US Supreme Court Briefs

No. 99-1426



IN THE SUPREME COURT OF THE UNITED STATES


AMERICAN TRUCKING ASSOCIATIONS, INC., FT AL.,
Petitioners,
V.


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


BRIEF OF AMICIUS CURIAE STATE OF CALIFORNIA CONNECTICUT,IOWA,MAINE,MARYLAND,NEW
MEXICO,NEW YORK,WASHINGTON AND VERMONT IN SUPPORT OF CROSS-RESPONDENTS


Filed SEPT 11, 2000

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

TABLE OF CONTENTS
Page
INTEREST OF AMICI STATES
SUMMARY OF ARGUMENT 5
ARGUMENT 6

COMPARISON OF SECTION 109(b) WITH
OTHER SECTIONS OF THE ACT SHOWS
THAT, WHERE CONGRESS INTENDED COSTS
OF COMPLIANCE TO BE TAKEN INTO
ACCOUNT, IT SAID SO AND PROVIDED
DIRECTIONS ON HOW TO DO SO. THE
ABSENCE OF SUCH DIRECTIONS IN SECTION 109(b)
MEANS THAT CONGRESS DID
NOT INTEND COSTS TO BE TAKEN INTO
ACCOUNT 6

II. THE TEXT, THE LEGISLATIVE HISTORY, AND
THE STRUCTURE OF THE CLEAN AIR ACT
ALL DEMONSTRATE CONCLUSIVELY THAT
CONGRESS DID NOT INTEND COSTS OF
_ COMPLIANCE TO BE TAKEN INTO
ACCOUNT IN SETTING THE NAAQS 11
~
A. In Enacting the 1970 Clean Air Act, Con-
gress Understood Air Quality Standards
That Protect "Public Health" as Being Stan-
dards Set Below the Levels at Which Dem-
onstrated Health Effects Occur 11

B. Requiring the Administrator to Provide
Nuts-and-Bolts Control Technology Infor-
mation to the States, and the Role of CASAC
~' -"'~l in Evaluating the Relative Effects of Differ-
ent Control Strategies, ln No Way Mandates
That the Administrator Consider Costs in
Setting the NAAQS. On the Contrary, They
Are Part of the Federal-State Partnership Set
Up by the Act 19

ii iii


TABLE OF CONTENTS - Continued
Page

III. BASING THE NAAQS ON COST ESTIMATES
MADE AT THE TIME OF STANDARD SETTING
WOULD COMPROMISE THE HEALTH-PRO-
TECTIVE INTENT OF CONGRESS, SINCE
TECHNOLOGICAL AND REGULATORY CLIMATE
CHANGES PRODUCE COST REDUCTIONS THAT
ARE NOT FORESEEABLE WHEN
NAAQS ARE SET

2
5
CONCLUSION 30
TABLE OF AUTHORITIES
Page

CAsss

American Petroleum Institute v. Castle, 665 F.2d 1176
(D.C. Cir. 1981), cert. denied sub nom., American
Petroleum Institute v. Gorsuch, 455 U.S. 1034
(1984) 12

American Textile Manufacturers Institute v. Donovan,
452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185
(1980) 9


Bob Jones University v. United States, 461 U.S. 574
(1983) 17
Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164
(1994)
17
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) 6

Coalition Against Columbus Center v. City of New
York, 967 F.2d 764 (2d Cir. 1992) 2
Commodity Futures Trading Commission v. Schor, 478
U.S. 833 (1985) 17
FDA v. Brown & Williamson Tobacco Corp., ___ U.S.
120 S.Ct. 1291 (2000) 11
FDIC v. Philadelphia Gear Corp., 476 U.S. 426 (1985) .... 17
Keene Corp. v. United States, 508 U.S. 200 (1993) 17
Lead Industries v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert. denied
sub nom., Lead Industries v.

EPA, 449 U.S. 1042 (1980)
12, 16
Lindahl v. Office of Personnel Management, 470 U.S.
768 (1984) 17
Lorillard v. Pons, 434 U.S. 575 (1978) 17


iv
V
TABLE OF AUTHORITIES - Continued
Page

Natural Resources Defense Council v. EPA, 902 F.2d 962
(D.C. Cir. 1990), cert. denied sub nom., American Iron &
Steel Institute v. EPA, 498 U.S. 1082
(1991) 12, 20

NRDC v. EPA, 894 F.2d 1146 (D.C. Cir. 1987) (en
banc) 12
Pierce v. Underwood, 487 U.S. 552 (1988) 17

St. Joe's Minerals Corp. v. EPA, 449 U.S. 1042 (1980) .... 12
Staples v. United States, 511 U.S. 600 (1994) 17

Train v. Natural Resources Defense Council, 421 U.S.
60 (1975) 21, 26

Union Electric Co. v. Environmental Protection Agency, et
al., 427 U.S. 246 (1976) 6, 9, 15, 20

Union of Concerned Scientists v. U.S. Nuclear Regulatory
Commission, 824 F.2d 108 (D.C. Cir. 1987) 9

United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985) 17

Western Oil & Gas Ass'n v. Air Resources Board, 37
Cal.3d 502 (1984) 4

FEDERAL STATUTES

Clean Air Act
107(d)(5), 42 U.S.C. 7407(d)(5) 16
108, 42 U.S.C. 7408 13, 22
108(a), 42 U.S.C. 7408(a)
12, 20
108(a)(2), 42 U.S.C. 7408(a)(2) 10, 22
108(b), 42 U.S.C. 7408(b)
19, 21, 22
108(b)(1), 42 U.S.C. 7408(b)(1) 15
TABLE OF AUTHORITIES - Continued
Page
109, 42 U.S.C. 7409 13, 15
109(a), 42 U.S.C. 7409(a) 20
109(a)(1), 42 U.S.C. 7409(a)(1) 20
109(a)(1)(A), 42 U.S.C. 7409(a)(1)(A) 20
109(a)(2), 42 U.S.C. 7409(a)(2) 20
109(b), 42 U.S.C. 7409(b) 10, 16
109(b)(1), 42 U.S.C. 7409(b)(1) passim
109(d), 42 U.S.C. 7409(d) 21
109(d)(2), 42 U.S.C. 7409(d)(2) 22
109(d)(2)(A), 42 U.S.C. 7409(d)(2)(A) 23
109(d)(2)(B), 42 U.S.C. 7409(d)(2)(B) 19

109(d)(2)(C), 42 U.S.C. 7~9(d)(2)(C)... 15, 21, 24, 26
110(a)(1), 42 U.S.C. 7410(a)(1) 21
111(a)(1), 42 U.S.C.
112(d)(2), 42 U.S.C.
112(d)(3), 42 U.S.C.
7411(a)(1)

7412(d)(2)

7412(d)(3)
7

8

8
112(0(2), 42 U.S.C. 7412(f)(2) 8
175, 42 U.S.C. 7505 21
178, 42 U.S.C. 7508 21
181, et seq., 42 U.S.C. 7511, et seq 8
182(a)(2)(A), 7511a(a)(2)(A) 21





vi vii


TABLE OF AUTHORITIES - Continued
Page
182(a)(3)(B), 42 U.S.C. 7511a(a)(3)(B) 21
182(b)(2), 42 U.S.C. 7511a(b)(2) 21
183(a), 42 U.S.C. 7511b(a) 21
183(b), (e), 42 U.S.C. 7511b(b), (e) 29
190, 42 U.S.C. 7513b 21
211, 42 U.S.C. 7545 28
TABLE OF AUTHORITIES - Continued
Pa
ge

