US Supreme Court Briefs

Nos. 99-1426, 99-1431 and 99-1442


In the Supreme Court of the United States


AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., CROSS-PETITIONERS

v.

CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.

APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.

CITIZENS FOR BALANCED TRANSPORTATION, ET AL., CROSS-PETITIONERS

v.

CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.


ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OFCOLUMBIA CIRCUIT


BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION


SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

GARY S. GUZY
General Counsel
Environmental Protection
Agency
Washington, D.C. 20415


QUESTIONS PRESENTED

1. Whether the court of appeals properly reaffirmed the long-standing principlethat, in setting and revising National Ambient Air Quality Standards (NAAQS)under Section 109 of the Clean Air Act, the Environmental Protection Agency(EPA) may not consider the costs, technical feasibility, or other allegedeffects of implementing measures to attain the NAAQS (Nos. 99-1426 and 99-1431).

2. Whether the court of appeals properly resolved various claims, by postponingdecision or rejecting them outright, that EPA's primary and secondary NAAQSfor fine particulate matter (PM2.5) are inadequate to protect public healthand welfare (No. 99-1442).



In the Supreme Court of the United States

No. 99-1426

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., CROSS-PETITIONERS

v.

CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 99-1431

APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 99-1442

CITIZENS FOR BALANCED TRANSPORTATION, ET AL., CROSS-PETITIONERS

v.

CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.


ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OFCOLUMBIA CIRCUIT


BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION


STATEMENT

The federal government's petition for a writ of certiorari (No. 99-1257)seeks review of the court of appeals' ruling that the Environmental ProtectionAgency (EPA) has interpreted the Clean Air Act (CAA) in a way that effectsan unconstitutional delegation of legislative power. 99-1257 Pet. I. Thepetition also challenges the court of appeals' premature and mistaken rulinglimiting how EPA may implement one of the two remanded National AmbientAir Quality Standards (NAAQS) at issue-the ozone NAAQS. Ibid. The cross-petitionsseek to introduce two sets of unrelated issues involving particular detailsof the underlying rulemakings.

First, two groups of industrial interests, the American Trucking Associations,et al. (ATA), and Appalachian Power Company, et al. (APC), ask this Courtto review the court of appeals' unanimous statutory ruling that, in settingand revising NAAQS, EPA is precluded from considering the economic costsand effects of implementing those standards. ATA Cross-Pet. i; APC Cross-Pet.i. That ruling reaffirms EPA's 30-year-old construction of the CAA and aseries of unanimous judicial decisions stretching over 20 years. See 99-1257Pet. App. 19a-21a.

Second, a group of environmental interests, Citizens for Balanced Transportation,et al. (CBT), seeks review of particular challenges to EPA's selection ofthe 24-hour primary NAAQS for particulate matter (PM) of 2.5 microns orless (PM2.5) and its selection of the secondary NAAQS for PM2.5. CBT Cross-Pet.i. The court of appeals concluded that it could not reach most of thoseissues in light of its remand to the agency. See 99-1257 Pet. App. 4a-5a.

We describe below the court's reasoning on the issues raised by the cross-petitions.

1. The court of appeals' decision in this case addresses a broad range ofindustry and environmental challenges to EPA's ozone and PM NAAQS. Amongother things, the decision reiterates the long settled principle that, "insetting NAAQS under § 109(b) of the Clean Air Act, the EPA is not permittedto consider the cost of implementing those standards." 99-1257 Pet.App. 19a. The court of appeals has consistently held that EPA must set NAAQSbased on the "health effects relating to pollutants in the air"and not on alleged costs or other effects that may result from implementationof the NAAQS. Natural Resources Defense Council, Inc. v. EPA, 902 F.2d 962,973 (D.C. Cir. 1990) (EPA need not consider alleged health effects associatedwith unemployment), cert. denied, 498 U.S. 1082 (1991); see also Lead Indus.Ass'n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042(1980).

The court expressly considered and rejected ATA's and APC's arguments thatit should reconsider its decision in Lead Industries because that case wasdecided without the benefit of this Court's decision in Chevron U.S.A. Inc.v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The courtexplained:

The Lead Industries decision was made in Chevron step one terms, * * * asthe post-Chevron progeny of Lead Industries have made clear. [Natural ResourcesDefense Council, Inc. v. EPA], 902 F.2d [962,] 973 [(D.C. Cir. 1990), cert.denied, 498 U.S. 1082 (1991)] ("Consideration of costs . . . wouldbe flatly inconsistent with the statute, legislative history and case lawon this point"); NRDC v. EPA, 824 F.2d 1146, 1158-59 (D.C. Cir. 1987)(in banc) ("Vinyl Chloride") ("[S]tatute on its face doesnot allow consideration of technological or economic feasibility.").

