozone.
CASAC was split on the level of emissions that should be
regulated for certain types of particulate matter. With
respect to fine particulate matter only two of the twenty-
one experts on the advisory committee endorsed the
standard proposed by the
Administrator while eight experts opposed any such
standard. Brief for Cross-Petitioners at 15. According to the
CASAC report, those in opposition "'were influenced, to
varying degrees, by the many unanswered questions and
uncertainties regarding the issue of causality,"' particularly
the inconclusiveness of epidemiological studies on which the
Administrator relied. Id.

Moreover, these epidemiological studies were not made
available for public review and comment. Only after the
regulations had been adopted and Congress demanded a
review of the data did EPA submit the data to the Health
Effects Institute (HEI) for re-analysis. HEI only recently
released the results of its study, about three years after the
EPA finalized its regulations. While EPA claims the data
prove that particulate matter in the air is responsible for
thousands of deaths each year, justifying onerous regulations
and billions in costs, HEI was considerably less certain. The
institute guardedly concluded: "[I]t is important to bear in
mind that the results of our reanalysis alone are insufficient
to identify causal relations with mortality." Association
ofParticulate Matter Components with Daib' Mortality and
Morbidity in Urban Populations, Part II, Sensitivity
Analysis, Research Report 95, Health Effects Institute, 236
(August 2000).

Contrary to Petitioners' assertions, the statutory and
administrative standards that apply to NAAQS do not cabin
the discretion of the Administrator. To the contrary, her
arbitrary selection of emission limits for ozone and
particulate matter in this case demonstrates, as the lower
court concluded, the danger inherent in a rule-making
process that is not guided by a specific and intelligible
principle. Section 109 of the Clean Air Act does not plainly
satisfy the nondelegation doctrine. Therefore, this Court
should read the statute to avoid a constitutional conflict.

II

THIS COURT SHOULD READ THE STATUTE TO
AVOID A CONSTITUTIONAL ISSUE
Petitioners recognize that the nondelegation doctrine is
"'rooted in the principle of separation of powers.'" Brief for





12 13


Petitioners at 21 (quoting Mistretta v. United States, 488
U.S. 361, 371(1989)). They also recognize that"' [t]he
fundamental precept of the delegation doctrine is that the
lawmaking function belongs to Congress, U.S. Const., art. I,
I, and may not be conveyed to another branch or entity.' "
Brief for Petitioners at 21 (quoting Loving v. United States,
517 U.S. 748, 758 (1996)). Nevertheless, the EPA
Administrator asserts she may set National Ambient Air
Quality Standards pursuant to her own policy preferences
without pointing to any guiding principles to avert arbitrary
decision making. According to the Administrator, the
selection of NAAQS is "largely judgmental in nature" and she
is obliged to follow "no generalized paradigm." 62 Fed. Reg.
38,688 (1997) (to be codified at 40 C.F.R. pt. 50).

Petitioners hold in disdain the lower court's
determination that the Administrator must establish a
"'determinate criterion for drawing lines'" and suggest such a
standard is contrary to the purpose of the nondelegation
doctrine and requires EPA to "supply a single principle that
would enable the court to conclude that EPA's NAAQS are
set at what the court deems exactly the 'right' level." Brief
for the Petitioners at 26-27. But this hyperbolic reading of
the decision below is inaccurate both as to the court's holding
and the result of that holding.

The D.C. Circuit did not require EPA to set a "single
principle" to control NAAQS or to satisfy the court's
subjective belief as to the "right level" of emissions. Rather,
the court directed EPA to develop "determinate, binding
standards for itself" to reduce the likelihood that the
Administrator will "exercise the delegated authority
arbitrarily" and to "enhance the likelihood that meaningful
judicial review will prove feasible." ATA, 175 F.3d at 1038.
This is in full harmony with the purposes of the
nondelegation doctrine and the precedents of this Court.
This Court has said:

Only if we could say that there is an absence of
standards for the guidance of the [agency's] action, so
that it would be impossible in a proper proceeding to
ascertain whether the will of Congress has been
obeyed, would we be justified in overriding its choice of
means for effecting its declared purpose


Mistretta, 488 U.S. at 379 (quoting Yakus, 321 U.S. at 425-
26).