62 Fed. Reg. 38856, 38878 and passim (July 18,
1997) 12

New Hampshire (N.H. Code Admin. R. Env-A
301.03(c) 1
New Jersey (N.J. Admin. Code tit. 7, 7:27-13.1) 2
Vermont (Reg. 5-30 1) 1




STATE STATUTES
California (Cal. Health and Saf. Code 39606) 2
Colorado (Cob. Rev. Stat. 25-7-108) 2
Iowa (567 Iowa Code 28.1) 4
Massachusetts (Mass. Gen. Law. ch. 310, 6.02(1)) 2
North Carolina (N.C. Gen. Stat. 143-215.107(b)) 2
Pennsylvania (Pa. Stat. 4044.2 (1999)) 1
Wisconsin (Wis. Stat. 285.01(9)) 2


REGULATIONS

49 Fed. Reg. 6866, 6866-67 and passim (Feb. 23,
1984) 12

52 Fed. Reg. 24634, 24635 and passim (July 1, 1987)
.... 12

53 Fed. Reg. 52698, 52701 and passim (Dec. 29,
1988) 12

58 Fed. Reg. 13008, 13008 and passim (March 9,
1993) 12
LEGISLATIVE HISTORY
116 CONG. REC.
32901-32902 (1970) 15
123 CONG. REC. H8662, 95th Cong., 1st Sess.
reprinted in 1977 U.S.C.C.A.N. 1570
27
136 CONG. REC. S2826-01, S2835 (1990)
27
CONF. REP. No. 91-1783, 91st Cong., 2d Sess. (1970),
reprinted in 1970 U.S.C.C.A.N., 5374, 5381
26, 27
H.R. REP. No.
294, 95th Cong., 1st Sess. 179-84
(1977), reprinted in 1977 U.S.C.C.A.N. 1258-62
22
S. REP. No. 91-1196, 2-3 (1970)
15
S. REP. No. 101-228 (1990), reprinted in
1990
U.S.C.C.A.N.
3385, 3391 18
OTHER AUTHORITIES

David Driesen, Should Congress Direct the EPA to Allow
Serious Harms to Public Health to Continue?: Cost-
Benefit Tests and the Clean Air Act, 11 Tub. Envtl. L. J.
217, 227-231 (1998) 25

Goodstein and Hodges, Polluted Data, The
American Prospect, No. 35, 64, 65-66 (Nov.-Dec.
1997) .... 28






TABLE OF AUTHORITIES - Continued
viii 1


Page

Arnold Reitze, Mobile Source Air Pollution Control,
6 Envt'l Lawyer 309, 327 (2000) 28

Daniel Selmi, lmpacts of Air Quality Regulation on
Economic Development, 13 Fall Nat. Resources &
Env't 382 (1998) 29

Porter and van der Linde, Toward a New Conception of the
Environment-Competitiveness Relationship, 9 Journal
of Econ. Persp. 97, 101 (1995) 28

Michael Weisskopf, Auto-Pollution Debate Has Ring of
the Past; Despite Success, Detroit Resists, Wash
ington Post, March 26, 1990 28


INTEREST OF AMICI STATES

The interest of amici States in this case is real and
immediate, as real as the decision as to which
industries to control and how much in order to be able
to meet a federal standard, and as immediate as the asthma
attack that takes a child from the softball field to the
hospital on a hot summer day. As the "hands-on" partners in
the complex Federal-State partnership forged by the Clean
Air Act ("the Act" or "the CAA"), it is the States that must
devise the control strategies, develop and enforce the
permits, and pass the legislation necessary to meet and
maintain the National Ambient Air Quality Standards
("NAAQS"). It is also the States that must cope with the
health effects on their citizens that result from air pollution,
and that are most answerable to their citizens for either the
success or the failure of air pollution control in this country.

Thirty years ago, the Act established the basic principle
that there would be nationwide, health-based, federally-
established air quality standards, and that States would
develop and enforce the plans to meet them. Since that time,
all fifty States have structured their air pollution control
programs around those nationwide standards and the plans by
which States meet them. The regulatory structures of every
State are based, overall, on the Clean Air Act's requirement
that States meet the health-based NAAQS. Some States do
not even have their own independent air quality standards,
but simply use the NAAQS as their benchmarks.' Many
States, like amicus


1 See, e.g., New Hampshire (N.H. Code Admin. R. Env-
A
301.03(c) (defining ambient air quality standards as the level
"designated by the Administrator of the EPA which is judged
as necessary to protect the public health"); Vermont (Reg. 5-
301 (stating that "[t]he ambient air quality standards
contained in this subchapter are based on national ambient
air quality standards, where such national standards exist").
See also Pennsylvania (Pa. Stat. 4044.2 (1999)) (requiring
that State





2 3

California, set their own, more stringent, independent
standards.2 Many States set their standards,
whether at NAAQS level or more stringently, pursuant to
State statutory mandates to protect the "public health" such
as the one that the Court is asked here to interpret.3 To
decide at this late date that the NAAQS have from the outset
been set by the wrong standard the ineluctable result of
reversing the Court of Appeals' decision here would throw
into doubt and chaos the settled expectations and the air
pollution control apparatus of the entire nation.

A point that is often overlooked but that is critical for
understanding the Act is that no NAAQS is directly
enforceable. Coalition Against Columbus Center v. City of
New York, 967 F.2d 764, 769-71 (2d Cir. 1992). A NAAQS
becomes enforceable only when a State turns that NAAQS
into a control strategy, regulations, and actual, enforceable
permits and restrictions. It is virtually impossible to overstate
the detail and extent of the laws, regulations, permits, and
decisions that have been based upon the NAAQS, and that are
embodied in the State Implementation Plans ("SIPs") to meet
and maintain the NAAQS that the States prepare and submit
to the United States Environmental Protection Agency
("EPA").4


standards be "no more stringent" than federal standards, with
the result that the State standards necessarily are identical to
the federal standards).
2 See, e.g., California (Cal. Health and Saf. Code
39606); Colorado (Cob. Rev. Stat. 25-7-108) (setting non-
federal standard for visibility); North Carolina (N.C. Gen.
Stat. 143-215.107(b)).
See,
6.02(1));
Wisconsin
e.g., Massachusetts (Mass. Gen. Law. ch. 310, New Jersey
(N.J. Admin. Code tit. 7, 7:27-13.1); (Wis. Stat.
285.01(9)).
While California is not a typical State, in physical size,
in population, or in the tenacity of its air pollution problems,
the size of California's SIP gives an idea of the magnitude of
the regulatory edifice that rests on the NAAQS. The last
complete
A SIP begins with establishing the many separate air
quality control regions or planning areas with a State;
planning by separate areas is necessary because the mete-
orology, topography and type of pollutant sources vary by
region. Using California as an example of a large State, it has
fifteen different air quality planning areas and thirty-five air
districts for which air quality planning is done. Colorado, as
an example of a smaller State, has thirteen air quality control
regions, but does separate planning for its five nonattainment
areas for carbon monoxide, seven nonattainment areas for
particulate matter, and one nonattainment area for ozone.
Each area has a separate control strategy for each pollutant,
since different regions will have varying problems with, and
goals for, different pollutants (e.g., urban areas will probably
have to focus on ozone reduction or particulate emissions
from trucks and cars, while rural areas may be more
concerned with preserving visibility). Each control strategy
within each region must be embodied in rules and regulations
directed at each of the six pollutants covered by a NAAQS, and
some pollutants require statewide regulations as well (e.g.,
automotive emissions standards for California and the
Northwest States). Finally, permits must be issued for
individual sources that govern their day-to-day operation.
The NAAQS and the SIPs designed to meet them, permeate
every county, city, borough, and town in every State, and
have been forged only through extensive and often painful
technical and policy choices.
Should the Court reverse the decision below, every SIP
and all its component parts may be cast into doubt. The SIPs
are focused on attainment and maintenance of the NAAQS; if
the Court decides that EPA has always


SIP filed by California with EPA, not counting amendments
that are filed as needed, was filed in 1994; that SIP filled
twenty-six banker's boxes. Not included in those twenty-six
boxes were regulations aimed solely at enforcing those air
quality standards set by California that are more stringent
than required to meet the NAAQS.





