US Supreme Court Briefs

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
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 AMICI CURIAE ENYRONMENTAL DEFENSE AMERICAN PUBLIC HEALTH ASSOCIATION,ET AL.
ON BEHALF OF CROSS-RESPONDENTS
CROSS RESPONDENTS

Filed SEPT 11, 2000


i

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES iv
INTEREST OF AMICI CURIAE 1
SUMMARY OF ARGUMENT 1
ARGUMENT 3

I. CONGRESS HAS EFFECTIVELY RATIFIED EPA'S INTERPRETATION THAT COSTS CANNOT BE TAKEN INTO ACCOUNT IN SETTING
THE NAAQS 3

A. The Court's Recent Decision in Brown & Williamson Compels Upholding EPA's Inter
pretation 3

B. EPA Has a Long-standing and Consistent
Interpretation of Section 109(b) 4
C. Congress Has Legislated Against the Backdrop of EPA's Interpretation and Repeatedly Has Rejected Overturning this
Interpretation 5
1. The 1977 Amendments 5
2. Further Consideration in the 1980s 6
3. The 1990 Amendments 8
4. Bills to Amend Section 109(b) 9
5. Regulatory Reform Efforts Beginning in
the 104th Congress 9
6. - - Oversight Hearings in Connection with
the Proposal and Promulgation of the
Challenged NAAQS for Ozone and Par-
ticulate Matter 11

D. The Court Should Not Be Used to End-Run
the Political Process 13


ii iii


TABLE OF CONTENTS - Continued
Page
II. THE PRINCIPLE OF STARE DECISIS CALLS
FOR FOLLOWING THE LONG-STANDING
JUDICIAL DETERMINATION THAT COSTS
CANNOT BE TAKEN INTO ACCOUNT IN SET-
TING THE NAAQS

A. In a Body of Case Law Issued Over the Past
Twenty Years, the D.C. Circuit Has Consis-
tently Held that Costs Cannot Be Taken Into
Account in Setting the NAAQS

B. The Principle of Stare Decisis Applies in this
Case

C. This Case Presents Particularly Compelling
Arguments in Favor of the Application of
Stare Decisis

D. A Policy Change of this Magnitude Cannot
Be Made by the Judiciary Without Seriously
Disrupting the Nation's Efforts to Control
Air Pollution

III. THE CHALLENGES TO EPA'S INTERPRETA-
TION OF SECTION 109(b) ARE WHOLLY
UNPERSUASIVE

A. The Cross-Petitioners' Arguments Concerning
Sections 108 and 109 Are Without Merit

B. The Court Should Decline the Invitation to
Adopt a Cost-Benefit Canon of Statutory
Interpretation

1. Such a Canon Could Not Override the
Evidence of Congressional Intent or the
Deference Owed to EPA Under Chevron..

2. The Court Must Respect the Manner in
Which Congress Has Taken Costs into
Account in the Clean Air Act
TABLE OF CONTENTS - Continued
Page
C. The Challengers Rely on a Number of Irrelevant
Generalities and Inapposite Provisions of the Clean
Air Act

D. The Challengers Fail in their Efforts to Introduce
Economic Considerations into the Term "Public
Health"
15
26


27
CONCLUSION 30
15


16


18




19



20


20



23


24


24






TABLE OF
AUTHORITIES
iv v



TABLE OF AUTHORITIES - Continued
Page
CASES:

American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir.
1998) 16
Amex Land Co. v. Quarterman, 181 F.3d 1356 (D.C.
Cir. 1999) 24
API v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), cert.
denied, 455 U.S. 1034 (1982) 15

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .... 24
College Say. Bank v. Florida P repaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) 23
Dickerson v. United States, 120 5. Ct. 2326 (2000) 18
Dickinson v. Zurko, 527 U.S. 150 (1999) 18
Dunn v. CFTC, 519 U.S. 465 (1997) 28
FDA v. Brown & Williamson Tobacco Corp., 120
S. Ct. 1291 (2000) 3
George E. Warren Corp. v. EPA, 159 F.3d 616 (1998),
amended on other grounds, 164 F.3d 676 (D.C. Cir.
- 1999) 26

Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S.
197 (1991) 18
Hubbard v. United States, 514 U.S. 695 (1995) 16

Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert.
denied, 449 U.S. 1042 (1980). .2, 5, 15, 16, 17, 18, 27
Loch ner v. New York, 198 U.S. 45 (1905) 3, 23
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) 26
Page

Michigan Citizens for an Indep. Press v. Thornburgh, 868
F.2d 1285 (D.C. Cir.), aff'd by an equally
divided Court, 493 U.S. 38 (1989) 24

NRDC v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en
banc) ("Vinyl Chloride") 17, 27

NRDC v. EPA, 902 F.2d 962 (D.C. Cir. 1990), cert.
denied, 498 U.S. 1082 (1991) 15
NRDC v. EPA, 937 F.2d 641 (D.C. Cir. 1991) 26

Ober United Travel Agency, Inc. v. Department of
Labor, 135 F.3d 822 (D.C. Cir. 1998) 24

Patterson v. McLean Credit Union, 491 U.S. 164
(1989) 17, 18

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) .... 2, 16, 17

Union of Concerned Scientists v. NRC, 824 F.2d 108
(D.C. Cir. 1987) 17

United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985) 4

United States v. Ryan, 284 U.S. 167 (1931) 16


STATUTES:
Clean Air Act, 42 U.S.C. 7401 et seq.
101(b)(1), 42 U.S.C. 7401(b)(1) 26
108, 42 U.S.C. 7408 20, 21
108(a)(2), 42 U.S.C. 7408(a)(2) 20, 21, 27
108(b)(1), 42 U.S.C. 7408(b)(1) 21, 23
109, 42 U.S.C. 7409 5, 15, 20





vi vii


TABLE OF AUTHORITIES - Continued
Page
109(a)(1)(A), 42 U.S.C. 7409(a)(1)(A) 27

109(a)(1)(B), (a)(2), 42 U.S.C. 7409(a)(1)(B),
(a)(2) 22
109(b), 42 U.S.C. 7409(b) passim
109(b)(1), 42 U.S.C. 7409(b)(1) 20
109(d), 42 U.S.C. 7409(d) 22
109(d)(1), 42 U.S.C. 7409(d)(1) 19
109(d)(2)(B), 42 U.S.C. 7409(d)(2)(B) 22

109(d)(2)(C)(iv), 42 U.S.C. 7409(d)(2)(C)(iv)
22, 23, 28

109-110, 42 U.S.C. 1857c-4, 1857c-5
(amended 1977) 5
110, 42 U.S.C. 7410 17
110(a)(1), 42 U.S.C. 7410(a)(1) 22
110(a)(1)-(2), 42 U.S.C. 7410(a)(1)-(2) 19
111(a)(1), 42 U.S.C. 7411(a)(1) 25
112, 42 U.S.C. 7412 17
112(f)(1)(B), 42 U.S.C. 7412(f)(1)(B) 28
119, 42 U.S.C. 7419 25
160-169B, 42 U.S.C. 7470-7492 5
165(a)(4), 42 U.S.C. 7475(a)(4) 27
169(3), 42 U.S.C. 7479(3) 25

172(a)(1)-(2), 42 U.S.C. 7502(a)(1)-(2)
(amended 1990) 5
TABLE OF AUTHORITIES - Continued
Page
181(a)(1), 42 U.S.C. 7511(a)(1) 9, 25
202(a)(3)(B)(i), 42 U.S.C. 7521(a)(3)(B)(i) 28
202(a)(3)(D), 42 U.S.C. 7521(a)(3)(D) 28
202(i)(3)(A)(iii), 42 U.S.C. 7521(i)(3)(A)(iii) 25
211, 42 U.S.C. 7545 26