99-1257 Pet. App. 19a-20a.

The court of appeals additionally considered and rejected the argument that,even if EPA could not consider costs in initially setting NAAQS, it coulddo so when revising NAAQS. 99-1257 Pet. App. 20a. Finally, the court rejectedthe industrial groups' argument that Congress's directions to the CleanAir Scientific Advisory Committee (CASAC) to advise EPA on, among otherthings, "any adverse public health, welfare, social, economic, or energyeffects which may result from various strategies for attainment and maintenance"of NAAQS, CAA, § 109(d)(2)(C)(iv), 42 U.S.C. 7409(d)(2)(C)(iv), signalsthat EPA should consider those factors in revising NAAQS. 99-1257 Pet. App.21a. Instead, the CAA directs CASAC to provide that advice in light of EPA'sseparate duty to give the States information on control strategies. Ibid.

2. CBT challenged as arbitrary and capricious EPA's decision not to seta more stringent 24-hour primary NAAQS and more stringent 24-hour and annualsecondary NAAQS for PM2.5. Because the court of appeals remanded the PM2.5NAAQS on nondelegation grounds, the court of appeals did not rule on CBT'sclaims except in one narrow respect. 99-1257 Pet. App. 5a, 56a. In the finalrule, EPA had announced its decision to address adverse effects that finePM may have on visibility by establishing secondary PM2.5 NAAQS (at thesame levels as the primary PM2.5 NAAQS) and by implementing the RegionalHaze Program described in Section 169A of the CAA, 42 U.S.C 7491. 99-1257Pet. App. 56a; 62 Fed. Reg. 38,652, 38,683 (1997). The court of appealsrejected CBT's argument that Section 109(b)(2), 42 U.S.C. 7409(b)(2), requiresEPA to set secondary NAAQS that will eliminate all adverse effects on visibilityand deprives EPA of authority to address some impairment of visibility throughanother program. 99-1257 Pet. App. 57a. The court explained that the CAAincluded the Regional Haze Program to address adverse effects on visibilitythat may persist in areas such as national parks "notwithstanding attainmentand maintenance of all [NAAQS]." Ibid.

3. Neither ATA, APC, nor any other party sought rehearing on the cost issue.CBT filed petitions for rehearing and rehearing en banc as to all of itsclaims. CBT's petitions were denied without dissent. 99-1257 Pet. App. 71a,101a.

ARGUMENT

As our petition for a writ of certiorari explains, the court of appealshas erred in two fundamental respects: (1) it remanded EPA's revised PMand ozone NAAQS based on an aberrant notion of the nondelegation doctrine(99-1257 Pet. 9-10, 11-19); and (2) it prematurely and mistakenly decidedhow EPA should eventually implement the ozone NAAQS (99-1257 Pet. 19-30).As our reply brief explains, respondents have failed to provide persuasivereasons against review. Instead, they have recharacterized the court ofappeals' decision in ways that obfuscate the issues. The cross-petitionsat issue here add another layer of complexity and confusion. They raiseno issue that would independently warrant review or that would assist theCourt in resolving the core nondelegation issue. To the contrary, the cross-petitionswould complicate the case with issues that, on the one hand, have long beensettled or, on the other hand, the court of appeals had no occasion to reach.

1. The flaws in the court of appeals' nondelegation analysis are not difficultto discern. This Court has developed the nondelegation doctrine to preservethe Constitution's separation of governmental powers. E.g., Mistretta v.United States, 488 U.S. 361, 371-372 (1989). It prohibits Congress fromvesting its legislative power in an executive branch agency. Ibid. The courtof appeals erred because it misconceived the nondelegation doctrine as ajudicial check on agency discretion. See 99-1257 Pet. App. 14a. The courtof appeals' decision confuses two distinct lines of inquiry and, in theprocess, wrongly sets aside legitimate agency action. The Court should thereforecorrect that fundamental misconception and remand the case to the courtof appeals with directions to review the EPA's rules under the correct standardof review. See 99-1257 EPA Reply Br. 2-6.