4 5


misunderstood how the NAAQS are to be set, every SIP could
be open to challenge. It is not fanciful to expect that industry
petitions will flood EPA, and thence the courts, seeking to
overturn each and every NAAQS, as well as every regulation,
rule, and permit based on those NAAQS. What is now a solid
and comprehensive regulatory structure could suddenly
become a house of cards, ready to topple, with every rule and
every permit potentially in doubt.
Further, State air quality standards might similarly be cast
into doubt. As set out, supra, many States rely principally on
the NAAQS to define air quality and do not set independent
air quality standards, or rely on statutory language identical to
that found in the relevant section of the Act to set their
standards. Those States would suddenly find themselves
without an authoritative basis for their air pollution programs.
Some States set their own air quality standards, but base them
on health protection, following what has always been
perceived as the model of the Clean Air Act.5 These States
can anticipate that their independent state standards will be
next in line for an industry challenge, should the Court accept
industry's invitation to establish a court-made rule that air
quality standards cannot rationally be set without
consideration of compliance costs. The States would face the
front-line problems of protecting the health of their citizens
from the very real dangers of air pollution while the Congress
and EPA scrambled to respond to such a rule, whether with
new legislation, new NAAQS, or both. The setting of a
NAAQS is a lengthy process now; it would be more so if the
basis for each of the NAAQS had to be reevaluated, and that
new basis inevitably litigated. Reevaluation of


5 See, e.g., Western Oil & Gas Ass'n v. Air Resources
Board, 37 Cal.3d 502, 516-19 (1984) (holding that
California's Air Resources Board is not to consider costs in
setting ambient air quality standards, and citing, inter alia, the
federal Clean Air Act and federal case law similarly construing
the NAAQS, as authority for its conclusion).
the basis for setting the NAAQS could cause this country to
drift for many years with literally no national plan for
ensuring air quality, before new NAAQS could be set, new rules
for meeting them developed, new SIPs drafted, and permits
crafted all over again. --
Meanwhile, States would have the continuing
responsibility for ensuring that their residents breathe
healthy, safe air. The health of their residents and the
integrity of their air pollution regulatory schemes comprise
the interest of amici States.


SUMMARY OF ARGUMENT

Industry Cross-Petitioners and their amici, particularly
amicus General Electric, have issued to the Court a stunningly
frank and open invitation to legislate. They plainly and
forthrightly ask the Court to rewrite thirty years of
unanimous interpretation of the Clean Air Act by courts, by
the agency charged with administering it, and
most important by Congress. Cross-Petitioners and their
amici seek to replace the health-protective philosophy upon
which the NAAQS have always been based, as interpreted in
Lead Industries v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert.
denied sub nom., Lead Industries v. EPA, 449 U.S. 1042
(1980), with the current cost-based, monetized philosophy they
think Congress should have employed to attack the problem
of air pollution.

Petitioners' argument rests solely on a tortured, out-of-
context reading of one or two phrases in the Act, together
with a plethora of articles and arguments by certain
contemporary economists and theoreticians who seek to
rewrite the Act to conform to their own costbenefit
preferences for public policy. By contrast, the relevant
portion of the decision below rests on straightforward
language in the Act, copious legislative history, internal
structural evidence in the Act, and decades of consistent and
unbroken interpretation by both the agency responsible for
administering the Act and the courts charged with interpreting
it. The text and structure





6 7

of the Clean Air Act demonstrate that, where Congress
intended costs to be taken into account, it said so explicitly,
and gave precise and detailed instructions as to how to do so.
The total absence of any such provision or directions
demonstrates that Congress did not intend costs to be
considered in the setting of the national standards. Further,
Congress intended the Act to force technology, making it
difficult to rationally predict costs.

Amici States believe that this is an apt case for the
application of a Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837
(1984), step one, analysis: Congress has spoken to this
question directly, and where Congress has so spoken, the
courts are bound to carry out Congress' expressed intent. To
hold for industry here would be to go back not just thirty
years to before Congress passed the Act, but to return to pre-
Chevron days; industry here asks the Court to impose its own
conception of public policy upon statutes, regardless of the
intent of the democratically elected Congress.


ARGUMENT

I.

COMPARISON OF SECTION 109(b) WITH OTHER
SECTIONS OF THE ACT SHOWS THAT, WHERE
CONGRESS INTENDED COSTS OF COMPLIANCE TO
BE TAKEN INTO ACCOUNT, IT SAID SO AND PRO-
VIDED DIRECTIONS ON HOW TO DO SO. THE
ABSENCE OF SUCH DIRECTIONS IN SECTION 109(b)
MEANS THAT CONGRESS DID NOT INTEND COSTS
TO BE TAKEN INTO ACCOUNT

In Union Electric Co. v. Environmental Protection Agency, et
al., 427 U.S. 246, 256, n. 5 (1976), the Court held that a
comparison between different sections of the Act could
illuminate the intent of Congress as to consideration of costs
or feasibility. Such a comparison is very enlightening here.
Comparison between Section 109(b)(1) and other sections of
the Act shows that, where Congress
did intend costs to be taken into account, it not only said so
explicitly, but gave specific, fairly comprehensive
instructions to the Administrator as to how to do so. The
absence of any instructions, let alone any that resemble the
detailed ones found in other provisions of the Act, shows
convincingly that Congress did not intend compliance costs
to be among the factors the Administrator considers when
setting the NAAQS.
Two examples suffice. When it ordered EPA to set
standards of air pollution control performance for new major
stationary sources of emissions (the New Source Performance
Standards, or NSPS), Congress required EPA to set standards:
"which reflect[ I the degree of emission limitation
achievable through the application of the best system of
emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and
environmental impact and energy requirement) the
Administrator determines has been adequately
demonstrated."
CAA Section 111(a)(1), 42 U.S.C. 7411(a)(1) (emphasis
added). Thus, the Administrator must determine that a
technology has been demonstrated, and is not simply
theoretical, before requiring it, and must consider the
monetary costs of compliance, must consider collateral
health and environmental harms and benefits, and must
consider any effects on energy. Section 111 also contains
directions from Congress to the Administrator on how to set
priorities for establishing new NSPS standards, when work
rules could be used instead of a standard of emissions control,
and how and when to waive the NSPS in order to allow new
technology to be demonstrated. The factors to be considered
by the agency under Section 111, and the instructions as to
how that agency should consider these factors when making
rules, are comprehensive, wide-ranging, and thorough.
Similarly, when Congress overhauled the Act in the
1990 Amendments, it set up a new approach to control of
hazardous air pollutants, and was extremely careful to





8 9

provide the Administrator with precise directions as to when
and how she should consider costs.
Section 112(d)(2), for example, provides in pertinent
part:
"Emissions standards promulgated under this subsection
and applicable to new or existing sources of hazardous
air pollutants shall require the maximum degree of
reduction in emissions of the hazardous air pollutants
subject to this section (including a prohibition on
emissions, where achievable) that the Administrator,
taking into consideration the cost of achieving such
emission reduction, and any non-air quality health and
environmental impacts and energy requirements,
determines is achievable for new or existing sources.
CAA 112(d)(2), 42 U.S.C. 7412(d)(2). Section 112(d)(3)
gives additional, extremely explicit directions as to what
reduction technology may be considered achievable, including
percentages of sources and timetables. Congress specified
that:

