US Supreme Court Briefs

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 I
No. 99-1257



IN THE SUPREME COURT OF THE UNITED STATES

CAROL M. BROWNER ADMINSTRATOR OF
ENVIORONMENTAL PROTECTION AGENCY




V.




AMERICAN TRUCKING ASSOCTIATION INC
BRIEF OF RESPONDENTS STATES OF


OHIO,MICHIGAN AND WEST VIRGNIA


FILED SEPTEMBER 11,2000


QUESTION PRESENTED

Whether the court of appeals properly reaffirmed the longstanding principle that, in setting and revising National Ambient Air Quality Standards under
Section 109 of the Clean Air Act, the Environmental Protection Agency may not consider the costs of implementing measures to attain the standards.


ii

TABLE OF CONTENTS
Page



RESTATEMENT OF TIlL QUESTIONS PRESENTED....j
TABLE OF AUTHOR VIlES vi
INTRODUCTION
COUNTERSTATEMEN~1' OF TUE CASE 2
I. THE STATUTORY FRAMEWORK 2
II. THE OZONE RULEMAKING 4

A. The 1996 Proposal; EPAs Interim Policv...4
B. The 1997 Rulemaking 6
III. THE D.C. CIRCUIT DECISION 7

SUMMARY OF ARGUMENT 8
ARGUMENT 10
I. TI-IF COURT NEED NOT ADDRESS TIlE
NON-DELEGATION QUESTiON 10
II. EPA HAS NO AUTIIORITY TO REViSE
THE OZONE STANDARD OR TI-IF
IMPLEMENTING REQUIREMENTS SET
BY CONGRESS IN SUBPART 2 10



ii
i
i
v


TABLE OF CONTENTS - Contl...d
TABLE OF CONTENTS - Comunued
Page

A. EPA'. Revision Of The Ozone
Standard And Implementing
Requirements Conflicts With
Subpart 2 And, Therefore, Is
Unlaw'."

I. EPA's revised standard
conflicts with the one-hour
standard codified in
Subpart
7


2. EPA's revised standard
conflicts with the
classifications and
attainment dates set by
operat ion of law
in Subpart 2
Page
B. The Act Offers EPA No Authority
To Revise The One-Hour Ozone
Standard Or To Implement A New
qennaanl
Ii
'A
The Act offers EPA no general authority
to designate ozone nonattainment
areas, to classify those areas, or to set
dates for attainment of a
revised ozone standard 26
14
2. The Act offers EPA no
general authority to revise the
one-hour ozone standard 28
16
3. EPA's revised standard changes
the Plate planning
requirements imposed by
Subpart 2 19

4. EPA's revised standard conflicts
with Congress's overall approach
to implementing and attaining a
national ozone standard 21
III. EPA'S ACTION TO REVISE THE
ONE-
HOUR STANDARD AND IMPLEMENT A
NEW STANDARD WAS A FINAL
AGENCY ACTION RIPE FOR
REVIEW 32

A. The Court Need Not
Address The
Questions Of Finality Or
Ripeness 32

B. Consideration Of Traditional
Not ions Of Finality And
Ripeness
Leads Inevitably To The
Conclusion
That EPA's Rulemaking
Was Final
Agency Action Ripe For
Review 33





V
vi
'FABLE OF coN'rENTs - Continued
'FABLE OF AUTHORITIES

Pag
e
I EPA, 's rulenhikilig was
agency aclioii' within
Section 307 of ttic Ac~ 34

2. Ihe entire rule COI1NIitUICS
_Tinal'' agency act ion thai is
judicially reviewahic
3. [PA's aclion is ripe br review 38
CON(iLl 'S ION 40


Pag
e

CAS ES

Abboit La/wrainries i. Gardner,
387 U.S. 136(1967) 38
Am('ri(yln Trucking Assoriaiions, Inc. i'. (inited
Shih's L,iI'in)nnwnwl Pru~ec~jo,, A~'c,u 'V.
175 F.3d 1027 modified, 195 E.3d 4
(D.C. Cir. 1999) passim
!h'nncii i' Spear,
520 U.S. 154(1997) 35
Chevron U.S.A. Inc. v. N~uraI Resour('es !)eA'nxc
Coinwil. Inc.,
467 U.S. 837 H984) 11.12
( 'hicu~'o & Southern Air Lines. Inc. V. VVah'rn,an
S .5. Corp.,
333 U.S. 103 (1Q48) 35
1)nis v. MirI,i~g,i 1)cpaiInicnr of !rc'asIf rv.
489 U.S. 803 (1989) 22
Davhm Board f Ld. v. l?rinkman,
433 U.S. 406 (1977) 12
LTSI Pipeline Pioject i'. Missouri,
484 U.S. 495 (198X) 11
federal Trade Commissian 1'. .~1a1I(Iard Oil.
449 U.S. 232 (1980) 34
P00(1 aiid IJrug Admin. V. Brown & Williwnson
I ohauo Corp..
U.S. ____ I 2() S. CL 129 I (2000) passim
MCI iCI('(OflIflIUfli(atiul?A Corp. v. America,,
i('I('I)I1t)1IC & ('l('grtlph Co..
512U.S.218(1994) II. 13,31





vii

~ tilE OF AUTHORITIES - Continued

Pag
e


PtI(I/I( (h,.~ & licuric Co. v. State Lneri~v kewnir(e.~
(i'onse,vaiion and

461 US. 190(1983).39 Pu,; of liosion A4wim'
lerminal Associwion 1'.
Rederiaktiel)olaget 'Fra,isailanic.
400 U.S. 62 (1970) 35
5131.1.5.64 (1994) 12


REGU LA~I ION S
40 C.IKR. 50.9(h) 7, 33. 36
40 C.IKR . 50. 10(a) 6
40C.lKR. 5I.3~)() 38
40 C.E.R. Part 93, Subpart A 38


STATJ ViES

Clean Air Act:
42 U.S.C. 7401 a seq 2
Clean Air Act 101(b):
42 U.S.C. 7401(b) II
Clean Air Act *107:
42 U.S.C. 7407 27. 28. 30, 36
Clean Air Act 107(d):
42 U.S.C. 7407(d) 37
Clean Air Act I 07(d)( I ):
42 U.S.C. 7407(d)(I) 18, 26,27,37
viii

TABLE OF AUTHORITIES - Continued
Pag
e

Clean Air Act l07(d)(4);
42 U.S.C. 7407(d(4) 27
Clean Air Act 108:
42 U.S.C. 7408 2. 29
Clean Air Act 109;
42U.S.C.7409 2.11,28
Clean Air Act 109(a):
42 U.S.C. 7409(a) 29
Clean Air Act 109(b);
42 U.S.C. 7409(h) 2. 29
Clean Air Act 109(d):
42 U.S.C. 7409(d) 2
Clean Air Act 110:
42 U.S.C. 7410 2
Clean Air Act 172:
42 U.S.C. 7502 27, 28. 30
Clean Air Act 172(a):
42 U.S.C. 7502(a) 26
Clean Air Act I 72(a)( I):
42 U.S.C. 7502(a)( I) 27, 28, 37
Clean Air Act I 72(a)(2):
42 U.S.C. 7502(ai(2) 18,28
Clean Air Act 172(b);
42 U.S.C. 7502(h) 37
Clean Air Act 173;
42 U.S.C. 7503 37
Clean Air Act I 73(a)( 1):
42 U.S.C. 7503(a)( I) 37
Clean Air Act 1 73(a)(2):
42 U.S.C. 7503(a)(2) 37
Clean Air Act I 73(aM5):
42 U.S.C. 7503(a)(5) 37





ix
TAll F; OF ALJTHORI1IES - (ontinued
Pag
e

Clean Air Act I 76:
42 U.S.C. 7506 37
Clean Air Act 176(c);
42 U.S.C. 7506(c) 37
Clean Air Act 181:
42 U.S.C. 7511 passim
('lean Air Act I81(a):
42 U.S.C. 7511(a) 8,17
Clean Air Act 181 (a)( I);
42 U.S.C. 751 l(a)( I) 14, 16, 17. 30
Clean Air Act IX I b)( I), (2);
42 U.S.C. 7511 (bM I). (2) 14. 16
Clean Air Act 181 (b)(2):
42 U.S.C. 751 I(b)(2) 14. 19
Clean Air Act 181 (b)(4);
42 U.S.C. 751 l(b)(4 19
Clean Air Act 182:
42 U.S.C. 7511a 3. 19.20.21
Clean Air Act I 82( a)( I):
42 U.S.C. 7511 a(a)( I) 21
Clean Air Act 182(a)(3):
42 U.S.C. 751 Ia(a)(3) 21
Clean Air Act I 82(e)(3);
42 U.S.C. 751 Ia(e)(3) 20
Clean Air Act I 82(g)( 1):
42 IJ.S.C. 751 Ia(g)(I) 20
Clean Air Act 183:
421J.S.C.7511h 4
Clean Air Act 184;
42 U.S.C. 7511c 4
Clean Air Act I 85(B):
42 U.S.C. 75111 4
TAllY OF AUTHORITIES - Continued
Pag
e

Clean Air Act 307;
42 U.S.C. 7607 10. 34
Clean Air Act 307(b)( I);
42 U.S.C. 7607(b}(l) 3 34
5 U.S.C. 551(13) 34
42 U.S.C. 7502 (1988) 2


FEDERAL REGISTER
61 Fed. Reg. 65716(1996 4
61 Fed. Reg. 65752(1996) 4
61 Fed. Reg. 65754 (1996) 5
61 I~ed.Reg.65756(l996) 6
61 Fed. Reg. 65757(19%) 6
61 Fed. Reg. 65761 (1996) 6
62 Fed. Reg. 38856(1997) 6
62 Fed. Reg. 38857 (1997) 6
62 Fed. Reg. 38863 (1997) 6
62 Fed. Reg. 38867(1997) 6
62 Fed. Reg. 38873 (1997) 7,36
62 Fed. Reg. 38883 (1997) 6
62 Fed. Reg. 38885 (1997) 7
62 Fed. Reg. 38894 (1997) 7. 33, 36
65 Fed. Reg. 45182 (2000) 29
65 Fed. Reg. 45 185 (2000) 29





xi
TABLE OF AUTHORITIES - Continued

Pag
e

I EGISI.A[Iv~ IIISTORx'

H.R. Rep. No. 101 _-49() (1990), reprinted II Senate Comm.
on Env. And Public Works, 103" Cong.. 1st Sess.,
Legislati ic history of' the ( lean Air Act Amendnu'nt~
of 1990, (1993) (" 1990 Legislative II istory")
passim
II .R. Couf. Rep. No. 101952 (1990) reprinted in I I Q9()
i~'g is/alive history 16,20
Senate 1)ebate (January 23, 1990),
reprinted in II / 990 Legislative history
at 4837 ( statemeni of Sen. Chafee) 20
Senate Debate October 27. 1990),
reprinted in I / 99() Lee islative hhiSt( fly
at 948 (comments of Sen. Chafee) 20
H.R. 2323, 101 Cong., Section 18 1(e) (1989),
ds introduced, reprinted in II I 99!)
IA~'islatile history at 4060 1 ~
S. Rep. 100-23 I (1987), reprinted in V I 99()
i.egislaiive history 25
S. Rep. 101-228 (1989) reprinted in V 1990
Legislative history at 8350 22. 23, 25
5. 1894, 00"' Cong., Section 402 (1987).
as reported, reprinted in VI 1990
1.i'~i~hitiic' hiStOry at 9390 25
S.Doc. No. 248. 79th Cong., 2"" Sess. 255 (1946)
35


M IS( I I I A NI K) I J S
38 Admin. L. Rci'. 363. 370 (1986) 13


INTRODUCTION

This case asks a question this Court has
answered many times whether the acts of an
administrative agency go beyond the authority granted by
Congress. Although the case arises in a scient i lic
context and a complex regulatory scheme, the legal
principles are quite simple.