211(c)(2)(A)-(B), (k)(1), 42 U.S.C. 7545(c)(2)
(A)-(B), (k)(1) 26
302(h), 42 U.S.C. 7602(h) 20
307(b)(1), 42 U.S.C. 7607(b)(1) 15
307(d)(3), 42 U.S.C. 7607(d)(3) 23
312(b), 42 U.S.C. 7612(b) 28
401-416, 42 U.S.C. 7651-7651o 25
Pub. L. 95-95, 91 Stat. 685 (1977) S
Pub. L. 97-23, 95 Stat. 139 (1981) 25
Pub. L. 101-549, 104 Stat. 2399 (1990) 8
Safe Drinking Water Act, 42 U.S.C. 300f et seq.
1412(b)(1)(C), 42 U.S.C. 300g-1(b)(1)(C) 14

1412(b)(3)-(6), (9), 42 U.S.C. 300g-1(b)(3)-(6),
(9) 19

1412(b)(4)(C), (6)(A), 42 U.S.C. 300g-1(b)(4)(C),
(6)(A) 14
1414(c)(4), 42 U.S.C. 300g-3(c)(4) 14





viii ix


TABLE OF AUTHORITIES - Continued
Page

MISCELLANEOUS:

40 C.F.R. 51.100(o)(2) 25

36 Fed. Reg. (1971)
p. 8186 4

43 Fed. Reg. (1978)
p. 26,963 4
p. 46,247 4

44 Fed. Reg. (1979)
p.8203 4
45 Fed. Reg. (1980)
p. 55,067 4
62 Fed. Reg. (1997)
p. 38,683 5
p. 38,878 5
H.R. Rep. 95-294 (1977)
6, 22
S. Rep. 91-1196 (1970)
29
S. Rep. 100-231 (1987)
8
S. Rep. 101-228 (1989)
8
S. Rep. 104-90 (1995)
11
136 Cong. Rec. (1990)
p. H12,885 8
p. H12,912-15 8
p. H12,916 8
p. S16,896 8
141 Cong. Rec. (1995)
p. H2235 10
TABLE OF AUTHORITIES - Continued
Page
p. H2241 10
p. H2357 10
p. H2361 10
p. H2364 10
pp. H2365-66
10
pp. H2638-39
10
p. S9695 11
p. S1O,399 11

Clean Air Oversight: Hearings Before the Senate Comm. on
Environment and Public Works, 97th
Cong. (1981) 7

Clean Air Act Amendments: Joint Hearing Before the
Subcomms. on Oversight and Investigations, and on
Health and Environment, House Comm. on Com
merce, 104th Cong. (1995) 9

Regulatory Reform: Hearings Before the Senate Comm. on
Governmental Affairs, 104th Cong. (1995) 11

Clean Air Act: Ozone and Particulate Matter S tandards:
Hearings Before the Senate Subcomm. on
Clean Air, Wetlands, Private Property and Nuclear
Safety and the Senate Comm. on Environment and
Public Works, 105th Cong. (1997) 12, 13

EPA's Particulate and Ozone Rulemaking: Is EPA
Above the Law?: Hearings Before the Subcomm. on
National Economic Growth, Natural Resources, and
Regulatory Affairs, House Comm. on Government
Reform and Oversight, 105th Cong. (1997) 12, 13





x xi


TABLE OF AUTHORITIES - Continued
Page

EPA's Rulemakings on the National Ambient Air Quality
Standards for Particulate Matter and Ozone: Hearing
Before the Subcomm. on Commercial and Administrative
Law, House Comm. on the
Judiciary, 105th Cong. (1997) 12,
13

Implementation of the Clean Air Act National Ambient Air
Quality Standards (NAAQS) Revisions for Ozone and
Particulate Matter: Joint Hearing Before the Subcomm.
on Health and Environment and the Subcomm. on
Oversight and Investigations, House Comm. on
Commerce, 105th Cong. (1997)
TABLE OF AUTHORITIES - Continued
Page
H.R. 4162, 105th Cong., 2d Sess. (1998) 11
H.R. 4863, 105th Cong., 2d Sess. (1998) 11
5. 2362, 106th Cong., 2d Sess. (2000) 9
The National Commission on Air Quality, To
Breathe Clean Air (1981) 6, 7
Elizabeth Fee, Disease and Discovery (1987) 28

C.E.A. Winslow, The Cost of Sickness and the Price of
Health (1951) 29
12


Review of EPA's Proposed Ozone and Particulate Matter
NAAQS Revisions: Joint Hearings Before the
Subcomm. on Health and the Environment and the
Subcomm. on Oversight and Investigations, House
Comm. on Commerce, 105th Cong. (1997) 12,
13
12 Env't Rep. (BNA) 835 (1981) 7
Clean Air Act: Review and Oversight: Hearing Before
the Subcomm. on Clean Air, Wetlands, Private
Property, and Nuclear Safety, Senate Comm. on
Environment and Public Works, 106th Cong.
(1999) 13,
14
H.R. 9, 104th Cong., 1st Sess. (1995)
9, 10
5. 291, 104th Cong., 1st Sess. (1995) 9
5. 343, 104th Cong., 1st Sess. (1995) 9, 10
H.R. 3519, 104th Cong., 2d Sess. (1996)
9
H.R. 1704, 105th Cong., 1st Sess. (1997)
11
5. 981, 105th Cong., 1st Sess. (1997) 11
5. 1084, 105th Cong., 1st Sess. (1997) 13
H.R. 4085, 105th Cong., 2d Sess. (1998)
11





1

INTEREST OF AMICI CURIAE

Amici curiae Environmental Defense (formerly Environmental Defense Fund), American Public Health Association (the oldest and largest
organization of public health professionals in the world), Clean Air Council, East Michigan Environmental Action Council, Environmental Law and
Policy Center of the Midwest, Hoosier Environmental Council, Illinois Environmental Council, The Izaak Walton League of America, Legal
Environmental Assistance Foundation, Michigan Environmental Council, Ohio Citizen Action, The Ohio Environmental Council, Physicians for Social
Responsibility, Southern Environmental Law Center, Tennessee Environmental Council, and Valley Watch, are sixteen not-for-profit membership
organizations working to improve public health and environmental quality throughout the United States. We seek healthier air quality on behalf of our
thousands of members who live, raise families, and provide public health services in communities across the country that have air pollution
concentrations in excess of the ozone and particulate matter standards under review in this case.1


SUMMARY OF ARGUMENT

Congress has effectively ratified the interpretation of the Environmental Protection Agency (EPA) that section 109(b) of the Clean Air Act
precludes the consideration of


I No counsel for any party authored this brief in whole or in part, and no person or entity other than the amici and their counsel made any
monetary contribution to the preparation or submission of this brief. This brief is being filed with the written consent of the parties, and the
corresponding documentation is simultaneously being filed with the Court.


2 3


costs in setting the National Ambient Air Quality Standards
(NAAQS). Throughout the nearly 30 years in which the
agency has consistently applied this interpretation, both
supporters and opponents have brought it repeatedly to
Congress' attention. Congress considered and rejected a
number of bills that would have permitted or required costs to
be taken into account in setting the NAAQS. It also reenacted
the Clean Air Act on two occasions in which it made sweeping
changes to the statute but left section 109(b) unchanged. The
cross-petitioners and their supporters are attempting to win
before the Court a battle that they have lost repeatedly before
Congress.2
Moreover, the cross-petitioners seek to have the Court
depart from the long-standing and consistent judicial
interpretation that section 109(b) bars the consideration of
costs in setting the NAAQS, which was first adopted by the
D.C. Circuit in Lead Industries Ass'n v. EPA, 647 F.2d 1130,
1148-52 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980). The
principle of stare decisis applies in this case because the D.C.
Circuit has exclusive venue over challenges under section
109(b) and has consistently followed Lead Industries, and
because Lead Industries itself followed the interpretive
framework set forth by the Court in Union Electric Co. v.
EPA, 427 U.S. 246, 256-58 (1976). The failure to apply stare
decisis would create massive additional work for EPA and the
states, and would greatly affect the settled expectations of the
regulated community and the public.
The statutory arguments advanced by the cross-peti-
tioners are convoluted, implausible, and without merit. Their
supporters also urge the Court to adopt a cost-


2 This brief does not review the congressional intent
expressed in the 1970 Clean Air Act because it will be
discussed at length in the briefs of other supporters of EPA's
interpretation.
benefit canon of interpretation, which, in Loch ner-like
fashion, would attribute to all federal legislative activity a
uniform normative goal. The application of such a canon to
the Clean Air Act would upset the carefully crafted
congressional compromise in which costs are irrelevant to the
setting of the NAAQS but highly relevant to when and how
the NAAQS will be attained. Finally, the cross-petitioners
advance an interpretation of the term "public health" that is
inconsistent with the congressional understanding of this
concept.

