US Supreme Court Briefs

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 THE CLEAN AIR TRUST AND
SENATOR ROBERT STAFFORD AS AMICI CURIAE IN SUPPORT OF CROSS-RESPONDENTS


Filed SEPT 11, 2000

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


TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii

INTRODUCTION AND SUMMARY OF THE ARGU
MENT 2
ARGUMENT 3

I. CONGRESS HAS PRECISELY STATED THAT
THE PRIMARY NAAQS ARE TO BE BASED
ONLY ON THE HEALTH EFFECTS ASSOCIATED WITH THE PRESENCE OF AIR POLLU
TION IN THE AIR 3

II. CONGRESS'S LIMITED DELEGATION TO EPA
TO CONSIDER ONLY HEALTH EFFECTS IN
SETTING THE NAAQS IS SOUND AND
RATIONAL POLICY 5
III. THE HEALTH-ONLY BASIS OF THE PRIMARY
NAAQS IS OVERWHELMINGLY CONFIRMED
BY THE EVOLUTION OF FEDERAL AIR POL-
LUTION POLICY 13

A. Throughout the Evolution of Federal Air
Policy, "Criteria" Always Referred Only to
the Effects Caused by Air Pollution, Not to
the Countervailing Economic Costs of Con-
trolling Air Pollution 15
B. Throughout the Evolution of Federal Air
Policy, "Protection of the Public Health"
Was Understood to Require an Exclusively
Health-Based, Criteria-Based Level of Air
Quality 18

C. Although There Was Debate Over Fixed
Deadlines for Compliance, No One Doubted
That the 1970 Primary NAAQS Would Be
Exclusively Health-Based 23
CONCLUSION 28



TABLE OF
AUTHORITIES
ii iii



TABLE OF AUTHORITIES - Continued
Page
CASES
Chevron v. NRDC, 467 U.S. 837 (1984) 6

Citizens to Preserve Overton Park v. Vol pe, 401 U.S.
402 (1971) 13

Dunn v. Commodity Futures Trading Comm'n, 519
U.S. 463 (1997) 13

FDA v. Brown & Williamson Tobacco Corp.. 120 S.Ct.
1291 (2000) 13

United States v. Nat'l Treas. Emp. U., 513 U.S. 454
(1995) 6
Williamson v. Lee Optical, 348 U.S. 483 (1955) 12
Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.
1978) 9

STATUTES

The Clean Air Act of 1963, (3)(c)(2) P.L. 88-206, 77
Stat. 392, 395 (Dec. 17, 1963)

The Clean Air Act of 1963, (3)(c)(3) P.L. 88-206, 77
Stat. 392, 395 (Dec. 17, 1963)
Page
The Clean Air Act Amendments of 1970, 109(a)(1)(A),
P.L. 91-604, 84 Stat. 1676, 1679
(Dec. 31, 1970) 4, 18

The Clean Air Act Amendments of 1970, 110(e)(1)(A),
P.L. 91-604, 84 Stat. 1676, 1682
(Dec. 31, 1970) 25

The Clean Air Act Amendments of 1970, 202(b), P.L.
91-604, 84 Stat. 1676, 1690 (Dec. 31, 1970) 9

The Clean Air Act, 42 U.S.C. 1857d(c) (1964 &
Supp. III 1964-67) (superseded) 5, 20

The Clean Air Act, 42 U.S.C. 1857c-2(c) (1964 &
Supp. III 1964-67) (superseded) 5

The Clean Air Act, 42 U.S.C. 108(a)(2), 42 U.S.C.
7408(a)(2) (1994 & Supp. III 1997) 4

The Clean Air Act, 42 U.S.C. 109(a)(1)(A), 42
U.S.C. 7409(a)(1) (1994 & Supp. III 1997) 4
15
The Clean Air Act, 42 U.S.C. 109(b)(1), 42 U.S.C.
7409(b)(1) (1994 & Supp. III 1997) 3
15
The Clean Air Act of 1963, (5)(b), P.L. 88-206, 77
Stat. 392, 396 (Dec. 17, 1963) 15

The Air Quality Act of 1967, 107(b)(1), P.L. 90-148, 81
Stat. 485, 491 (Nov. 21, 1967) 17, 19
The Air Quality Act of 1967, 108(c)(1), P.L. 90-148, 81
Stat. 485, 492 (Nov. 21, 1967)
LEGISLATIVE MATERIALS

5. 3466, 107(a) reprinted in Senate Comm. on
Public Works, 93rd Cong. 2nd Sess. 2 Legislative
History of the Clean Air Act Amendments of 1970
1483 (Comm. Print. Serial No. 93-18 1974) 21, 23
18
The Clean Air Act Amendments of 1970, 108(a)(2), P.L.
91-604, 84 Stat. 1676, 1678 (Dec.
31, 1970) 18
5. 4358, 111(2)(A), reprinted in Senate Comm. on
Public Works, 93rd Cong. 2nd Sess. 1 Legislative
History of the Clean Air Act Amendments of 1970
544 (Comm. Print. Serial No. 93-18 1974) 25





iv v


Page
TABLE OF AUTHORITIES Continued


H.R. 15848, reprinted in Air Pollution Control and Solid
Wastes Recycling, Hearings Before the Subcommittee on Public
Health and Welfare of the House Committee on Interstate and
Foreign Commerce, 91st Cong. 1st and 2nd Sess. 177 (Serial
No. 91-49, 1970) 21

H.R. 17255, reprinted in Senate Comm. on Public
Works, 93rd Cong. 2nd Sess. 2 Legislative History
of the Clean Air Act Amendments of 1970 911
(Comm. Print. Serial No. 93-18 1974)

2
3
S. Rep. 90-403, 90th Cong. 1st Sess. (1967) 17

H.R. Rep. 90-728, 90th Cong. 1st Sess. (1967) 17,
18

Air Pollution 1967, Hearings Before the Subcommittee on Air and
Water Pollution of the Senate Committee on Public Works on
S.780, 90th Cong.
1st Sess. (1967) (Comm. Print) 8, 16
Air Quality Criteria, Staff Report for the Subcommittee on Air and
Water Pollution, Senate Committee on Public Works, 90th Cong.
1st Sess. (1968) (Comm. Print)

