US Supreme Court Briefs

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No. 99-1426



IN THE SUPREME COURT OF THE UNITED STATES


AMERICAN TRUCKING ASSOCIATIONS, INC., ETAL.,
Petitioners,
V.



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


BRIEF OF AMICUS CURIAE UNITED STATES

PUBLIC INTERESTS RESEARCH GROUP
EDUCATION FUND IN SUPPORT OF
CROSS RESPONDENTS

Filed SEPT 11, 2000


QUESTION PRESENTED

Should the Court construe section 109 of the Clean Air Act, 42 U.S.C. 7409, to require EPA to consider cost in setting national ambient air quality
standards?



1
4
ii iii



TABLE OF CONTENTS
Page
QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

INTRODUCTION
Page

1. A LITIGANT CAN RAISE A NON-DEL-
EGATION CLAIM UNDER ANY STATUTE
DELEGATING AUTHORITY
i
7
ii
V


1

1
2. SINCE MANY DIFFERENT CONSTRUCTIONS
CAN CLARIFY A STATUTE, JUDGES'
SELECTION OF
SAVING CONSTRUCTIONS WILL
REFLECT THEIR POLICY PREFERENCES


SUMMARY OF ARGUMENT ARGUMENT

I. ELECTED REPRESENTATIVES SHOULD
DECIDE WHETHER TO REVISE SECTION 109
TO INCLUDE COST CONSIDERATIONS

II. THE NON-DELEGATION DOCTRINE DOES
NOT JUSTIFY JUDICIAL REVISION OF SEC-
TION 109

A. SINCE ONLY "GRAVE DOUBTS" ABOUT
CONSTITUTIONALITY TRIGGER CON-
STRUCTION TO AVOID A CONSTITU-
TIONAL ISSUE, THE AVOIDANCE
CANON DOES NOT APPLY HERE
2
4



4
C. CONSTRUING SECTION 109 TO INCLUDE
COST CREATES A STATUTE FOREIGN TO
WHAT THE ENACTING CONGRESS
INTENDED


D. INCLUDING COST EXACERBATES ANY
CONSTITUTIONAL DIFFICULTY BY
MAKING SECTION 109'S PRINCIPLE LESS
INTELLIGIBLE
8




11




11
5
III. INDUSTRY'S PROPOSED CLEAR STATEMENT
RULE SUBVERTS DEMOCRATIC VALUES


A. INDUSTRY'S CLEAR STATEMENT RULE
MAKES ADMINISTRATIVE AGENCIES
MORE LIKE LEGISLATURES
5
13




13


B. CONSTRUCTION TO AVOID MERE
NON-
DELEGATION CLAIMS UNDERMINES
DEMOCRATIC VALUES BY AUTHORIZ-
ING UNGUIDED JUDICIAL RECON-
STRUCTION OF NUMEROUS
STATUTORY
PROVISIONS


B.
INDUSTR
Y'S
CLEAR
STATEM
ENT
RULE
CONFLIC
TS WITH PRECEDENT
DESIGNE
D TO
ASSURE
THAT
AGENCIE
S
AND
COURTS
RESPECT
LEGISLA
TIVE
7 POLICY
DECISIONS






Page
iv V
TABLE OF AUTHORITIES
Page

C. THE CONSTITUTION DOES NOT
AUTHORIZE JUDGES TO ENACT THEIR
VIEWS
OF SOUND RISK MANAGEMENT INTO
LAW

1. CLEAR STATEMENT RULES GENER-
ALLY REQUIRE A QUASI-
CONSTITUTIONAL FOUNDATION

2. JUDICIAL REVIEW OF LEGISLATION'S
REASONABLENESS SHOULD
NOT GUIDE STATUTORY INTER-
PRETATION

3. THE ADMINISTRATIVE PROCEDURE
ACT DOES NOT JUSTIFY A NEW SUB-
STANTIVE CANON

D. ADDING COST CONSIDERATIONS TO
SECTION 109 WILL CHANGE POLICY,
NOT IMPROVE EPA's REASONING

E. THE COURT SHOULD NOT CREATE A
LEGAL RULE REFLECTING AN ECO-
NOMIC THEORY LACKING CONSTITU-
TIONAL FOUNDATION
17


17
CASES

Adkins v. Children's Hospital, 261 U.S. 525
(1923), overruled by West Coast Hotel Co. v.
Parrish, 300
U.S. 379 (1937) 20, 21

Almendarez-Torres v. United States, 523 U.S. 224
(1998) 2,
6, 11, 19

American Petroleum Inst. v. Cos tie, 665 F.2d
1176
(D.C. Cir. 1981) 23
19
American Steel Foundries v. Tn-Cities Cent. Trades
Council, 257 U.S. 184 (1921) 29
American Textile Mfrs. Inst., Inc. v. Donovan, 452
U.S. 490 (1981) 3, 12. 14,
21


24
16
American Trucking Ass'ns v. EPA, 175 F.3d 1027
(D.C. Cir. 1999) 9. 13
American Trucking Ass'ns v. EPA, 195 F.3d 4
(D.C. Cir. 1999)
26
CONCLUSION 30
10
Apprendi v. New Jersey, 120 5. Ct. 2348 (2000) 6
Arkansas v. Oklahoma, 503 U.S. 91 (1992) 22
Astoria Federal Say. & Loan Ass'n v. Solimino,
501
U.S. 104 (1991) 17

Baltimore Gas & Electric Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87 (1983)
24

Boomer v. Atlantic Cement Co., 257 N.E. 2d 870
(N.Y. 1970) 28
Bowman v. Humphrey. 100 N.W. 854 (Iowa
1904) 27





vi vii


Page

Chevron v. Natural Resources Defense Council, 467
U.S. 837 (1984) 8

Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402 (1971) 3, 14, 15, 23

Duplex Printing Press Co. v. Deering, 254 U.S. 443
(1921) 29

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) .... 18

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) 17

Ferguson v. Skru pa, 372 U.S. 726 (1963) 4, 20, 21

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) .... 27

Gregory v. Ashcroft, 501 U.S. 452 (1991) 17, 19

Industrial Union Dep't, AFL-CIO v. American Petro
leum Inst., 448 U.S. 607 (1980) 10

Int'l Ass'n of Machinists v. S. B. Street, 367 U.S. 740
(1961) 9

Jones v. United States, 526 U.S. 227 (1999) 6,
9

Landgraf v. USI Film Products, 511 U.S. 244 (1994) .... 18

Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C.
Cir. 1980) 11, 16, 23

Lochner v. New York, 198 U.S. 45 (1905).... 3, 20, 26, 28-30

Milk Wagon Drivers' Union, Local No. 753 v. Lake
Valley Farm Products, 311 U.S. 91 (1940) 29
Miller v. French, 120 5. Ct. 2246 (2000) 11
Mis tretta v. United States, 488 U.S. 361 (1989) 5, 10
Page
Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins.
Co., 463 U.S. 29 (1983) 16, 22

National Cable Television Ass'n, Inc. v. United States,
415 U.S. 336 (1974) 10

Natural Resources Defense Council v. Administrator,
902 F.2d 962 (D.C. Cir. 1990) 22, 23

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .... 21
New York Times v. Sullivan, 376 U.S. 254 (1964) 8

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979) 9, 18
Rust v. Sullivan, 500 U.S. 173 (1991) 6