ARGUMENT

I. CONGRESS HAS EFFECTIVELY RATIFIED EPA'S
INTERPRETATION THAT COSTS CANNOT BE
TAKEN INTO ACCOUNT IN SETTING THE
NAAQS

A. The Court's Recent Decision in Brown & Wil-
liamson Compels Upholding EPA's Interpretation

The Court should uphold EPA's long-standing inter-
pretation that costs cannot be taken into account in setting
the NAAQS. See Part I.B, infra. Only last Term, in FDA v.
Brown & Williamson Tobacco Cc~rp., 120 5. Ct. 1291
(2000), the Court concluded that "Congress' tobacco-specific
statutes have effectively ratified the FDA's long-held position
that it lacks jurisdiction . . . to regulate tobacco products." Id. at
1307. In reaching this conclusion, the Court noted that
Congress had adopted various statutes regulating tobacco
"against the backdrop of the FDA's consistent and repeated
statements that it lacked authority" to do so. Id. at 1306-07.
It also noted that over the
_ years "Congress considered and rejected bills that would have
granted the FDA such jurisdiction." Id. at 1307.

As discussed in Part I.C, infra, the parallels with this case
are striking. Here, too, Congress adopted important





4 5


statutory provisions "against the backdrop of" a substantial
and consistent agency interpretation. Indeed, the 1977 and
1990 amendments to the Clean Air Act modified the
programs governing the implementation of the NAAQS
rather than change the manner in which the NAAQS are set.
EPA's interpretation was also "brought to Congress' attention
through legislation specifically designed to supplant it,"
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,
137 (1985), including the proposals by industry groups in
1977 and 1981, the regulatory reform bills that have been
introduced since 1995, and the specific bills seeking to amend
the Clean Air Act introduced in 1996 and 2000.

B. EPA Has a Long-standing and Consistent Inter-
pretation of Section 109(b)

EPA first took the position that section 109(b) bars the
consideration of costs in 1971, when it adopted the first six
NAAQS. See 36 Fed. Reg. 8186 (1971) ("[T]he Clean Air Act
. . . does not permit any factors other than health to be taken
into account in setting the primary standards."). The agency
repeatedly has reaffirmed this interpretation:

Section 109(b) of the Act specifies that [NAAQS] are to
be based on scientific criteria relating to the level that
should be attained to adequately protect public health and
welfare. Considerations of cost of achieving those stan-
dards . . . are not germane . . . , as the words of the Act and its
legislative history clearly indicate.

45 Fed. Reg. 55,067 (1980); see also 43 Fed. Reg. 26,963
(1978); id. at 46,247; 44 Fed. Reg. 8203 (1979). In the
regulatory proceedings currently under review, EPA stated:
"For more than a quarter of a century, EPA has
interpreted section 109 of the Act as precluding consideration
of . . . economic costs . . . " 62 Fed. Reg. 38,683 (1997); id. at
38,878.

C. Congress Has Legislated Against the Backdrop of
EPA's Interpretation and Repeatedly Has Rejected
Overturning this Interpretation

1. The 1977 Amendments

Congress amended the Clean Air Act extensively in 1977
(the amendments take up 111 pages in the Statutes at Large,
see Pub. L. 95-95, 91 Stat. 685, 685-796 (1977)) but left
section 109(b) unchanged even though the manner in which
EPA set the NAAQS received sustained congressional
attention.
Perhaps the most important decision before Congress in
1977 was how to deal with the fact that large portions of the
country had failed to meet the NAAQS even though the 1970
statute had contemplated that the primary NAAQS would be
achieved throughout the country by 1975. See 42 U.S.C.
1857c-4, 1857c-5 (amended 1977). One approach could have
been to weaken the NAAQS in areas that had trouble meeting
these standards an approach that would have required an
amendment of section 109(b). See Lead Industries, 647 U.S.
at 1150 (discussing efforts by industry representatives to urge
Congress to "[rievise section 109 . . . to include allowance for
the consideration of social and economic factors in the
definition of 'health' and 'welfare.' "). Congress, however, left
section 109(b) unchanged and instead extended the deadlines
for achieving the standards to 1982 and, in some instances, to
1987. 42 U.S.C. 7502(a)(1)-(2) (amended 1990).

Congress also debated the merits of the NAAQS in the
crafting of a program for the Prevention of Significant
Deterioration (PSD) of air quality in areas meeting the
NAAQS. See 42 U.S.C. 7470-7492. Congress faced the





6 7


question whether areas that had better air quality than the
NAAQS would be subject to standards more stringent than the
NAAQS. Despite extensive congressional discussion
concerning the NAAQS, the relevant committee reports do
not suggest that the NAAQS were too stringent because they
were set without taking costs into account. Quite to the
contrary, the Report of the House Committee on Interstate
and Foreign Commerce found that the NAAQS were
insufficiently protective, and that it was therefore desirable to
have more stringent standards in areas that were already
meeting the NAAQS. See H.R. Rep. 95-294, at 103-28
(1977). In fact, the Report noted that "all indicators point to
the likely necessity for tightening the ambient air quality
standards to protect public health." Id. at 127. Thus, Congress
retooled the air quality management programs both for areas
failing to meet the NAAQS and for areas achieving the
NAAQS, but did not modify the provisions in section 109(b)
governing how EPA set the NAAQS.

2. Further Consideration in the 1980s

The 1977 amendments established the National Com-
mission on Air Quality, which included the leaders of the
congressional committees with oversight responsibilities for
the Clean Air Act (Sens. Hart and Stafford, and Reps. Broyhill
and Dingell). The Commission was asked to "make an
independent analysis of air pollution control and alternative
strategies for achieving the goals of the Act." See The
National Commission on Air Quality, To Breathe Clean Air
vii (1981). In its final report, the Commission made
numerous recommendations for amendnients to Congress, but
its first recommendation was to retain the Act's prohibition
on the consideration of costs in setting the NAAQS: "The
current statutory criteria and requirements for setting air
quality standards at the levels
necessary to protect public health without consideration of
economic factors should remain unchanged." Id. at 55.

The Commission's recommendation was debated in
oversight hearings held in 1981. For example, the Business
Roundtable proposed that section 109(b) be amended to
require the Administrator "to consider the nature and extent
of the risk, attainability of the standard, economic values, and
other public interests." Clean Air Oversight: Hearings Before
the Senate Comm. on Environment and Public Works, 97th
Cong., Part 3, at 505 (1981). George Eads, one of the
signatories of the amicus brief filed by a group of economists
in this case, harshly characterized the setting of NAAQS
without taking costs into account as "an elaborate charade
that does not serve the public well." Id. at 200. Senator Hart,
the Commission's Chairman, strongly objected to Eads'
characterization: "[Wihat you describe as an elaborate charade
was the product of very extensive deliberation on the part of
the Congress of 1970, received almost 3 years of deliberation
on the part of the Congress that acted in 1977, was reviewed
for almost 3 years by the National Commission on Air Qual-
ity and was sustained by that Commission." Id. at 214.