The "absence of standards for the guidance of...
[agency] action" is apparent in this case. Under EPA's
interpretation of the Clean Air Act, it is impossible for a
court to determine whether the will of Congress has been
obeyed. This is a clear violation of the nondelegation
doctrine which would require overriding the statute.
However, as the court below observed, the harsh result of
invalidating the Act can be avoided by proper statutory
constructiona construction that recognizes Congress
intended, and the Act requires, that EPA adopt an
"intelligible principle" that upholds the balance of power in
our system of government and deters arbitrary agency
action.

Consider the case of Greene v. McElroy, 360 U.S. 474
(1959). In that case, this Court considered whether the
President or Congress had delegated to the Department of
Defense, in an industrial security program, the authority to
deny an individual the opportunity to follow his chosen
private profession without the safeguard of a fair hearing.
The petitioner was general manager of a private corporation
that developed for the Armed Forces goods involving
military secrets. Under regulations adopted by the Secretary
of Defense, petitioner was denied security clearance without
access to adverse information or an opportunity to cross-
examine witnesses that allegedly established his Communistic
sympathies. Consequently, petitioner was fired and he was
unable to obtain employment elsewhere. Petitioner sued
claiming the revocation of his security clearance was
unlawful.

The Secretary argued that the President has inherent
authority to maintain military secrets inviolate and that a
statutory grant of authority to revoke a security clearance
without a full hearing may be inferred from congressional
legislation dealing with the armed services. Id. at 495.
However, this Court refrained the question:





14 15


But the question which must be decided in this case is
not whether the President has inherent power to act or
whether Congress has granted him such a power;
rather, it is whether either the President or Congress
exercised such a power and delegated to the
Department of Defense the authority to fashion such a
program.

Id. at 496.

After a recitation of certain principles that "have
remained relatively immutable" in this Court'sjurisprudence,
such as the right to confront one's accusers, this Court found
that neither the President nor Congress had expressly
delegated to the Secretary authority to deprive a private
contractor of his security clearance without a full
evidentiary hearing. An explicit statement, this Court held,
is constitutionally required.

[I]t must be made clear that the President or Congress,
within their respective constitutional powers,
specifically has decided that the imposed procedures
are necessary and warranted and has authorized their
use.

Id. at 507.

And further,

[t]hey must be made explicitly not only to assure that
individuals are not deprived of cherished rights under
procedures not actually authorized, see Peters v.
Hobby, supra, but also because explicit action,
especially in areas of doubtful constitutionality,
requires careful and purposeful consideration by those
responsible for enacting and implementing our laws.
Without explicit action by lawmakers, decisions of
great constitutional import and effect would be
relegated by default to administrators who, under our
system of government, are not endowed with authority
to decide them.

Id.
However, this Court concluded that where
administrative action raises serious constitutional questions,
this "Court has assumed that Congress or the President
intended to afford those affected by the action" traditional
constitutional safeguards. Id. That is, this Court assumed a
statutory construction that avoided a constitutional conflict,
and read into the law a requirement for a fair hearing.

This reasoning is applicable to the case at bar. Like
Greene, this case raises serious constitutional questions about
congressionally delegated authority. As immutable as the
right to confront one's accusers is the bedrock principle of
separation of powers that is upheld by the nondelegation
doctrine inherent in Article I. Indeed, as this Court has
noted, the nondelegation doctrine is ''rooted in the principle
of separation of powers.~~ Mistretta v. United States, 488
U.S. at 371. Thus, this Court may assume that Congress
intended to afford those affected by the Clean Air Act the
traditional constitutional safeguard of a legitimate delegation
of power.