Air Pollution 1970, Parts 1-5, Hearings Before the
Subcommittee on Air and Water Pollution, Senate
Committee on Public Works, 91st Cong. 2nd Sess.
(1970)

Testimony of Dr. John Middleton at 160, reprinted
in 2 Senate Comm. on Public Works, 93rd Cong.
2nd Sess. 2 Legislative History of the Clean Air Act
Amendments of 1970 1000 (Comm. Print. Serial
No. 93-18 1974)
TABLE OF AUTHORITIES - Continued
Page
Testimony of Dr. John Middleton at 1492, Senate
Comm. on Public Works, 93rd Cong. 2nd Sess. 2
Legislative History of the Clean Air Act Amendments
of 1970 1187 (Comm. Print. Serial No. 93-18 1974).. 19

Testimony of Dr. John Middleton at 1500-5, Senate Comm.
on Public Works, 93rd Cong. 2nd
Sess. 2 Legislative History of the Clean Air Act
Amendments of 2970 1195-1200 (Comm. Print.
Serial No. 93-18 1974) 10, 19, 24

Testimony of Dr. John Middleton, at 1512-13,
reprinted in Senate Comm. on Public Works, 93rd
Cong. 2nd Sess. 2 Legislative History of the Clean
Air Act Amendments of 1970 1206-07 (Comm. Print
Serial No. 93-18 1974) 24, 26
Testimony of Fred Tucker at 240-246 22

Testimony of Under Secretary of HEW John Veneman at
159 reprinted in Senate Comm. on Public Works, 93rd Cong.
2nd Sess. 2 Legislative History of the Clean Air Act Amendments of
1970 999
(Comm. Print. Serial No. 93-18 1974) 21
17
Executive Session of the Subcommittee on Air and
Water Pollution of the Senate Committee on Public
Works, 91st Cong. 2nd Sess. (July 23, 1970),
Edmund S. Muskie Archives, Bates College,
Lewiston, Maine, Folder 5E3041-1 7
10
Executive Session of the Senate Committee on Public Works, 91st
Cong. 2nd Sess. (Aug. 31, 1970), Edmund S. Muskie
Archives, Bates College, Lewiston, Maine, Folder 5E3041-
4 7, 8
17





vi vii


TABLE OF AUTHORITIES -
Continued
TABLE OF AUTHORITIES -
Continued
Page
Executive Session of the Senate
Committee on Public Works, 91st
Cong. 2nd Sess. (Sept. 10,
1970), Edmund S. Muskie
Archives, Bates College,
Lewiston, Maine, Folder
5E3041-6 11

Congressional Research Service, A
Summary of
Clean Air Act Oversight
Hearings, March 19,
20, April 20-24, 29-30, May 1,
13, 15. 20-21. 1975
(June 13, 1975), reprinted in
Implementation of
the Clean Air Act 1975, Part I,
Hearings of the
Subcommittee on Environmental
Pollution of the
Senate Committee on Public Works,
94th Cong. 1st
Sess. 5 (Serial No. 94-HlO 1975) 27

Senate Committee on Public
Works, 93rd Cong.
2nd Sess. Vols. 1-2 Legislative
History of the Clean
Air Act Amendments of 1970 (Serial
No. 93-18
1974) passim

Clean Air Act Oversight Part 3,
Hearings Before
the Senate Committee on
Environment and Public
Works, 97th Cong. 1st Sess. 191
(Serial No. 97-
H12, 1981) (remarks of Senator
S
t
a
f
f
o
r
d
.
)

2
7

Nomination of Stephen G. Breyer
to Be An Associate Justice of
the Supreme Court of the United
States, Hearings Before the Senate
Judiciary Committee, 103rd Cong.
2nd Sess. 276-77 (S.Hrg.
103-715, July 13, 1994)
(testimony of Stephen
G.
Breyer) 12

116 Cong. Rec. 32919 (Sept. 21,
1970) Senate
Debate on 5. 4358, reprinted in
Senate Comm. on
Public Works, 93rd Cong. 2nd
Sess. 1 Legislative
History of the Clean Air Act
Amendments of 1970
262 (Comm. Print. Serial No.
93-18 1974)
(remarks of Senator John
Sherman Cooper (R
KY)) 8, 10
Page
116 Cong. Rec. 32919 (Sept. 21,
1970) Senate
Debate on 5. 4358, reprinted in
Senate Comm. on
Public Works, 93rd Cong. 2nd
Sess. 1 Legislative
History of the Clean Air Act
Amendments of 1970
265 (Comm. Print. Serial No.
93-18 1974)
(remarks of Senator Howard
B
a
k
e
r

(
R
-
T
N
)
)

8

116 Cong. Rec. 32905 (Sept. 21,
1970) Senate Debate on 5. 4358
reprinted in Senate Comm. on
Public Works, 93rd Cong. 2nd
Sess. 1 Legislative History of the
Clean Air Act Amendments of 1970
236 (Comm. Print. Serial No.
93-18 1974) (remarks of
Senator
Edmund Muskie (D-ME)) 11

116 Cong. Rec. 42392 (Dec. 18,
1970) Senate
Debate on H.R. 17255
Conference Report,
reprinted in Senate Comm. on
Public Works,
93rd Cong. 2nd Sess. 1 Legislative
History of the
Clean Air Act Amendments of 1970
145 (Comm.
Print. Serial No. 93-18 1974)
(remarks of Senator
Jennings Randolph (D-WV)) 9

116 Cong. Rec. 42389 (Dec. 18,
1970) Senate
Debate on H.R. 17255
Conference Report,
reprinted in Senate Comm. on
Public Works,
93rd Cong. 2nd Sess. 1 Legislative
History of the
Clean Air Act Amendments of 1970
142 (Comm.
Print. Serial No. 93-18 1974)
(remarks of Senator
Howard Baker) 11

Pete V. Domenici, The Clean Air
Act Amendments: Balancing the
Imponderables, reprinted in
Senate Committee on
Environment and Public Works,
6 A Legislative History of the Clean
Air Act Amendments of 1977, 96th
Cong. 2nd Sess.
4507-08 (1978)