Similarly, Senator Chafee expressed misgivings about the
"insertion of an added element, namely consideration of the
cost-benefit test." Id. at 212. A number of other Senators
indicated that costs could not be taken into account in setting
the primary NAAQS. See, e.g., id. at 202 (Sen. Stafford); id.
at 209 (Sen. Gorton).

Later in 1981, in connection with possible amendments
to the Clean Air Act, the Senate Committee on Environment
and Public Works unanimously agreed in a straw vote not to
change the manner in which the primary standards were set.
See 12 Env't Rep. (BNA) 835 (1981). An industry group
supported this outcome, noting that "primary standards
should continue to be based





8 9


on health factors," though it urged that "economic factors"
should be made relevant to the secondary standards. See id. at
766. This group included representatives of the U.S. Chamber
of Commerce and the National Association of Manufacturers,
which now urge the Court to hold that costs must be taken
into account in setting the primary standards.


3. The 1990 Amendments

In 1990, as in 1977, Congress left section 109(b)
unchanged despite statutory amendments that take up 314
pages in the Statutes at Large. See Pub. L. 101-549, 104 Stat.
2399, 2399-2712 (1990). Both the floor debates and the
congressional reports, however, discussed the prohibition on
considering costs in setting the primary NAAQS. See, e.g.,
136 Cong. Rec. H12,885 (daily ed. Oct. 26, 1990) (Rep.
Swift) ("They are not cost-benefit standards. They are
absolute standards."); 136 Cong. Rec. S16,896 (daily ed. Oct.
27, 1990) (Sen. Moynihan) ("The cost of meeting these
standards was not to be considered."); S. Rep. 101-228. at 5
(1989) (" '[Pirimary' ambient air quality standards limit the
maximum allowable concentration of each criteria pollutant . .
. without regard to the economic or technical feasibility of
attainment."); see also S. Rep. 100-231, at 251 (1987)
(referring to disallowance of cost considerations under section
109(b)). One opponent of the proposed amendments,
Representative Dannemeyer, introduced into the
Congressional Record a study complaining that "benefits and
costs" could not be taken into account in setting the NAAQS.
.136 Cong. Rec. H12,916 (daily ed. Oct. 26, 1990); see id. at
H12,912-15.

Moreover, in 1990, Congress again faced the problem of
how to deal with areas that had not met the NAAQS. As in
1977, the 1990 Congress could have weakened the NAAQS in
order to make attainment easier but chose to leave unchanged
the method for setting the NAAQS and
instead to extend the attainment deadlines. See, e.g., 42
U.S.C. 7511(a)(1).

4. Bills to Amend Section 109(b)

In hearings held in 1995, Mary Nichols, EPA's Assistant
Administrator for Air and Radiation, testified that "the Clean
Air Act has always required the EPA not to take costs into
consideration when setting the national ambient air quality
standards." Clean Air Act Amendments:
Joint Hearing Before the Subcomms. on Oversight and
Investigations, and on Health and Environment, House
Comm. on Commerce, 104th Cong., at 126 (1995).
Representative Barton then introduced the Clean Air Act
Amendments of 1996, which would have required that "the
incremental costs" of the NAAQS must not exceed their
"incremental benefits." See H.R. 3519, 104th Cong., 2d Sess.
13 (1996). The Barton bill was never reported out of
committee.
In the 106th Congress, Senator Voinovich introduced the
Air Quality Standard Improvement Act of 2000, which would
require EPA to consider cost-benefit analysis in setting the
NAAQS. See 5. 2362. 106th Cong., 2d Sess. (2000). That bill
has not been reported out of committee. Thus, the specific
legislative initiatives to amend the manner in which the
NAAQS are established under section 109(b) have been
unsuccessful.

5. Regulatory Reform Efforts Beginning in the
104th Congress

Section 109(b)'s prohibition on the consideration of
costs was the subject of extensive congressional attention in
the debates over regulatory reform bills that would have
required cost-benefit analysis for many federal regulations. In
the 104th Congress, there were two principal vehicles for
these efforts: H.R. 9, 104th Cong., 1st Sess. (1995) and 5.
343, 104th Cong., 1st Sess. (1995). See also S. 291, 104th
Cong., 1st Sess. (1995).





10 11


During the House debates on an earlier version of H.R.
9, for example, Representative Beilenson complained:
Particularly troubling is the fact that the bill's decision
criteria for issuing rules would super-cede such
requirements in existing health, safety, and
environmental laws. By applying these new
requirements to such laws as the Clean Air . . . Act[ I, this
legislation threatens to overturn the important health
protections citizens have under those laws.

141 Cong. Rec. H2235 (daily ed. Feb. 27, 1995). Similarly,
Representative Brown noted that "the bill overrides . . .
provisions of existing law," including the Clean Air Act. Id.
at H2241.
- Representative Boehlert offered an amendment, with
bipartisan support, to restrict the bill's reach: "Nothing in
this Act shall be construed to modify any statutory standard
or requirement . . . " id. at H2357 (daily ed. Feb. 28, 1995), and
members noted its impact on the Clean Air Act, see id. at
H2361 (Rep. Morella); id. at H2364 (Rep. Waxman). The
amendment was defeated and the bill passed the House, id. at
H2365-66. 2638-39, but was never voted on by the Senate.
In the Senate, a number of Senators on the Committee
on the Judiciary complained about the impact of S. 343 on
statutes such as the Clean Air Act:
5. 343 contains what has been called a "super-
mandate." It creates supplementary decisional criteria
for every agency action that permits the cost factors to
trump safety factors in statutes in which Congress
intended that safety should be the primary,
consideration. Without acknowledgment, the bill's
supplementary decisional criteria effectively would
amend the carefully considered criteria now in place in
such landmark laws as . . . the Clean Air Act
S. Rep. 104-90, at 135 (1995) (additional views of Senators
Biden, Kennedy, Leahy, Simon, Kohl, and Feingold); see also
id. at 130, 136. Witnesses in committee hearings raised
similar complaints. See, e.g., Regulatory Reform:
Hearings Before the Senate Comm. on Governmental Affairs,
104th Cong., at 495 (1995).
In response to these concerns, the Senate amended the
bill with bipartisan support to eliminate the super-mandate,
by providing: "Nothing in this section shall be construed to
override any statutory requirement, including health, safety,
and environmental requirements." 141 Cong. Rec. S9695
(daily ed. July 11, 1995). The bill as amended failed to
survive a cloture vote. See id. at
S10,399.~

6. Oversight Hearings in Connection with the
Proposal and Promulgation of the Challenged
NAAQS for Ozone and Particulate Matter

Following EPA's proposal of the NAAQS for ozone and
particulate matter (PM) that are at issue in this case,
Congress held a number of oversight hearings on the Clean
Air Act in which EPA officials highlighted EPA's practice of
not considering costs when setting the NAAQS. For example,
Carol Browner, the EPA Administrator, stated in both Senate
and House hearings that "[tlhroughout the 25-year history of
the Clean Air Act . . . [c]osts of meeting the standards and
related factors have never been considered in setting the
national


~ A number of bills requiring cost-benefit analyses of
significant federal regulations were introduced in the 105th
and 106th Congresses, but none reached either the House or
Senate floor for a vote. See, e.g., H.R. 1704, 105th Cong.,
1st Sess. (1997); H.R. 4085, 105th Cong.. 2d Sess. (1998);
H.R. 4162, 105th Cong., 2d Sess. (1998); H.R. 4863. 105th
Cong., 2d Sess. (1998); S. 981, 105th Cong., 1st Sess. (1997).