"The maximum degree of reduction in emissions that is
deemed achievable for new sources in a category or
subcategory shall not be less stringent than the emission
control that is achieved in practice by the best
controlled similar source, as determined by the
Administrator. .
CAA 112(d)(3), 42 U.S.C. 7412(d)(3). Section 112(d)(3)
goes on to provide in almost minute detail what standards the
Administrator must set, what percentage of sources must have
achieved a given level of emissions reduction by a given time
before that degree of control will be considered achievable,
and how many sources must have achieved a given level of
emissions reduction before the Administrator may set such
level as a standard under Section 112, all factors that clearly
go to cost and feasibility of compliance. See also Part D,
Subpart 2, 42 U.S.C. 7511, et seq., where Congress itself
did the balancing and comprehensively listed control measures
that States must adopt for nonattainment areas, according
to the degree of severity of the nonattainment problem in
each category of area.

Moreover, in Section 112(f)(2), Congress directly spoke
to the issue of balancing health risks from hazardous air
pollutants and costs of compliance, ordering the
Administrator to set further hazardous pollutant emissions
standards under specified circumstances. Section 112(f)(2)
requires EPA to adopt these emissions standards:
"if promulgation of such standards is required in order to
provide an ample margin of safety to protect public
health and welfare in accordance with this section (as in
effect before November 15, 1990), or to prevent, taking
into consideration costs, energy, safety, and other relevant
factors, an adverse environmental effect. Emission stan-
dards promulgated under this subsection shall provide an
ample margin of safety to protect public health in
accordance with this section (as in effect before
November 15, 1990), unless the Administrator
determines that a more stringent standard is necessary to
prevent, taking into consideration costs, energy, safety, and
other relevant factors, an adverse environmental effect. . .

CAA 112(f)(2), 42 U.S.C. 7412(f)(2) (emphasis added). These
remarkably detailed Sections show that, where
Congress intended for costs to be considered, it expressed that
intent so as to leave no doubt.6 This is not the case in Section
109(b)(1). While Cross-Petitioners spin elaborate


6 Cf. Union of Concerned Scientists v. U.S. Nuclear Regulatory
Commission, 824 F.2d 108, 114-115 (D.C. Cir. 1987) ("[W]hen
Congress desired agencies to consider economic costs, it knew
how to say so, see American Textile Manufacturers Institute v.
Donovan, 452 U.S. 490, 510, 101 S.Ct. 2478, 2491, 69 L.Ed.2d 185
(1980); presumably, when Congress desired to permit agencies to
consider economic costs, it knew how to say so as well, see
Union Electric, 427 U.S. at 257 n. 5, 96 S.Ct. at 2525 n. 5.").





10 11

theories about how costs of compliance could be considered
in setting the NAAQS, Brief of Cross-
Petitioners American Trucking Associations, et al.
("Cross-Pet. Brf.") at 32-33, examination of the statute
shows that Congress did not provide any such direction
whatever. Given the central position in the clean air scheme
of the Act that the NAAQS enjoy, affecting every place and
every person in the country, it makes no sense that Congress
would have so glaringly omitted directions on how to take
costs into account there, while
simultaneously providing such meticulous
directions in far less central portions
of the Act that do not necessarily
affect all places and all people. The
omission can mean only that Congress did not intend for
compliance costs to be taken into account when setting the
NAAQS.
A parsing of the text of Section 109 confirms this
reading. Section 109(b) provides for the issuance of primary
NAAQS only for pollutants for which air quality criteria have
been issued. Section 108 provides that these air quality
criteria "shall accurately reflect the latest scientific
knowledge useful in indicating the kind and extent of all
identifiable effects on public health or welfare which may be
expected from the presence of such pollutants in the ambient
air, in varying quantities." CAA 108(a)(2), 42 U.S.C.
7408(a)(2). Section 109(b) requires that NAAQS must be
"based on such criteria" together with what the Administrator
deems an "adequate margin of safety . . . requisite to protect the
public health." CAA 109(b), 42 U.S.C. 7409(b). But
while the criteria contain detailed, carefully and
comprehensively vetted and reviewed scientific and health
data and studies, Congress did not order them to contain and
they do not contain any information about costs. No
consideration of costs could possibly be based on the criteria,
since data on such costs are simply not there.
Congress was not chary with its instructions as to taking
costs into account when that was what Congress intended. The
utter lack of such guidance in Section 109(b) shows that
Congress did not intend it as to the setting of
the NAAQS. As the Court recently noted, "Congress could
not have intended to delegate a decision
of such economic and political significance . . . in so cryptic
a fashion." FDA v. Brown & Williamson Tobacco Corp., U.S.
.~..., 120 S.Ct. 1291, 1315 (2000). --


II.

THE TEXT, THE LEGISLATIVE HISTORY, AND THE
STRUCTURE OF THE CLEAN AIR ACT ALL DEMON-
STRATE CONCLUSIVELY THAT CONGRESS DID
NOT INTEND COSTS OF COMPLIANCE TO BE
TAKEN INTO ACCOUNT IN SETTING THE NAAQS

Industry argues that the text,
structure, and legislative history of
the Act all support the view that costs
of compliance should be taken into
account in setting the NAAQS. On the contrary,
each of these factors shows that Congress understood and
intended that the NAAQS would be set solely on the basis of
protection of health, not costs of compliance.


A. In Enacting the 1970 Clean Air Act, Congress
Understood Air Quality Standards That Protect
"Public Health" as Being Standards Set Below the
Levels at Which Demonstrated Health Effects
Occur

Congress' directions as to how the primary NAAQS were
to be set are short. Section 109(b)(1) provides:

"National primary ambient air quality standards,
prescribed under subsection (a) of this section shall be
ambient air quality standards the attainment and
maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the
public health. Such primary standards may be revised in
the same manner as promulgated."





12 13


CAA 109(b)(1), 42 U.S.C. 7409(b)(1). Since the Act was
passed, the EPA Administrator has interpreted this Section to
require that the primary NAAQS be set solely on the basis of
health effects information.7 Courts have also interpreted the
Section in the same way.8 Most importantly,
Congress has explicitly and impliedly
reaffirmed that it intended the NAAQS to be set on the basis
of health.

Cross-Petitioners and their industry amici seek to
reverse this long-standing, consistent,
virtually unanimous interpretation of
Section 109. Instead, they attempt to
find evidence that has somehow eluded
the courts and the Administrator for
thirty years that Congress intended the
primary NAAQS to be set taking cost of
compliance, and societal costs, into account. Cross-
Petitioners first cite the requirement in Section
109(b)(1) that the primary NAAQS must be
set based on the air quality criteria
documents prepared pursuant to Section
108(a), and established at levels
"allowing an adequate margin of safety,
[that] are requisite to protect the
public health."
CAA 109(b)(1), 42 U.S.C. 7409(b)(1).

As Cross-Petitioners correctly point
out, the Act itself does not define the
term "public health." (Cross-Pet. Brf.
at 33-34.) Because there is no statutory
definition of the


~ See, e.g., 49 Fed. Reg. 6866, 6866-67 and
passim (Feb. 23, 1984); 52 Fed. Reg. 24634,
24635 and passim (July 1, 1987); 53 Fed.
Reg. 52698, 52701 and passim (Dec. 29, 1988); 58 Fed.
Reg. 13008, 13008 and passim (March 9, 1993); 62
Fed. Reg. 38856, 38878 and passim (July 18,
1997).