An a(lministrative agency has only those powers
granted by Congress. An agency's ordinary and general
powers may not override Congress's specific instruct ion
and limitation with respect to a particular action or
program. And, wherever Congress has expressed its
intent, an agency may not take coil flicting action.

here, these basic rules apply to limit the power of
the United States Envi ronrilemit al Protect ion Agency
(EPA). Ten years ago, Congress 5~( ike clearly and coin
prehensi vel y to the problem of ozoiie control in this
country. Recognizing the failure of the existing approach,
the complexity and uncertainty of the scieiice, and the
eiiormous costs associated with compliance, Congress
create(1 a detailed program that balances realistic
expectations and requirements for continuing progress.

But just six years later, before Congress's plan
had reached even midstream, EPA began dismantling it.
Although EPA struggled, throughout its rulemaking. to
define the limits of its authority to take these act ions, EPA
apparently has resolved that struggle here, now arguing
that it may change Congress's p1an at any time and in
whatever manner it chooses. As the court of appeals
recognized, if EPA had such unlimited authority, the
congressional scheme would have been stillborn had EPA
taken this action immediately after Congress acted.
Congress could not have iilten(Ied such an illogical result,
and, applying the most basic of legal principles, EPA's
actions in pursuit of such an unauthori ze(l etid must be
reversed.





2
3
(01 JNTERS'UATFMF:Ni' OF ~11I1 CASE

I. rilE STATUTORY FRA~1IK WORK

Prior to amen(Imemit imi 1990. the Clean Air Act 42
U.S.C. 7401 ci seq. (the Act, cited as CAA). applied an
identical statutory program for ozomie amid live other
specified pollutants. i.e.. pollutants for which EPA issued
criteria for meeting air quality Section 109 of the Act. 42
U.S.C. 7409. required EPA to estahl ishi a national
standam~d (a National Ambient Air Quality Standard or
NAAQS) fbr each of these pollutants. The Act also
required EPA to review and revise the criteria amid
standards every five years and to "promulgate such miew
st andards as mnay be appropri ate'' in accordance with
Section I OX. 42 U.S.C. 7408. which requires EPA to establ
isli criteria, and Sectiomi 109(b), 42 U .S.C. 7409(h), which
requires EPA to set national stami(lards reqm.misite to
protect the public health. CAA 109(d); 42 U.S.C. 7409(d).

Omice EPA set the national stamidards, Sect ion
110 of the Act. 42 U.S.C. 7410. required each State to
develop a plan (a State Implementation Plan or S II') to
implememit its own miii x of air pollution control strategies
for meeting each stan(Iard in each (lefimied ''area'' of the
State. Each state plan had to provide l~r attainment of the
national standard within five years of the 1977
amendmnents to the Act, with the possibility of a fiveyear
extemisiorm. In this way, the Act requ i re(l that all areas of
the country not meeting the primary ozone stami(lard. no
matter how far fromim attainmermt, come mit() compl i
arice ''as expeditiously as pract cable but not hater than
Decemnber 31. 1987." 42 U.S.C. 7502(1988).

By 1990. Congress recognized that its historic
approach to comnphiance simply conimandimig thai all
States meet each standard by a fixed (late had Failed
with regamd to ozomie. Mamiv areas had miot met the
ozone standard; some
were a long way from (loimig so. Congress responded to
this comit i miii imig ozomie problem by developing a new
approach amid enact imig a unique programn for ozorme.
In Subpart 2 Of Part D of the amnende(l Act. CAA 181-
185B. 42 U.S.C. 7511-75 1 If, Congress created an
elaborate plami for achievimig miat ional compliance wit Ii
tIme ozone standard, amid specified measum~es that
would ensure contimiue(l compl iamice in the future.
Imitegral to that program is the onehour. 0. 12 parts per
million (0.12 ppni ) standard, which Comigress codified iii
Subpart 2.

As described more fully below, "by operation of
law,'' Subpart 2 classifies areas that have miot achieved
the standard ("nonatt a inmnenm areas'') based impon thiei
r design val tine. which is a rough measure of whether an
am~ea complies with the onehour, 0. I 2 ppmii ozomie
standard. A table in Subpart 2 establishes classifications
ranging from Margimial to Extreme, (lepen(lilig on how far
an area is from meeting the standard, aini(i provides a
specific date by which the areas within each-i class must
attain the standard (ami "attaimimnent date~'). CAA
181:42 U.S.C. 7511.

Subpart 2 also specifies state plan requirements
for each class. The scheme begins with requim~ements
applicable to Marginal areas, amid then adds increasimigly
more stringent requirements for each additional c
hassificat ion further from attainment. TIiese plan
requirements imclude mandatory pol lilt iomi control
measures, annimal emission reduct ions, amid offsets for
emissiomis tromn new or modified stationary soimrces.
Comigress ant ici paled that these requ i reniemits would
apply well into the futtmre, and that they would continue to
apply. miot only dtmrimig the 20year period before the
final ~mttai miment (late. hut until all areas of the country
mucet the 0.12 ppni. onehour standard. CAA 182; 42
U.S.C. 7511 a.

In additiomi to the designation, classification, and
planning requirements. Subpart 2 includes other





4 5


requ i renient s: interstate ozone transfer control, CA A
I 84:
42 U.S.C. 7511 c: EPA guidelines fbr sources of chemicals
that are prccumsoms to the forniat ion of ozone, CAA
183: 42 U.S.C. 75 I I h: amid studies that EPA must
conduct, the results of which must be reported to
Congress. e.g.. CAA 18513: 42 U.S.C. 75 III. As the court
of appeals recognized, "Subpart 2 is the Congress's
comprehensive plan for reducing ozone levels t
linroughout the country. A pflcrican inwAiflg Associations,
Inc. v. United States Invironnicntal Protection Agency,
175 k3d 1027, 1046, mo(litie(l, 195 F.3d 4 (D.C. Cir. 1999):
Petitioner's Appendix (Pet. App.) at 33a.

II. TIlE OZONE RIJLENIAKING

On Jimly IX. 1997, EPA changed Congress's plan
for achieving a national ozone standard. Orm that date,
EPA gave final notice of its revision of the national
standard for ozone, chamiging tIme stami(lar(l from the
omiehoum limit of 0. 12 ppm set by Comigmess. to an
eighithotmr limit of OA)8 ppmn, and in-iposim-ig
reqnmirements (lilferent frormi those mm Subpart 2.

CrossPetitioners, at pages 4Il ot their brief in
Case No. 99- 1426. comprehensively discuss the ozone
rulemaking. The Respondent Slates adopt that discussion
and simply highlight here those aspects of the rulemaking
that relate most directly to tIme issues of EPA's authority
urmder Subpart 2 and the finality and ripeness of EPA's
actiomi.

A. The 1996 Proposal; EPA's Interim Policy

EPA first proposed to revise the onehour
stamidard in a notice of pmoposed rulemaking in 1996. 61
Fed. Reg. 657 16 (1996). At ti-ic sanie t irne, EPA isstmed
an "Interim Imuplemuentat ion Pol icy on New or Revised
Ozorme and Paint icuhate Matter (PNI ) National Ambient
Air Quality Standards (NAAQS)." 61 Led. Reg. 65752
(1996). While this interim policy seinve(l only as guidance
and did not bind
the States or the general public as a matter of law. EPA
issued the policy to "ensure momeutuni is maintained by
the States in the current program while moving toward
developing their plans for implementing" tie new
standards. Id. As such, it represented EPA's preliminary
views on implemnentation of a miew ozone standard.

EPA's interim policy plainly stated that, iii EPA's
view, the specific requiremnents of Subpart 2 do riot
directly apply to implementation of a new or revise(l ozone
standard. It confirmed that EPA intended to revoke the
omie-hour standard for an area inminnediately upon EPA's
approval of a revision to the state's plan (SIP) for
achieving the new standard in that area. 61 Fed. Reg.
65754 (1996). EPA noted, however, that certain aspects
of ti-ic 0. I 2 ppm, one hour standard would he lifted
immediately, even before states submitted plans to
achieve the new standard.

First, the requirement to demonstrate attainment of
the onehour standard by the attainment dates set forth in
Subpart 2 would no longer be necessary because those
dates "will be superseded by a new requirement to attain
the new NAAQS by new dates.'~ 61 Fed. Reg. 65754
1996). This followed from EPA~s belief that "it is
appropriate for areas to shin i ft their efforts to develop
attainment denionstrations from the existing NAAQS to ti-ic
new NAAQS." hi.

Secomid, EPA, throtingh this guidance. revoked
tIme provisions for in~eelassification of an area if it failed
to meet the onehour standard by the applicable
attainmuent dates in Subpart 2. EPA stated that such
areas "need not have to comply with the additional
specified control measures that they would have been
subject to had they been reclassified in accordance with
the ~m~'isi~inis of subpart 2." Id.

Finally, EPA discussed its intent to change amid/or
revoke many of the program requirements imposed under





6

Sin.mbpart 2. As for attainmemit (iemnonst rat iomis br
Serious, Severe, aini(h Extineme areas, EPA recognized
that many of these areas had been unable to complete
plan reqimirements within the schedules provided by
Subpart 2. As such, in light of EPA >~ plamimied
promulgation of a mew standard, "EPA belmeves that after
prom-i-iulgation of a miew or revised O~()IiC NAAQS,
States should mio longer be requimed to provide full
demonstrat ionofattainment SIP's for the I - hour NAAQS;
however, States are obliged to cont imirme attainment
planning toward the new NAAQS." 61 Fed. Reg. 65756
(1996). Meanwhile, EPA proposed to permit States to
submit urban modeling to establish emissiomis
reduinctions, "but not the speci tic nineasumes
minecessary to attain the I hour NAAQS by the
attaininnent dates set forth in stinbparm 2.'' Id. See also 61
Led. Reg. 65757 (I 996)(proposimig to chamige tIme
reqtinireininiemit s fbm' Marginal and Moderate areas); 61
Fed. Reg. 65761 (I 996 ( proposimig to change tIme
requirements for review of mew sources of air pollution).

I. The 1997 Rulemaking

)im July I 8, 1997. EPA pin.mblished a final rule that
issued a new eighthour, 0.08 PPm standard, which
became effective omin Septemnber 16, 1997. 40 C.F.R.
SO.l0(a); 62 Fed. Reg. 38857 (1997). EPA stated that it
based this new standard omi a "policy'' judgment that t lie
new standard is "sufficienti J'' in I ight of "hazards that
mesearch has riot yet i(lenti fied'' amid "uncertainties
associated with inconclusive scientific amid techmiical
imifonnation.'' 62 Fed. Reg .38856. 38857. 38863, 38867
(1997). EPA also asserte(l the right to render a decisiomin
that follows "no generalized paral gin'' that may miot be
amnenable to quant i ticat iomi in terms of what risk is
'acceptable' or army other nietric.'' aml(l t hat is "laingel y
ju(lgmeml ta I i mm miat tin re.'' Id. at 38883.