12 13


ambient air quality standards themselves." Clean Air Act:
Ozone and Particulate Matter Standards: Hearings Before the
Senate Subcomm. on Clean Air, Wetlands, Private Property
and Nuclear Safety and the Senate Comm. on Environment
and Public Works, 105th Cong., Part 1, at 282 (1997) [1997
Senate Environment Hearings]; EPA's Particulate Matter and
Ozone Rulemaking: Is EPA Above the Law?: Hearings Before
the Subcomm. on National Economic Growth, Natural
Resources, and Regulatory Affairs, House Comm. on Govern-
ment Reform and Oversight, 105th Cong., at 380 (1997)
[1997 House Government Reform Hearings]; see
Implementation of the Clean Air Act National Ambient Air
Quality Standards (NAAQS) Revisions for Ozone and
Particulate Matter: Joint Hearing Before the Subcomm. on
Health and Environment and the Subcomm. on Oversight
and Investigations, House Comm. on Commerce, 105th
Cong., at 21 (1997).
EPA Deputy Administrator Fred Hansen testified that
"Congress directed EPA to set what are known as 'primary
standards' to protect public health without consideration of
cost." EPA's Rulemakings on the National Ambient Air
Quality Standards for Particulate Matter and
Ozone: Hearing Before the Subcomm. on Commercial and
Administrative Law, House Comm. on the Judiciary, 105th
Cong., at 22 (1997) [1997 Senate Judiciary Hearings].
Similarly, Mary Nichols, EPA's Assistant Administrator
for Air and Radiation, testified that EPA's practice of not
taking costs into account in setting the NAAQS had been
followed "through six Presidential administrations and 14
Congresses." 1997 Senate Environment Hearings, Part 2, at
203; Review of EPA's Proposed Ozone and Particulate Matter
NAAQS Revisions: Joint Hearings Before the Sub-comm. on
Health and the Environment and the Subcomm. on Oversight
and Investigations, House Comm. on Commerce, 105th
Cong., Part 1, at 160 (1997) [1997 House Commerce
Hearings].
Witnesses supporting and opposing the revised ozone
and PM standards testified that the Clean Air Act
required the NAAQS to be set without taking costs into
account. See, e.g., 1997 Senate Judiciary Hearings, at 68
("These standards must be established by relying on health
based criteria only; that is very specific in the Clean Air
Act"); 1997 House Commerce Hearings, Part 1, at 53 ("[I]t
is unfortunate that the Clean Air Act prohibits the
consideration of cost in setting the standard."); 1997 Senate
Environment Hearings, Part 2, at 162 ("EPA interprets the
Clean Air Act to prohibit the consideration of costs in setting
NAAQS."); 1997 House Government Reform Hearings at 284
("As required by Congress, EPA is to set . . . the ozone and
PM standards at levels that are protective of the public health
without basing its decision on the costs of complying with
those standards.").
Moreover, members of Congress acknowledged that
under the law costs could not be taken into account in setting
the NAAQS. See, e.g., 1997 House Commerce Hearings, Part
2, at 260 ("The law says that EPA must set standards based
solely upon human health considerations.") (Rep. Pallone). In
the end, a bill that would have reinstated the previous ozone
and PM standards did not reach the Senate floor for a vote. 5.
1084, 105th Cong., 1st Sess. (1997).

D. The Court Should Not Be Used to End-Run the
Political Process

There currently is dissension in Congress on the role
that costs should play in setting the NAAQS. The variety of
views are illustrated by a recent subcommittee hearing that
marked the beginning of a new effort to reauthorize the Clean
Air Act. See Clean Air Act: Review and Oversight:
Hearing Before the Subcomm. on Clean Air, Wetlands,
Private Property, and Nuclear Safety, Senate Comm. on
Environment and Public Works, 106th Cong. (1999). Senator
Inhofe complained that the Clean Air Act "is chasing after
pennieS of benefits for dollars in costs through its failure to
identify





14 15


the most cost-effective risks." Id. at 2. Senator Voinovich
announced that he would introduce a bill requiring the use of
cost-benefit analysis under section 109(b). Id. at 3.
In contrast, Senator Baucus stated: "[Dieveloping clean
air standards does not lend itself easily to cost-benefit
analysis . . . I challenge anyone to put a dollars and cents value
on a child's reduced IQ due to exposure to lead." Id. at 6.
Senator Lieberman expressed "words of caution on the issue
of applying cost-benefit analysis to the Clean Air Act" and
spoke critically of telling "the public that we can't let them
know whether the air is clean enough to breathe because the
standard doesn't meet a cost-benefit test." Id. at 8-9.
Perhaps the proponents of cost-benefit analysis even-
tually will prevail before Congress as they did in 1996 with
respect to the amendments of the Safe Drinking Water Act
(SDWA). See 42 U.S.C. 300g-1(b)(4)(C), (6)(A). But if
advocates of cost-benefit analysis do prevail in Congress it is
likely to be as part of a package in which some of the
competing concerns of other interests also are addressed, as
was the case under the SDWA. See id. 300g-1(b)(1)(C)
(requiring EPA to take account of the interests of sensitive
subgroups); id. 300g-3(c)(4) (requiring the provision of
information to consumers).
The cross-petitioners and various amici are seeking to
win a victory from the Court that they have not been able to
achieve in Congress despite extensive efforts over two
decades. See Part I.C, supra. They are also trying to obtain
this victory in a manner that does not require any competing
compromises, as invariably would occur in the give-and-take
of the legislative process. So are some Senators who have so
far been unsuccessful at obtaining the passage of the
legislation that they favor: two of the four senators who co-
sponsored the recent Senate bill that would require cost-
benefit analysis in the setting of the NAAQS, see Part I.C.4,
supra, and two of the leading advocates of the failed
regulatory reform bills in the
194th Congress, see Part I.C.5, supra. See Am. Br. of Sen.
Inhofe et al. 5-17; Am. Br. of Sen. Hatch and Rep. Bliley.
Were they to prevail here they would be denying the public a
full and fair consideration of the host of political, technical
and intellectual issues that must be aired and resolved in this
policy debate: an airing and resolution that only Congress can
provide. The Court should not allow itself to be used for such
an end-run around the political process.

II. THE PRINCIPLE OF STARE DECISIS CALLS FOR
FOLLOWING THE LONG-STANDING JUDICIAL
DETERMINATION THAT COSTS CANNOT BE
TAKEN INTO ACCOUNT IN SETTING THE
NAAQS

A. In a Body of Case Law Issued Over the Past Twenty
Years, the D.C. Circuit Has Consistently Held that
Costs Cannot Be Taken Into Account in Setting the
NAAQS

EPA's interpretation that costs cannot be taken into
account in setting the NAAQS was first affirmed by the D.C.
Circuit in 1980. See Lead Industries, 647 F.2d at 1148
("[Tihe statute and its legislative history make clear that
economic considerations play no part in the promulgation of
ambient air quality standards under Section
109.").

The D.C. Circuit, which has exclusive venue over the
review of NAAQS, see 42 U.S.C. 7607(b)(1), reaffirmed
Lead Industries in cases reviewing various NAAQS. See API
v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert.
denied, 455 U.S. 1034 (1982) ("API's argument that the
Administrator erred in not considering attainability and cost
justifications for the ozone standards was specifically rejected
in the Lead Industries case."); NRDC v. EPA, 902 F.2d 962,
973 (D.C. Cir. 1990), cert. denied, 498 U.S. 1082 (1991)
("Under 109 . . . the Administrator may not




16
consider cost and technological feasibility."); see also
American Lung Ass'n v. EPA, 134 F.3d 388, 389 (D.C. Cir.
1998) (NAAQS must be set "without reference to cost or
technological feasibility"). The court below thus simply
followed a long line of consistent precedent in holding that
"in setting NAAQS under 109(b) of the Clean Air Act, the
EPA is not permitted to consider the cost of implementing
those standards." Pet. App. 19a.