8 Natural Resources Defense Council v. EPA, 902
F.2d 962 (D.C. Cir. 1990), cert. denied sub nom.,
American Iron & Steel Institute v. EPA, 498 U.S. 1082
(1991); American Petroleum Institute v. Costle, 665 F.2d
1176 (D.C. Cir. 1981), cert. denied sub nom., American
Petroleum Institute v. Gorsuch, 455 U.S. 1034 (1984); Lead
Industries v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert.
denied sub nom., Lead Industries v. EPA, 449 U.S. 1042 (1980)
and St. Joe's Minerals Corp. v. EPA, 449 U.S. 1042
(1980); see also NRDC v. EPA, 894 F.2d 1146 (D.C. Cir.
1987) (en banc).
term, Cross-Petitioners concoct one to suit their liking, a
definition that includes the overall effects of regulation on
the standard of living of the population in general. They cite
as support what they characterize as "[tihe authoritative
public health definition" in C.E.A. Winslow's The Cost of
Sickness and the Price of Health, which they contend defines
"public health" as including the effect that regulatory
controls may have on the population's "standards of living."
Id. Cross-Petitioners argue that Winslow, as well as
subsequent "scholarly literature" articles, establish
that "public health" was a term of art
encompassing economic factors at the
time the 1970 Act was enacted, and that
Congress must have used it with the Winslow definition
in mind.

The premise of this argument is pure fiction: Winslow
was writing primarily about the horrific effects of
communicable diseases such as tuberculosis on the "standards
of living" of populations, and in that context, it is clear that
he championed health and welfare policies that would
improve standards of living by eradicating disease and
allowing people to remain healthy. Nothing in the quotation
provided by Cross-Petitioners supports their implication that
Winslow feared that promotion of health and eradication of
disease would lower standards of living if left unchecked by
consideration of the costs of such efforts. Moreover, Cross-
Petitioners do not even try to show that anyone in the public
health field interpreted Winslow's work in that way at any
time in the two decades that elapsed between its publication
and the adoption of the 1970 CAA by Congress, or indeed
that such an opinion was ever held or
voiced by any public health scholars or
policymakers during that period.9


~ See also Brief of Amicus Curiae Environmental
Defense and American Public Health
Association, on Behalf of Cross-
Respondents, at 27-29 (demonstrating
that Cross-Petitioners' definition has been taken
out of context and that, taken in its entirety, it does
not support Cross-Petitioners' argument).





14

More fundamentally, Cross-Petitioners' argument, even
if it might be relevant to establishing
what the public health community meant by "public
health" in 1970, would still prove nothing whatever about
what Congress meant by that term. Cross-Petitioners advance
not a single scrap, not a scintilla, of evidence that Con-
gress ever read the Winslow work, or
that the committees preparing the Clean Air Act in any
way accepted any definition of "public health" that
contemplated consideration of compliance costs, or even
knew about such a definition. Cross-Petitioners say nothing as
to whether Congress intended the term to
have the meaning in the Act that Cross-
Petitioners argue it had in the public
health field. Indeed, the fact that
Congress chose in 1968 to take the regulatory apparatus
for controlling air pollution out of the Public Health
Service, where it originally had been, and move it to a new
National Air Pollution Control Administration ("NAPCA")
in the Consumer Protection and Environmental Health
Service of the Department of Health, Education and
Welfare'0 is evidence that, if anything,
Congress thought that air pollution
control should not be contained within the traditional
public health regulatory framework, but be part of
environmental protection. The eventual Congressional
ratification of President Nixon's decision to fold NAPCA into
the new Environmental Protection Agency lends weight to
such a conclusion.

As to the literature to which Cross-Petitioners refer the
Court, the articles they cite at pages 35-36, particularly
in the lengthy note 1, were written
twenty to thirty years after the 1970 Clean Air
Act was enacted. Cross-Pet. Brf at 35-36, n. 1,
36 in text. They do not constitute evidence of what the
1970 Congress actually read, knew, considered, or meant.


10 CHARLES 0. Jor.JEs, CL~IsI Am: THE POLIcIES
AND PoLrrlcs OF POLLUTION CoN-rI~OL 111 (1975).
15

On the other hand, there is considerable evidence as to
what that 1970 Congress actually did know and consider. In
Union Electric Co., 247 U.S. 246, at 258-259, the Court
determined the intent of Congress as to whether the
Administrator may consider the costs of the strategy chosen
by a State in its SIP, by quoting the manager of the Senate
bill, Senator Muskie, who explained the bill's intent as follows:

"The first responsibility of Congress is not the
making of technological or economic judgments or even
to be limited by what is or appears to be technologically
or economically feasible. Our responsibility is to
establish what the public interest requires to protect the
health of persons. This may mean that people and
industries will be asked to do what seems to be
impossible at the present time."' 116 Cong. Rec.
32901-32902 (1970)." (Emphasis added.)

Id. Union Electric went on to quote the Senate Committee
Report:
"'In the Committee discussions, considerable concern
was expressed regarding the use of the concept of
technical feasibility as the basis of ambient air
standards. The Committee determined that 1) the
health of people is more important than the question of
whether the early achievement of ambient air quality
standards protective of health is technically feasible;
and 2) the growth of pollution load in many areas, even
with application of available technology, would still be
deleterious to public health.'
S. Rep. No. 91-1196, 2-3 (1970) (emphasis added), quoted
at 247 U.S. 259. These quotes show not only that Congress
very explicitly intended for protection of health to trump
technological feasibility and cost, they also show that
Congress, and the Senate manager of the bill, used the terms
"health of persons," "health of people," and "public health"
interchangeably, rather than using "public





16

health" as the narrow term of art for
which Cross-Petitioners and their amici argue.

In 1990, Congress enacted a change to
the Act that constitutes an implicit ratification of the
Lead Industries interpretation of Section 109(b). The 1990
Amendments enacted Section 107(d)(5), which authorized
the Administrator to order the States to designate air quality
regions as being in or out of attainment with "the national
ambient air quality standard for lead in effect as of November
15, 1990.... "That standard is, of course, the one upheld in
Lead Industries. The designation process, when a region is
designated as nonattainment for a standard, begins the entire
SIP process as to that region and that pollutant. Congress
would hardly have authorized EPA to start this process,
which requires the development of control strategies,
regulations, and so forth, with regard to the lead standard if it
considered that the lead standard had been wrongly set.
Congress made very extensive revisions to the Act in 1990,
specifying in considerable detail what it did and did not want
SIPs to contain. It is inconceivable that Congress enacted this
provision, referring to a particular standard ("the national
ambient air quality standard for lead in effect as of November
15, 1990"), rather than a more general reference to the
NAAQS, without knowing what that lead standard was, and
without knowing the D.C. Circuit decision that had affirmed
that standard. This is direct evidence that Congress spoke to
the particular question at issue here, namely, the validity of
the Lead Industries decision and the standard it affirmed, and
demonstrated its approval.
Besides this statutory provision, the legislative history
of the 1990 Amendments also endorses the view embodied in
Lead Industries. While it is the purview of the courts, and not
a later legislature, to interpret a statute, the views of a later
Congress as to the meaning of a statutory provision can be
considered at least as evidence
4
17