EPA ackmiowledged tI-mat at the t imiie of its first
proposal, it had interpreted the Act i mm such a way that
the
7

p~~~ioIis of Subpart 2 would riot apply to existing
nomiattainment areas omice a new standard became
effective. EPA stated in its final rulemakiinig, however, that
it had "in~econsidered that interpretation and now
believes that the Act should be interpreted such that the
provisions of subpart 2 continue to apply to ~ozonei
nonattaininent areas for pin.inrposes of achieving
attainment of the current I hour standard." 62 Fed. Reg.
38873 (1997). Once ami area attains the one-hour
standard, however, Subpart 2 wominld rio longer apply.
Id. To codif~y this interpretation. EPA isstined as a final
rule 40 C.F.R .50.9(b), which states, "The I hoiinr
standain~ds set forth in this section will no longer apply to
an area once EPA (leterm umies that the area has air
quality meeting the I-hour standard." 62 Fed. Reg. 38894
(1997).

EPA's action in hums imposed two stamidainds for
parallel ininplemnentationi: the eighthour stan(lard for
areas that met the onehour standar(l, and the onehour
standard for areas that (lid not. For the areas where the
new eight-hour standard would apply. EPA's action
imposed the iiniinplementing requirements that apply to
other po1l utants and that applied to ozoinie prior to 1990.
62 Led. Reg. 38885 (1997).

III. TUE I).C. CIRCUIT 1)ECISION

Iini the D.C. Circninim, the petitioning States and
industry groups (Respomidents here) argued that Subpart
2 codified the oinmehour, 0.12 ppm stainidard and
provided the exclusive nucainis for ozoinie regumlation;
therefore, EPA could not
promulgate a miew ozone stainldar(J. No party, including
EPA, distinguished ''revisiomi of' the standard'' amid
''designation as nonatt ainnieinit'' froinn "enforcement'' or "i
inuplementat ion'' of hat revised standard or noininattai
nment desi gmiat ion. The court, however, did make that
distinction. 1'he court held, first, that EPA may revise the
ozone standard and, based on that revised standard, may
designate areas as nomiattainment, but, secon(l, that EPA
may not imphemeinit the revised





8
9
standard or otherwise implement the designation imi a way
that conflicts with Subpart 2. See Pet. App. at 1 a, 70a.
The court remammde(l, but did not vacate, the new
eightlour standard nini the basis that the stamidard would
not "emigender costly comphiarince activities" in light of its
decision that the stainirlard canmiot be enforced by
virtmme of Sect iomi IX 1(a) (42 U.S.C. 751 Ia). 175 F.3d at
1057; Pet. App. at57a.

In respomise to the D.C. Circuit's opiniomi, EPA
argued for the first time in a petit iomin for rehearing, as it
argues here, that its decision to change the ozone
stamidard was not a fiinial agency action ripe for review.
Instead. EPA argmined, the comm rt 's jinin risdict in win
ended wit hi its review of whet her the statutory
provisions at issue precluded EPA froinn proinrinininlgat
iring the revised standard. On reheariinig, the court
rejected EPA's inipeness argumnent an(1 determined that
EPA's act ion was final and that it was ripe for review.
195 F.3d at 10 I 3: Pet. App. at 77a79a.

SUrVINIARY OF AR(UMENT

In 1990. Comigress created a comprehensive
structume br ozone regulation Subpart 2. That structure
codifies the national onehour standard of 0.12 ppinn,
classifies areas accordiinig to how far they are from
achieving that standard, sets specific dates by which
these areas, according to their classifications, must attain
a specific ozoinie reduction, and imposes plaininimig
requiremiients upon States to enisrinre cont i mimi i ng
progress. This coniprehensi ye scheme and the legislati ye
history to its enactment show that Coinigress rejected the
old approach to ozone regulation --- simply comnmand i inig
Sm ales to comply wi tI-in a standard by a certain date
ainirl iinistead took a more realistic approach to iniat
ionwide ozone compl iamice.

The EPA action at issue here dismantles that st
rminct mmmc. EPA's act ion changes the onehinoin.mr. 0.
12 PPinii
standard to a more stringemit eight-hour, 0.08 ppm
standard. changes the classi ficat iomis and attainment
dates, amid changes the state planning requirements.
Even more, EPA's action ignores Congress's overall
approach to ozone regulation and returns the States to the
uinirealistic and ineffective scheme that Congress
abandoned mi 1990.

EPA has no authority to take these actions. EPA
may not exercise its authority in a way that is
incomisistent with the administrative structure that
Congress enacted into law in Sin.mbpart 2. Although
corinrts generally rlefer to an agency's imiterpretat ion of
the statin.inte it administers, an ageinicy must give effect
to the unambiguously expressed irintent of Congin~ess.
Here, Congress's express intent is that Subpart 2,
including the onehour, 0.1 2 ppm standard and the
coniprehensive implemiiemmting requirements, is the
exclusive scheme for ozone m~egulat ioml in this country
and EPA may not take action in conflict with it.

Nor will EPA find in the Act more general
provinsinons that give broader authority. The provisions
upon which EPA relies expressly exempt from its general
authority the power to designate ozone nonattainment
areas or to classify and set ozone attainmeinit dates. In
addition, EPA 's general authority to revise standards is
limited to "appropriate" changes. Since EPA is unable to
designate or classify ozone nonattainment areas or to set
attainment dates for such areas, it was not "appropriate'
for EPA to revise the oiniehominr standard.

Correctly framed. this case is not merely abommi
innuplementation of a revised standard, as EPA suggests.
Rather, it is about EPA's authority to revise the standard mi
tIme first instance, i.e., its power to revoke Congress's
plan for regulation of ozone and to set into motion
requirements for state action to implement a new am-id
different standard. As EPA concedes, pm'omulgation of an
air standard is undoul-itedly "agency act ion" and subject
to review uinider





I 0

Section 307 of the Act, 42 U.S.C. 7607. Thus, F.PA's
rulemaking leaves no doubt that the issues before this
Court are subject to judicial meview.

Finally. eveini tinder traditional iniot ions of finality
amid ripeness, the serious consequences that l~low
immediately from EPA 's action leave mio doubt that it is
sufficiently final and ripe for review. These inevitable
comisequences also demonstrate the sul-istantial and
widespread impact of' EPA's chainiges. For better or
worse, however, Congin~ess has spoken clearly an(l
comprehiensively to the control of ozone in this cominnit ry.
Congress having spokemi, EPA may riot abrogate the
congressional plan.
ARGUMENT

I. THE COURT NEED NOT AI)I)RESS TIlE NON-
I)ELE( ATION QUESTION.

As the Respondemit States argued mm a brief mi
support of CrossPetitioners in the compamiion case, No.
991426, interpreting the Act in a way that permits
consideration of costs anti other monhealth factors
avoids the need to reach the comist it Lint ional.
minondelegatiomi quest ioinl (Quest ion I ). Iinistead. as
Cross I~eI it ionmers amid our co -Respondents assert, the
Court shotinld vacate EPA's particulate matter standard
amid reniand to the Agency for fumiher proceedings. No
comparable remamid of EPA's ozone stamidard is
necessary, however, becain.inse. as argued below, EPA
had rio authority to revise the one -hour ozone standard.

II. EPA hAS NO AUTHORITY TO REVISE THE
OZONE STANI)ARD OR THE
IMPLEMENTING REQUIREMENTS sF;T IY
CON(;RESS IN SUBPART 2.

The Cleaini Air Act places upoini EPA amid the
States the joiinit responsibility ''to pm~otect and enhance
the (Itinality of
11

the Nation's air resommrces so as to promote the ~~ublic
health amid welfare and the productive capacity of its
population.' CAA 101(b); 42 U.S.C. 7401(b). EPA must
promulgate inmatioinial air standards: the States must
implement them. CAA 109, 110: 42 U.S.C. 7409, 7410.
To be sure, EPA's dminty to promulgate standards is a
responsibility of the highest order. Regardless of how
serious the problem an administrative agency seeks to
address, however, it may not exercise its authority "in a
manner that is iiniconsistemint with the administrative st
ruct mm re that Congress enacted into law." VLSI
Pipelitme Pro feet v. Missouri, 484 U.S. 495. 517 (1988).
Accord MCI Iel('communi(ations ('orp. i'. American
Telephone & Tele%~raph Co .~5 12 U.S. 218, 229 (1994).
Am-id even though agencies are generally emititled to
mIelerence in time interpretation of the statutes they
administer, a reviewing ''court, as well as the agency.
min.mst give effect to the uinmamiibiguously expressed
iinintent of Congress.'' Chei'ron (ISA. Inc. v. Natural
Rcsources Defense ('o,amcil. Inc.. 467 U.S. 837, 84243
(1984). See also Food and I)rug Admin. v. Browii &
Williamson 'lobacco Corp., _____ U.S. _____, 120 S.Ct. 1 291 ,
1300 (2000).

In this case, EPA argues that it may revise and
imnplenient am-i ozone stamidard that is different from
Smmbpart 2 because Congress expressed no other intent.
To argue this, EPA looks first to the general provisions of
the Act. The proper beginning point for determin in g
Congress' s intent with respect to ozone, however, is
Congress's comuprehensive
program for ozone, Subpart 2. To argue that Congress did
not express an intent to preclude EPA from revising the
one hominr standard or imuplemnent ing a standard (Ii
fferent ly, EPA must overlook the key components of
Smmbpart 2 the stamidard, the classifications amid
attainment dates, and the state planning requiren-ients.
EPA must also overlook the overahl structure that these
and oth-ier provisions combimme to create amid the intent
that Congress expressed in Smmbpart 2's overall
regulatory scheinne. While EPA may choose to see





12 13


neither these key components nor the overall strmmcture,
as described below, a clear view of Smmbpart 2 reveals
Congress's compin-ehensive scheme for ozone regulation
and EPA niay not take action in comiflict with it.

Nor may EI~A look beyond Subpart 2 to find
innom~e general provisiomis that appear to give EPA
contrary authority, as the Act offers none. Even beyond
Subpart 2, Congress comisismently expressed the intent
that Smmbpart 2 was the sole mechanisinmi for ozone
regulatioini and that EPA has no am.mt hon ty to iginiore or
ml ismantle it.

lf~ army dom.inbt remains, this Coin.inrt 's inqin iry
into whether Congress has (hirectly spokemm to the
precise qimestioli at mssue is shaped, as it was in I3rou'n
& Willjomson, "at least mm-i some measure, by the nature
of the LlLinestH)n presented." Id., I 20 S.Ct. at 13 14. A
court premises deference to an agency s (~oinlst ruct ioinl
of a statute that it adm i musters on t lie theory that a
statute's ambiguity constitutes an implicit directive from
Comugress to the agency to fill mi the statutory gaps
..S'ee Chevron, 467 U.S. at 844. This Cominrt has
recoginiuzed, however. that in some cases "there may be
reason to hesitate before conclu(hing that Congress has
imitended sminch an implicit delegat ioinm.'' Thow,, &
Williamson, 120 S.Ct. at I 314, citimig Breyer, Jmmdicial
Review of

tttiiiiigti t;PA ii nit
A erstaiidahty (toes iniot chattenge ttie t).C.
('ircuit's ti iid ii g in hat I ~P A has intie aim lii in tv Li revise inline
uione standard Rcs pin ide lit s are lilt prec I nde(t troni argu in g in
ham in ham dcci s john is incorrect. ~ prevailing party. wittiouin
crosspeiniinioning is entitled under I inti is ('on ri 'sI precedents to
urge any grounds wh i cli won tt tend support to the iudgnic nin he
tow.'' thin iett Stics v. X Cii i'nien I t'iiti' Inc ..5 I 3 J.S. 64. 78 ( t
994). quoining t)avfon Rd. ot Ed. v. R,ink,non, 433 t .8. 406, 4 t 9
( t 977). As we algile tiere. it EPA cannot revise intie standard, this
tiiiinri must affirm the tower court judgment because there wnutd be
no sinanitarit tiir EPA to iniptenienin.