2
3
,

2
7





viii ix


TABLE OF AUTHORITIES - Continued


Letter from Secretary Elliot Richardson to Senator
Jennings Randolph, Nov. 17, 1970, reprinted in
Senate Comm. on Public Works, 93rd Cong. 2nd
Sess. 1 Legislative History of the Clean Air Act
Amendments of 1970 211 (Comm. Print. Serial
No. 93-18 1974) 25

Letter of J.E. Swearingen, Std. Oil of Indiana, to
Senator Jennings Randolph, Aug. 27, 1970,
reprinted in Senate Comm. on Public Works,
93rd Cong. 2nd Sess. 1 Legislative History of the
Clean Air Act Amendments of 1970 782-83
(Comm. Print. Serial No. 93-18 1974) 25

Letter of James D. Kittelton to Richard Grundy,
Aug. 26, 1970, reprinted in Senate Comm. on
Public Works, 93rd Cong. 2nd Sess. 1 Legislative
History of the Clean Air Act Amendments of 1970
716 (Comm. Print. Serial No. 93-18 1974) 25


OTHER SOURCES
36 Fed. Reg. 8186 (1971) 26

Philip Abelson, Progress in Abating Air Pollution, 167 Science
3 (No. 3925, March 20, 1970) 9

HEW, National Air Pollution Control Administration,
Guidelines for the Development of Air Quality Standards
and Implementation Plans
(1969) 17, 19

HEW, National Air Pollution Control Administration, Air
Quality Criteria for Particulate Matter,
Pub. No. AP-49 (1969) 4

HEW, National Air Pollution Control Administration, Air
Quality Criteria for Sulfur Oxides,
AP-50 (1969) 4
TABLE OF
AUTHORITIES -
Continued
Page
Page
HEW, National Air Pollution Control Administration, Air
Quality Criteria for Carbon Monoxide,
AP-62 (1970)
4
HEW, National Air Pollution Control Administration, Air
Quality Criteria for Photochemical Oxidants [Ozonel, AP-
63 (1970) 4

HEW, National Air Pollution Control Administration, Air
Quality Criteria for Hydrocarbons,
AP-64 (1970)

Thomas Jorling, The Federal Law of Air Pollution
Control, in Federal Environmental Law 1508
(Environmental Law Institute, Erica Dolgin &
Thomas Guilbert, eds. 1974) 6

Robert Martin and Lloyd Symington, A Guide to the Air
Quality Act of 1967, 33 Law & Contemp.
Prob. 239 (Spring, 1968) 17, 20

John Middleton, Planning Against Air Pollution,
59 American Scientist 188 (1971) 26

National Commission on Air Quality, To Breathe
Clean Air (1981) 28

Note, The Air Quality Act of 1967, 54 Iowa L. Rev.
115 (1968) 17

Roger Strelow, Reviewing the Clean Air Act, 4
Ecol. L. Q. 582 (1975) 11

Issue of the Year: The Environment, Time at 21
(Jan. 4, 1971) 6





1


THE INTEREST OF AMICI CURIAE'

The Clean Air Trust was established in 1995 by Senators Edmund Muskie (D-ME), and Robert Stafford (R-VT) to educate the public and
policymakers about the value of the Clean Air Act, to attain and maintain national ambient air quality standards, to promote effective enforcement of
the Act through grassroots education, and to defend the Act. Senator Robert Stafford was a member of the Senate from 1971 to 1989. and chaired the
Environment and Public Works Committee 1981-1985. The President of the Clean Air Trust, Leon Billings, was staff director of the Subcommittee on
Air and Water Pollution of the Senate Committee on Public Works, which Senator Muskie chaired, during the period in which the national ambient air
quality standards ("NAAQS") provisions were being debated, enacted and implemented. The Clean Air Trust has access to extensive records documenting
the Congress's responses to the nation's air quality problems since the early 1960s. Amici can offer helpful guidance to the Court by providing an
authentic account of the development of the 1970 NAAQS provisions, based on public record sources that are highly reliable. That account shows
conclusively that Congress adopted a coherent and sensible regulatory strategy in 1970, which

I Pursuant to Rule 37.6 of the Rules of this Court, amici state that no counsel for a party authored this brief in whole or in part, and that no person
or entity other than amici, or its counsel, has made any monetary contribution to the preparation or submission of this brief. Pursuant to Rule 37.3,
amici state that the parties have consented to the filing of this brief. Their letters of consent have been filed with the Clerk of this Court.


2 3



included primary NAAQS based exclusively on health
considerations.



INTRODUCTION AND SUMMARY
OF THE ARGUMENT

For thirty years, the plain meaning of the Clean Air Act
has always required EPA to base primary national ambient air
quality standards ("NAAQS") solely on the health effects
caused by air pollution. Cross-Petitioners now ask this court
to ignore that meaning and to rule that the statute actually
requires EPA to "balanc[e] a broad range of factors," Brief for
Respondents Appalachian Power, et al., In Support of
Petitioner 23 ("App.Pr.Br."), and to "consider countervailing
'non-health' factors," Brief for Cross-Petitioners 50 ("ATA
Br."), in issuing the NAAQS.

This Court can and should reject Cross-Petitioners' claim
based on the statutory language and structure alone. Cross-
Petitioners hope to convince this Court to twist the statute in
their direction by arguing that setting the primary NAAQS on
the basis of health considerations alone inevitably produces
irrational policy, and that their proposal is only common
sense. This argument fails, though, because it is wrong on its
own terms. Congress acted deliberately, rationally and
sensibly in 1970, when the NAAQS provisions were
introduced into the law. Congress gave EPA only limited
authority in setting health-based NAAQS, and reserved to
itself reconsidering the statute after its new philosophy
toward air pollution control had been given a chance to work,
all as part
of a coherent strategy to stimulate technological innovation
to solve a pressing national health problem. While the
approach taken in 1970 was itself innovative, the ability of
Congress to delegate limited powers to an agency, as it did
here, was and remains well-established.

The statute's meaning is amply confirmed by uncon-
tradicted evidence of how the vocabulary used in the 1970
Act evolved during the prior decade of intense federal
engagement with the problems of clean air. Overwhelming
and reliable evidence confirms that the key concepts of
"criteria" and "protection of the public health" were well
established by the time the 1970 Act was passed, as was the
desirability of an exclusively health-based minimum national
standard.