B. The Principle of Stare Decisis Applies in this
Case

As Justice Stevens observed in a recent plurality opinion
joined by Justices Ginsburg and Breyer, the principle of stare
decisis comes into play when the Court confronts a clear
body of law fashioned by the courts of appeals. See Hubbard
v. United States, 514 U.S. 695, 712-13 (1995) (plurality
opinion); see also United States v. Ryan, 284 U.S. 167, 174
(1931) ("[W]e should hesitate to set aside, at this late date,
the uniform construction given . . . by the lower federal courts .
. . "). Justice Stevens noted that following precedents of the
lower courts serves . . . one of the central purposes of stare
decisis:
promoting 'stability and certainty in the law.'" Hubbard, 514
U.S. at 713 n.13.

This case presents an even more compelling claim for
stare decisis than Hubbard because here following the long-
standing and consistent lower court approach does not require
overruling a prior Supreme Court precedent. Thus, the
concerns about invoking stare decisis expressed by the three
dissenting Justices in Hubbard are not present here. See id. at
721 (Rehnquist, C.J., joined by O'Connor and Souter, JJ.,
dissenting).
Quite to the contrary, Lead Industries followed the
Court's own approach to the interpretation of the Clean Air
Act. In Union Electric Co., 427 U.S. at 253-54, the
petitioners argued that EPA was required to consider
17

economic and technological feasibility in deciding whether to
approve State Implementation Plans (SIPs) under section
110 of the Clean Air Act. The Court held that EPA could not
rely on factors other than those listed in section 110(a)(2).
Id. at 257. Similarly, the D.C. Circuit in Lead Industries held
that, in setting the NAAQS, EPA could not rely on factors
other than those set forth in section 109(b). Moreover, the
Court in Union Electric stated that, under the Clean Air Act,
"[wihere Congress intended the Administrator to be
concerned about economic and technological infeasibility, it
expressly so provided." Id. at 257 n.5. Relying on Union
Electric, the D.C. Circuit used nearly identical language in
Lead Industries. See 647 F.2d at 1148-49 & n.37. Other
opinions have recognized the close links between the
interpretive approaches of the two cases. See, e.g., NRDC v.
EPA, 824 F.2d 1146, 1158-59 (D.C. Cir. 1987) (en banc
opinion by Bork, J.) ("Vinyl Chloride"); Union of Concerned
Scientists v. NRC, 824 F.2d 108, 114-15 (D.C. Cir. 1987).
None of the special circumstances that might justify a
departure from a stare decisis approach are present here. In
particular, no "intervening development of the law" has
"removed or weakened the conceptual underpinnings from
the prior decision." Patterson v. McLean Credit Union, 491
U.S. 164, 173 (1989). The continuing vitality of Lead
Industries is underscored by the D.C. Circuit's reliance on this
case in interpreting other statutory provisions. See Union of
Concerned Scientists, 824 F.2d at 114 (relying on Lead
Industries and Union Electric to hold that "economic costs"
may not be considered under provision of the Atomic Energy
Act); Vinyl Chloride, 824 F.2d at 1158-59 (en banc opinion
by Bork, J.) (analyzing implications of Lead Industries and
Union Electric for the interpretation of section 112 of the
Clean Air Act). There is no merit in the cross-petitioners'
suggestion that subsequent decisions of the Court "negate the
premises on which Lead Industries is predicated," as none of
the cases on which they rely deal





18 19

with the Clean Air Act, the consideration of costs under
environmental statutes, the use of cost-benefit analysis, or
are otherwise relevant. Cross-Pet. Br. 28, 31-32.

Moreover, this case does not raise the issue that led the
Court to reject stare decisis in Dickinson v. Zurko, 527 U.S.
150 (1999), over the dissent of three Justices, see id. at 171
(Rehnquist, C.J., joined by Kennedy and Ginsburg, JJ.,
dissenting). The Court's concern in Zurko was that because
the Federal Circuit's standard of review over decisions of the
Patent and Trademark Office was different from the standard
under the Administrative Procedure Act (APA), applying
stare decisis would make it too easy for other agencies to
depart from the requirements of the APA. See id. at 162. In
this case, following the Lead Industries approach would not
have a negative impact on other statutes.

C. This Case Presents Particularly Compelling
Arguments in Favor of the Application of Stare
Decisis

In Patterson, 491 U.S. at 172, the Court emphasized
that "the burden borne by the party advocating the aban-
donment of an established precedent is greater where the
Court is asked to overrule a point of statutory construction,"
as is the case here. Even in constitutional cases, where the
possibility of congressional correction is absent, "the
principles of stare decisis weigh heavily against overruling"
precedents. Dickerson v. United States, 120 5. Ct. 2326,
2336 (2000).

The principle of stare decisis has particular force where
abandoning precedent "would dislodge settled rights and
expectations." Hilton v. South Carolina Pub. Rys. Comm'n,
502 U.S. 197, 202 (1991). Departing from Lead Industries
would do far more than simply set aside the revisions to the
NAAQS for ozone and PM that were challenged below. It
could also mean that all the other
NAAQS would have to be revised at the time of their five-
year review, see 42 U.S.C. 7409(d)(1), even if no new
information arose concerning the adverse health effects of
the respective contaminants.
In turn, such revisions of the NAAQS~would give rise to
the need for states to submit new SIPs and, consequently, to
impose new limitations on their stationary sources. See 42
U.S.C. 7410(a)(1)-(2). Furthermore, thirty years of settled
air quality management policies in communities across the
country would be called into question.

The result would be massive additional work for EPA
and the states. The change in interpretation also would
greatly affect the settled expectations of the regulated
community and the public. Investments in pollution control
equipment could be rendered worthless by changes in the
standards. In sum, the factors that call for a heightened
application of the principle of stare decisis are present here.

D. A Policy Change of this Magnitude Cannot be Made
by the Judiciary Without Seriously Disrupting the
Nation's Efforts to Control Air Pollution

The dislocations that would come from failing to follow
stare decisis underscore why policy changes of the magnitude
proposed by the cross-petitioners ought to be made, if at all,
by Congress and not by the judiciary. If Congress were to
decide that costs should be taken into account in setting the
NAAQS, it could establish rules ensuring an orderly transition
to a new regime. For example, Congress might decide, as it
did in its 1996 amendments to the SDWA, to require cost-
benefit analysis only if EPA seeks to strengthen standards.
See 42 U.S.C. 300g-1(b)(3)-(6), (9)). Thus, the transition
to the use of
cost-benefit analysis did not affect the existing standards.





20 21


The judiciary, unlike Congress, does not have the
flexibility to fashion finely textured rules of this sort. Its
only available instrument a judicial reinterpretation of
section 109(b) is overly blunt, and would lead to considerable
disarray in the implementation of the Clean Air Act.


III. THE CHALLENGES TO EPA'S INTERPRETATION
OF SECTION 109(b) ARE WHOLLY UNPERSUASIVE

A. The Crass-Petitioners' Arguments Concerning
Sections 108 and 109 Are Without Merit

First, the cross-petitioners note that the criteria pub-
lished pursuant to section 108(a)(2) must contain infor-
mation not only concerning public health, but also
concerning public welfare. See 42 U.S.C. 7408(a)(2). Then,
they point out that public welfare is defined in the statute to
include effects "on economic values and on personal comfort
and well-being." Id. 7602(h). From this, they conclude that
economic values must be taken into account in setting the
primary NAAQS. See Cross-Pet. Br. 37-39.
The flaw with this argument is that it is the secondary
NAAQS not the primary NAAQS that are set to protect
against adverse effects on public welfare. The definition of
public welfare is irrelevant to the setting of the primary
standards, which must "protect the public health." 42 U.S.C.
7409(b)(1).