Qininestions of Law and Policy. 38 Adinin. L. Rev. 363,
370 I 986)('A court may also ask whethein' the legal
qmmestion is an important orine. Comigress is more likely
to have focused upon. and answered, major questions,
while leaving interstitial matters to answer themselves in
the course mif the statute's daily administration"). Accord
MC'I v. AT&T, 512 U.S. at 231. As tIme couinrt of appeals
recognized, this is just such a case. As the express
language of tIme Act, the legislative history. amid tI-me
overall statutory scheme show, Congress left rio gap for
EPA to fill. Instead, Congress expressed its intent that
Subpart 2 be the exclusive scheme for ozone regulatioti.
EPA may not change Congress's plant.

A. EPA's Revision Of The Ozone Standard
A n(I Iinuplenienting Requirements
Conflicts
With Subpart 2 And, '1'herefore, Is
Unlawful.

I-Tom 1977 until 1990, the Cleat-i Air Act sought to
control ozoinme, as it did the other specified p~lltintants,
by simply commandiinig all ateas of the couinitry to
achieve a set standam~d by a specific deadline. By 1990,
Iinowever, it was clear that this "one size fits all"
approach was not working for ozone. Many areas had
still not achieved the standard; some were a long way
from doing so. With knowledge of this failure, instead of
simply waving its "tnagic wand'' again and commiianding
States to coniply by a certain arbitrary date, I 1.R. Rep. No.
101 49() (1990), reprinted in II Setiate Coniinum. orin Env.
am-id Public Works, 1 03~ Cong.. I ~ Sess., Legislative
History of the Clea,m Air Act Anmendnmeiints of 199!). at
317071 (1993) ("199!) Legislative history"), Congress
crafted a unique and t-i-iore realistic approach to ozotie
compliance Subpami 2.

As describe(l below. EPA's ozone rulemaking
changes Congress's approach for areas that have met
the one hour standard. and EPA argues before this Court
that it has





14 IS


the ant honit~' to go even furl her, to change this approach
for all areas throughout the coumitry. EPA Brief at 20. As
the court of appeals recognized, if EPA had such
unhimnited authority. ('ongress's "scheme would have
beeini stillbom~n had tI-ic EPA revised tIme ozone NAAQS
immediately after the Congress enacted the 1990
atnendinnenints." I 75 F.3d at 1050; Pet. App. at 42a.
Congress could not have intended sitch an I logical
mesinmlt. and EPA's act ioinis in punstinit of sminchi an
em-id inilLinst be reversed.

I. EPA's revise(I standar(I conflicts
with the one-hour standard
codified
in Subpart 2.

Whemi Congress amended the Act mm 1990. it
codified the one-I-tour. 0. 12 ppn ozone standard exist
iming at tIme I inie. ('ongress did so in Section 18 I , which
classi lies areas accordimig to their "designm value,''
which is a measure of whetlinen ant area coin-ill-il ies
with the 0. I 2 PP"~ oiniehiour stainindard. CAA 18 1
(a)( I ); 42 U.S.C. 75 II (a)( 1 )'2 Section IX I. indeed all of'
Subpart 2. begins from this fundainnental point and
mniplemeinits this specific onehour. 0. 12 ppm standard.
Table I classifies areas based on the 0. I 2 ppm
measurement an(l the extent to which the area is
measured to be 0.121 ppm or above. CAA 181 (a)( I),
Table I; 42 U.S.C. 75 1 I (alt I). Table I . All (lesignations are
measure(h fin~om this standard, as are redesignations
and reelassifications if at-i area falls oLint of attainment or
mtsses an attainment deadline. CAA 18 l(bt( I ~, (2); 42
U.S.C. 751 l(b)( I). (2).
Any readimig of Section 18 I that removes the
reterences to the one-hour. 0. I 2 ppm stainindard woinmld
result in completely nullifying that sectiomi a resimlt surely
not intended by Congress. It provides. in clear amid simple
terms. that areas are classified, designated, amid
reclassified according to this onehoin.inr. 0. 12 ppm
stanindard. Any other reading simply revokes lable I in its
entirety.

In fact, the legislative I-inistory suggests that
Congress considered whether EPA should have the
authority to revise the onehour standard and rejected
that approach. The version of Section 181 introduced in
1I.R. 2323 specifically provided for rev i se(1 ozone
stan(Iards:

If the Administrator revises the miational primary
ambient air qit al ity standard for ozone after the
enactinnent of this subpart. the Administrator shall,
within 6 months after the revision, promitlgate
requirements applicable to all areas which have
not attained that standard as of the (late of sitch
revision and shall require revisions in the
applicable implementation plans for srinch areas
within IX months after such-i revision.

I-I.R. 2323, 101st Cong., Section 181(e) (1989), as
introduced, reprinted in II 199!) Legislative Uisiom~v at
4060. Although portions of H.R. 2323 would ultimately fit-id
their way into the final bill, the house Health and
Environinnent Subcommittee rejected this provision in
favor of 1l.R. 3030.~





The "design value is the fourth-highest (laity inaxiniuni ozone
(I incentrat i in in an area iver in Ii ree ci msecuin ye years for wh ic Ii in
here are
sn [tic ie tim data t f that vat tie is less in han r eq ma I inn t). I 2 ppi ii,
then an
a iea xvi It ha xe ii lily in Ii tee expected ~'a I ties above in ham te vet and it
w itt tie in
aintainineitin with tIne ii7one NAAQS.'' 175 lK3d am 1046 it. 6; Pet.
App. at
32a ini6.


the tinat versioti of the Clean Air Act Amendments 01 t 99t). as
repotled in hR. ('onf. Rep. No. tOt -952 1990), reprinted itt 1199!)
Legislative history at 145 1 was an amalganiatioti of a Senate bitt
(S. I 63t)) and tXvo I louse bills (I IR. 3030 and 2323). tIme version
ot S. I 63t) that Congress ultimately enacted was virtually identical
to I t.R. 3t)3t) as passed by the I tominse Xe e I louse t)ebate (May
23, I 99t)). repritinined in II 1 99t') legislative lhxto,v at 31)19.





16 17


See House Debate (May 21. 1990), repririnted imi II /990
Legislative Ilisto,v at 2533. Congress' s rejection of this
provisiomi supports the conclusion that Congress intended
to codify the 0.12 ppm ozone standat~d as the final bill did
not refer to the Admimittistrator's authority to revise the
ozone stan(Iard established imi Subpart 2.

Itt short, Il-ic fundamuental bui Idimig block of
Section 181 amid, therefore, Subpart 2, is Congress's
codification of the onehour, 0. 12 ppm-i-i ozone standard.
EPA's attempt to clinange that shainidard miecessarily
changes the congressional scheme amid. themefore, goes
beyond EPA's atinthority under the Act.

2. EPA's revised standard conflicts
with the classifications and
attainment dates set by operation
of law in Subpart 2.

Cotingress's sensible response to tI-me failure of
tIme old approach to controlling ozorine was to co(li fy the
exist immg standard, classify' areas according to how far
they wem~e front achieviming that standard, and then set
specific (fates by which these areas, according to their
classificat iomin, must attain a specific ozone redLinctiomi.
This cascading approach to ozone attainment not only
allowed areas fintrthest from attaintnent of the 0. I 2 Pl-it~
standard the most timue to achieve the onehour
stamidard. but it also imposed upon those am~eas the most
stringent reqminirements to assist gett iming there.
Congress presented tI-me iiniitial framework for this
approach in Section IX I of the Act.

Sect ott I 8 I provides classifications amid
attainment dates for each amea designated tmonattai
nitnent for ozoite. as these designations existed at the time
of enactment and as they may he revised itt the ~~ture.
CAA 181(a), (b); 42 U.S.C 75 I 1(a). (b . Section IX I
designates these areas "by
operation of law" as Marginal, Moderate, Serious..~Severe
or Extreme, according to how fat they are I~romn meetirtg
the 0. 12 ppm standard. Id

Section IX 1(a)4 also includes Table I , which sets
out, for each classification (Marginal through Extreme), a
date by which to attain a standard of 0. 12 ppmn. CAA I
81 (a); 42
U.S.C. 75 I 1(a). For each of these areas, "the primnary
standard attainment date for ozone shall be as
expeditiously as practicable but not later than tle date
provided in table I
Id. In the case of Severe and Extreme areas, these
attainment dates have not yet occurred. See Table I (for
Severe areas, the date is 20()5; for Extreme areas, it is
2010).

Congress enacted Subpart 2 precisely becammse
the controls of Subpart I had failed to bring at'eas into
attainment with the 0,12 ppm standard. See H.R. Rep. No.
l0I-49() (1990), reprinted itt II /99!) Legislative history at
316974. Rather than treating all areas alike, as EPA mow
proposes, Congress gave areas. (lependimig on their
classification, between three and 20 years to attain time
onehour, 0. I 2 ppm standard. Since Smmbpart 2
extended the time for nonattainment areas to comply with
the onehour standard. Subpart 2 necessarily pm~ecIudes
EPA from requiring areas to comply either more quickly or
with a more stringent ozomine stali(lard.




In P~inrL tt.A. of their brief, Respondents American lninwking
A~sociaho,ins. ci 4. (AlA) tespond to EPA's argument that the title
of Sect it m I 8 1(a) tim i ins in he application ot tab he 1 's cI assi
ticat ions and dates o thin tse des i gnat iorins based on the one
lion r standard at ind. by a great leap oh togi c. at tows EPA ti
apply di [fe re tint ct assi fkat ii tints and at in a inmeinit dates to (hesi
gnat ions based itt in a revised standard. As AlA explainS, in hi~ re
teretince to I 989 nonatin it i tin tuetin t areas ins in tine result oh
an easily explained oversight ainind . in any event, does mint a flect
Sect ii inn 1 8 1 's interpretation.