ARGUMENT

I. CONGRESS HAS PRECISELY STATED THAT THE
PRIMARY NAAQS ARE TO BE BASED ONLY ON
THE HEALTH EFFECTS ASSOCIATED WITH THE
PRESENCE OF AIR POLLUTION IN THE AIR.

Congress has spoken to the precise question Cross-
Petitioners put at issue, and Cross-Respondents' briefs fully
present the overwhelming textual and structural case for the
statute's meaning. Here, we merely highlight three telling
features of the legislation.

The Administrator of EPA must issue primary NAAQS
that are in her judgment "requisite to protect the public
health" "based on such criteria and allowing an adequate
margin of safety." 109(b)(1). "Such criteria"




5
4


refers to the information that EPA must issue under 108,
indicating "the kind and extent of all identifiable effects on
public health or welfare which may be expected from the
presence of such pollutant in the ambient air, in varying
quantities." 108(a)(2) (emphasis added). Criteria thus
correlate levels of air pollution with the effects caused by that
pollution. This is an entirely distinct inquiry from
determining the effects of controlling pollution or assessing
countervailing costs.

For the five pollutants for which criteria had already
been issued prior to passage of the NAAQS provisions in
1970,2 the 1970 Act required EPA to propose NAAQS within
thirty days of enactment. 109(a)(1)(A). This was far too
little time for EPA to perform any additional analysis beyond
what was already contained in the criteria documents
themselves. As Congress well knew, those criteria documents
contained absolutely no information concerning
countervailing costs. Their content was exclusively focused
on health or welfare effects associated with the presence of
air pollution in the air, as required by the statute.

Not only did the short one month period limit EPA to
relying solely on the criteria documents, the express
requirement that the NAAQS be "based on such criteria" does
so as well. That language stands in marked contrast to then-
existing law, which required air quality standards

2 See HEW, National Air Pollution Control
Administration,
Air Quality Criteria for Particulate Matter, Pub. No. AP-49
(1969); for Sulfur Oxides, AP-50 (1969); for Carbon
Monoxide,
AP-62 (1970); for Pbotochemical Oxidants tOzonel, AP-63
(1970); for Hydrocarbons, AP-64 (1970).
to be "consistent with the criteria and the recommended
control techniques." 42 U.S.C. 1857d(c) (1964 & Supp. III
1964-67). In a provision distinct and separate from the
criteria, then-existing law required HEW to issue "recom-
mended pollution control techniques," along with information
on "available technology," "economic feasibility," and "cost-
effectiveness analyses." 1857c-2(c). If Congress had
intended the NAAQS to be based on such factors as these, as
Cross-Petitioners contend, it would not have deliberately
eliminated the connection of this control technique
information to the NAAQS when it enacted the 1970
Amendments.

II. CONGRESS'S LIMITED DELEGATION TO EPA TO
CONSIDER ONLY HEALTH EFFECTS IN SETTING
THE NAAQS IS SOUND AND RATIONAL
POLICY.

All parties to this case must agree that our government's
laws should always be expected to do more good than harm.
See ATA Br. 43. Cross-Petitioners claim, however, that unless
the Environmental Protection Agency weighs costs against
benefits each time it issues a NAAQS, those standards must be
"of necessity, arbitrary." Id. 29. This is a gross
misunderstanding of the Constitution's division of labor under
the principles of separated powers. Congress has the
responsibility in the first instance to make policy choices that
do more good than harm, and it also has the Constitutional
authority to choose an approach to a problem that delegates
limited responsibilities to an administrative agency. In the
environmental area, as in others, Congress's choices come to
this Court with a strong presumption that they have a





6 7



rational basis. See, e.g., United States v. Nat'l Treas. Emp. U., 513
U.S. 454, 468 (1995). In contrast, an agency's first
responsibility is to be faithful to the delegation Congress has
made, so that it cannot and should not "balanc[e] a broad
range of factors," App.Pr.Br. 23. unless Congress has directed
or permitted it to do so. Whenever traditional tools of
statutory construction demonstrate that Congress has not
delegated an authority or responsibility to the agency, "that is
the end of the matter, for the court, as well as the agency."
Chevron v. NRDC, 467 U.S. 837, 842 (1984).

In 1970, Congress had ample reason to decide that
delegating responsibility to set primary NAAQS based on
health effects alone was part of a legislative approach to
improving air quality that would do more good than harm.
The nation's air quality was deteriorating, and pollution had
become the nation's most serious problem in the minds of its
citizens.3 The inadequate existing federal policy had been
predicated on exactly the course that Cross-Petitioners now
urge, with air quality standards limited by technological
feasibility and economic cost.4 Congress had come to
understand the problems


3 See Issue of the Year: The Environment, Time at 21
(Jan. 4,
1971) (reporting Harris poll showing "Americans now regard
pollution as 'the most serious' problem confronting their community
well ahead of crime, drugs and poor schools.")
" See Thomas Jorling, The Federal Law of Air Pollution
Control, in Federal Environmental Law 1058, 1060 n.9
(Environmental Law Institute, Erica Dolgin & Thomas
Guilbert, eds. 1974) (citing pre-1970 sources). Mr. Jorling was
minority counsel on Senate Committee on Public Works as it was
drafting the 1970 Act.
with such a strategy, which relied heavily on the assistance of
industry to develop costly technologies when this was against
their self-interest.5 In order to change industry's incentives so
as to stimulate the technological innovation crucial to solving
a pressing health problem, Congress adopted health-based
minimum standards with deadlines for compliance backed by
sanctions. As Senator Muskie, the chief architect of the Clean
Air Act Amendments of 1970, explained it to his colleagues,
such an approach was

probably the only way in which we are really going to
generate the sense of urgency that is necessary to deal
with this problem of air pollution effectively. We have
tried other ways and they have not worked . . . The legislation
on auto exhaust is an illustration of how the thing can
stretch out if you leave it to administrative discretion
and the technology which the industry is willing to
develop.6


~ As Senator Muskie said, "It is difficult to draw precise
lines in these instances, because those who will be required to provide
the technological know-how tend to resist, and we have to try to form
independent judgments as to what may be possible. And they are not
of particular assistance to us in forming those judgments." Executive
Session of the Senate Committee on Public Works, 91st Cong. 2nd
Sess. 114-15 (Aug. 31, 1970), Edmund S. Muskie Archives, Bates
College, Lewiston, Maine, Folder SE3041-4. The automobile
industry had provided the best object lesson in how slowly
technological breakthroughs by industry occur when this is the
incentive structure, as there had been a federal presence in
addressing the auto exhaust problem since 1955.
6 Executive Session of the Subcommittee on Air and Water
Pollution of the Senate Committee on Public Works, 91st Cong. 2nd
Sess. 14-15 (July 23, 1970), Edmund S. Muskie Archives, Bates
College, Lewiston, Maine, Folder SE3041-1.