Schooner Paulina's Cargo v. United States, 11 U.S. (7
Cranch) 52 (1812) 19

Seacord v. The People, 13 N.E. 194 (Ill. 1887) 27

Secretary of Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982) 24

Sullivan v. Jones & Laughlin Steel Co., 57 A. 1065
(Pa. 1904) 28
Susquehanna Fertilizer Co. v. Malone, 20 A. 900 (Md.
1890) 28
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) .... 13

Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967) .... 23

Train v. Natural Resources Defense Council, 421 U.S.
60 (1975) 15
Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997) 5





viii ix



Page

Union Electric Co. v. EPA, 427 U.S. 246 (1976). . 3, 4, 15, 16

United States v. E.C. Knight Co., 156 U.S. 1 (1895) .... 29

United States v. Haggar Apparel Co., 526 U.S. 380
(1999) 7

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) . .6, 11

United States v. Rutherford, 442 U.S. 544 (1979) 2, 21

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) .... 21

Whalen v. Union Bag & Paper Co., 101 N.E. 805
(N.Y. 1913) 27

Williamson v. Lee Optical, 348 U.S. 483 (1955).. . . 13, 18, 21

Yee v. City of Escondido, 503 U.S. 519 (1992) 24


STATUTES
2 U.S.C. 1532(a) 4
5 U.S.C. 706 22
42 U.S.C. 7409 1, 14
42 U.S.C. 7607(d)(9) 22

The Administrative Procedure Act, 5 U.S.C.
551-559, 701-706 3

The Unfunded Mandates Reform Act, Pub. L. No.
104-4, 109 Stat. 48 4
Page

OTHER LEGISLATIVE MATERIALS
141 Cong. Rec. H2252 (1995) 4

H.R. 9, 104th Cong. 422(a)(2), (b)(1) (March 10,
1995) 4

Review of EPA's Proposed Ozone and Particulate Matter
NAAQS Revisions-Part 2 Before the Subcomm. on Health
and Env't. and the Subcomm. on Oversight and
lnvestigations of the House Comm. on Commerce, 105th
Cong. 48 (1997)(statement of Richard L. Brodsky,
Chairman, New York State Assembly Committee on
Environmental Con
servation) 27
5. 343, 104th Cong. 623(a) (1995) 4
5. 981, 105th Cong. (1998) 4, 24
5. 2362 703(c)(1)(A), 106th Cong. (2000) 4
S. Rep. 104-90 (1995) 4


SECONDARY AUTHORITY

David M. Driesen, The Societal Cost of Environmental
Regulation: Beyond Administrative Cost-Benefit
Analysis, 24 Ecology L. Q. 545 (1997) 12. 13,
25

Donald T. Hornstein, Reclaiming Environmental
Law: A Normative Critique of Comparative Risk
Assessment, 92 Colum. L. Rev. 562 (1992) 25
E.J. Mishan, Cost-Benefit Analysis (1982) 25, 26
Mark Sagoff. The Economy of the Earth (1988) 28

Morton J. Horowitz, The Transformation of Ameri
can Law 1 780-1860 (1977) 27





x 1
INTEREST OF AMICUS CURIAE

Page
Reina Steinzor, Devolution and the Public Health, 24
Harv. Envtl. L. Rev. 351 (2000) 5
Richard Posner, The Federal Courts: Crises and
Reform (1985) 6
Thomas 0. McGarity, A Cost-Benefit State, 50
Admin. L. Rev. 7 (1998) 5, 28
Thomas 0. McGarity, Regulatory Analysis and Regulatory
Reform, 65 Tex. L. Rev. 1243 (1987)
The United States Public Interest Research Group
Education Fund is a non-profit organization promoting
democratic decision-making and environmental protection,
with a long history of advocacy at the state and federal
levels for clean air.1 It has an interest in the protection the
new ozone and particulate standards offer and in the legal
principles that allow Congressional intent to control the
implementation of laws protecting significant public
interests.
28
Thomas 0. McGarity, The Courts and the Ossification of
Rulemaking: A Response to Professor Seidenfeld, 75 Tex.
L. Rev. 525 (1997) 28

William Blackstone, Commentaries on the Laws of England
(Dawsons of Pall Mall ed. 1966) 27

William M. Wiecek, The Lost World of Classical Legal
Thought: Law and Ideology in America,
1886-1937 (1998) 26, 29

William N. Eskridge & Philip P. Frickey. Quasz-
Constitutional Law: Clear Statement Rules as Con-
stitutional Lawmaking, 45 Vand. L. Rev. 593
(1992)

1
8
INTRODUCTION

Industry and its supporters ask the Court to avoid
deciding their non-delegation claim by construing section
109 of the Clean Air Act (Act), 42 U.S.C. 7409, to require
EPA to consider cost in setting National Ambient Air
Quality Standards (NAAQS). See Opening Brief for Cross-
Petitioners American Trucking Associations et al. at 24, 50
[hereinafter ATA Br.]; Opening Brief of Ohio, Michigan,
and West Virginia in Support of Cross-Petitioners at 4-10. In
addition, Industry urges this Court to invent a new clear
statement rule, requiring agency consideration of cost absent
explicit statutory language barring its consideration. See
Opening Brief of Cross-Petitioner Appalachian Power et al.
at 46-47 thereinafter AP Br.]; Brief of Amicus General
Electric in Support of Cross-Petitioners at 18 [hereinafter
GE Br.]. This brief focuses upon these pleas for
extraordinary construction of the Act.

I The parties have consented to the filing of this brief.
No counsel for a party authored this brief in whole or in
part, and no person or entity other than the amicus and its
counsel made any monetary contribution to the preparation
or submission of this brief.





2 3


SUMMARY OF ARGUMENT

Congress has actively considered the statutory changes
that Industry seeks from this Court, but has chosen not to
amend section 109. Elected representatives, rather than
unelected judges, should decide whether to revise the Act. See
United States v. Rutherford, 442 U.S. 544, 555 (1979)
(federal courts do not sit as councils of revision).
Statutory construction to avoid mere claims of
unconstitutional delegations can subvert democratic values by
improperly modifying numerous statutes. See generally
Almendarez-Torres v. United States, 523 U.S. 224, 237-38
(1998). Because most statutes have their vagaries, any good
lawyer can identify a "hard question" that a statutory
provision does not answer. If the existence of an unanswered
question triggers extraordinary judicial construction of a
statute, then the judiciary may rewrite much of the United
States Code. Furthermore, since judges can add specificity to
statutes in several different ways their constructions will
necessarily reflect their policy judgments. Addition of cost to
section 109, however, renders it less intelligible by adding a
factor without specifying which cost sensitive principle
should govern the NAAQS. Proper application of the rule
that only "grave" constitutional doubts trigger construction
to avoid a constitutional issue precludes extraordinary con-
struction of section 109 and avoids subversion of democratic
values.
Industry's proposed clear statement rule, which would
require agencies to consider cost absent an explicit contrary
statutory statement, also subverts democratic values. The
Industry clear statement rule conflicts with precedent
designed to assure that administrative agencies and courts
implement legislative policy. That precedent
directs agencies (and therefore reviewing courts) to base their
decisions on the factors the statute explicitly makes relevant
to agency decisions. See Citizens to Preserve Over-ton Park v.
Vol pe, 401 U.S. 402, 411-13 (1971); Union Electric Co. v.
EPA, 427 U.S. 246, 257-65 (1976); American Textile Mfrs.
Inst., Inc. v. Donovan, 452 U.S. 490, 507-12 (1981). The
Industry clear statement rule conflicts with this precedent by
generally requiring consideration of a factor not listed in
authorizing legislation.
This Court should not enact a clear statement rule to
advance contemporary policy preferences that receive
regular consideration in Congress. Industry encourages this
Court to engage in Lochner-like review of the reasonableness
of the policy of protecting public health from pollution,
hoping to convince the Court to use a clear statement rule to
favor consideration of cost. The Administrative Procedure
Act (APA), S U.S.C. 551-559, 701-706, does not justify
this approach to statutory "interpretation." Basing statutory
construction on judicial assessment of the reasonableness of
statutory policies would undermine objective statutory
interpretation and democratic control.
Adding cost to section 109 would make reasoned
decision-making under the APA more difficult. It increases
the need for policy judgments that are difficult to rationalize,
such as judgments about how to value human life and health.
This change of statutory policy would make section 109 less
"determinate" than it is now.
Industry's proposal for a clear statement rule favoring a
cost-benefit test invites a return to the days when the Court
discredited itself by creating general principles of law
advancing contemporary economic theory. Cf. Lochner v.
New York, 198 U.S. 45, 7S (190S) (Holmes J. dissenting).
This Court should decline the invitation.