19
IX


Sectiomm 172 (in Sm.mbpart I of the Act) generally
reqtmires areas to coniply with a primary standard "as
expeditiously as practicable, hut rmot later Iltarm 5 years
from the date such area was designated miomiattaititnent.
CAA 1 72(a)(2(A); 42 U.S.C. 7502(a)(2)(A). If EPA amid
the States weme to take the fm.m Il time auth hon zed itt
Subpart I for mak imtg attamnmttermt designations ami(l
EPA were to approve every possible extension for each
area, all nonattainment areas would have until 2012 to
comply with-i tIme new eight Itour. 0.08 PPttt stattdard.
CAA I 07(d)( I )(A)(B); 42 U.S.C. 7407(d)( I )(A)(B);
CAA I 72(a)(2)(A). (C); 7502(a )(2 )( A), (C)' ''Such
wide (liscretiomi is incomtsistertt, however, with Subpart
2, imi which Congress stripped EPA of (liscretiomi to
(heckle whtich ozone mionattainment at~eas shtottld
receive muome t imume to t~eacIt attamnittient.'' I 75 F.3d at
1049; Pet. App. at 40a.

Moreover, Section 1 8 I gives l.os Amigeles, the
natiomi's otily Extrettie Area, umitil 201() to attaimi the
orme hotir, 0. I 2 ppmtt ozotte standard, amid tI-ic
possibility of extemmdimtg that dea(Il itie to 201 2. EPA's
respomise to the concerti that Los Amtgeles would be
reqttim~ed to attaimi the revised stamtdard itt accordance
with Subpart I ''no later than the satue year Ilmat marks
time outter timime limit for attaining Subpart 2's t)tlehiottr
ozorme standard'' is no respomise at all. EPA Brief at 49.
As the court of appeals found, "it Ihat Los Angeles should
also have to attain a tnot~e stringent ozone standard by
that same year, if not earlier, clearly runs counter to tIme
comnpreI-mettsive enforcement schenme enacted in
Subpart 2.'' 175 F.3d at 1049; Pet. App. at 4 I a.

Irm sltort, Commgress has spoken directly to the
issue whether EPA may itnpose classifications an(i
attainment dates di fferemtt lrotn tImose provided km
Stmbpart 2. EPA's attemupt to i mplemnetmt a revised
standard and. necessarily, to change tlte classi licat ions
an(I attainment dates found in St.mbpamt 2 is, themel~ore,
tmnlawfuml.
3. EPA's revised standard changes
the state planning requirements
imnposed by Subpart 2.

Congress recogmmized that attainment was going
to be extremely difficult, if mtot impossible, to achieve in
some dted5. Accot~dingl y. Congress imposed corn
prehensi ye
planning reqmmiremertts uporm the States to assure
strong incentives an(I continuimig progress, but no
absolute deadline for final compliance.

First, Sectiomi 181 provides classif~ications and
attainment dates for areas that bump up to a higher classi
ficat ion om' chmange fromrm attainrnetmt to nonattaitiment.
CAA 181(b)(2), (4); 42 U.S.C. 751 l(b)(2), (4). For
example, if a Severe area fails to meet the standard by the
attainment date, it will becomne subject to specified
sanctions, inclumding a requiremermt that the State
demnormstrate
percentage re(lLtctiomls "itt each 3year interval after
such failure ummtil the standard is attained.'' CAA 181
(b)(4)(A); 42 U.S.C. 751 l(b)(4)(At. And, anticipating the
possibility that EPA may modify the method of
detetmirmirmg compliance witlt the itational statmdard
before Severe areas come into attainment. Section IX I
provides that a design value ot' other indicator comparable
to 0. 14 "shall he used" to determine applicable sanctions.
CAA 181(b)(4)(D); 42 U.S.C. 75 II (b)(4)(D).5

Section 1 82 pm'ovides for state implementatioti
plan (SIP) revisions and sets out plan requirements for
each classificatioti (Margirmal through Extremue). CAA
182; 42 U.S.C. 75 II a. The schemne begins with
m'eqrmiremnents for


'this use of 0.14 pptinin as a measuretnent for determining
whether satinct u inns would apply is yet a tint liner indication t
tinat (in inogre ss intended tar the standard to retnain at 0. t 2 ppm.





20 21


Margi rmal areas, and then adds increasingly tnore
stringent requirements for each ad(Iit ional classi ficat
iorm. These plan reqitiremnents are comprehensmve and
create several mecharmisms by wI-mich Subpart 2 will
control ozomme attaintuettt for tI-me entire 20year period.
They include mandatory control measures. anttual rate of
progress requirements for emission reditetions. and offset
ratios for the ett-iissiotis fmomtt mmew or muodi fied stat
iotmary sources. 1(1.

Sect ioti 1 82 anticipates that these rc(ltmirettiettts
will apply well into thte future. with-i no end date itt sight.
Sotne of lime measures applicable to Severe and Extretne
areas (lid tt(-it take effect for years after 1990 attd ate
triggered at vartous intervals tltereafter. See. e.g., CAA
1 82(e)(3); 42 U.S .C. 75 II a(e )( 3) (making clean fuels
requirements applicable itt I 998): CAA I 82( g)( I ); 42 1
.5 .C. 75 I I a( g)( I (reqttiring EPA to determine ttitrogemt OX
ide reductions irm 1996 and at threeyear itmtervals
tlmereafter).

ltmdeed, Sect iomm 182 obviotmsly amttici pates tI-
mat these requirememtts will cortlinue to apply, not omdy
during the 20 year period before the final attainment date,
hut umit il all areas of tI-ic cotttttry meet the 0. 1 2 ppm
standard. For exattiple, Comigress established
"reasottable futtI mer progress" reqiti retnents ho ensttre
that States are. itt fact. tuoving towards their goal. CAA
182:42 U.S.C. 751 Ia. See Senate Debate (January 23.
1990). reprinted mm II 199!) Legislative Ilistorv at 4837
(statememit of Serm. Chafee )("The milestone
provisions of the bill are desigmied to avoid a repeat of the
situat iomt tltat occurred when we passed tIme 1977
attien(ltmtetmts. wIt cli allowed States to go for years wit
hout
having to detnonstrate pt~ogress). Itt addition, by 1992,
States were to have submuitted art itiventory of actual
emissions fron-i all sources. CAA I 82(a)( I ); 42 U.S.C.
7511 a(a)( I
Thereafter, "[nib later tItan the end of each-i 3-year period
after submission of the inventory . . . umitil the area is
redesignated to attainment," States must submit revised
irmventories. CAA182(a)(3)(A); 42 U.S.C. 751
lata)(3)(A).

These platiti i ring reqtui rement s i mplemnent
Congress's intetmt to ensure cont inttous state progress
toward meeting a specific stan(Iam'd. 1mm cormtrast,
EPA's rulemakimtg would return the States to tI-me failed
compliance scheme that Congress abandoned in 1990,
and it would resumTect the historic dilemma the States
had in creating a plan to comply with an unachievable
standard by a fixed time. Such a scI-meme miot only cot-ill
icts with-i an impot~tant l~art of Congress's overall
scheme, hut is (lestined to he unsuccessful once again.

4. EPA's revised Statl(lard conflicts
with Congress's overall approach
to implementating and meeting a
national ozone standard.

As described above. EPA's action conflicts in
specific ways with key comporments of Subpart 2: the
standard; the classifications am-id attaimmment dates; artd
the state planning requiretnents. Viewing Subpart 2 in its
etitirety, moreover, reveals that EPA's action also conflicts
with the overall structure that Congress bimilt its realistic
approach to imuplementing and meet imig a mtauional
ozone standard.




Nt intt atm a i tin tent areas inn it sm red uince p intl itt ants by specified
pe rceinint age nc re tininettt s from the present utint it the health
stattd ard is ac Ii ieve(t. Ibis tine w re(t n i retinine tint w i hI etisit re
early iniotine red uct nit in a tid. hir mIte Ii rst nine, steady po
ingress t inward in tineet i ng t tine st a itt I aid Sen ate I )ebate October
27. 1990i reprinted tin t 199() Iegishfivt' hhisunv at 948 coininin nine
tints oh Sen ('tin a fee


This Court instrLmcts that "a reviewing court
should miol coimfitte itself to examining a particular
statutory provision in isolatiomt. flrown & Williamson, I 20
S.Ct. at 1300. Indeed, it is a "fundatnetital cattoti of
statLitot~y construction that the words of a statute must
be read in their





22 23


cotitex t atmd wit It a view to tlteir place itt tI-me overall
statmmtory scheme." t)amis in. Michi~'an l)ept. of
Treasury, 489 U.S. 803, 809 (I 98~) 1mm addition, a
com.mii "must he gimided to a degree by common serinse
as to the manner itt which Congress is likely to delegate a
policy decision of such econon-iic and political magtm it
utle to art adnm i mtistrat i ye agetmcy.'' Thown &
Williamson, I 20 5 .Ct. at I 301

Considered as a whole. Simbpart 2 represermts
Congress' s answer to a po1 icy quest ion of ecormomnic
and political importance. It is a balance among the
comupeting ttCC(15 that blettded to form a coheremtt
strategy. Amid it is a comnpreltcmmsive respormse to a
cottiplex problem. It is mtot an opetmemmded i rmv it at iott
for EPA ho mecomtsi(Ier and (lismilatit he Congress's
approach whenever and however EPA wishes.

The legislative history of the 1990 amendments
supports the cottclusion that Congress sought a
reasonable. meal i st ic approach for reaching countryw
i(le attainmuent with the 0. I 2 ppn-i standard in I igltt of tI-
me fact I I-mat past efforts Itad fai led. Imi 1970. Congress
set 1975 as the (Icadl itte for tneeh irmg thte ozotte
stalt(Iar(J. Two years after that (leadl itte, 78 areas were
still violatitig the ozorme stamtdard tltemi itt place (a
onehour. 0.08 pptmt standard). S. Rep. 101228 (1989),
itt V /99!) Legislative Ilistor't' at 8350
reprimtte(l . Congress
extended the deadline by five years. to 1982. Therm, irm
1982, ameas that had still mmot mnet the starmdamd were
able to get an extension to I 987. Id, Yet, eveti by I 9X9,
mnarmy areas had still miot tnet the 1977 standard. ld. at
8351

Faced with this history of ttissed deadlines and
freelygiveti extensions, Congress was plaittly frustrated
by I he ''widespread fail mm me to muect t Ite ambiemit
standards'' that it blamed both uporm "States... and EPA.''
Id. Mom~eover, it tecogmmize(l that leaving
itnplemtietttation methods to EPA (liscretion sitnply had itot
worked. "Predicting fittute air quality based ott asstttned
control programs is a cottiplicated
utidemlakimig that is simscephible to 'paper' dentonstrations
of attaimttnent that hear little relation to tIme likelihood ot
actual attainment." Id. As a result, Congress decided to
estahlisl-i both a realistic standani, time one-hour. 0. 12
ppm standard, and the means by wI-in ichm to attain that
starmdard.

TI-me new approacI-t was evident as 5OO~t as 5.
1630 appeared inn the Semiate: ''The notiattaint-ilent
provisions ol the bill are based on vnore than I 7 years of
experience in trying to attain healthy air in all areas of ifte
nation. The deadlines in the bill fot' attainment are realistic,
with the ozone deadlines beirmg the longest in recogrtition
of tI-me complexity of time ozotte pollution problemu. The
emphasis in the bill, however, is not ott the deadlines bitt
orm what happens itt the period before the deadlines. 'Ihe
umcept I reasonable furt/ter progress . . . ms amplified by
requiring specific incremental progmess over defined
periods for each of the pollutants addressed: ozone,
carbon nonoxide, and particulate matter (PM-l0)." Id. at
8352 (emphasis supplied).