In Greene, this Court found a hearing is statutorily
required for revocation of security clearance although no
statute specifically required such. Likewise, this Court should
find a requirement for a guiding principle in the
establishment of NAAQS under the Clean Air Act.

This Court's decision in Califano v. Yamasaki, 442 U.S.
682 (1979), which relied on Greene, further illustrates this
point. Yamasaki involved a question of procedure under the
Social Security Act. Section 204 of the Act authorized the
government to recoup overpayments of social security
benefits by adjusting future payments. The normal practice
allowed the Secretary of the Department of Health,
Education, and Welfare to make an exparte determination
of overpayment. Only after that determination would the
recipient have an opportunity for an oral hearing, if the
recipient requested it.

This Court found no express provision in the Act
requiring a prerecoupment hearing. However, to avoid a
constitutional conflict, this Court assumed that such a
hearing is statutorily required.





16 17


Due respect for the coordinate branches of govern-
ment, as well as a reluctance when conscious of fall-
ibility to speak with our utmost finality, see Brown v.
Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,
concurring in result), counsels against unnecessary
constitutional adjudication. And if"a construction of
the statute is fairly possible by which [a serious doubt of
constitutionality] may be avoided," Crowell v. Benson,
285 U.S. 22, 62 (1932), a court should adopt that
construction. In particular, this Court has been willing
to assume a congressional solicitude for fair procedure,
absent explicit statutory language to the contrary. See
Greene v. McElroy, 360 U.S. 474, 507-508 (1959).

Yamasaki, 442 U.S. at 692-93 (emphasis added; brackets in
original).

Thus, this Court read into Section 204 of the Social
Security Act a requirement of constitutional regularity that
provided traditional safeguards but avoided the harsh remedy
of invalidating the statute or one of its provisions. This
rationale applies equally to the nondelegation doctrine. This
Court should assume, as it did in Greene and Yamasaki, that
whether the law expressly states so or not, Congress intended
the Clean Air Act to be administered by EPA in a manner
that would not allow EPA unbridled administrative discretion
so as to usurp the role of Congress in making the basic policy
choices covered by the law. Congress intended, and the Act
requires, that EPA adopt an "intelligible principle" that
upholds the balance of power in our system of government
and deters arbitrary agency action. Therefore, Section 109
of the Clean Air Act requires the Administrator of the EPA
to base her decisions on clearly articulable standards that
demonstrate for the court that EPA is acting consistent with
the will of Congress.


III

AN INTELLIGIBLE PRINCIPLE
CAN BE EXTRACTED FROM SECTION 109
OF TIlE CLEAN AIR ACT THAT CHANNELS THE
EPA'S DECISION MAKING

Although the lower court found that EPA's
interpretation of the Clean Air Act violated the
nondelegation doctrine, the court remanded the case to the
agency rather than invalidate the statute.

Where (as here) statutory language and an existing
agency interpretation involve an unconstitutional
delegation of power, but an interpretation without the
constitutional weakness is or may be available, our
response is not to strike down the statute but to give
the agency an opportunity to extract a determinate
standard on its own. Lockout/Tagout I, 938 F.2d at
1313.

ATA, 175 F.3d at 1038.

Remand, the court said, serves the rationales of the
nondelegation doctrine of reducing the likelihood that the
agency will "exercise the delegated authority arbitrarily" and
enhancing "the likelihood that meaningful judicial review will
prove feasible." Id.

Although the court acknowledged the difficulties
inherent in articulating an intelligible principle that will guide
the Administrator in setting the level of emissions for
NAAQS, the court was optimistic that EPA could find such a
principle. Kenneth Davis is equally optimistic:

The weakness ofajudicial requirement of statutory
standards is that legislators are often unable or unwilling
to supply them. The strength ofajudicial requirement of
administrative standards is that, with the right kind
ofjudicial prodding, the administrators can be expected
to supply them.