4

ARGUMENT

I. ELECTED REPRESENTATIVES SHOULD DECIDE
WHETHER TO REVISE SECTION 109 TO INCLUDE
COST CONSIDERATIONS.

In recent years, elected officials have actively consid-
ered revisions to the Act like the revision of settled law
Industry seeks from this Court. The 104th Congress, for
example, considered, but rejected, legislation that might have
applied a cost-benefit test to the Act and, indeed,
substantially all government regulation. See H.R. 9, 104th
Cong. 422(a)(2), (b)(1) (March 10, 1995); 5. 343, 104th
Cong. 623(a) (1995); 141 Cong. Rec. H2252 (1995) (bill
would supersede Clean Air Act's "adequate margin of safety"
requirement); S. Rep. 104-90, at 135 (1995) (additional
views). That Congress also rejected revision of the Act in the
legislation it did enact, The Unfunded Mandates Reform Act,
Pub. L. No. 104-4, 109 Stat. 48, which only requires cost-
benefit analysis (CBA) of major rules when the underlying
law allows for consideration of cost. See 2 U.S.C. 1532(a).
Subsequent Congresses repeatedly rejected bills that might
amend section 109. See e.g. 5. 981, 105th Cong. (1998).
Several of the Congressional amici urging this Court to
modify section 109 sponsored some of these failed bills and
have introduced legislation now before Congress to convert
the Act into a cost-benefit statute. See 5. 2362
703(c)(1)(A), 106th Cong. (2000).

Article I of the Constitution vests legislative authority
in elected representatives so that citizens can democratically
control significant policy choices, see Ferguson v. Skru pa,
372 U.S. 726, 729 (1963), like the choice about whether to
change cost's role under the Act, cf. Union Electric Co. v.
EPA, 427 U.S. 246, 266 (1976) (states may
5

consider cost in writing regulations of pollution sources to
achieve the NAAQS); Reina Steinzor, Devolution and the
Public Health, 24 Harv. Envtl. L. Rev. 351, 352 (2000)
(citing "consistent public support for more stringent envi-
ronmental regulation"). Congress is far better equipped than a
court to consider the many contending factual and policy
arguments that bear on the issue of whether to require
consideration of cost in section 109. See Turner Broad. Sys.
v. FCC, 520 U.S. 180, 195 (1997). See e.g. Thomas
0. McGarity, A Cost-Benefit State, 50 Admin. L. Rev. 7,
46-49 (1998) (debunking claim that regulatory costs cause
serious health problems). Judicial revision of section 109
would be inappropriate.

II. THE NON-DELEGATION DOCTRINE DOES NOT
JUSTIFY JUDICIAL REVISION OF SECTION 109.

The non-delegation doctrine only requires that Congress
include an intelligible principle (i.e. a general policy
directive) in laws delegating authority to administrative
agencies. Mistretta v. United States, 488 U.S. 361, 372-73
(1989). To convert this doctrine into an engine for recon-
struction of statutes with policies as clear as section
109(b)(1)'s health protection principle would promote
judicial, rather than democratic, governance, thereby sub-
verting the non-delegation doctrine's principle aim.

A. SINCE ONLY "GRAVE DOUBTS" ABOUT
CONSTITUTIONALITY TRIGGER CON-
STRUCTION TO AVOID A CONSTITUTIONAL
ISSUE, THE AVOIDANCE CANON DOES NOT
APPLY HERE.

Allowing litigants to secure favorable constructions
of statutes by raising colorable, but not terribly persuasive,
constitutional claims undermines democratic values.





6 7


See Almendarez-Torres v. United States, 523 U.S. 224, 238
(1998). For that reason, construction of statutes to avoid a
constitutional issue is only appropriate when, in the words of
Justice Holmes, "grave doubts" arise about a statute's
constitutionality. See United States v. Jin Fuey Moy, 241
U.S. 394, 401 (1916). Judges properly invoke this canon
only when they believe that "the alternative is a serious
likelihood that the statute will be held unconstitutional."
Almendarez-Torres, 523 U.S. at 238.2 See e.g. Jones v.
United States, 526 U.S. 227, 239-51 (1999) (extensively
analyzing case law before concluding that a grave consti-
tutional doubt exists). Even constitutional objections that
have "some force" do not create "grave doubts" triggering
application of the avoidance canon. See Rust v. Sullivan, 500
U.S. 173, 191 (1991) (constitutional claims about
restrictions on abortion counseling).

This "grave doubt" limitation helps avoid creation of
"statutes foreign to those Congress intended, simply through
fear of a constitutional difficulty that, upon analysis, will
evaporate." Almendarez-Torres, 523 U.S. at 237-38.
Congress often lacks the practical ability to overrule
erroneous judicial construction, given all of the matters
pressing for its attention. See Richard Posner, The Federal
Courts: Crises and Reform 285 (1985). So adherence to this
limitation is necessary to avoid distorting elected
representatives' policy choices. See Almendarez-Torres, 523
U.S. at 238.

No grave doubt (indeed no colorable claim) can exist
about section 109's constitutionality. This Court has


2 This Court has never questioned Almendarez-Torres'
treatment of the avoidance canon. ~f. Apprendi v. New
Jersey. 120
S. Ct. 2348, 2360-63 (2000) (distinguishing Almendarez-
Torres' constitutional holding).
repeatedly upheld delegations of authority pursuant to
general principles much broader (and less determinate) than
the standard governing the NAAQS.

B. CONSTRUCTION TO AVOID MERE NON-
DELEGATION CLAIMS CAN UNDERMINE
DEMOCRATIC VALUES BY AUTHORIZING
UNGUIDED JUDICIAL RECONSTRUCTION
OF NUMEROUS STATUTORY PROVISIONS.

The policy supporting the grave doubt requirement
has special force in the non-delegation context. A practice of
construing statutes to avoid mere claims of unconstitutional
delegations would severely undermine democratic
governance.