of what that later Congress intended.'1 Here, the 101st
Congress, second session, in enacting the 1990 amendments
to the Act without changing Section 109(b)(1), did not
simply leave Section 109 in place and remain silent
11 See, e.g., Staples v. United States, 511 U.S. 600, 636
(1994) ("[wihen Congress reenacts statutory language that has
been given a consistent judicial construction, we often adhere
to that construction in interpreting the reenacted statutory
language" (citing Lorillard v. Pons, 434 U.S. 575, 580-81 (1978));
Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S.
164, 185 (1994) (citing Lorillard); Keene Corp. v. United States,
508 U.S. 200, 212 (1993) (citing Lorillard); Pierce v. Underwood,
487 U.S. 552, 567 (1988) (citing Lorillard); United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985)
("Although we are chary of attributing significance to
Congress' failure to act, a refusal by Congress to overrule an
agency's construction of legislation is at least some evidence
of the reasonableness of that construction... " (citing Bob Jones
University v. United States, 461 U.S. 574, 601-602 (1983)); Lindahl
v. Office of Personnel Management, 470 U.S. 768, 782, n.15 (1984)
("Congress is presumed to be aware of an administrative or
judicial
interpretation of a statute and to adopt that interpretation
when it reenacts a statute without change [citations omitted].
So too, where, as here, Congress adopts a new law
incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation
given to the incorporated law, at least insofar as it affects the
new statute"); Id., 470 U.S. 768 at 803 (White, dissenting) ("I
do not suggest that
Congress' inaction in the face of an authoritative statutory
interpretation brought to its attention is never probative of
the proper interpretation of the statute"); Commodity
Futures Trading Commission v. Schor, 478 U.S. 833, 846 (1985)
("It is well established that when Congress revisits a statute
giving rise to a
longstanding administrative interpretation without pertinent
change, the 'congressional failure to revise or repeal the
agency's interpretation is persuasive evidence that the
interpretation is the one intended by Congress.' " [Citations
omitted.I); FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 427
(1985) (same).





18

about it, Congress affirmatively expressed its interpretation
of the correct basis for the primary NAAQS:

"As defined in the Act, "primary" ambient air quality
standards limit the maximum allowable concentration of
each criteria pollutant to the level that 'protects the
public health' with an 'adequate margin of safety',
without regard to the economic or technical feasibility of
attainment. This means identifying through
research the lowest level at which health effects are
observed and applying a margin of safety to arrive at the
ambient standard."

S. Rep. No. 101-228, reprinted in 1990 U.S.C.C.A.N. 3385,
3391 (emphasis added). The 101st Congress
stated that it viewed a standard that protects public health, as
the term was used in the Act, as meaning a standard based on
health effects with an additional margin of safety to make
the standard even more protective. There is no hint of the
definition of "public health" as a term of art encompassing
overall economic welfare, and certainly no intent expressed
by the 101st Congress that costs of meeting a primary
standard were to be a part of the basis for setting that
standard; the legislative history is unequivocally to the
contrary.

Cross-Petitioners have advanced only speculation and
surmise as to the meaning of the phrase "public health" as
their textual support for their position. The overwhelming
weight of both text and legislative history is to the contrary,
and supports Cross-Respondent here.


19

B. Requiring the Administrator to Provide Nuts-and-
Bolts Control Technology Information to the
States, and the Role of CASAC in Evaluating the
Relative Effects of Different Control Strategies, In
No Way Mandates That the Administrator Consider
Costs in Setting the NAAQS. On the Contrary. They
Are Part of the Federal-State Partnership Set
Up by the Act.

Industry makes two other purportedly "textual"
arguments, contending that two other provisions of the Act
require consideration of costs: First, that Section 108(b),
which requires that the Administrator give control
technology information to the States; and second, that
Section 109(d)(2)(B), which requires that the Clean Air
Scientific Advisory Committee ("CASAC") advise the
Administrator as to strategic considerations for achieving the
NAAQS, somehow also requires the Administrator to
consider costs in setting the NAAQS. Both arguments are
wrong.

Section 108(b) calls solely for the Administrator to
"issue to the States and appropriate air pollution control
agencies information on air pollution control techniques,"
including data on cost of installation and energy and
environmental effects of a proposed NAAQS at the same
time that the Administrator proposes it. CAA 108(b), 42
U.S.C. 7408(b) (emphasis added). Section 109(d)(2)(C)
requires that the Administrator appoint the CASAC to advise
her regarding new NAAQS, and especially about the "adverse
public health, welfare, social, economic or energy effects
which may result from various strategies for attainment of
such national ambient air quality standards." CAA
109(d)(2)(C), 42 U.S.C. 7409(d)(2)(C). Neither of these
provisions mandates that the Administrator consider costs in
setting the NAAQS; rather, both should be read in the
context of the federal-State partnership created by the Act.
Each of these provisions lies outside of Section
109(b)(1), which is the only Section that explicitly sets





20

out the basis upon which the NAAQS are
to be set. As the Court held in Union Electric, 246
U.S. 246 at 257, where Congress sets out a definitive
list of factors upon which the Administrator is to make a
decision under the Act, the Administrator is limited to that
list. ("The mandatory 'shall' makes it quite clear that
the Administrator is not to be concerned with factors other
than those specified. . . . ") Id. Here, Congress did specify the
factors the Administrator is to consider, and the information
required under Sections 108(b) and 109(d)(2) is not among
them. Further, it is not reasonable to read "criteria" as
referring to anything other than the Section 108(a) criteria
documents. Subsection (a) speaks, in 109(a)(1)(A), of
national ambient air quality standards "for which air quality
criteria have been issued" before December 1, 1970, and
109(a)(2) refers to national standards being adopted "with
respect to any air pollutant for which air quality criteria are
issued after December 31, 1970." CAA 109(a)(1)(A), 42
U.S.C. 7409(a)(1)(A). Section 109(a)'s references to
ambient air quality standards for which air quality
criteria have been issued cannot be read as anything other
than a plain reference to the air quality criteria documents
that are issued under Section 108, without doing violence to
the meaning of both Sections. Moreover, Section 109(b)(1)
directs the Administrator to base the national primary and
secondary air quality standards, "prescribed under subsection
(a) of this section," on "such criteria." CAA 109(b)(1), 42
U.S.C. 7409(b)(1). This Section can be read only as
referring to the Section 108(a) air quality criteria, the only
"criteria" relevant to section 109 and the only criteria that
are "issued" under the Act. "Criteria" in this context is a term
of art under the Act, and is used as such in Sections 109(a)(1)
and 109(b). Natural Resources Defense Council v. EPA, 902 F.2d
962, 967, 973 (D.C. Cir. 1990), cert. denied sub nom.,
American Iron & Steel Institute v. EPA, 498 U.S. 1082 (1991).
Since Congress has itself listed the factors upon which
the NAAQS are to be based, and these factors do
21

not include Sections 108(b) or 109(d), Congress did not
intend the Administrator to consider those factors.

Beyond these textual arguments, Section 108(b) and
Section 109(d) can only be correctly understood in the
context of the federal-State partnership that permeates the
Act. Having made the decision to assign to the States the
difficult decisions about what control
strategies to adopt, and how to carry them
out, Congress concomitantly decided to give the States all
the help it could. Congress authorized monetary
grants to the States to assist them, CAA 175,
42 U.S.C. 7505, and was extremely liberal in
mandating the supplying of information
and technical assistance to the States. The Act is filled with
requirements that EPA provide technical information and
assistance to the States in their formidable task of actually
crafting the plans that will clean the air. See, e.g., CAA
178, 182(a)(2)(A), 182(a)(3)(B), 182(b)(2), 183(a), 190, 42 U.S.C.
7508, 7511a(a)(2)(A), 751 la(a)(3)(B), 751 la(b)(2), 751 lb(a),
7513b.