ATA and APC urge a different course. They argue that the Court should broadenthe inquiry and use the court of appeals' mistake as a vehicle for settingaside long-settled statutory principles that have guided EPA's implementationof the CAA for 30 years. They specifically challenge the firmly establishedprinciple that EPA should set NAAQS based on the public health and welfareeffects caused by the pollutant's presence in the ambient air and not onthe potential economic costs or other alleged effects of implementing theNAAQS. See ATA Cross-Pet. 14-27; APC Cross-Pet. 14-25. The court of appealswas divided on the nondelegation issue, but it unanimously rejected theindustrial groups' arguments on this point and reiterated its past holdingthat the CAA directs that questions of economic costs and the other effectsof implementing NAAQS can be considered only as part of the implementationprocess. 99-1257 Pet. App. 19a-21a.

The Court should decline ATA's and APC's invitation to complicate considerationof the nondelegation issue. The court of appeals' decision is correct asto the issue they raise. Moreover, it rests on settled law that has longguided the actions of EPA, Congress, and the courts. Contrary to ATA's urgings,the constitutional question of whether Congress has vested EPA with legislativepower is not "tightly intertwined" (ATA Cross-Pet. 7) with thestatutory issue of whether Congress directed EPA to set NAAQS based solelyon health and welfare effects of ambient pollution concentrations.

a. Congress introduced the NAAQS-based framework through the enactment ofthe Clean Air Act Amendments of 1970.1 Since that time, EPA has consistentlyapplied Section 109 according to its terms, which require EPA to set primaryNAAQS at levels "requisite to protect the public health." CAA§ 109(b)(1), 42 U.S.C. 7409(b)(1). EPA has consistently rejected thenotion that, when promulgating NAAQS, it may consider costs, technical feasibility,or related factors.2 ATA and APC ask this Court to overturn 20 years ofcourt of appeals precedent-decided in the course of reviewing predecessorNAAQS-upholding that interpretation.3

As ATA acknowledges (Cross-Pet. 5-6), this Court has repeatedly declinedto review the issue that ATA and APC press here.4 There is no reason toreach a different result now. ATA offers no support for its claim that thecourt of appeals itself "now lacks confidence" in the holdingof Lead Industries (Cross-Pet. 17-18). To the contrary, the court of appealshas repeatedly rejected ATA's and APC's principal arguments without a singledissent.5 The cross-petitions do not raise a controversial issue; the entireDistrict of Columbia Circuit has long viewed the matter as settled. See99-1257 Pet. App. 19a. Indeed, if ATA and APC thought otherwise, they shouldhave challenged the panel's unanimous ruling through a petition for rehearingen banc.

The court of appeals and EPA have correctly concluded that Congress "hasdirectly spoken to the precise question at issue." Chevron U.S.A. Inc.v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Section109(b)(1) of the CAA directs EPA to set primary NAAQS at a level "requisiteto protect the public health." See 42 U.S.C. 7409(b)(1). It does notdirect EPA to consider economic and other costs when setting NAAQS, andthere is no basis for inferring that Congress intended those factors tobe considered at that initial stage of the regulatory process. The languageand structure of the 1970 CAA demonstrate that the overriding purpose ofNAAQS promulgation is to determine, as the first step of the CAA regulatoryprogram, the ambient air quality standards that are necessary to protectthe public health and welfare. Neither Section 108, which specifies thekinds of factual information upon which NAAQS must be based, nor Section109, which contains the legal test NAAQS must meet, discusses or otherwisesuggests any consideration of cost or technical feasibility. See Lead Indus.Ass'n, 647 F.2d at 1149; Vinyl Chloride, 824 F.2d at 1158.6

Section 109(b)(1) specifically requires NAAQS to be "based on"the air quality "criteria" that EPA issues under Section 108.42 U.S.C. 7409(b)(1). Section 108(a)(2), in turn, limits the kind of informationto be included in the "criteria" to "the latest scientificknowledge" about effects on health and welfare "which may be expectedfrom the presence of such pollutant in the ambient air." 42 U.S.C.7408(a)(2). Section 108(a)(2) makes no mention whatsoever of effects fromimplementing the NAAQS-it mentions only effects resulting from the presenceof a criteria pollutant in the air. That silence is telling in light ofother sections of the Clean Air Act Amendments of 1970 where Congress expresslyprovided that EPA should consider costs and similar factors in making decisions.7

The structure of the CAA also indicates that EPA should promulgate NAAQSbased on health and welfare effects and not on the basis of costs or allegedadverse effects that may result from their implementation. As this Courtrecognized long ago, the CAA is a "technology-forcing" statutethat sets ambitious goals to protect public health and welfare. See Trainv. Natural Resources Defense Council, Inc., 421 U.S. 60, 91 (1975). In thatrespect, Congress has indicated expressly when and to what extent costsand implementation effects shall be considered in the regulatory process.See Union Elec. Co. v. EPA, 427 U.S. 246 (1976).8