1. A LITIGANT CAN RAISE A NON-DELE-
GATION CLAIM UNDER ANY STATUTE
DELEGATING AUTHORITY.

Since legislation almost always leaves some issues
unresolved, litigants can raise non-delegation claims about
almost every statute relying upon executive branch
implementation. See United States v. Haggar Apparel Co.,
526 U.S. 380, 392-93 (1999) (Congress probably cannot
anticipate all applications of a general policy). And, absent
adherence to the precedent discussed above, raising such a
claim could trigger unusual constructions of a statute.
In particular, if an issue about the intelligibility of the
principle of protecting public health with an adequate margin
of safety can trigger special construction, judicial
reconstruction of statutes will become frequent indeed. A
general statutory principle often fails to provide a "deter-
minate criterion" that functions like an algorithm, dictating a
precise result for each application of the statute. If





8 9


every problem that requires discretionary line-drawing
without legislative "determinate criterion" presents an
occasion for extraordinary construction, the judiciary,
meaning every federal and state trial and appellate judge that
interprets federal law, would have authority to reconfigure
much of the United States Code. Cf. Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 864-66 (1984)
(democratic principles require that agencies, not courts,
interpret ambiguities in statutes).
The avoidance canon does not now control most stat-
utory construction, because the Constitution's specific
provisions usually present problems in somewhat limited
areas. For example, free speech claims may arise in libel3, but
arise seldom (if at all) in the environmental context, where
the law limits pollution rather than communication. The
non-delegation doctrine, by contrast, involves a general
theory of legislation, so litigants can raise non-delegation
claims about a wide variety of statutes.


2. SINCE MANY DIFFERENT CONSTRUC-
TIONS CAN CLARIFY A STATUTE,
JUDGES' SELECTION OF SAVING CON-
STRUCTIONS WILL REFLECT THEIR
POLICY PREFERENCES.

Application of the avoidance canon in the non-dele-
gation context will usually force judges to shape saving
constructions reflecting their individual views of sound policy.
Many different constructions serving many different values
may clarify a statutory mandate. For example,


~ See e.g. New York Times v. Sullivan, 376 U.S. 254
(1964).
imagine a statute requiring EPA to write "sound environ-
mental regulations." A judge could clarify this by requiring
that costs not exceed benefits or that no individual suffer
health impairment. The choice between these views (and
other possibilities) would necessarily reflect a judicial policy
preference.
In other cases, the first party to litigate a non-delegation
issue will have an opportunity to secure its preferred saving
construction. This explains why this case poses a question of
whether to require consideration of cost, instead of whether
to add specificity to section 109 by requiring, for example,
that EPA protect against all health effects more likely than
not to harm 100 or more people. Cf. American Trucking
Ass'ns v. EPA, 175 F.3d 1027, 1038-39 (D.C. Cir. 1999).

Under other constitutional doctrines, the nature of the
constitutional problem controls the policy direction of
constructions avoiding constitutional questions. The
avoidance canon tends to encourage free speech,4 protect
criminal defendants,5 and limit regulation of churches,6
because of the substantive content of the constitutional
provisions underlying the constructions. Therefore, the
substantive policies that the judicial constructions implement
have roots in constitutional values, rather than judicial policy
decisions lacking constitutional foundation.

This problem of frequent unprincipled reconstruction of
statutes to avoid non-delegation issues has not

~ See e.g. Int'l Ass'n of Machinists v. S. B. Street, 367
U.S. 740,
749-50 (1961).
~ See e.g. Jones v. United States, 526 U.S. 227, 239-
40(1999).
6 See e.g. NLRB v. Catholic Bishop of Chicago, 440 U.S.
490,507 (1979) (construing statute to avoid NLRB
jurisdiction over church-operated schools).





10 11


bedeviled courts in the past because the non-delegation
doctrine clearly permits Congress to delegate pursuant to
general standards. Mis tretta v. United States, 488 U.S. 361,
372-73 (1989). This explains why only one of this Court's
recent majority opinions has construed a statute to avoid a
non-delegation claim. See National Cable Television Ass'n,
Inc. v. United States, 415 U.S. 336 (1974). And that case
arose in the tax area, where, according to Justice Douglas'
majority opinion, a long tradition of non-delegation supports
an inference that Congress does not intend to delegate its
constitutional authority to tax at all. See id. at
340-41.
The plurality opinion in the "Benzene" case mentioned
the non-delegation doctrine without explicitly invoking the
avoidance canon, stating that the Occupational Safety and
Health Act "might" offend the non-delegation doctrine absent
the construction the plurality adopted. See Industrial Union
Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607,
646 (1980) (plurality opinion). A footnote in Mist retta, 488
U.S. at 373 n. 7, characterizes this statement as a use of the
non-delegation doctrine to narrow a statute, but the Benzene
plurality states that its resolution of the case "turns, to a large
extent" on the analysis of two specific statutory subsections
(which the opinion parses at length before briefly mentioning
non-delegation). "Benzene", 448 U.S. at 639. Cf. American
Trucking Ass'ns v. EPA, 195 F.3d 4, 14 (D.C. Cir. 1999)
(Judge Silberman dissenting) (characterizing Benzene's
reference to non-delegation as a "make-weight"). In any case,
Benzene does not involve explicit consideration of the
intelligible principle issue or a majority opinion on
application of the avoidance canon. Any reinterpretation of
the dormant non-delegation doctrine that brings the Act into
doubt would encourage non-
delegation claims in conjunction with requests for novel
statutory construction, rather than avoidance of constitu-
tional questions.

C. CONSTRUING SECTION 109 TO INCLUDE
COST CREATES A STATUTE FOREIGN TO
WHAT THE ENACTING CONGRESS
INTENDED.

The avoidance canon requires judges to limit themselves
to constructions "not plainly contrary" to Congressional
intent. See Miller v. French, 120 5. Ct. 2246, 2255 (2000)
(declining to apply canon). This limit prevents judicial
creation of statutes foreign to the enacting Congress'
intentions. Almendarez-Torres, 523 U.S. at 238.
Yet Industry invokes the canon to transform a health
protective statute into a cost-benefit statute. The enacting
Congress clearly sought to overcome Industry resistance to
cleaning up pollution by excluding cost considerations from
the Act's goal setting provision. See Lead Industries Ass'n v.
EPA, 647 F.2d 1130, 1149 (D.C. Cir. 1980). Industry seeks
to incorporate selected teachings of the largely subsequent law
and economics movement into the Act, but the Congress of
1970 was not among the pupils. Other briefs will discuss
Congressional intent in detail.

D. INCLUDING COST EXACERBATES ANY
CONSTITUTIONAL DIFFICULTY BY MAKING
SECTION 109'S PRINCIPLE LESS INTEL-
LIGIBLE.

The avoidance canon only authorizes constructions that
avoid constitutional issues. See United States v. un Fuey
Moy, 241 U.S. 394, 401 (1916). It does not authorize
constructions that fail to resolve or exacerbate a constitu-
tional problem.