Plainly, Congress perceived the enormity of the task it
was assigning to the States, and gave them every tool and bit
of information it could to assist them in that task. The 1970
Act allowed only 30 to 90 days for the Administrator to
adopt the first NAAQS, and gave the
States only three short years beyond that
time (or a shorter period, at the Administrator's
discretion), to develop, adopt, and submit the first
SIPs, an astonishingly short time for
such a massive undertaking. CAA 110(a)(1), 42 U.S.C.
7410(a)(1). The Court early on recognized that "Congress
imposed upon the States a comprehensive planning task of
the first magnitude which was to be accomplished in a
relatively short time" when it passed the 1970 Act. Train v.
Natural Resources Defense Council, 421 U.S. 60, 68 (1975).
It is in this light that Sections 108(b) and 109(d)(2)(C) must
be seen. Section 108(b) requires the Administrator, when
issuing the criteria documents upon which NAAQS will be
based, simultaneously to give to





22 23


the States information about air
pollution control technology, energy
requirements, cost, and other technical information. CAA
108(b), 42 U.S.C. 7408(b). The provision of this nuts-and-
bolts information was intended by Congress to assist the
States in starting to devise their control strategies and
their SIPs. Cross-Petitioners cavalierly
assert that reading Section 108(b) as mandating provision of
information to the States for any purpose other than
commenting on a proposed NAAQS (e.g., to provide it to
them to assist in SIP planning) would be "inexplicably
premature." Cross-Pet. Brf. at 40. Amici States can only
observe that Cross-Petitioners have never tried to draft a
SIP if they think this is a short time. The
Section 108(b) advice is not premature: it now precedes the
highly complex SIP by four to five years, and it was
absolutely imperative in 1970 when the Section was enacted
and States had only three years.

Similarly, the advice that Section 109(d)(2)(C) man-
dates CASAC to give to the Administrator as to the relative
effects of "various strategies," CAA 109(d)(2)(C), 42 U.S.C.
7409(d)(2)(C) (emphasis added), to attain a specific
NAAQS, can only be correctly understood
as part of this federal-State partnership. The
information is given to the Administrator so
that she may serve as a central clearinghouse,
passing that information in turn to the States, and to make
the Administrator aware of what additional
technical guidance and assistance the States might
need as they chose the strategies that
only they are authorized to choose to meet the NAAQS.

Cross-Petitioners argue that because
CASAC must advise the Administrator
about social and economic effects of strategies
to meet the NAAQS, the Administrator must add such effects
to the list of factors set out in Section 109(b)(1) as the basis
for the NAAQS. To accept this argument, the Court must
conclude that Congress intended to add to the apparently
exclusive list of factors
in Section 109(b)(1) without so stating, either in the text or
the legislative history.'2
The Court would also have to conclude that Congress
chose an extraordinarily inept method to obtain
the intended result. Section 109(d)(2)(A.) specifies that
CASAC is a scientific review committee, not a cost-benefit
review committee or an economics review committee. The
legislative history supports that limitation, as the House
report states:
"Since the main function of the scientific review
committee is to assess the health and
environ mental effects of ambient air pollution, it is
anticipated that all seven members would
be selected on the basis of their special expertise in the
fields of environmental toxicology, epidemiology
and/or clinical medicine, or in the fields of environmen-
tal or ecological systems."
H.R. REt'. No. 294, 95th Cong., 1st Sess. 179-84 (1977),
reprinted in 1977 U.S.C.C.A.N. 1258-62 (emphasis added).
Section 109(d)(2) particularly specifies
that CASAC should include at least one
member of the National Academy of
Sciences, one physician, and one person
representing State air pollution control
agencies. Had Congress actually intended CASAC to provide
information and advice to the Administrator
on the costs of removing air pollution from
the air, it would presumably have
directed that specialists in costs and economic effects at
least be represented on the committee. It did not. On the
contrary, as Congress "anticipated that all seven members
would be selected on the basis of their special expertise in the


~2 Rather, the language quoted from the House
Report explicitly says that CASAC is to assess the health
and environmental effects of air pollution "in the ambient
air." This echoes the language of Section 108(a)(2) requiring
the criteria documents to indicate the health or welfare
effects that may be expected "from the presence of such
pollutants in the ambient air." It is the effects
of pollution, not pollution control, that
CASAC is primarily to address.





24

fields of environmental toxicology, epidemiology and/or
clinical medicine, or in the fields of environmental or
ecological systems," it can fairly be said that Congress
intended that none of the seven members be an economics
specialist. While one member of CASAC should be a State
air pollution control official, the mere
presence on CASAC of a State air
pollution control official would be a
singularly obtuse method for Congress to
express an intent to require the
Administrator to take costs into account in
setting the NAAQS.

Viewed within the federal-State partnership, CASAC's
role in providing information and advice on '&arious
strategies to meet the NAAQS becomes obvious:
it is to gather information on possible control strategies,
evaluate it, and pass it on to the States, via the Adminis-
trator (it would make little sense for
CASAC to try to furnish it directly to
the fifty States severally, rather than
using EPA's established lines of communication to the
States). The key is Section
109(d)(2)(C)'s emphasis on strategies to meet
proposed NAAQS. Within the split of responsibilities set up
by the Act, the Administrator cannot, herself, choose those
strategies. Information on the comparative effects of
different strategies could not guide her in setting a
NAAQS, since she could not know which
strategy any given State might actually
choose among the various strategies about which
CASAC had given advice. The entities to which such
information is most useful are the States themselves. Just as
the Administrator is required to give States a wide variety of
information and assistance under various parts of the Act, so
in Section 109(d)(2)(C) Congress made one more provision
for supplying information that could assist the States in their
assigned role in the federal-State partnership. It in no way
indicates any intention by Congress that the NAAQS
themselves be based on costs.


25

III.

BASING THE NAAQS ON COST ESTIMATES MADE
AT THE TIME OF STANDARD SETTING WOULD
COMPROMISE THE HEALTH-PROTECTIVE INTENT
OF CONGRESS, SINCE TECHNOLOGICAL AND
REGULATORY CLIMATE CHANGES PRODUCE COST
REDUCTIONS THAT ARE NOT FORESEEABLE WHEN
NAAQS ARE SET

Besides the textual and legislative history
considerations set forth above, there is another, very
practical, reason why the NAAQS should not be set
taking costs of compliance into account: the
Administrator cannot predict with any accuracy in
advance what the costs of compliance will be. Attempts to
do so could well overstate costs and tend to support standards
that are not stringent enough to accomplish Congress' intent
to protect the public health.

The first reason that the Administrator cannot predict
costs in advance is that, as stated supra, the NAAQS are not
self-executing. There is no plan to meet them, there are no
costs to compute, no one can know what technology will
really be required of what industries, until the States devise
and draft their SIPs and the SIPs go through the Act's
approval process. At the time a NAAQS is set, the
Administrator could only guess at how fifty different
States would choose to meet that NAAQS, and then
make estimates based on guesses, projected into an
uncertain future, of what those inchoate and unpredictable
SIPs might cost to carry out.
The second reason is that, even where it initially
appears that the technology and its costs are known in
advance, they very often are not and cannot be gauged with
any reliability.13 The history of the Clean Air Act,


'~ See David Driesen, Should Congress Direct the EPA to
Allow Serious Harms to Public Health to Continue?: Cost-Benefit
Tests and the Clean Air Act, 11 Tul. Envtl. L. J. 217, 227-
231 (1998).