8 9



So Congress deliberately "abandonfed] the old assumption
of requiring the use of only whatever technology is already
proven and of permitting pollution to continue when it is not
economically feasible to control it."7 In imposing sanctions
for non-compliance by a date certain, Congress sought to
achieve a health-based minimum level of air quality by giving
industry self-interested reasons to "stretch[ ] the
[technologicall possibilities . . . to find ways to do things that we
are told in many, many instances cannot be done."8 This
"deliberate decision to rule out arguments based on" some
factors otherwise relevant to a full cost benefit inquiry stands
at




~' Senate Debate on 5. 4358. 116 Cong. Rec. 32919 (Sept. 21.
1970) (remarks of Senator John Sherman Cooper (R-KY)) reprinted in
Senate Comm. on Public Works, 93rd Cong. 2nd Sess. 1 Legislative
History of the Clean Air Act Amendments of 1970 262 (Serial No. 93-
18 1974) ("1970 Leg. History"). See also, 116 Cong. Rec. 32919
(remarks of Senator Howard Baker (R-TN) (bill represents a "basic
change in the philosophy of the Government of the United States
toward" air pollution)), reprinted in 1 1970 Leg. History 265.
Congress had been studying the incentives problem for years. E.g., Air
Pollution 1967 Hearings before the Subcommittee on Air and Water
Pollution of the Senate Committee on Public Works, on 5. 780 and
Related Matters Pertaining to the Prevention and Control of Air
Pollution, 90th Cong. 1st Sess. at 760-61 (Feb. 8, 1967) (HEW
Secretary John Gardner describing incentive problem); id. at 1-20 (Feb.
13, 1967) (Subcommittee discussing incentives and the need for
stringent regulations with California officials).

~ Executive Session of the Senate Committee on Public Works,
91st Cong. 2nd Sess. 114-15 (Aug. 31, 1970) (remarks of Senator
Muskie), Edmund S. Muskie Archives, Bates College, Lewiston,
Maine, Folder 5E3041-4.
the very heart of the 1970 Act,9 and, like the Clean Water Act
decisions Congress would make two years later, Congress acted
here "based on long experience, and aware of the limits of
technological knowledge and administrative flexibility."10

Fully cognizant that air pollution control would be costly,"
Congress still believed that the approach of the 1970 Act was justified
by the urgency of the problem. Experts from the Administration had
testified that the necessary technology was close at hand even though
they


'~ The limitations on tailpipe emissions from automobiles
received even more attention than the NAAQS provisions,
and these also precluded EPA from considering countervailing
factors, this time by means of Congress enacting the standards
directly into law, 202(b), P.L. 91-604, 84 Stat. 1676, 1690, even
though the auto industry said it lacked the technology to implement
them.
10 Weyerhaeuser Co. v. Cos tIe, 590 F.2d 1011, 1042 (D.C. Cir.
1978). In the case of clean water, Congress ruled out arguments based
on potentially monetizable benefits in deciding that all firms
must apply best practicable technology to abate their water effluent,
regardless of the effects their pollution was having on receiving water
quality. Id.

" See, e.g., Senate Debate on H.R. 17255 Conference Report, 116
Cong. Rec. 42392 (Dec. 18, 1970) (remarks of Senator Randolph (D-
WV) (noting that the Muskie Subcommittee and the full Public Works
Committee had "talked about the economics of this legislation as well
as the health standards of the legislation," and that "it will be
costly.")), reprinted in 11970 Leg. History 145. See also, Philip
Abelson, Progress in Abating Air Pollution, 167 Science 3 (No. 3925,
March 20, 1970) (noting public can expect a six to ten percent
increase in electricity prices from reductions in sulfur content of coal
alone, but concluding that "this seems a small price to pay view of the
health hazards and other costs.").





10 11



would not commit to a definite date.'2 Congress knew that
industry estimates of capability tended to overstate costs and
understate technological ability, and for that reason industry
was going to be "of no particular assistance" to Congress
making the judgments Congress had to make.'3

Just as importantly, Congress was not shirking the issue of
costs when it did not delegate the authority to balance costs and
benefits in setting the NAAQS.'4 As Senator Muskie declared in
discussing the deadlines for meeting health-based standards, "[wie
want to give the country a clear cut goal and say this is the goal.
Congress


12 Air Pollution 1970 Part 4, Hearings Before the
Subcommittee on Air and Water Pollution, Senate Committee on
Public Works, 91st Cong. 2nd Sess. 1505 (1970) ("1970 Senate
Hrgs.") (Dr. John Middleton, head of NAPCA, testifying that "I think
the levels we have come across in relation to adverse health effects are
achievable and they are achievable in short periods of time."),
reprinted in 2 1970 Leg. History 1200; see also, e.g., Senate Debate
on 5. 4358, 116 Cong. Rec. 32919 (Sept. 21, 1970) (remarks of
Senator Cooper (R-KY)) ("I do not know if the [NAAQS] . . . can be
accomplished in all places by 1975. However, as emphasized by the
Senator from Maine [Muskie D(ME)] and the Senator from Delaware
[Boggs R(DE)], we have set these standards because we believe that
they can be met."), reprinted in 11970 Leg. History 261.