12 13


If, however, section 109 creates grave constitutional
doubts, construing it to require consideration of cost
exacerbates the constitutional problem by making the Act's
principle less intelligible than it is now. The Act now
contains a policy of protecting the public from air pollution's
ill effects. Adding cost considerations makes that policy less
clear. It raises questions about whether EPA may allow a
population of people to die or become ill from air pollution,
a question that the current statute resolves clearly.
Requiring consideration of cost would introduce per-
vasive vagueness into section 109. A requirement to consider
cost does not establish a policy about how cost factors should
influence decisions. EPA may take cost into account by
writing standards reflecting all economically feasible health
protections. See e.g. American Textile Mfrs. Inst., Inc. v.
Donovan, 452 U.S. 490, 508-09 (1981). This approach
involves assessment of industry's financial capacity for
compliance expenditures, rather than a comparison between
costs and benefits. See David M. Driesen, The Societal Cost of
Environmental Regulation: Beyond Administrative Cost-
Benefit Analysis, 24 Ecology L. Q. 545, 609-10 (1997).
Alternatively, Congress may require one of several possible
relationships between costs and benefits. See e.g. id. 582-85
(benefits must exceed cost contrasted with benefits must equal
cost); Donovan, 452 U.S. at 506 (reasonable relationship). So
requiring EPA to consider cost hardly provides a more
intelligible principle than the principle that EPA should
protect public health from air pollution. Indeed, it establishes
no principle at all; it just adds a factor.


III. INDUSTRY'S PROPOSED CLEAR STATEMENT
RULE SUBVERTS DEMOCRATIC VALUES.

Industry urges the Court to adopt a clear statement rule
requiring agencies to consider cost unless Congress
specifically states that the agency may not consider cost. GE
Br. at 18; ATA Br. at 45-46. Industry would require
consideration of "risk-risk" tradeoffs as well. See GE Br. at
18. But no case or controversy exists over a "risk-risk" issue,
as distinct from the cost issue. See American Trucking, 175
F.3d at 1051-53 (requiring EPA to consider the relationship
between ground-level ozone and ultra-violet rays on remand).
Cf. GE Br. at 2-3.

The proposed clear statement rule, if adopted, would
subvert democratic values. It would make judges agents of
statutory revision rather than honest interpreters of
Congressional intent. Cf. Tennessee Valley Auth. v. Hill, 437
U.S. 153, 194-95 (1978) (we must put aside our views of the
wisdom of Congressional action in reviewing a statute). It
would therefore undermine Congressional control of policy.

A. INDUSTRY'S CLEAR STATEMENT RULE
MAKES ADMINISTRATIVE AGENCIES MORE
LIKE LEGISLATURES.

Presumptively requiring agencies to weigh all of the pros
and cons of their actions makes them more similar to special
purpose legislatures. See generally David M. Driesen, The
Societal Cost of Environmental Regulation: Beyond
Administrative Cost-Benefit Analysis, 24 Ecology L. Q. 545,
605-13 (1997). Weighing all of the pros and cons of a policy
choice is the quintessential legislative activity. See generally
Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) ("it is
for the legislature . . . to balance the advantages and
disadvantages of the new requirement."). Having





14
15
weighed the pros and cons, Congress decided to have EPA
execute a rather specific policy, a policy of protecting public
health and welfare from air pollution. See 42 U.S.C. 7409.
Cf. American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.
490, 509 (1981) (Congress chose a balance between costs and
benefit in favoring worker health). Industry's proposal to
presumptively require agencies to employ a legislative ethos
broadening the range of potential outcomes, rather than
criteria reflecting specific Congressional policy choices,
conflicts with its call for more "determinate" statutory
criteria.

B. INDUSTRY'S CLEAR STATEMENT RULE
CONFLICTS WITH PRECEDENT DESIGNED
TO ASSURE THAT AGENCIES AND COURTS
RESPECT LEGISLATIVE POLICY DECISIONS.

The major purpose of judicial review of agency
action has been to ensure that agencies carry out
Congressional mandates. The Industry clear statement
rule seeks instead to use judicial review as a means of
revising statutes to make them conform to Industry's view of
sound risk management legislation. See AP Br. at 4; GE Br. at
1.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402 (1971), reveals that this Court created "hard look"
judicial review precisely to ensure that agencies focus
exclusively on factors relevant to implementing specific
Congressional policy decisions, rather than engage in open-
ended cost-benefit balancing. This Court interpreted the APA
to require reviewing courts to consider "whether the decision
was based on consideration of the relevant factors and
whether there has been a clear error in judgment." Overton
Park, 401 U.S. at 416. The Court used the term "relevant
factors" to refer to the factors the
governing statute explicitly makes relevant, not all factors
that might be considered relevant if the agency were a
legislature. In particular, the Court interpreted a mandate
barring construction of federally funded highways through
parkland "unless there is no feasible and prudent alternative . . . "
Id. at 411. The Court rejected the government's argument
that this provision authorizes a wide-ranging balancing of
competing interests." See id. at 411-12. The Court held that
the Secretary of Transportation could only permit destruction
of parkland if "he finds that alternative routes present unique
problems." Id. at 413. This Court remanded so that the
District Court could ascertain whether the Secretary
undertook the limited inquiry the statute required, or violated
the statute by engaging in "wide-ranging balancing." See id. at
413, 415-16, 420.
In case after case, this Court focuses not on the question
of what factors can be relevant to a decision in an abstract
sense (weighing pros and cons), but on what factors the statute
commands the agency to consider in order to carry out a prior
Congressional policy. Thus, in Union Electric Co. v. EPA, 427
U.S. 246, 256 (1976), the Court rejected claims that EPA
may consider cost and feasibility in deciding whether to
approve a state implementation plan, the package of
regulations states write to generate the emission reductions
needed to meet the NAAQS, see Train v. Natural Resources
Defense Council, 421 U.S. 60, 65-67 (1975). The Act listed
factors that EPA must take into account in reviewing state
plans. See Union Electric, 427 U.S. at 257. The Act did not
list cost and feasibility. Id. This Court held that the
Administrator cannot consider cost and feasibility unless these
factors can be found among the "eight criteria" listed. Id. The
Court analyzed the issue of whether cost and feasibility





16
17

can be found, not by reference to any presumptive
policy preference, but by parsing the language and
legislative history of the Act. See id. at 257-65 (parsing
the Act and concluding that Congress had decided to force
pollution sources to develop control devices that might
appear "economically or technically infeasible").

Similarly, in American Textile Mfrs. Inst., Inc. v. Don-
ovan, 452 U.S. 490, 509 (1981), this Court rejected an
argument that the Occupational, Safety and Health
Administration must conduct CBA. Since the governing
statute explicitly required a determination of feasibility, i.e.
what is capable of being done, the Court declined to require a
reasonable relationship between costs and benefits. Id. at 506-
09. CBA is not required, said the Court, because feasibility
analysis is. Id. at 509.

Donovan rejects the notion that costs are balanced
against benefits absent a contrary statement. Donovan states
that "Congress uses specific language" when it intends that
"an agency engage in cost-benefit analysis." Id. at 510-11.
The Court justifies this statement by citing statutory
provisions that expressly say that Congress wants costs and
benefits weighed against each other, provisions unlike section
109 or the statutory provision before the Donovan Court. Id.
at 510. This lack of a statement requiring CBA supported the
Court's holding that Congress meant to require none. See id.
at 510-12. Similarly here, section 109 does not mention cost
at all, so it cfoes not include it. See Lead Industries Ass'n v.
EPA, 647 F.2d 1130, 1148 (D.C. Cir. 1980) (Congress
expressly directs EPA to consider costs when it intends them
to be considered). Hence, Congress intends to focus agencies
exclusively on the criteria it writes to guide their decisions.
See e.g. Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins.
Co., 463 U.S. 29, 34, 46-48 (1983) (failure to
consider availability of airbags makes recission of rule
requiring passive restraints arbitrary and capricious under a
statutory "mandate . . . to achieve . . . safety").
All of these cases reject judicial broadening of narrowly
focused statutes. Rather, this Court construes statutes with the
goal of confining the agency to the factors Congress
expressly lists, since Congress makes policy choices by
selecting limited criteria to govern agency decisions.
Industry's proposal conflicts with this precedent by
presumptively adding a factor in order to change policy.