Despite Congress's approach, EPA argm.mes that
it may, at any time and based ott its owrm policy
judgments, impose a new ozone standard, mew
classifications, am-id a new attainment date. EPA Brief at
44. EPA's 1997 rulemaking applied the new standard only
to areas tI-mat had already attained the onehour standard
(a power Judge Tatel, in his dissenting opinion orm
rehearing, agreed tl-iat EPA had). However, EPA now
argues before this Court that it has the power to change
the standard for any area, including those tImat have t-iot
yet attaitied time standamd pursuant to Subpart 2, amid at
any time.

EPA's 1997 rulemaking will create three categories
of areas: (I) those areas that are in compliance with-i both
the ommehour and tI-me eighth hour standard; (2) tI-mose
areas that were in compliance witht tIme onehour
standard, but are not iti





24 25


compliance with the new, eighthour standard; an(l (3)
those areas that are mtot in comphiatmce with either tI-me
onehour stammdard or tlte eigltt hour standard. As to all
of these areas, no matter where their compliance efforts
stand to (late, EPA's act ion commfl icts with Il-ic overall
approach of Sttbpart 2, i.e., nuplementat itt of a schetne
with strong iticermt ives to comply. sanctiomms for failure
to cotnply. and steady progmessiorm to Ii nal attainment

The D.C. Circuit's solutiott (that EPA may revise tIme
standard and designate areas based on that standard, but
may not classify' ameas or set dates different fromn those
mm Subpart 2) (hoes mmot resolve this cormllict ammd
creates even more cotifusiott for tlte States by al lowittg
two di Iferemit stattdards to apply itt parallel. It-i fact, the
D.C. Circuit's solution ignores altogethter thte immediate
htmrderms and sigrmificant consenImmetices t hat follow
front rev isiomi of a statmdard, amid particitlarly those that
follow a nonattaittttmettt designation.7 hor Comtgress's
schente to have meaning, it must preclude event mcvi sion
of tIme ozone stamidard.

Nonetheless, EPA argues. at pages 4950 of its
brief, tltat "there is t-io reasott to believe that Cotmgress
intended to pteclude'' I PA frotn emt fot'citmg the ottelmottr
ozone staitdard and a revised ozone standard at the same
time. To time contrary, Cottgtess considered, amt(I
rejected. this very approach before ettactitig the 1990
amuen(Iments. TIme proposed Clean Air Standards
Attaintnettt Act of 1987 imtchtmded a nmew provisiomi,
Sect ion 109(0. wltich would Itave authorized tle Admitm ist
rator to "promulgate a national


the ctinnseqttetinces thinat how troininin EPA's revinstotin oh
thine standard. particularly thintinse thinat tt intttiw a
intinintinattaitintininent desigininatiotin. are disctinssed below, at
pages 3738 ..ee also Part tIC, tint Respoinindent AlAs t~rief
presetint i ng a tin at tern tin i ye arg nine tint t Itat even it I P A
ninay revise the t intine lit inn r st antI a rd . 1 TA tiniay tinot (tesi
gnate areas as tint tin tat t ai tin tine tit based t itt a
revi seth statintlant 1.
primary ambient air quality standard for ozone
coticentrations average(l over a period not less that-i six
hours
inh
or muore tItan twelve hours itt lengthl.1" S. I 894. 100
Cong.,
Section 402 (1987), as reported, reprinted itt VI 199!)
Le~islatit'e history at 9390.

TIme new six- to twelve-hour ozone standard was
to be considered as "a second primary ozone standard . . .
mint addition to the current one-hour standard..." S. Rep. I
00-23 I (1987), reprinted in V 1199!) IA'gislative history at
9611 Senator Simpson poirmted out the illogical nature of
such an approach:

Even a casual observer would conclude that an
area that camtmtt)t meet the current ozone
standard is not going to nicet a new "more
protective' ozone statmdatd. . . . Yet, under this bill an
area which is in tue tetl-year or fifteermyear ozin
mine nonattaintnemmt category would have to
conitnit to all the l-iur(Ientsorne and oimerous
provisions of Title I itt order to avoid immediate
sanctions only to discover three years later that it
must meet a new standard.

hi. at 9780-81 (additional views of Sen. Simpson). TI-me
Senate Etmvironmnent an(l Public Works Commuittee
reported 5. 1894 in November, 19X7. However, the Senate
did minot act on it. See S. Rep. 101-228 (1989), reprimited
itt V 199!) Legislative ilistory at 8344. Moreover, minnie (-if
the bills imitmoduced mm tIme 101 Coringress that led to
time 1990 amendments commtained such a provision. This
is because the 10 1Sin Congress took a tww. more realistic
approach, tI-mat is, meeting ti-ic thenexisting standard as
mandated by Subpart 2.

In short, EPA's action to revise the one-hour
ozone standam~d and to implemetit tlte eighthour standard
conflicts





27
26


witit Comtgress's comprehensive schente for ozone
regulation, both itt its cottipottemit parts and as reflected in
tI-me overall structure. EPA's action, therefore, is
untlawfrtl.

B. 'Ihe Act Offers EPA No Authority To
Revise The One-Hour Ozone Standard
Or To Implement A New Standard.

[)espite these direct conflicts with Subpart 2, EPA
argues that it Itas independent authority under the Clean
Air Act to revise the onehontr stan(lard amt(l to implement
corresponding planiming amid operational mequ i rentents.
No sucI-m "general" ammthonity overrides tite specific
reqitirements an(l hitnitatiotms found mm Subpart 2. and
EPA's argutnents to the cot-itrarv should be rejected.
1. The Act offers EPA no general
authority to (Iesign&tte ozone
nonattainment areas, to classify
those areas, or to set dates for
attainment of a revise(l ozone
standard.

EPA argtmes tltat, when enacting Subpart 2 to
implement ottl y tIme exist imtg oitehtour ozone stamtdard,
Commgress left in place Subpart 1 to govern designations
am-id classifications for ozone nonattainment areas and to
set new attainmi-ictit dates, all based oti a revised
stanmdard. EPA Brief at 45. Specifically. EPA argues that
Section 172(a)' 42 U.S.C. 7502(a), which generally
govertts tlte selectiorm of chassi fications and attaimmenit
(lates, gives it aittimority to classify areas amtd to set
attaim-iment dates based ott a revised Ozt)tte St atmdard.


Before reaclmittg Sectiorm 172, we begin with-i
Section 107, which provides tI-me general reqtmiretttetmts
for area designations. CAA I 07(d)( I): 42 U.S.C.
7407(d)( I).
Responsibility for initial designations, following the
pronttmlgation of a new (-in revised rmatiomial standard,
lies witlt tI-me States. Section 107 requires each Govenitor
to sm.mbmtmit to EPA a list of all areas within time State.
designating each area as: nonattaintuent, if tIme area does
not meet tIme standard or contributes to nonmattaitimnetit
in another area: attainment, if the area meets the standard;
or unclassifiable, if tle area cannot be classified based on
available information. CAA 107(d)(l)(A); 42 U.S.C.
7407(d)(l)(A). Ormce the States submit their lists of
desigitations, EPA tiust then promulgate the designations
within 120 days. CAA I 07(d)( I )(B); 42 U.S.C. 7407(d)(l
)(B).

Section 107(d)(4), however, sets out specific
requirements for nonattai nment desigm-iatiorts for
ozomme. 42 U.S.C. 7407(d)(4). TI-mat section reqimires
each Governor. within 120 days after November IS. 1990,
to submnit a list that (lesignates areas as attainment,
nonattai mimnent, or unclassifiable witI-m respect to the
national ozone standard. CAA 107(d)(4)(A)(i): 42 U.S.C.
7407(d)(4)(A)(i). Once tIme Governor subnmits the list,
EPA must promulgate such (lesigttations within 120 days.
CAA I 07(d)(4)(A)(ii); 42 U.S.C. 7407(d)(4)(A)(ii). The
section also imposes mom~e stm'ingent requirements Ion
ozone nonattainment areas with in consolidated met ropol i
taint statistical areas, changing the boundaries of tIme
mtoniattairtment area to imiclude the entire consolidated
metro area. CAA 107(d)(4)(A)(iv); 42 U.S.C.
7407(d)(4)(A)(iv).

Section 172 picks up where Section 107 leaves
off. Section 1 72(a)( I) provides that, on or after the date
EPA pt'omulgates time noniattaintuent designatiotts
pursuant to Section 107(d), EPA "mnay classify time area
for the purpose of applyinig atm attaintnemmt (late
I~ursuanmh to paragraph (2), and for other purposes."
CAA 1 72(a)( I )(A); 42 U.S.C. 7502(a)( I )(A). Section I
72(a)( I )(C) specifically provides. however, that "[t Ihis
paragraph shall t-iot apply with m~espect





29
28


to nonattamnitimetit areas for whticI-m classifications are
specifically provided umider other provisiotis of tI-mis part I
Part DI." CAA 1 72ta't( I )(C): 42 U.S.C. 7SO2tag 1 )(C).

As mmote(l, Section 1 72(a)( I) pmxvides that EPA
ntay classify at-i area for the purpose of applying an
attainment (late Ltn(ler paragraph 2. Paragraph 2, which
pm~ovides gemmeral I y for i mplemnentation of ant attal
itmemint date for othem' pol lutanints. also states,
however, that "it Ihis paragraph sItall not apply wit It
respect to nonattaintmnenh areas for which at I ai
mtmnermt dates are specifically provided imminder other
prOvi5iOtt5 t-if this part IPart DI." CAA I 72(a)(2)(D): 42
U.S.C. 7502(a)t2)(I)).

It-i cotubinatiomi. Sect ion 107 amid Sectiont I 72
expressly exempt from EPA's general authority the power
to designate oiotte nonattainment areas (umider Section
107) or to classify and set ozone attainment (lates (under
Section 172). lnmdeed. Section 107 pm~ovides specific
imtstnuction to EPA for desigttatiott of areas for attainment
of ozone and Section 172 provides (in two different
paragraphs) an express except tort for areas for which
nonattaitmnitent designations are specifically provided
under other provmsmotts of Part I). Subpart 2 of Part II), of
course, specifically provides tinottattainmetint designations
(for areas not meeting the one hotir, 0. 12 I ppm
standard), classifications (Marginal through Extreme). and
attaitiment dates (19932010) for ozone. EPA's attempt to
ignore these express litnitations and to tmstirp power ninot
granted to it is unlawful.

2, The Act offers EPA no general
authority to revise the one-hour
ozone standard.

Sect iort 109 of the Act autlt(innizes EPA, within 30
(lays after December 31 , 1970, to promulgate national
primary and secomindary ambiemint air quality standards
for the
pollutants for which EPA issued criteria, and
simultaneously with any future criteria tlmereafter. CAA
109(a); 42 U.S.C. 7409(a). Not later than 1)ecember 3 I,
1980, amid at five-year intervals thereafter, EPA is to
"complete a tI-moroimgh review" of the criteria issued
untder Section 108, 42 U.S.C. 7408, at-id the national
standards "promulgated tinder tIm is sect ioit" and to "make
such revismonis mt-i such criteria amid standards and
promulgate such mew standards as may he appropriate in
accordance with ISect ott I 081 and [Sectiomi 1 09(b)J." Id.
(emphasis supplied).