Second, the cross-petitioners argue that just because the
primary NAAQS must be "based on" the air quality criteria
promulgated under section 108, see 42 U.S.C. 7409(b)(1),
does not mean that they must be based only on the criteria.
Cross-Pet. Br. 39. For the cross-petitioners to prevail,
however, the statute would have to say that the NAAQS must
be based on factors other than those
included in the criteria, and, more particularly, that they must
be based on the costs of compliance. Without that, the cross-
petitioners do not have an affirmative counterweight to the
clear meaning of the 1970 legislation, the congressional
reaffirmation of EPA's int&pretation, the doctrine of stare
decis is, or the deference owed to the long-standing
administrative construction.

Third, the cross-petitioners take issue with EPA's view
that the section 108 "criteria" are compilations of scientific
information about a pollutant's adverse health effects. Cross-
Pet. Br. 39. The dictionary definition on which cross-
petitioners rely cannot override the statutory command that
"[alir quality criteria for an air pollutant shall accurately
reflect the latest scientific knowledge useful in indicating the
kind and extent of all identifiable effects on public health or
welfare." 42 U.S.C. 7408(a)(2).
Fourth, the cross-petitioners argue that the NAAQS
cannot be set solely by reference to the criteria because the
agency is commanded to consider the comments submitted in
the rulemaking. Cross-Pet. Br. 39-40. But there is no
plausible scenario under which the requirement that the
agency consider comments could modify the standards
defined in the statute for the setting of the NAAQS.

Fifth, the cross-petitioners focus on section 108(b)(1),
which requires the Administrator to provide states with
information about air pollution control techniques, including
"data relating to the cost of installation and operation,
energy requirements, emission reduction benefits, and
environmental impact of the emission contrOl technology."
42 U.S.C. 7408(b)(1). The cross-petitioners argue that the
statute requires the Administrator to provide this information
so that states can "criticize EPA'S consideration of
compliance costs in NAAQS standard setting proceedings,"
rather than so that they can begin





22 23

preparing their strategies for attaining the NAAQS. Cross-
Pet. Br. 40.
The only evidence that the cross-petitioners adduce for
this bizarre proposition is that the states receive this
information "at least three or four years" before "they begin
planning compliance with a revised NAAQS." Id. The statute,
however, does not contemplate such an extended time frame.
Indeed, EPA must issue the information "simultaneously"
with the publication of proposed NAAQS, and must
promulgate final NAAQS no later than 90 days after the
proposal. See 42 U.S.C. 7409(a)(1)(B), (a)(2). The states
must submit SIPs for EPA's approval within 3 years of the
promulgation of the NAAQS, and before this submission they
must provide reasonable notice" and conduct "public
hearings." Id. 7410(a)(1). So, under the statutory time
frame, states must "begin planning" for their SIPs soon after
the NAAQS are promulgated.
Sixth, the cross-petitioners find support for the view
that NAAQS must take into account economic considerations
in section 109(d), which sets forth the role of the Clean Air
Scientific Advisory Committee (CASAC). CToss-Pet. Br. 41.
CASAC's principal function is to review at five-year intervals
the criteria and NAAQS for the various pollutants. See 42
U.S.C. 7409(d)(2)(B). But CASAC also is required to advise
the Administrator on a number of other matters, including on
"any adverse public health, welfare, social, economic, or
energy effects which may result from various strategies for
attainment and maintenance of such [NAAQS]." Id.
7409(d)(2)(C)(iv). The legislative history explains the
purpose of this provision: "[T]his advice may be of interest
and assistance to the States and to Congress in fashioning
future legislation." H.R. No. 95-294, at 183 (1977).
The cross-petitioners insist, nonetheless, that this
cannot in fact be the purpose of section 109(d) because the
information on compliance costs is given to the
Administrator and not to the states. The cross-petitioners
overlook, however, that EPA has a statutory obligation under
section 108(b)(1) to provide such information to the states.
See 42 U.S.C. 7408(b)(1).

The cross-petitioners attempt to bolster their argument
by referring to section 307(d)(3), which requires EPA, when
it proposes a NAAQS, to "provide a reference to any
pertinent findings, recommendations, and comments" by
CASAC, and to explain the reasons for important departures
from these recommendations. Id. 7607(d)(3). But the
statute makes clear that this obligation attaches only to
"pertinent" CASAC materials. The advice under section
109(d)(2)(C)(iv) is simply not "pertinent" to the setting of
the NAAQS.


B. The Court Should Decline the Invitation to
Adopt a Cost-Benefit Canon of Statutory Inter-
pretation

Amicus General Electric urges the Court to adopt an
interpretive canon that would attribute to all federal leg-
islative activity a uniform normative goal: cost-benefit
analysis. Cf. College Say. Bank v. Florida Pre paid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999)
("We had always thought that the distinctive feature of
Lochner, nicely captured in Justice Holmes' dissenting remark
about 'Mr. Herbert Spencer's Social Statics,' was that it sought
to impose a particular economic philosophy upon the
Constitution."). The Court is asked to take this course of
action despite the deep divisions that cost-benefit analysis
engenders in the political process. See Parts I.C.5, I.D, supra.
Regardless of what the Court might think of such a "Lochner
for the administrative state," this case provides a poor
vehicle for considering the question.





24 25

1. Such a Canon Could Not Override the Evidence
of Congressional Intent or the Deference Owed
to EPA Under Chevron

The cost-benefit canon is irrelevant to the disposition
of this case. The canon cannot override the clear meaning of
the 1970 legislation, the congressional reaffirmation of
EPA's interpretation, or the doctrine of stare decisis. More-
over, the Court's endorsement of the cost-benefit canon
could have no impact on the disposition of this case because
"policy oriented canons of statutory construction" cannot
trump the Chevron deference owed to EPA's interpretation.
Ober United Travel Agency, Inc. v. Department of Labor,
135 F.3d 822, 825 (D.C. Cir. 1998); see Amex Land Co. v.
Quarterman, 181 F.3d 1356, 1362 (D.C. Cir. 1999) ("canons
that embody a policy choice and should not be employed by a
reviewing court at Chevron step I or II"); Michigan Citizens
for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93
(D.C. Cir.), aff'd by an equally divided Court, 493 U.S. 38
(1989) (same).

2. The Court Must Respect the Manner in Which
Congress Has Taken Costs into Account in the
Clean Air Act

A cost-benefit canon has no role to play under the
Clean Air Act, where Congress paid close attention to where
and how costs should be considered and traded off against
health benefits. The NAAQS are aggregate measures of the
permissible concentration of pollutants in the ambient air,
which do not directly constrain the activities of any polluter.
Costs are directly relevant, however, to when and how the
NAAQS will be met through the regulation of individual
polluters. For example, the federal emission limitations are
highly sensitive to the costs imposed on regulated firms. The
New Source Performance Standards (NSPS), which apply to
new stationary sources, must "tak[e] into account the costs
of achieving
[the] reduction." 42 U.S.C. 7411(a)(1). The Best Available
Control Technology (BACT) standards, which apply to large
new sources in areas meeting the NAAQS, must "taklel into
account energy, environmental, and economic impacts and
other costs." Id. 7479(3). Reasonably Available Control
Technology (RACT) standards, which apply to existing
sources in areas out of compliance with the NAAQS, must
take into account "[tihe social, environmental, and economic
impact of such controls." 40 C.F.R. 51.100(o)(2).
Similarly, in determining whether to prescribe more stringent
standards for mobile sources, the Administrator must consider
whether further emission reductions would be "cost-
effective." 42 U.S.C. 7521(i)(3)(A)(iii). In other parts of
the statute, Congress has deliberately employed cost-reducing
strategies, such as the emissions allowance and trading
program to address acid rain. 42 U.S.C. 7651-7651o.
Furthermore, in its amendments to the Clean Air Act,
Congress has shown a keen interest in avoiding excessive
economic dislocations. Most importantly, while the 1970
Clean Air Act contemplated that the NAAQS for all pol-
lutants would be met, nationwide, by around 1975, Congress
extended the attainment deadlines in the 1977 and 1990
amendments. See Part I.C.1, I.C.3. For ozone, for example,
the NAAQS do not need to be met in certain parts of the
country until 2010. See 42 U.S.C. 7511(a)(1). In addition,
Congress has provided more targeted relief in a variety of
instances. See, e.g., Pub. L. 97-23, 2, 95 Stat. 139, 139
(1981) (extending compliance deadlines for iron and steel
facilities); 42 U.S.C. 7419 (providing waiver for copper
smelters in 1977).
The Clean Air Act accordingly consists of a carefully
crafted congressional compromise in which costs are
irrelevant to the setting of the NAAQS but highly relevant to
when and how the NAAQS will be attained. The application
of a cost-benefit canon would impermissibly upset this
compromise.