C. THE CONSTITUTION DOES NOT AUTHORIZE
JUDGES TO ENACT THEIR VIEWS OF SOUND
RISK MANAGEMENT INTO LAW.

Although federal courts have no general law making
power, see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Industry asks this Court to establish a broad risk management
principle requiring consideration of cost in all regulatory
settings, see GE Br. at 1. Congress rather than the judiciary
chooses the principles governing pollution control. The
judiciary should limit itself to assessing Congressional intent
without the use of a clear statement rule biasing that
assessment toward Industry's view of desirable policy.

1. CLEAR STATEMENT RULES GENERALLY
REQUIRE A QUASI-CONSTITUTIONAL
FOUNDATION.

Clear statement rules serve to protect only "weighty and
constant" values, often derived from constitutional structure.
See Astoria Federal Say. & Loan Ass'n v. Solimino, 501 U.S.
104, 108 (1991). See e.g. Gregory v. Ashcroft, 501 U.S. 452,
461 (1991) (rule discourages interference with





18
19

state sovereign powers under our constitutional scheme). See
generally William N. Eskridge & Philip P. Frickey, Quasi-
Constitutional Law: Clear Statement Rules as Constitutional
Lawmaking, 45 Vand. L. Rev. 593 (1992). Industry does not
identify any constitutional foundation for its clear statement
rule.
Constitutional values often justify the risk of judicial
distortion of Congressional policy choices that adherence to a
clear statement rule entails. For a clear statement rule
sometimes may lead to constructions that stray from the
most natural contextually appropriate meaning of statutory
language. See e.g. NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 504-06 (1979) (holding that the NLRB lacks
jurisdiction over teachers at religious schools without
examining broad statutory language defining employer and
employee); EEOC v. Arabian Am. Oil Co., 499 U.S. 244,
262-63 (1991) (dissenting opinion) (clear statement rules
compel selection of "less plausible" constructions and exclude
extrinsic aids to interpretation); Landgraf v. USI Film
Products, 511 U.S. 244, 251 (1994) (recognizing that
Congress superseded EEOC v. Arabian Am. Oil Co.'s holding).
Industry cannot and does not argue that protecting public
health from air pollution without considering cost is irrational
as a matter of "substantive" due process. See GE Br. at 18 n.
37. The protection of public health through air quality
standards is obviously related to a legitimate public purpose.
See Williamson v. Lee Optical, 348 U.S. 483, 491 (1955).
Nevertheless, Industry invites this Court to revise section 109
based on its views of the reasonableness of the health
protection principle. See ATA Br. at 25; GE Br. at 4-12.


2. JUDICIAL REVIEW OF LEGISLATION'S
REASONABLENESS SHOULD NOT GUIDE
STATUTORY INTERPRETATION.

This Court should reject Industry's invitation to base a
canon of construction (or any statutory interpretation) on its
assessment of the wisdom of a legislative principle, such as
the principle of protecting the public from air pollution's ill
effects. The Court's proper role in interpreting statutes is to
determine Congressional intent. See Schooner Paulina's
Cargo v. United States, 11 U.S. (7 Cranch) 52, 60 (1812)
(Marshall, C.J.). If federal and state judges develop substantive
canons derived from their assessment of the reasonableness of
legislation, the canons and the interpretations they lead to
will necessarily reflect judges' views of sound policy.

Policy arguments that Congress regularly considers, such
as arguments about cost considerations, form an inappropriate
basis for a clear statement rule. See Almendarez-Torres, 523
U.S. at 267 (dissenting opinion) (we presume that Congress
agreed with traditional practice or common law, not "our
current policy judgments"). A clear statement rule ensures
that the legislature faces a constitutional issue that it may
otherwise neglect. See Gregory, 501 U.S. at 461 ("clear
statement" rule "assures that legislature has faced" the
federalism issue) [citations omitted]. Since Congress considers
cost issues central to environmental law, a clear statement
rule on this subject does not force a confrontation with a
neglected constitutional value; rather, it distorts
Congressional choices about contemporary policy issues.
This Court has rejected searching judicial review of the
reasonableness of economic legislation precisely because
judges tend to enact their economic and social





20 21


views into law when making rulings based on an assessment of
reasonableness. See Ferguson v. Skru pa, 372 U.S. 726, 729
(1963) (repudiating unreasonableness test for substantive due
process, because it leads judges to "strike down laws" thought
"unwise or incompatible with some particular economic or
social philosophy."). The Lochner Court framed the
constitutional question economic legislation raised as whether
the legislation was "an unreasonable, unnecessary, and
arbitrary" interference with personal liberty or a "reasonable . .
. exercise of the police power." Lochner v. New York, 198 U.S.
45, 56 (1905). The Court reached a conclusion that a law
limiting bakers to a ten hour work day is arbitrary by adopting
reasoning very much like that which Industry invites this
Court to apply in the case at bar. The Court speculated that
the law "might" prove counterproductive in terms of its own
objectives. Compare id. at 59 (limits on hours of employ-
ment "might seriously cripple the ability of the laborer to
support . . . his family.") with GE Br. at 10 (pollution control
costs "could" increase asthma). And the Lochnerera Court
frequently used difficulties in justifying precise line drawing to
question the rationality of economic legislation. Compare
Lochner, 198 U.S. at 62 (calling conclusion that 10 hours of
work does not endanger health, but 10 and a half hours does
"entirely arbitrary"); Adkins v. Children's Hospital, 261 U.S.
525, 556-57 (1923), overruled, West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 400 (1937) (board "probably found it
impossible to follow the indefinite standard of the statute"
authorizing a minimum wage for women, "and brought . . .
different factors into the problem") with GE Br. at 17-18
(because scientific information cannot "definitively
determine" a precise air quality standard, implementing a
health criterion is impossible and EPA considers cost factors).
Finally, that
Court often treated a failure to weigh all pros and cons as
unreasonable. See Adkins, 261 U.S. at 557 (failure to consider
cost to employer of providing a minimum wage). Contra
Parrish, 300 U.S. at 397 (rejecting this approach).

Justice Brandeis warned of the danger of enacting judicial
"prejudices into legal principles" through review of social and
economic legislation under the "arbitrary" and "capricious"
standard of substantive due process. See New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis J.
dissenting). This Court ultimately concluded that it should
abandon the kind of evaluation of legislative reasonableness
that Industry seeks, because it had led to the creation of legal
principles based on judges' economic and social views. See
Ferguson, 372 U.S. at 729-30; Williamson v. Lee Optical,
348 U.S. 483, 488 (1955).
For the same reason, this Court should reject judicial
assessment of the reasonableness of a legislative principle as
the basis for a clear statement rule. Such an approach will
invite the creation of clear statement rules erecting the views
of state and federal judges into legal principles governing
statutory "construction". Clear statement rules should have
roots in constitutional substance, not the contemporary
policy preferences of unelected judges.