Here, mm light of EPA's inability to designate ozone
nonattainment areas, classify OZOflC nonattainment areas,
or set attainment dates for sutch areas, it was not
"appropriate" for EPA to revise tI-me ottehour oz~-imte
startdard. lit fact, a recent EPA action admits as much. In
July of this year, EPA issued a final rule that rescinded the
eight-hour standard until it becomes fully enforceable and
is no lomiger subject to legal challenge. 65 Fed. Reg. 45
182 (2000). EPA stated that because the D.C. Circuit's
decision "raised doubts about the enforceability of the
8hour standard and EPA's ability to implement the
standard fully at this time. the basis for the regulation
revoking the applicability of the 1 -hour standard in certain
areas no loninger exists." 65 Fed. Reg. 45185 (2000).

The Responindent States agree that if EPA cannot
fully enforce the eight-hour standard, it should not be
effective. Even more, if EPA canrinot enforce a revised
ozone standard, it was not "appropriate" for EPA to even
revise tIme one-hour standard. Instead, EPA should have
reviewed the one-hour standard am-id reported to
Congress the need to revise it or change the classi
ficationts amid attainment dates itt Subpati 2.

In its brief, EPA argues that tIme D.C. Circuit's
conclimsion that EPA may revise the one-hout' standard,
hut tnust implement it according to Subpart 2 "would lead
to unworkable anol absurd results." EPA Brief at 47. Other





30 31


briefs in support of EPA's posit iom simmi larly assert tI-
mat imuplementhat ott of a revised standard accord i ring to
Subpart 2 would work ''inmcotnprehemmsible''
''nonsensical,'' amd ''bizarre'' results. Brief of Amici Curiae
States at IS; Brief of Respomtdettts N1assachtutsett~ arid
New .lersey at 4748.

The Respondent States agree. Conmgt~ess simply
(lid not i tttett(l for I l~A to itnplentemtt army ozomme
standard oh I-icr than the ottehotir, 0. I 2 ppm-i-i standard
set by Subpam~t 2, and any i nuplermiemit at iotm of a di
f~fetemtt standard is unworkable.

As El~A points out, Sect iott 181 (a)( I), 42 U.S.C.
75 II (a)( 1), sets attaittment dates and classifications
based on an area's "desigit value," which is an air quality
measure that specifically applies to the omiehour
standard that was in existemice in 11)90. EPA Brief at 47.
Agaimi. as EPA points otit, it tnakes tto sense "and, indeed,
would be impossible" to classify' areas amid to set their
attai nitnent tlates for the eight hour standard using an air
quality measutrement based ott the onmehotir st~tndar(I.

It-i addition, Section 181 sets attaimtment dates for
areas based on a fixed number of years front 1990. As
EPA states. ''It that timetable makes rio sense in
calculatitig attainment dates for tlte eight-hour stamidard.
EPA Brief at 47: Brief of Amici Curiae States at IS.

EPA's solution to these awkward and unworkable
conseqttenmces is It) ignore altogetiter Conigmess 's
ottehiotir staittlard atm(f correspon(ling ph anti itig ami(l
opem-atiottal requmirements. Without a t~evised stan(lar(l,
Commgress's instruct iomi in regatul to ozotie attainmetit is
not uticlear, Imowever; nor is it nmitworkable. Itt Sect iott I
8 I , Congress codified tI-me ottehour standard; itt Section
107. Congt~css exenipte(l OiOttC ttonattairmmtmetit
desigrmat ions trom EPA's general authority to designate:
an(l in Section 172, Congress exempted ozone ntttnat I
ainment cl assi ficat iomts amid at ha inmenmt
(fates fm~om EPA's general authority to classify ai~eas
and to set attainmuent dates, lit the place of EPA's getteral
authority. Congress enacted Subpart 2, a comprehensive
and sensible approach to ozone regulatiomt.

These provisions leave no doubt that Comigress
has affirmatively acted to address ozone regulation. Just
as Conigi-ess acted to address the issue of tobacco and
health (see FDA t'. Brown & Williamson) and to addt~ess
the issue of long distance telephotte services (see MCI i'.
AT&T), it has created a distinct schetne for implementimig
a specific ozone standard, to the exclusion of EPA. As a
result, just as Congress's action precluded the FDA's
regulation of tobacco and the FCC's regulation of long
distance carriers, so too (foes Subpart 2 precluide EPA
from revising the one-hour standard or implemnenit ing a
different standard.

In the final analysis, just as in those prior cases,
there is no doubt that the problem EPA seeks to address
(ti-ic regulation of air quality) is sigtuificant. "Nonetheless,
no tuatter how 'iniportantt. conspicuous, arid
controvem'sial' tI-me issue, and regardless of how likely
the public is to hold the Executive Branch politically
accountable . . . an administrative agency's power to
regulate in the public interest must always be grounded in
a valid grant of authority from Congress." 8,-own &
Williamson, 120 S.Ct. at 13 IS (citations omitted). In order to
"effectuate the congressional putrpose of protectimig ti-ic
public," EPA "nntst take care not to extend the scope of tI-
ic statute beyond the poinmt where Congress indicated it
would stop." Id. (citations omitted).

In Subpart 2, Congress indicated clearly where
congressional purpose would stop at implementation of
the onehour, 0. 12 ppm ozone standard in accordatice
with Congress's plan. EPA may not, therefore, go further,
and its attempt to do 50 is niot "appropriate."





32 33


III. EPA'S AC'I'ION TO REVISE 'I'LIE ONE-HOUR
STANI)ARI) ANI) IMl~LEN'lENT A NEW
STANI)ARI) WAS A FINAL. AGENCY ACTION
RIPE FOR REVIEW.

A. The Court Need Not Address The
Questions Of Finality Or Ripeness.

In the court of appeals. the petitioning States and
iridmistry gmonmps argued that Subpart 2 codified the
onieltotmr. 0. 1 2 pptim standard and provided tI-me
exclntsive means for oz(-ine regtilatiott: therefore, EPA
could not promulgate a new ozotie statidam'd. No party,
riot even EPA. distitiguished "rev i siomt of I lie stan(Iard'
am-id "designat iomt" mom "enforcemetmt'' or ''iinplementat
ion of that revised stamidard or notiat tai timent
designation. TI-me cotirt, Itowever. did make that
distinctiorm. The court held, first, that [iPA may revise the
ozone stan(lard amid, based ott tI-iat revised standard,
may desigmiate areas as miotmattainment, bitt, secomid,
that EPA may not implemetit the revised standard or
otherwise implement the desigmiat iott itt a way that
cotiflicts with-i Snmbpart 2.

1mm its petitiot-i for rehearitig before tlme lower
court. EPA argued for the first tin-ic, as it argm.tes here,
that the ozone rulemaking was not a final action ripe for
review. Instead, EPA argues, the cot.mrt 's jurisdiction
etided will-i its m~eview of whether the statutory
provisions at issue precluded EPA frotn promulgating the
revised standard. EPA's positiont and the allegeif mmeed
to addmess this issite stem from a miscltaractenization of
the issues before the Court in two mmnportant respects.

First, as described above, this case is not simply
about implementation of a properly-revised rule. Rather, it
is about EPA's power to revise ti-ic ozotie standard at all,
i.e. its power ho revoke Congress's plait for regimlatiomi of
ozone arid to reqitite States to ituplement a new and (Ii
flerent statidard.
Indeed, that is precisely the issue preseitted and briefed
before ti-ic coumi of appeals.

Second, EPA's focus on the preamble at-id its
"explanation" of the rule, as distinguished from the rule
itself, suggests that petitiommers challenged nothing more
than vague statements about ttncertain future actions by
EPA. But petitioners challenged EPA's entire rulemaking to
revise the one-hour ozone standard. That rulemaking
included promulgation of 40 C.F.R. 50.9(b), which
provides, "The 1-hour standat'ds set forth itt this sectioti
will nmo longer apply to at-i area once EPA determines that
the area has air qitality meeting the I-hour stattdard." 62
Fed. Reg. 38894 (1997). [his codification of EPA's
implementation of the rulemaking is hardly an
urmdeveloped or itmireviewable "explanation" of EPA's
intentions.

As EPA concedes, promulgation of am-i air
standard is undoubtedly "agetmcy action" and subject to
review tinder Sectiomm 307(b)( I) of ti-ic Act, 42 U.S.C.
7607(b)( I). EPA Brief at 34. Thus, considered as a wI-
mole and properly framed, EPA's rulemaking leaves no
dottbt that ti-ic issues before this at-id the lower court
whether, amid to what extent, EPA has authority to
change Congress's scheme for ozone regulation are
subject to judicial review. Accordingly, this Court need not
addtess EPA's jurisdictional question (Question 2).

B. Consideration Of Traditional Notions Of
Finality And Ripeness Leads Inevitably
To
The Conclusion That EPA's Rulemaking
Was Final Agency Action Ripe For
Review.

But even considering these issues in the
misdirected way EPA has presertled them, it is plain that
the court of appeals had jurisdictiorm to answer time
questions raised in this case. EPA argues tI-tree I-ioints:
first, the disputed portions of





35
34


the rtmle are not ''agency act mint'' within Sect ion 307(b)(
I ) of the Act, 42 1 J.S.C. 7607(b)( I ); second, they are not
"fimmal" agency action because they do riot mark the
consummation of EPA's impletnetitatiorm process; andI
third, tI-mey are not ripe for review becarmse the isstmes
are "too abstract" at this stage and will not be sufficiently
complete t.tntil EPA actually implenients tI-me miew
standard. EPA Brief at 34-44. EPA's arguttiettts
tnisrepresent the scope of tIme ruletnak imig at issue,
ignore tIe plain language ol the Act, are unsuppom~tedl by
relevatit precedent, and would, if adopted, represenmt a
drastic depamlure from well-established principles of
~udicial review. Therefore, if tIme Court reaches this
question. it shoulnf af~firm the 1).C. Circitit's ruling tI-mat it
had jurisdiction to address these issues.

1, EPA's rulemaking was "agency
action" within Section 307 of the
Act.

Sectiomm 307 of tIte Act provides thtat "act ionm of
the Administrator imi promulgatimig any INAAQS I ,...or any
(it her national/v 1l,1,U (lb/C re~i~latio,is pro~nu/gated, or
final action taken, by tIme Admm-iiitistrator under this Act
may be filed only in tIme United States Cotmrt of Appeals
for the l)istrict of Columbia." CAA 307(b)( I ); 42 U.S.C.
7607(b)( I )(emphasis added). This statute broadly
includes all nationally applicable regulations and all fittal
act iot-i, not jtmst time pronut I gat ion of standards.

1(1 overcotne Sectioim 307, EPA relies mtpon the
Admit iii i strat ive Procedure Act (APA) defitmit ion of an
agency actiomi, 5 U.S.C. 55 1(13), ammd court dlecisions
constrm.timig this definitiomm to argue that the dispute
portiomis of the final nile are not "agency achiorm. EPA
Brief at 3637. however, evemi that (fefinition supports
tIme Respondents' posittoti ort this issue. As this Court
tiotedl in Federal Ira(le (omm,i v. Standard Oil, 449 U.S.
232. 238, n. 7 (1980),
even preliminary ageticy orders or activities are "agency
~mcLion" as def'ined by mI-ic APA. Conmgress imitended
this phrase to apply very broadly.