For example, States are entitled to develop State Implementation Plans (SIPs)governing how NAAQS will be implemented within their borders. See CAA § 110, 42 U.S.C. 7410. States may properly consider the costs of NAAQSimplementation when formulating the SIPs, and EPA may not override thosejudgments so long as the SIP will achieve attainment of the NAAQS. See UnionElec. Co., 427 U.S. at 256-269.9 The Court also recognized that the CAAdoes not allow a State to rely on those considerations at the expense ofmeeting the statutory deadlines for attaining the national health-basedstandards. Id. at 266-269.10 The Court's longstanding decision in UnionElectric, describing the CAA as a "technology-forcing" statuteand explaining how cost considerations are introduced into the regulatoryscheme on a State-by-State basis in the implementation process, would makelittle sense if EPA had to promulgate NAAQS based on an analysis of costsand related implementation factors at the outset of the regulatory process.11

As the court of appeals has repeatedly noted, the legislative history ofthe 1970 Amendments confirms the paramount importance of setting primaryNAAQS based solely on the health effects posed by the pollutant in the ambientair. See Vinyl Chloride, 824 F.2d at 1158; Lead Indus. Ass'n, 647 F.2d at1149. For example, the Senate report accompanying the 1970 Amendments states:

In the Committee discussions, considerable concern was expressed regardingthe use of the concept of technical feasibility as the basis of ambientair standards. The Committee determined that 1) the health of people ismore important than the question of whether the early achievement of ambientair quality standards protective of health is technically feasible; and,2) the growth of pollution load in many areas, even with application ofavailable technology, would still be deleterious to public health.

Therefore, the Committee determined that existing sources of pollutantseither should meet the standard of the law or be closed down * * *.

S. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970). In other words, the primaryNAAQS should be based on health effects rather than economic or technicalfeasibility, and as a result, the NAAQS have a "technology-forcing"effect. See Train, 421 U.S. at 91; Union Elec. Co., 427 U.S. at 257, 269.

At bottom, APC urges this Court to revisit the long-settled question ofwhether EPA should consider costs and other alleged implementation effectsin setting NAAQS because, in APC's view, its preferred approach would be"wise social policy." See, e.g., APC Cross-Pet. 6-7. But Congressconcluded otherwise, and Congress's choice was certainly a rational one.Congress reasonably concluded that NAAQS should be based on health and welfareconsiderations alone so that Congress and the public know that EPA's judgmentson the health and welfare threats posed by particular criteria pollutantsare not compromised by considerations of economic and technical feasibility.As this Court recognized in Union Electric, Congress provided the Stateswith flexibility in the implementation process to consider the economicand technical feasibility of attainment, 427 U.S. at 266-269, but it reservedto itself the prerogative of deciding - as a matter of legislative choice- whether and how to alter the statutory scheme if public health needs shouldprove to conflict with an industry's economic viability.12

Congress has since recognized and exercised that prerogative. See 62 Fed.Reg. at 38,685. In the course of formulating the Clean Air Act Amendmentsof 1977, Congress was well aware that some areas of the country had beenunable to attain some of the NAAQS. See, e.g., H.R. Rep. No. 294, 95th Cong.,1st Sess. 207-217 (1977). It was also aware that some of the NAAQS criteriapollutants might be non-threshold pollutants and that significant scientificuncertainties are inherent in setting health-based standards. See id. at43-51, 110-112. In response, Congress made significant changes in the provisionsfor implementing the NAAQS, including, for example, an extension of thedeadline for attaining the ozone NAAQS. It also amended Sections 108 and109 of the Act to require periodic review and revision of NAAQS and to establishCASAC. Nevertheless, Congress did not change the substantive criteria forsetting and revising NAAQS. See 62 Fed. Reg. at 38,685 & n.66 (describingthe 1977 Amendments).13