3. THE ADMINISTRATIVE PROCEDURE
ACT DOES NOT JUSTIFY A NEW SUB-
STANTIVE CANON.

Since the constitution does not authorize judicial
revision of statutes based on rationality review, see United
States v. Rutherford, 442 U.S. 544, 555 (1979) (federal judges
may not "rewrite legislation in accord with their own
conceptions of prudent public policy."), Industry





22 23
invokes the APA as a quasi-constitutional justification for
extraordinary judicial construction. General Electric, for
example, asks this Court to hold that agency action
under a regulatory statute "is not reasoned unless the
agency considers" compliance costs (and risk
tradeoffs), invoking the APA's arbitrary and capricious
standard. GE Br. at 1-2, 4, 12. It then asks the Court to
construe "[a]cts of Congress" in light of this abstract
judicial assessment of reasonableness. Id. at 12.
A holding that a particular agency action is unreasoned
under the APA and parallel provisions, i.e. arbitrary or
capricious, could never justify a statutory construction, it
would simply justify a remand to the agency. See 5 U.S.C.
706(2) (only authorizing courts to "hold unlawful and set
aside" agency action found arbitrary and capricious); 42
U.S.C. 7607(d)(9) (only authorizing reversal of such
action). If section 109 precludes cost consideration, then
EPA consideration of cost would be arbitrary and capricious.
See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co.,
463 U.S. 29, 43 (1983) ("Normally an agency rule would be
arbitrary and capricious if the agency has relied on factors
which Congress has not intended it to consider."). So EPA's
failure to consider cost can be arbitrary and capricious only if
one assumes what Industry is trying to prove, that section
109 requires consideration of cost. Cf. Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992) (EPA's failure to consider river's
degraded state not arbitrary and capricious, because that status
is not an important factor under a correct reading of the law);
Natural Resources Defense Council (NRDC) v. Administrator,
902 F.2d 962, 978 (D.C. Cir. 1990) (petitioner's "real dispute
is not with EPA but with Congress").

Industry cannot secure review of its abstract claim that
all agency action not considering cost is unreasoned
under the APA, see GE Br. at 1, because the Court does
not have before it all of the reasons that government
agencies have supplied or might supply in the future to justify
their actions. This claim requires review of prior D.C. Circuit
holdings that EPA has provided satisfactory explanations for
several NAAQS without considering cost. See NRDC, 902
F.2d at 968-74; American Petroleum Inst. v. Costle, 665 F.2d
1176, 1183-87 (D.C. Cir. 1981); Lead Industries Ass'n v.
EPA, 647 F.2d 1130, 1156-67 (D.C. Cir. 1980). These
holdings show that Industry's claim that setting health-based
standards without considering cost is impossible is simply
wrong. Cf. GE Br. at 17. But the relevant records are not
before the Court, and the APA only authorizes on the record
review. See Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 419 (1971). And Industry's argument requires an
inappropriate hypothetical assessment of reasoning that
agencies have not yet provided, since the argument
encompasses an abstract claim that all future actions will be
unreasoned. Cf. Toilet Goods Ass'n v. Gardner, 387 U.S. 158,
163 (1967) (declining to adjudicate claim that agency cannot
inspect plants without knowing agency reasons for inspecting
a particular plant).

Industry questions the reasonableness of the legislature
requiring an agency to protect health without considering
cost, while framing its request for a new canon of
construction as a mere application of the APA. It goes far
beyond the record that would form the basis for APA review,
see Overton Park, 401 U.S. at 419, and deploys the full range
of policy arguments it uses before Congress to question the
wisdom of the health protection principle. Industry's claim
that all possible applications of the principle that health
should be protected regardless of cost are unreasonable is
tantamount to claiming that the





24 25
health protection principle itself is unreasonable. Cf. Sec-
retary of Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494 n. 5 (1982) (equating a claim
that law is incapable of valid application with a claim that law
itself is invalid); Yee v. City of Escondido, 503 U.S. 519, 534
(1992) (allegation that ordinance advances no legitimate
state interest no matter how applied states a facial claim
about the law itself). The APA simply does not authorize
presumptive judicial legislation based on judges' views of the
reasonableness of existing law. Cf. S. 981 627(d), 105th
Cong. (1998) (rejected bill that might have generally
authorized courts to set aside agency action that did not take
cost into account).

D. ADDING COST CONSIDERATIONS TO SEC-
TION 109 WILL CHANGE POLICY, NOT
IMPROVE EPA'S REASONING.

General Electric states that "neither science nor health
considerations alone can definitively determine" the level of a
standard. See GE Br. at 17 [emphasis addedi. But combining
cost considerations with health considerations will not
"definitively determine" the level of a standard either. In
either case, EPA will have to make some judgment in
interpreting complicated and often incomplete scientific
evidence. Cf Baltimore Gas & Electric Co. v. Natural
Resources Defense Council, Inc., 462 U.S. 87, 103-06 (1983)
(court must be "at its most deferential" in evaluating agency
actions involving scientific determinations). If costs are
added EPA must make further judgments that are even harder
to rationalize.
In order to compare costs and benefits, EPA would have
to make numerous policy choices in deciding how much
weight to give the benefits. In order to estimate the numbers
of deaths and illnesses a proposed standard
would avert, EPA would have to make judgments about
how to deal with data gaps. See Donald T. Hornstein,
Reclaiming Environmental Law: A Normative Critique of
Comparative Risk Assessment, 92 Colum. L. Rev. 562, 572
(1992) (National Academy of Sciences has identified almost
fifty decisional points in risk assessment). It would have to,
in other words, judge the adequacy of a margin of safety in
extrapolating seemingly precise damage estimates from
incomplete data. EPA would then have to decide how much
weight to give the benefits it identified. These kinds of policy
choices, not the science or cost data, would determine the
standards.

Its choice of valuation methodology would become
extremely important, involving EPA in a whole new set of
judgments that would be difficult to defend rationally.
Suppose that EPA decides to value health benefits by
estimating how much a polluter would have to pay a pollution
victim to accept a predicted illness or death. A pollution
victim might well refuse to accept even a trillion dollars to
accept the pollution that will cause her demise. See E.J.
Mishan, Cost-Benefit Analysis 171 (1982). Hence, this
willingness to accept methodology coupled with a strong
perfect information assumption might lead the regulator to
prohibit any pollution predicted to kill people or cause
serious illness.
The regulator might, on the other hand, ask how much
the victim would be willing to pay to abate pollution. See
David M. Driesen, The Societal Cost of Environmental
Regulation: Beyond Administrative Cost-Benefit Analysis, 24
ECOLOGY L. Q. 545, 589-90 (1997). This would generate
very different results, especially if the regulator assumed that
the victim does not know that she herself will die or
experience illness. See id. at 588-591; Mishan, supra at 171
(wealth limits price a person will pay for a




26 27
good, but price a person may demand to forego a good "can
be infinite"). Indeed, even if one treated the core
methodology as a given, numerous policy judgments would
still come into play in applying the methodology. The raw
scientific and cost information would not determine a
standard. Adding cost to section 109 changes legislative
policy, but it makes reasoned decision-making under the APA
harder, not easier.