'~ See n.5, above.
14 Nor was Congress eliminating costs from consideration in the
overall implementation of the Act. For instance, state implementation
plans can select the most cost effective means of compliance, delayed
compliance orders, added later to the Act, permit some consideration
of costs, and Congress has revisited the statute to make adjustments
when costs have proven to be imposing. See n.17, below.
I
says it is. . . . If the decision is important enough for the
Congress to make ir~ the first instance, then only the
Congress ought to change it."15 Congress could revisit the Act
after its approach had been given a chance to succeed, and
when industry had made good faith efforts to comply.'6 Congress
could then make adjustments to


15 Executive Session of the Senate Committee on Public Works,
91st Cong. 2nd Sess. 349-350 (Sept. 10, 1970), Edmund S. Muskie
Archives, Bates College, Lewiston, Maine, Folder 5E3041-6.
16 See, e.g., Senate Debate on 5. 4358, 116 Cong. Rec.
32905 (Sept. 21, 1970) (remarks of Senator Muskie
("Congress, I assume, will be in session in 1971, 1972, 1973, 1974
and 1975 . . . The companies would be in a position to make their
case. If the Congress, which would have made the policy in the first
instance, is persuaded that the industry cannot do the job, Congress
could change the policy . . . [Tihis would be as it is now a policy
decision of such moment to the country that it ought to be made by
nobody other than the Congress, so that the decision gets the
visibility, the prestige and the responsibility that are necessary to deal
with this problem.")), reprinted in I 1970 Leg. History 236; Senate
Debate on H.R. 17255 Conference Report, 116 Cong. Rec. 42389
(Dec. 18, 1970) (remarks of Senator Baker (acknowledging that under
the bill "the legislative department will be called upon to sit as a
factfinding body to decide whether or not the automobile industry will
be permitted to continue manufacturing automobiles, assuming it has
not fully met this statutory deadline," even though he thought this to
be "a horrible prospect.")), reprinted in 1 1970 Leg. History 142. See
also, Roger Strelow, Reviewing the Clean Air Act, 4 Ecol. L. Q.
582, 588 (1975) (Critics claim the Act "unreasonably demands clean
air to the detriment of conflicting social and economic considerations . . .
A more pragmatic view of the Act, however, suggests that Congress
simply wanted to ensure that maximum cleanup was achieved and that
the consequences of an unqualified commitment to clean air were
explored before the Act's limited provisions for 'balancing' clean air
with other values were expanded.").





12 13



accommodate countervailing costs it believed weighty enough
to warrant them.'7 Congress behaved responsibly in keeping in
its own hands the question of how to balance the nation's
health against the countervailing costs. When human health
is involved, "[tihere is no economics that tells you the right
results . . . there is no economics that tells . . . us how much we're
prepared to spend . . . on the life of another person . . . ITihat's a
decision that people make through their elected represen-
tatives. "18

By mandating health-based NAAQS, Congress was
exercising its well-recognized Constitutional authority to
delegate to an agency only one aspect of a problem at a time.
See, e.g., Williamson v. Lee Optical, 348 U.S. 483, 489 (1955).
Congress has made similar limited delegations innumerable times,
often in ways that deny an agency the authority to conduct
the kind of wide ranging cost-benefit inquiry that Cross-
Petitioners erroneously contend EPA must have. For example,
Congress has denied the Secretary of Transportation
authority "to engage in a wide-ranging balancing of
competing interests," in favor


17 Indeed, since 1970, Congress has made a number of
adjustments in the Act to accommodate difficult compliance problems,
but it has never altered the NAAQS. For details, see the Briefs of
Cross-Respondent American Lung Association, and of Environmental
Defense, et al., as Amici Curiae in Support of Respondents.
18 Nomination of Stephen G. Breyer to Be An Associate
Justice of the Supreme Court of the United States, Hearings
Before the Senate Judiciary Committee, 103rd Cong. 2nd Sess.
276-77 (S.Hrg. 103-715, July 13, 1994) (testimony of then-Judge
Stephen Breyer).
of making "protection of parkland [of] paramount impor-
tance" in selecting routes for the interstate highway system.
Citizens to Preserve Overton Park v. Vol pe, 401 U.S. 402, 411-412
(1971). Similarly, Congress has required the FDA to restrict its
safety inquiry to "determinling] that the product itself is safe as used
by consumers," prohibiting it from considering other "countervailing
effects" such as the effects of leaving the product on the
market. FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct.
1291, 1304 (2000). Not only does the record show Congress made a
rational, considered judgment, the regulatory regime it established is
fully within Congress's competence. This Court must respect that
judgment.

III. THE HEALTH-ONLY BASIS OF THE PRIMARY
NAAQS IS OVERWHELMINGLY CONFIRMED
BY THE EVOLUTION OF FEDERAL AIR POLLU-
TION POLICY.

The "history of evolving congressional regulation in
[an] area" can properly inform the Court's understanding of
legislative meaning. Dunn v. Commodity Futures Trading Comm'n,
519 U.S. 463. 475 (1997). In the case of the Clean Air Act, its
evolution in the 1960s confirms conclusively that the key terms
Congress used in 1970 to describe EPA's NAAQS responsibilities
already had well-established meanings that excluded the consideration
of costs in setting minimum standards. "Criteria" always referred to
the effects on health or welfare caused by various concentrations of
ambient air pollution, as ascertained by the best available science.
"Protection of the public health" referred to a level of air pollution at
or below the lowest level at which the criteria identified adverse





14 15



health effects. Countervailing costs played no role in either
term, and non-health considerations played no role in the
idea of protecting human health. The evolution of federal air
pollution policy further shows a consensus that a health-
based, criteria-based standard ought to be a national minimum
standard. This consensus emerged even prior to passage of the
1970 Act, and was never challenged.

These conclusions are confirmed by abundant evidence
in a variety of settings in which the speakers and writers had
no strategic reason to dissemble regarding the issues Cross-
Petitioners raise. Indeed, they had every reason to communicate as
clearly as possible. This is because until very late in the drafting
of the 1970 Act, countervailing costs were being amply taken
into account in federal air pollution policy, both in setting
the time for compliance, and in determining whether
standards below a health-based minimum should be set. When
the 91st Congress moved to a Clean Air Act that set fixed
deadlines for complying with a national standard, it was too
late to alter the meanings of the terms that defined that
standard, even if anyone had tried.