26 27

C. The Challengers Rely on a Number of Irrelevant
Generalities and Inapposite Provisions of the Clean
Air Act

As indicated in the preceding section, costs do play an
important role in determining how the NAAQS will be
implimented. It is therefore not surprising that the chal-
lengers to EPA's interpretation can find concern in the Act's
preamble, 42 U.S.C. 7401(b)(1), for "the productive
capacity of the population." See Appalachian Power Br. 29,
33, 35, 37, 45; see also id. at 29 (citing legislative history
concerning the overall purpose of the 1977 amendments).
But such generalities are irrelevant to the analysis of section
109(b).
The cross-petitioners and their supporters also rely on a
number of cases that are inapposite to the interpretation of
section 109(b). See Cross-Pet. Br. 45-47. For example,
Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), deals with
programs designed to implement the NAAQS, not with the
provisions governing the establishment of the NAAQS. The
question in Michigan v. EPA was whether the emission
reductions necessary to meet the NAAQS had to be made by
upwind or downwind sources. The D.C. Circuit upheld EPA's
approach of allocating the resulting pollution control burden
in a manner that reduced the aggregate costs of compliance.
See id. at 674-78. Other cases involve the interpretation of
statutory provisions that require the consideration of costs.
George
E. Warren Corp. v. EPA, 159 F.3d 616 (1998), amended on
other grounds, 164 F.3d 676 (D.C. Cir. 1999), involves the
regulation of certain gasoline under section 211 a provision
in which costs play an integral role. See 42 U.S.C.
7545(c)(2)(A)-(B), (k)(1). NRDC v. EPA, 937 F.2d 641
(D.C. Cir. 1991), concerns the setting of standards for major
emitting facilities in areas that have attained compliance with
the NAAQS. These standards are set by
reference to BACT, 42 U.S.C. 7475(a)(4), which must take
costs into account.4


D. The Challengers Fail in their Efforts to Introduce
Economic Considerations~- into the Term "Public
Health"

Having repeatedly failed in legislative attempts to
require that economic concerns be taken into account in
setting the NAAQS, see Part I.C, supra, the cross-petitioners
and their supporters now claim that the term "public health"
in section 109(b) always required the consideration of costs.
Cross-Pet. Br. 33-36; Am Br. of General Electric 14-15; Am.
Br. of Sen. Hatch et al. 6-7. In making this implausible
assertion, they rely principally on a 1951 book, which they
assert was the "authoritative public health definition available
to the 1970 Congress," Cross-Pet Br. 34, and on a
presentation at a Harvard faculty meeting. Am. Br. of Sen.
Hatch et al. 7, n.8.
The meaning of "public health" must be determined in
light of the statutory context in which it is used. Section
109(b) directs EPA to establish standards requisite to protect
public health on the basis of air quality "criteria." The
exclusive subject of these criteria is scientific information
related to adverse health effects, not economic
considerations. 42 U.S.C. 7408(a)(2); Part III.A, supra.
When Congress enacted the 1970 Clean Air Act, it prescribed
that the NAAQS for the five pollutants for which criteria had
already been prepared be proposed within 30 days of the Act's
passage, id. 7409(a)(1)(A), leaving no time for revising the
criteria. In doing so~ Congress was aware of the purely
health-based content of


4 Cross-petitioners' reliance on Vinyl Chloride, 824 F.2d
at
1146, is similarly misplaced, since that case did not cast any
doubt on Lead Industries' interpretation of section 109(b).
See id. at 1157-59; Part II.B, supra.





28 29

these five criteria. See Am. Br. of Clean Air Trust and Sen.
Stafford 15-18.

Further, if the term "public health" encompassed eco-
nomics, Congress would not have deemed it necessary in the
Clean Air Act to repeatedly describe public health and
economic concerns as distinct concepts. For example, the
Clean Air Act authorizes EPA to issue regulations
establishing emission standards for heavy-duty vehicles based
on their pollution's effects "on the public health and welfare,
and taking costs into account." 42 U.S.C. 7521(a)(3)(B)(i);
see id. 7521(a)(3)(D) (controlling emissions resulting from
rebuilding engines that may "endanger public health or
welfare taking costs into account"). Likewise, the statutory
provisions governing CASAC provide for advice regarding
"adverse public health, welfare, social, economic, or energy
effects" of pollution control strategies. Id.
7409(d)(2)(C)(iv); see id. 7412(f)(1)(B) (report on the
"public health significance" of certain risks and the "costs of
reducing such risks"); id. 7612(b) (report on "the economic,
public health, and environmental benefits" of compliance
efforts). These statutory distinctions between public health
and economic considerations would have been unnecessary
had Congress believed that economics was subsumed within
the meaning of "public health." See Dunn v. CFTC, 519 U.S.
465, 472 (1997) (legislative enactments should not be con-
strued to render their provisions mere surplusage).
It appears that Congress employed the term "public
health" in the Clean Air Act for the purpose of distinguishing
the health of populations, which is the concern of "public
health," from the health of individuals, which is the concern
of clinical medicine. See Elizabeth Fee, Disease and
Discovery 2 (1987) ("Public health is oriented toward the
analysis of the determinants of health and disease on a
population basis, while medicine is oriented
toward individual patients."). Indeed, the legislative history
stresses that the purpose of the NAAQS is to protect
particularly sensitive populations, not particularly sensitive
individuals. S. Rep. No. 91-1196, at 10 (1970).
Even the 1951 book upon which the cross-petitioners
rely so heavily does not support their argument. Cross-Pet.
Br. 34-35. It states that "[plublic health is the science and
the art of preventing disease, prolonging life, and promoting
physical health and efficiency." C.E.A. Winslow, The Cost of
Sickness and the Price of Health 28 (1951). By "efficiency,"
Winslow means personal fulfillment, not economic
efficiency, as evidenced by his discussion of the "aim of
raising the general level of vigour, efficiency, and satisfaction
by a more positive physiological approach." Id. at 31.

Winslow distinguishes between the meaning of public
health and the means to achieve its ends: "The promotion of
the health of the peoples of the world is basically a moral
not an economic issue. The means of approaching that
objective are, however, practical ones, which involve
financial considerations." Id. at 72. The Clean Air Act
employs a directly analogous approach: The setting of the
NAAQS does not permit economic tradeoffs but the
strategies for attaining the NAAQS require such tradeoffs. See
Part III.B.2, supra.
For more than two decades, there have been elaborate
congressional deliberations about whether to amend the Clean
Air Act and require economic factors to be taken into
account in setting the NAAQS. Part I.C, supra. The cross-
petitioners and their supporters implausibly suggest that none
of this discussion was really necessary because tradeoffs
between health and economic concerns were required by the
term "public health" in section 109(b). Their strained
arguments lack merit.





30

CONCLUSION

For the foregoing reasons the judgment of the D.C. Circuit with respect to the consideration of costs under section 109(b) of the Clean Air Act
should be affirmed.
Respectfully submitted,

RICHARD L. RnvEsz

Counsel of Record
VICKIE PAl-rON

ANN BREWSTER WEEKS

Counsel for Amici Curiae Environmental Defense, American Public Health Association, et al.

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