E. THE COURT SHOULD NOT CREATE A
LEGAL RULE REFLECTING AN ECONOMIC
THEORY LACKING CONSTITUTIONAL
FOUNDATION.

In his Lochner dissent, Justice Holmes chided the Court
for deciding the case "upon an economic theory which a large
part of the country does not entertain," see Loch ner, 198
U.S. at 75, although laissez-faire theory enjoyed a strong
following among the lawyers of his day. See William M.
Wiecek, The Lost World of Classical Legal
Thought: Law and Ideology in America, 1886-1937, 82-83
(1998).

Industry urges this Court to follow a practice that
discredited the Lochner-era Court, allowing a contemporary
economic theory to heavily influence the creation of general
legal principles lacking constitutional foundation. Industry's
clear statement rule's push toward CBA, see e.g. ATA Br. at
30, reflects neoclassical economic theory. That theory
defines optimal public policy as the product of an economic
analysis of costs and benefits, see e.g. Mishan, supra at 141-
48, thus supporting the view that CBA should precede all
important public policy decisions.
Many voters may not subscribe to neoclassical economic
theory, especially as applied to the setting of environmental
goals. A very common view holds that pollution causing
death or serious illness should simply cease, regardless of cost.
See e.g. Review of EPA's Proposed Ozone and Particulate
Matter NAAQS Revisions-Part 2 Before the Subcomm. on
Health and Env't. and the Subcomm. on Oversight and
Investigations of the House Comm. on Commerce, 105th
Cong. 48, 49 (1997) (statement of Richard L. Brodsky,
Chairman, New York State Assembly Committee on
Environmental Conservation) (calling a cost-benefit
approach to human health protection "morally repugnant").
This view has deep roots in the common law maxim sic
utere tuo ut alienum non laedas (roughly, do no harm),
which often implied regular imposition of strict liability. See
III William Blackstone, Commentaries on the Laws of
England 217 (Dawsons of Pall Mall ed. 1966); Morton J.
Horowitz, The Transformation of American Law 1780-1860
32 (1977). While some courts relaxed the strict approach in
subsequent years, many 19th and early 20th century courts
repudiated balancing of equities and ordered plants to abate
their pollution or shut down. See Georgia v. Tennessee
Copper Co., 206 U.S. 230, 237-39 (1907) (Holmes J.)
(allowing "possible [economici disaster" because the
petitioning State "has the last word as to whether . . . its
inhabitants shall breathe pure air"); Seacord v. The People,
13 N.E. 194, 200-01 (Ill. 1887) (rule against balancing
conveniences is well settled); Bowman v. Humphrey, 100
N.W. 854, 855 (Iowa 1904) (evidence that a defendant's
business provides "great benefit and profit to the .
public" held inadmissable); Whalen v. Union Bag & Paper
Co., 101 N.E. 805, 806 (N.Y. 1913) (enjoining operation of
a pulp mill even though abatement may cost far more than





28 29
the damage inflicted); Sullivan v. Jones & Laughlin Steel
Co., 57 A. 1065, 1071 (Pa. 1904) (enjoining coal dust emis-
sions and declining to balance conveniences); Susquehanna
Fertilizer Co. v. Malone, 20 A. 900, 902 (Md. 1890)
(rejecting "reasonable use" limitation and CBA when damage
is non-trivial). Cf. Boomer v. Atlantic Cement Co., 257 N.E.
2d 870, 871-73, 875 (N.Y. 1970) (explaining that New
York's settled rule requires automatic injunction of a
continuing nuisance, but choosing to abandon this rule in
light of need for public regulation).

Contemporary critics of CBA object to it on both
practical and normative grounds. Many critics believe that
bureaucrats ought not and cannot attach a monetary value to
human life. See Thomas 0. McGarity, Regulatory Analysis
and Regulatory Reform, 65 Tex. L. Rev. 1243, 1294-95
(1987). See also Mark Sagoff, The Economy of the Earth 26-
29 (1988) (public policy should reflect qualitative value
choices rather than summation of preferences). And critics
claim that, in practice, a weighing of costs and benefits will
give short shrift to environmental and public health
considerations that cannot be easily quantified. See e. g.
Thomas 0. McGarity, A Cost-Benefit State, 50 Admin.
L. Rev. 7, 11 (1998) (CBA will "invariably" reduce statutes'
environmental protection); Thomas 0. McGarity, The Courts
and the Ossification of Rulemaking: A Response to Professor
Seidenfeld, 75 Tex. L. Rev. 525, 541-49 (1997) (explaining
how a cost-benefit requirement and hard look judicial review
ended regulation under section 6 of the Toxic Substances
Control Act).

To be sure, a requirement to consider cost does not
specify how it should be considered, and therefore does not
mandate full compliance with the theory of optimal
pollution. But the Lochner-era Court did not consistently and
fully adopt laissez-faire theory either. William M.
Wiecek, The Lost World of Classical Legal Thought: Law and
Ideology in America, 1886-193 7, 7 (1998). Rather, the
Court's decisions reflected the influence of laissez-faire views
and contemporary elite distaste for labor laws. See id. at 9-
10, 86, 140-43. 159-61, 178. This was enough to earn it a
reputation as unprincipled and ideological. See id. at 142-43,
160-61, 178, 201. Industry's proposed statutory canon
similarly reflects deep antipathy toward environmental law
and the embrace of an economic theory.

Typically, discussions of the Lochner-era address con-
stitutional rulings, the specific focus of Holmes' Lochner
dissent. But, the Court's statutory interpretation reflected its
laissez-faire like views as well. Lochner itself held that a
statute requiring a sixty-hour work week for bakers violated
"liberty of contract" and thus the due process clause of the
Fourteenth Amendment. 198 U.S. at 46 n. 1, 53, 64. The
Court also tended to view labor actions as "coercive"
interference with rights protected by due process and
construed anti-trust laws to authorize injunction of strikes
and boycotts. See e.g. Duplex Printing Press Co. v. Deering,
254 U.S. 443, 465-66, 478-79 (1921) (boycott coercively
interferes with a "property right"); American Steel Foundries
v. Tn-Cities Cent. Trades Council, 257 U.S. 184, 202, 205
(1921) (picketers coercively interfere with a property right).
Cf. United States v. E.C. Knight Co., 156 U.S. 1, 9, 16-18
(1895) (anti-trust laws do not regulate sugar monopoly). The
Lochner-era Court's adoption of statutory interpretation
reflecting its anti-labor laissez-faire policy views contributed
to that Court's poor reputation as an ideological court. See
Milk Wagon Drivers' Union, Local No. 753 v. Lake Valley
Farm Products, 311 U.S. 91, 102-03 (1940) (discussing
Congressional findings of "abuses of judicial power" and
misinterpretation of anti-trust law). This Court repudiated
these labor injunction cases in 1940, just





30

as it repudiated much of the Loch ner-era's constitutional legacy. See id.
Industry's arguments invite this Court to emulate the Lochner-era vice of treating a policy running afoul of an economic theory as irrational. This
Court should decline the invitation and leave Congress the task of deciding whether to conform existing law to a contemporary economic theory.

CONCLUSION

We ask the Court to affirm the Court of Appeals ruling confirming that EPA may not consider cost in writing the NAAQS.
Respectfully submitted,

JAMES KEITH WEEKS

(Counsel of Record)
DAVID M. DRIESEN

Syracuse University College of Law
E.I. White Hall
Syracuse, New York 13244-1030
(315) 443-2524

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