Kenneth Culp Davis, Administrative Law Treatise 211
(Second Printing 1979).





18 19
The lower court even offered some suggestions. For
example, the court seemed to approve a standard suggested
by the dissent that emission limits reflect controllable human
activity and not uncontrollable natural levels. The problem
in this case was that the EPA never suggested it.

EPA's language, coupled with the data on background
ozone levels, may add up to a backhanded way of saying
that, given the national character of NAAQS, it is
inappropriate to set a standard below a level that can be
achieved throughout the country without action
affirmatively extracting chemicals from nature. That
may well be a sound reading of the statute, but EPA has
not explicitly adopted it.

ATA, 175 F.3d at 1027, 1036.

The court suggested the familiar "more probable than
not" criterion might be appropriate in some cases and even
recommended EPA take a close look at the standards utilized
by the State of Oregon (which the court discussed at length)
in establishing its health plan for the poor. i'd. at 1039.

But the most practical standard the court suggested for
an "intelligible principle" is a cost-benefit analysis. Id. at
1038. This approach would address the concerns of
Respondents and avoid a constitutional conflict. The only
problem the court found with this approach is the circuit's
own cases that interpret Section 109 to bar EPA from
considering any nonhealth factors in setting NAAQS.
However, these cases are wrong.

As we argued in the companion case (99-1426) to this
case, Section 109 of the Clean Air Act requires the EPA to
set ambient air quality standards to protect public health and
welfare, but with "an adequate margin of safety." That term
implies discretion and requires the EPA to consider
nonhealth factors. In interpreting a similar term under
Section 112, that requires the EPA to set standards for
hazardous pollutants with "an ample margin of safety," the
D.C. Circuit Court of Appeals determined that term does not
preclude the EPA from considering costs, technological
feasibility, or other nonhealth
factors. See Natural Resources Defense Council v. Environ-
mental Protection Agency, 824 F.2d 1147 (D.C. Cir. 1987)
(Vinyl Chloride). Rather, the court determined the text of the
statute granted considerable discretion to the EPA to set
emission standards and that such discretion is necessary
because of the scientific uncertainty associated with
determining a safe level of exposure for substances for which
there may be no "risk-free" limit. The court held that a
determination of what is "safe" must be made only with a
consideration of health-related factors, but that the EPA had
wide latitude in what it could consider to set the appropriate
margin of safety.

The language of Section 109 is almost identical to the
language of Section 112. Therefore, the term "adequate
margin of safety" should be understood to mean, as with
Section 112, that EPA can consider nonhealth factors in
setting NAAQS. In fact, since ozone and particulate matter
are considered "nonthreshold" substancessubstances that
may affect health at any exposure level above zeroit would
be hard to credit how the EPA could set an "adequate margin
of safety," except at zero emissions, without a consideration
of nonhealth factors.

For these reasons, this Court should determine that EPA
must extract an "intelligible principle" from Section 109 of
the Clean Air Act to channel its decision making and that a
cost-benefit analysis is, as a matter of law, such a principle.

CONCLUSION

Section 109 of the Clean Air Act does not plainly
satisfy the nondelegation doctrine. To the contrary, without
an "intelligible principle" by which to measure the level of
risk, the Act plainly violates the nondelegation doctrine.
However, this Court can avoid a constitutional conflict by
assuming, as it has in other cases, that Congress intended the
EPA to apply the Clean Air Act in a constitutional manner;
that is, with some





20

"intelligible principle" that would avert arbitrary agency action. Such a principle is the cost-benefit analysis. The Act does not preclude such analysis. It
requires it.

DATED: September, 2000.

Respectfully submitted,

M. REED HOPPER
Counsel of Record
Pacific Legal Foundation
10360 Old Placerville Road, Suite 100
Sacramento, California 95827
Telephone: (916) 362-2833
Facsimile: (916) 362-2932

Counsel for Amici Curiae
Pacific Legal Foundation and
California Chamber of Commerce

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