The term "agency action" brings together
previously det~ined tern-is in omxler to simplify the
language of tI-me judicial-review provisions of
section 10 lof tI-me APAI and to assm.tm~e the
complete coverage of every fort-it of agency
power, procee(fitig, action or inaction. It-i that
respect, the term includes the supporting
procedures, findings. commelusioums, or
statements or reasoti or basis for the action or
itiaction.

Id., citimig S.Doc. No. 248, 79th Cong 2nd Sess., 255 (1946).

For these reasotis, this Court should reject EPA's
argument that somme port ionms of the final rule are
"agency act ion'' and others are not.

2. The entire rule constitutes
"final" agency action that is
judicially
reviewable.

EPA fum~thmer comitetids that tI-me disptmted
portiotis of the rule are not "firmal," evemi if they are
"agency action." It correctly sets forth the two conditions
that mtist be satisfied for agency action to be "final."
Bennett i'. Spear, 520 U.S. 154 (1997). First, "the actioti
must mark the 'consummation of the agency's
diecisiotimaking process . . . - mt mitst rmot be of a merely
tentative or irmterlocutory nature." Id. at 17778, citing
Chicago & .Southern Air Lines, hue. i. Waterman 5.5.
Corp.. 333 U.S. 103, 113 (1948). Second. "tIme action
must be one by which 'nigh-its or obligations have been
determined' om~ from which legal consequences will
flow."' Bennett, 520 U.S. at 178, citinmg Poit t if Bo~toiu
Mai me 1 erminal Ass',' v. Rederiaktiehola get
Transatlantic, 400 U.S. 62, 71 (1970).





37
36
Conitt~ary to EPA's suggestion. the court of appeals
applied this well-established test at-id correctly (Ietermitte(l
that EPA's actiotm mneets both elemnents.

First. EPA's interpretation of Subpart 2 marks the
''cottsttt mrnatiomi'' of its dlecisiotimak ing process. Itt time
preamble to the final rule. EPA stated:

4. Final decision on the primary stan(Iard.
After catef~ully cottsi(lerirtg time irmlortmtatiomt
presented itt the Criteria Document and the Staff
Paper. tI-ic advice att(I recommetidatiorms of ItI-me
Clean Air Sciermtific Advisory Comumittee I, public
cotuments received (itt tI-me
ltm1)Posal, and for the reasons discussed above.
tI-me Administrator is replacing tIme cx isting I hour,
0. I 2 ppm primary stamt(lard with-i a new 8-hotmr,
0.08 ppnt primaty standard. The new
8-hour standard will beconte effective September
16. 1997.

62 Fed. Reg. 38873 (1997 )(italics itt original). EPA
explained that this "final decision" represetited a change
from its original imitent to imupose tIme ottehour standard
ommce it hadl approved state plans for implementing time
new stan(Iar(l. Id. EPA codified this decision in 40 C.F.R.
50.9(b), fromit which the petitiomis below sought review.
That section provides, ''The I -hottr starmdards set forth itt
this sect iomi will tio longer apply' to atm area onmee EPA
nieterni i nes that I line am~ea has air quality meet imig tIme
1 hour stamidlardl.' 40 C.IKR. 50.9(b); 62 Fed. Reg. 38894
(1997).

Second, EPA's protnitlgatiori of a revised ozotie
statidard triggered a nmumber of 'obligations'' and ''legal
consequetices. Sect ionm 107 of the Act reqtmires the
(Thvernor of each State, wit I-mini onte year after EPA's
protnulgat iOti (if a revised standard, to stt bmtin it to EPA a
list tif dcsignmat iomis for
all areas in the State. CAA 107(d); 42 U.S.C. 7407(d). If a
State does not submit a list, EPA will do so. Id. This list of
designations then triggers other actionis by EPA to
promimlgate the designations, CAA 107(d)(l)(B); 42
U.S.C. 7407(d)( I )(B), classify time areas, CAA 1 72(a)(
I); 42 U.S.C.
7502(a)(l), and apply attainment dates, CAA 172(a)(l): 42
U.S.C. 7502(a)( I )' After EPA coninpletes thmese steps,
each State must develop amid implement a plait (a SIP) for
meetitW tiie m'evised requiremettts. CAA 172(b); 42
U.S.C. 7502(b). Once a state plan is itt place, the standard
becomes fully ef~fect ive am-id results itt operational
controls imposed (lireetly ott sources (such-i as
mattufacturing plants, electric utilities, atidl aittomobi les).

'Fl-ic "designat iomt'' step of impletmtcntatioit is
particularly consequential. For instanice, Section 173 of
the Act imposes requiremermts for issuing perntits to new
sources of air pollutiomin it-i areas designated as
nonattainment. 42 U.S.C. 7503. These "new source
review" requiretnents are far muore stringent that-i tI-ic
pem'mitting rules that apply in attainment areas. See. e.g.,
CAA 1 73(a)( I )(A); 42 U.S.C. 7503(a)( I )(A)(requiring
emission reduction offsets fromit existing sources in the
region); CAA 173(a)(2); 42 U.S.C. 7503(a)(2)(reqtmiring
mew sources to comply with the lowest achievable
emission rate); CAA 173(a)(5); 42 U.S.C.
7503(a)(5)(requiring analysis of alternative sites. sties,
production processes, am-id control techniques
demonstrating that tI-ic benefits of tI-ic mew source
significantly outweigh the resulting emtvironmetttal and
social costs).

The Act also restricts the receipt of federal funds
for activities proposed itt utonattainmuent areas. CAA I
76; 42 U.S.C. 7506. For these areas, Section 176 prohibits
the use of federal funds, most miotably federal highway
mnoncy~ for any project that does miot "cotiform' to a state
plaint. CAA 176(c); 42 U.S.C. 7506(c). For titese
p~tm~poses~ a project does not ''conformn'' if it will
produce miew air quality





38 39


violatiomis, worsemm existing violations, or delay tim-itchy
attainment .S~'e 40 C.F.R. SI .390; 40 CER. Part 93, Subpart
A ("Confortuity to State or Federal Itnphetnentation Plans
of Transportatiorm l~lans. Programs, and Projects
Developed, Funided or Approved Urmder Title 23 U.S.C. or
the Federal Transit Laws"). '[h-ic review process
niecessary to show cinmi fonnity is lotig. complex, amid
costly and results in obvious and detritnenital
consedlttences for States amid local govermimet-its
contse(ItIences that flow directly f~romn a ttonattainmnent
desigmtat ion based on a new nat iondl Stdn(ldm d.

These evemmts that follow revisiont of an air
standard are tmot mere pre(lichions of whvit may occur,
Rather, each is a certainmty once EPA revises a standard.
Given such sigmmi ficarmt, costly, amtd cet~tain
comtsequences, EPA's suggest iomt that its tulemaking
does ttot ''create rights or obl igat iomts EPA l3rief at
1920) must fail.

3. EPA's action is ripe for review.

1mm detertitimtittg that EPA ~s action was ripe for
review. the court of appeals applied the wellestablisited
guidlelittes of Abbott Laboratories t'. Gardner, 387 U.S.
136 (I 967). As this Court has often stated, the question of
ripettess titrits ott "the fitness of tI-ic issues for jtmdlicial
decision" and "the hatdshiip to time parties of withholding
court considlerat ion.' Id at 149. Here. tIme lower court
(letermuilied that tI-me case was fit for review becattse it
presented "a pitre qttestion of law. the tesolutiotm of
which would miot bettefit front a more comicrete
setmimmg." 195 F.3d at 9; Pet. App. at 79a.

EPA asks that review of implementation issues be
dlelerredl so that it may ''work thm~ontght time various
implemetitat ion pr(-ivi siorms in more coitcrete sett itigs,
recontcile conflicts, make policy judgmenmts. amid apply its
expertise as nmecessary to resolve attibigimities in tI-ic
statute." EPA Brief at 43. EPA's codi heat i(tni of its
revocatiomi of tIme
onehour stammdard itt areas meeting that standard needs
no further consideration. As issues of law, they mmeed
not await further devehopmemtt, evemi if adld itional
intlerpretat iorm would prove useful. Pacific Gas & k/cc.
Co. t'. State Energy Resources C'onservation and IJev.
Com,n' n. 461 U.S. 190, 201-02 (1983).

Furthertnome, the denial of review at thuis stage
would result in seriotms hardships and legal obligations lot'
ti-ic Respondenmt States. As noted above, EPA's action
triggers tmtmn-ierous inevitable requiremermIs ut-idler ti-ic
Cleani Air Act. TI-ic certainty of tI-tese requirenients
forces States and local governments to conduct long term-
i-i planning, budget sm.mfficient fumtds, allocate
appropriate staff, anidi spend a portion of ti-ic I imnited
governmental resotirces available for etivironmnental
prd)tectioti all of which occur once EPA revises the
standard. To suggest ttnder these circumstances thtat
EPA 's action is ''too abstract'' for review at this stage is to
igmiore altogether the realities of EPA rulemaking and the
impact upon States amid local governmnemmts.

Correctly framimed, tI-ic issues before tIme Court
are whether EPA has the ammthority to change
Congt~css's schemne for ozone regulation amid, if so,
how far that authority extends. Given time inevitable
commscquences of EPA's attempt to ust.trp such
authority, these issues am~e final and ripe for review.

Indeed, tI-me inevitable consequenices flowing
from EPA's revision (-if tIme ozone standardi provide yet
another prism througim which the full extent of EPA's
action can be appreciated. EPA's change to time existirmg
structure was substantial, and thte d.omtseqmmences of
that change arc widespread. For better or worse,
however, Congress has spoken clearly and
coniprehensively to the control of ozone in this country.
Comtgrcss having spoketi, EPA may not abrogate the
cotigressiommal plaint.





41
40
CONCl~USION

The EPA rulemaking at issue here changed
Cortgress's scheme for regulation d)f ozomme amidl,
therefore, exceeded Congress's grarmt of authority to
promulgate national air standards. Accordingly, this Court
shouldi affirm tIme decisiorm of tI-me court of appeals ott
tI-me grounds that EPA was miot otily without power to
imphenient a revised ozone stati(Iard. but it was without
power to revise the standard in time first ilistatice. EPA's
ozonme stammdard, therefore. shotmld be vacated.



Respectfully submitted.

BETTY D. MONTGOMERY
Attorney General of Ohmio
EDWARD B. FOLEY
State Solicitor
JUDITh L. FRENCII*
ELISE W. PORTER
JAMES G. TASSIE
Assistatit Attormicys General
Office of tle Attorney General
30 East Bm~oad Street, 17th FIr.
Columbus, Ohio 43215-3428
(614) 466-2872
Counselfor Respondent State of
0/do
MARK J. RUDOLPh
Deputy Chief
Office of Legal Services
West Virgitiia Division of
Environmental Protection
1356 Hansford Street
Charleston, West Virginia 25301
(304) 558-9160
Counsel frr Respondent State of West Viri~ iltul


JENNIFER M. GRANHOLM
Attorney General of Michigan
TI-IOMAS CASEY
Solicitor General
ALAN F. HOFFMAN
PAMELA J. STEVENSON
Assistant Attorneys Getteral
Natural Resources Division
300S. Washington, Suite 315
Lansing. Michigan 48917
(517) 373-7540
C'ounsel fiin,~ Respoiulent State of Michigan
*Cotmmsel of Record

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