26 27
and other environmental statutes, has proven that costs
of compliance are inherently unknown and unknowable
in advance, because technology changes.
- It is virtually certain that the adverse health effects of air
pollution will not change. The human lungs, heart, and other
organs will continue to react to air pollution as they have
done in the past, in the ways demonstrated in the health
studies that have made up the criteria documents. If
anything, our advancing scientific understanding of these
health effects may show more effects, and more subtle
effects, from air pollution in the future than those of
which we now know. On the other hand, it is virtually
certain that the technology available to meet the NAAQS
will change, will become more effective and cheaper over
time. Such was the clear intent of Congress, and such has
been the history of the Clean Air Act over thirty
years.
The Court has recognized "the technology-forcing
character of the [1970] Amendments." Train v. Natural
Resources Defense Council, 421 U.S. at 91. That Congress
intended the Act to force technology appears in the legis-
lative history. For example, the 1970 Conference Report
says of automotive emissions standards:
"The House bill did not amend the provisions of existing
law relating to the establishment of standards for new
motor vehicles. The Senate amendment deleted the
requirements that such standards be based on a test of
technical and economic feasibility, and provided
statutory standards for passenger cars and required that
such standards be achieved by a date certain. . . . The
conference substitute follows substantially the Senate
amendments. . . . The effective date of the standards is to
depend on the period necessary to develop the requisite
technology giving appropriate
consideration to the cost of complying by that
date."
CONF. REP. No. 91-1783, 91st Cong., 2d Sess. (1970),
reprinted in 1970 U.S.C.C.A.N. 5374, 5381. The
emissions
standards themselves for passenger cars were to be set to
achieve a level of emissions reduction specified in the statute
itself, and need not be based on technical feasibility or cost;
cost was to be taken in account only in determining the final
deadline. Id. The statutory standards set by the 1970 Act
were formidable: a 90% reduction in some pollutants from
the 1970 emission levels by
1975.
However, the commitment of the Congress in the Act to
force technology went beyond the automotive industry. As
Senator Muskie stated in introducing the bill that would
become the 1970 Clean Air Act:

"The first responsibility of Congress is not the making
of technological or economic judgments or even to be
limited by what is or appears to be technologically or
economically feasible. Our responsibility is to establish
what the public interest requires to protect the health of
persons.. This may mean that people and industries will
be asked to do what seems to be
impossible at the present time. But if health is
to be protected, these challenges must be met. I am
convinced they can be met."
Remarks of Senator Muskie, quoted by Senator Kerry in
136 CONG. REC. S2826-01, S2835 (1990). The
Conference
Report for the 1977 amendments reiterated the theme:

First, and foremost, protection of the public
health remains the paramount purpose and value under
the Act. Consideration of costs, energy, and
technology is expressly authorized or required in many
sections of the bill, but the overriding commitment of
the 1977 Act (just as the 1970 legislation) is to the
protection of public health. Second, this year's
legislation retains and even strengthens the technoLogy
forcing and technology encouraging goals of the 1970
Act.

123 CONG. REC. H8662, 95th Cong., 1st Sess.,
reprinted in
1977 U.S.C.C.A.N. 1570 (emphasis added).





28 29

The 1970 automobile emissions standards are perhaps
the most convincing example of the success of this
technology-forcing strategy. While auto manufacturers
denounced the 1970 Act's requirement of a 90% reduction in
emissions by 1975,'~ predicting compliance costs of a
magnitude that would "do irreparable damage to the
U.S. economy," the emissions reduction mandate of the Act
forced the development of the catalytic converter, and
standards that had been considered impossible to meet were
met, if a little late,15 and without the economic harm that
industry had predicted. One noted authority on the Clean Air
Act has stated flatly that in the 1980s, "motor vehicles were
designed around the applicable emissions limits."'6
There are similar well known examples, such as the
cost of meeting regulations to reduce
usage of ozone-depleting chborofluorocarbons.
Raytheon originally asserted that it simply could not find
replacements for these solvents in cleaning electronic circuit
boards at any cost; however, under the press of legal
requirements, Raytheon found a replacement that not only
lowered production costs, but increased consistency of
product quality.'7 In the field of occupational health, such
situations have been common.'8 Experience has shown that
the costs of compliance cannot be predicted in
advance


14 Michael Weisskopf, Auto-Pollution Debate Has Ring
of the Past; Despite Success, Detroit Resists, Washington
Post, March 26, 1990.

'~ CAA 211, 42 U.S.C. 7545.
16 Arnold Reitze, Mobile Source Air Pollution Control, 6
Envt'l Lawyer 309, 327 (2000).

17 Porter and van der Linde, Toward a New Conception of
the Environment-Competitiveness Relationship, 9 Journal of
Econ. Persp. 97, 101 (1995).

18 See Goodstein and Hodges, Polluted Data, The
American Prospect, No. 35, 64-66 (Nov.-Dec. 1997).
because technology will change in response to the level of
stringency the standards impose.
Third, costs of meeting health-based NAAQS also
cannot be predicted because technology is not the only thing
that develops and evolves under the pressure of legal
mandates to meet health-based NAAQS. The regulatory
climate itself changes, as regulators turn to control of sources
that have not traditionally been controlled, but whose
pollution contributions are significant percentage amounts of
the total pollutant load. The 1990 Clean Air Act
Amendments reflects such a change in the regulatory
climate: recognizing the need for additional pollution
reductions to meet the NAAQS in nonattainment areas,
Congress for the first time ordered the Administrator to
develop control technique guidance documents for sources
whose control was not anticipated when the first NAAQS
were adopted, including paints and coatings, solvents, and
consumer products. CAA 183(b), (e), 42 U.S.C.
7511b(b), (e).'9 While States are not obliged to use these
control options, the mere fact that they are now considered
options opens the potential for reduction in overall costs of
meeting the NAAQS.
Control of additional source categories potentially
offers State regulators a way to reduce emissions without
requiring large, traditionally regulated industries to develop
yet more costly techniques to remove very small increments
of remaining pollution. Since it is usually the first pollution
controls applied that procure the largest emissions reduction
for the cheapest price, the discovery of new source
categories whose emissions could be cut back can
reduce the overall costs of attaining
the NAAQS.


19 In the South Coast Air Quality
Management District in California, which
includes the Los Angeles area, controls
have been enacted on pleasure boats,
airport ground vehicles, and bakeries, all
sources whose control was not anticipated even a few years
before. Daniel Selmi, Impacts of Air Quality Regulation on
Economic Development, 13 Fall Nat. Resources & EnV't 382
(1998).




30

Such changes in the regulatory climate, in the perception of who and what can and should be regulated, cannot always be foreseen when health-based
standards are adopted, but can reduce costs of compliance in ways not expected or accounted for in cost estimates made before the shift in the regulatory
climate occurs.


CONCLUSION

Amici States respectfully ask the Court to affirm the decision below in its holding that the Administrator may not consider costs of compliance in
setting NAAQS, thereby also affirming the expressed intent of Congress to make this nation's air clean and safe to breathe.

Respectfully submitted,

BILL LOCKYER

Attorney General of the
State of California


RICHARD BLUMENTHAL

Attorney General of the
State of Connecticut

THOMAS J. MILLER

Attorney General of the
State of Iowa

ANDREW KEITERER

Attorney General of the
State of Maine
ELIOT SPrrzER Attorney
General of the State of
New York

WILLIAM H. SORRELL

Attorney General of the
State of Vermont

CHRISTINE 0. GREGOIRE

Attorney General of the
State of Washington
J. JOSEPH CuI~1IAI~, JR.
Attorney General of the
State of Maryland

PATRICIA MADRID

Attorney General of the
State of New Mexico



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