A. Throughout the Evolution of Federal Air
Policy, "Criteria" Always Referred Only to
the Effects Caused by Air Pollution, Not to the
Countervailing Economic Costs of Controlling
Air Pollution.'9

The Clean Air Act of 1963 introduced the concept of
"criteria" into the federal regulatory vocabulary, describing
criteria in terms that have remained essentially unchanged. It
directed that the Secretary of HEW

[w]henever he determines that there is a particular air
pollution agent [in the air and harmful to health or
welfare], . . . shall compile and publish criteria reflecting
accurately the latest scientific knowledge useful in
indicating the kind and extent of such effects which may
be expected from the presence of such air pollution
agent . . . in the air in varying quantities. (3)(c)(2), P.L.
88-206, 77 Stat. 392, 395.

The Act contained no explicit provisions for standard setting.
Instead, it "encouraged" municipal, State, and interstate
action to abate pollution, 5(b), id., and it authorized the
Secretary to "recommend . . . such criteria of air quality as in his
judgment may be necessary to protect the public health and
welfare." 3(c)(3), id.
19 This part summarizes the evolution of federal air pollution
policy as it relates to the terms with which the NAAQS requirements
are expressed. A more detailed summary of the development of federal
policy can be found in Brief of Respondents Massachusetts and New
Jersey in Support of Petitioners, in Browner v. Amer. Trucking Ass'n,
99-1257, at 7-19.





16
17
As Congress was considering the Air Quality Act of
1967, it heard testimony about how HEW was implementing
the 1963 Act. Dr. John Middleton, head of the National Air
Pollution Control Administration (NAPCA) within HEW,
and in charge of the federal air quality efforts, testified that

air quality criteria are an expression of the scientific
knowledge of the relationship between various
concentrations of pollutants in the air and their adverse
effects on man, animals, vegetation, materials, and so
forth. . . . They describe the effects that can be expected
to occur whenever and wherever the ambient air level of
a pollutant reaches or exceeds a specific figure for a
specific time period.20

At the time he testified, NAPCA had just issued the first
criteria document, for sulfur oxides, so Congress had a precise
illustration of what criteria included and what they did not
include. The sulfur oxide criteria focused exclusively on
scientific studies describing adverse effects on health or
welfare that were or might be caused by various levels of
sulfur oxide in the air. Neither it nor any other criteria issued
by EPA contained any mention of the costs of removing
pollution from the air.21

Dr. Middleton's succinct description reflected Congress's
understanding of the contents of the criteria. It

20 Air Pollution 1967, Hearings before the Subcommittee on
Air and Water Pollution of the Senate Committee on Public Works,
on S. 780 and Related Matters Pertaining to the Prevention and
Control of Air Pollution, 90th Cong. 1st Sess 1154 (1967) (Comm.
Print).
21 N.2. above, identifies the five criteria documents issued prior
to 1971.
was explicitly quoted by both House and Senate Reports
accompanying the 1967 Act,~ repeated by Dr. Middleton in
later testimony~ and by the executive branch in air quality
guidance documents,24 quoted in other Congressional
ReportsA~ and quoted or paraphrased in the academic
journals.26

Statutory revisions in 1967 and 1970 changed the
description of criteria cosmetically, but the core definition
never changed, and there was never any indication that the
Congress or anyone else knowledgeable about the
development of air pollution policy ever thought the
content of "criteria" had been changed to include economic
costs.27 Criteria continued to "define the health

22 5. Rep. 90-403 5 (1967); H. Rep. 90-728 16 (1967).
23 E.g., 1 1970 Senate Hrgs. 160, reprinted in 2 1970 Leg.
History 1000.
24 HEW, National Air Pollution Control Administration,
Guidelines for the Development of Air Quality Standards and
Implementation Plans 4 (1969) ("HEW Guidelines").
25 Air Quality Criteria, Staff Report for the Subcommittee on Air
and Water Pollution, Senate Committee on Public Works, 90th
Cong. 1st Sess. 2-3 (1968) (Comm. Print).
26 See, e.g., Robert Martin and Lloyd Symington, A Guide to
the Air Quality Act of 1967, 33 Law & Contemp. Prob. 239, 251-52
(Spring, 1968); Note, The Air Quality Act of 1967, 54 Iowa L. Rev.
115, 126 (1968).
27 In 1967, the criteria were to reflect "the kind and extent of all
identifiable effects on health and welfare which may be expected from
the presence of an air pollutant. . . in the ambient air, in varying
quantities." 107(b)(1), P.L. 90-148, 81 Stat., 485, 491. Both the
House and Senate Reports accompanying the 1967 Air Quality Act
explicitly employed Dr. Middleton's definition, see n.22, above, and
in 1968 a staff report of Senator Muskie's subcommittee stated that
the 1967 Act had "reaffirmed" the
r






































C





18 19



and welfare considerations that must be taken into account in
the development of standards and regulations. Economic and
technical considerations have a place in the pattern of
control activity but not in the development of



B. Throughout the Evolution of Federal Air
Policy, "Protection of the Public Health" Was
Understood to Require an Exclusively Health-
Based,
- Criteria-Based Level of Air Quality.

In 1967, Congress for the first time provided direction
to the States as to what kind of air quality standards they
ought to develop, providing that the Secretary of HEW was
to approve state, standards that were "consistent with the
criteria and the recommended control techniques."
108(c)(1), P.L. 90-148, 81 Stat. 485, 492. Subsequently,
HEW issued guidelines describing what standards it would find
acceptable, stating that "it is the intent of the Air Quality
Act . . . to provide for the attainment throughout every air
quality control region of

1963 Act's call for criteria development. n.25, above, at 2. In
1970, the criteria also were to reflect "the kind and extent of all
identifiable effects on public health or welfare which may be expected
from the presence of such pollutant in the ambient air, in varying
quantities." 10S(a)(2), P.L. 91-604, 84 Stat. 1676, 1678. The 1970
Act explicitly ratified the criteria that HEW had already issued under
the 1967 Act as forming the basis for national standards,
109(a)(1)(A), id. at 1679, demonstrating that Congress thought it was
not making any material change in the required content of the
criteria.
28 H.Rep. 90-728 16 (1967).
air quality which, at a minimum, is adequate for the protection of
the public health,"29 essentially the same language that Congress
would later use to describe the NAAQS.~"


As states began submitting standards and plans to HEW
for approval, it became evident that HEW understood
"adequate for the protection of the public health" to mean
levels at or below the level identified by the
criteria as the lowest at which HEW concluded adverse health
effects had been shown. Dr. Middleton explained how HEW
was implementing the 1967 Act:

Let's take the example of the standards being adopted
for sulfur oxides. The standard being adopted by the
States which are acceptable to the Secretary are less
than 0.04 parts per million (p.p.m.) as an annual
average. Most states are coming up with air quality
standards that are 0.03 p.p.m. or smaller 31

According to the criteria document, 0.04 p.p.m. was the
point where "the health effects begin."32



29 HEW Guidelines 17 (emphasis added).

30 The core of the definition of "criteria" in the 1967 Act
contains the same phraseology as the primary and secondary
NAAQS in the 1970 Act. 107(b)(1), P.L. 90-148, 81 Stat.
485, 491 (Secretary shall issue criteria "as in his judgment
may be requisite for the protection of the public health and
welfare").