Congress exercised that prerogative again in 1990. The Clean Air Act Amendmentsof 1990 responded to persistent nonattainment problems by adjusting thescheme for their implementation. See, e.g., CAA §§ 181-192, 42 U.S.C. 7511-7514a. Significantly, Congress wasfully aware of how NAAQS are promulgated, and it did not change the legalstandard on which NAAQS are based. To the contrary, both the House and SenateReports accompanying the 1990 Amendments expressly reflect the understandingthat primary NAAQS are to be "set at a level that 'protects the publichealth with an adequate margin of safety,' without regard to the economicor technical feasibility of attainment." H.R. Rep. No. 490, 101st Cong.,2d Sess., Pt. 1, at 145 (1990) (emphasis added); accord S. Rep. No. 228,101st Cong., 1st Sess. 5 (1989). Congress's actions confirm that the courtof appeals and EPA have correctly discerned congressional intent to precludeconsideration of economic and technical feasibility in setting and revisingNAAQS. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 600-602 (1983)(Congress "affirmatively manifested its acquiescence" in IRS policyby articulating the policy in committee reports accompanying related legislation);Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 (1969) ("the constructionof a statute by those charged with its execution should be followed unlessthere are compelling indications that it is wrong, especially when Congresshas refused to alter the administrative construction").

ATA attempts to overcome the overwhelming evidence of congressional intentby drawing analogies from this Court's decision in Industrial Union Departmentv. American Petroleum Institute., 448 U.S. 607 (1980). See ATA Cross-Pet.15-16. That case, however, involves a different statute, with differentlanguage, that creates an entirely different regulatory program. The OccupationalSafety and Health Act (OSH Act), 29 U.S.C. 651 et seq., directs the Secretaryof Labor to establish "occupational safety and health standard[s],"29 U.S.C. 655(b), that are directly applicable to industrial employers andthat are directly enforced by federal officials. 29 U.S.C. 658-659. TheOSH Act expressly requires the Secretary to consider whether standards dealingwith toxic materials or harmful physical agents are "feasible."29 U.S.C. 655(b)(5).

The CAA's NAAQS promulgation process, by contrast, is simply the first stepin a federal-state regulatory program and does not create standards thatare themselves directly applicable to any air pollution source. The CAAdirects EPA to set NAAQS at levels of air quality "requisite"to protect public health and welfare, but the CAA empowers the States todetermine appropriate emission limitations and other controls on individualair pollution sources. See generally Train, supra; Union Elec. Co., supra.Unlike the OSH Act scheme, the CAA requires the Administrator to determine,as an initial matter, the exposure limitations necessary to protect healthand welfare and leaves to the States discretion to consider-consistent withtheir obligation to meet the attainment deadlines-the economic or technologicalfeasibility of compliance. See Union Elec. Co., 427 U.S. at 259 (quotingS. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970)).

ATA's and APC's reliance on the court of appeals' en banc decision in VinylChloride, 824 F.2d at 1158-1159, is similarly misplaced. See ATA Cross-Pet.15-18; APC Cross-Pet. 9-10, 19. That decision in no way "strongly suggests"that the District of Columbia Circuit "now lacks confidence" inits Lead Industries decision. ATA Cross-Pet. 17-18. To the contrary, thecourt concluded that EPA should consider economic and technical feasibilitywhen setting individual emission standards for specific hazardous air pollutantsunder Section 112 of the CAA, 42 U.S.C. 7412. It expressly distinguishedSection 109's method for promulgating NAAQS. Writing for the en banc court,Judge Bork explained that the language and structure of the CAA supportthe conclusion that "Congress simply did not intend the economics ofpollution control to be considered in [Section 109's] scheme of ambientair regulations." 824 F.2d at 1159.14

b. As the foregoing discussion shows, the ATA and APC cross-petitions donot present an issue that would warrant review in its own right: The courtof appeals has repeatedly and correctly rejected ATA's and APC's arguments;those rulings have not produced any dissent; this Court has repeatedly declinedto review the issue; and ATA and APC did not seek relief from the en banccourt before petitioning for a writ of certiorari yet again. ATA neverthelessargues that this Court should combine its review of the nondelegation issueand this particular statutory issue because the issues are "inextricablyintertwined." ATA Cross-Pet. 7; see also APC Cross-Pet. 4 (cost issueis "fairly within the scope of the initial petitions"). That assertionis correct only in the haphazard sense that a fishing line might becomeintertwined with a tree limb. Enlarging the grant would complicate an alreadycomplex case and would require the Court to disentangle inquiries that areproperly separate and that the court of appeals treated as distinct. Indeed,the court of appeals panel was divided on the nondelegation issue, but unanimouson the supposedly "intertwined" statutory issue that ATA and APCpresent.

ATA concedes, in response to our petition, that Section 109 of the CAA itselfdoes not violate the nondelegation doctrine. 99-1257 ATA Br. 15 (Section109 is "undisputedly" constitutional); see also 99-1257 APC Br.8 ("The court did not hold the statute itself unconstitutional.").Significantly, ATA does not contest our showing (99-1257 Pet. 11-16) that

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