~" 1970 Senate Hrgs. 1492, reprinted in 2 1970 Leg. History
1187 (1970).
32 1970 Senate Hrgs. 1500, reprinted in 2 1970 Leg. History
1195 (1970).





20 21


Costs and technological feasibility played roles in the local
debates over whether to adopt standards more stringent than the
required federal minimum (a number of states did indeed adopt
more stringent standards) and in the determination of a
"reasonable" compliance time,33 but costs and technological
feasibility played no role in setting the minimum health-
protective air quality levels.

In 1970, both the Congress and the Nixon Adminis-
tration concluded that further statutory reforms were needed
to strengthen the federal law. The Administration initiated
the idea of national ambient air quality standards, sending
Congress language that would require the Secretary to
"publish.., proposed regulations establishing nationally
applicable standards of air quality for any pollutant or
combination of pollutants which Ithe Secretary] determines
endanger or may endanger the public health or welfare and
with respect to which criteria have









The 1967 Act required whatever levels the states established
to be achieved "within a reasonable time." 42 U.S.C. 1857d(c)
(1964 & Supp. III (1964-67)). "The implementation plan must assure
achieving the standards of air quality within a reasonable time, as
economic and technological feasibility permit." Robert Martin and
Lloyd Symington, A Guide to the Air Quality Act of 1967. 33
Law & Contemp. Prob. 239, 256 (Spring, 1968).
been issued . . . "~ Even this language, despite being much vaguer
than the language ultimately enacted, was understood as
setting health-based minimum standards, based on the
criteria. Under Secretary of HEW John Veneman explained
how the administration's standards would work:

[Let me] give an example so that maybe we can make it
clear. For example, in the criteria that were established
for sulfur oxides, the minimum identifiable human
health effect occurs at a level of 0.04 ppm. Now, in
establishing a national air quality standard, it would be
below that. It would not be above that. Now, what we
are suggesting is that you do not set standards just at the
point of minimum impact or effect on human health.
They have to be below that. We are suggesting that if a
state or an area within a state, even the intrastate
regions, wants to reduce that even below the national
standard, they would have the prerogative.35

This statement of the administration's position draws a
simple and direct connection between criteria and the
national standard. The level of 0.04 ppm in the criteria
document rested exclusively on medical evidence of health
effects caused by sulfur oxides at that concentration.


On the Senate side, the Administration proposal was
S. 3466. In the House, it was H.R. 15848. See 107(a), 5.
3466, reprinted in 2 1970 Leg. History 1483; H.R. 15848,
reprinted in Air Pollution Control and Solid Wastes Recycling,
Hearings Before the Subcommittee on Public Health and Welfare of
the House Committee on Interstate and Foreign Commerce, 91st
Cong. 1st and 2nd Sess. 177 (Serial No. 91-49, 1970).

~ 1970 Senate Hrgs. 159, reprinted in 2 Leg. History 999.





22 23
Even industry spokespersons shared the conception of
the national standard as directly derived from the exclusively
health-based criteria. For instance, Fred E. Tucker, Manager,
Pollution Control and Services for the National Steel Corp.,
testified in support of the Administration's call for national
standards: "We simply feel that the adoption of the air
quality criteria papers presented [by HEW] to date as
standards would speed up the implementation of air quality
control. . . . We have air quality criteria documents available
today . . . (Tihere is no objection on my part as an industry
representative to see those criteria adopted as national
standards immediately." 1970 Senate Hrgs. 245-246.

Mr. Tucker spoke of adopting the criteria as standards.
He did not advocate writing national standards only after
weighing countervailing factors against the criteria's findings
on adverse health effects. He simply urged the federal
government to take the criteria's numerical levels for adverse
health effects, and make those levels legally binding.36


36 This was entirely consistent with industry's self-
interest, so they had no reason to be duplicitous about it. At
the time, they were reeling from a series of regional standard-settings
in which states had acceded to public demand and adopted standards
even lower than the HEW recommendations. See 1970 Senate Hrgs.
240-41 (Tucker testifying to several states adopting standards lower
than the federally acceptable levels). They hoped that
national standards, together with the elimination of public
hearings at the regional level (which had become a venue for
citizen agitation for stringent standards) would make it more
likely that states would adopt the national standards.
C. Although There Was Debate Over Fixed Dead-
lines for Compliance, No One Doubted That
the 1970 Primary NAAQS Would Be
Exclusively Health-Based.

The Administration's proposal for national health-based
standards gained industry support because the Administration
bill continued to provide a "reasonable time" for
compliance~ and this provided ample room for arguments
based on technological feasibility and cost. As Senator Pete
Domenici (R-NM) would note later, the 1970 Act "basically
[has] two working parts, standards and deadlines."37 So long as
deadlines could be "reasonable" in light of costs, health-based
standards were acceptable to industry and to the
Administration.

The House passed its version of the 1970 Act on June
10, 1970, defining the Secretary's national standards
obligation in terms materially identical to the Adminis-
tration's proposal, and also allowing a "reasonable time" for
compliance.38 On the Senate side, though, hearings


3~ Pete V. Domenici, The Clean Air Act Amendments:
Balancing the Imponderables, reprinted in Senate Committee
on
Environment and Public Works, 6 A Legislative History of
the
Clean Air Act Amendments of 1977, 96th Cong. 2nd Sess.
4508
(1978).
38 H.R. 17255 Sec. 2 and 4 (adding 107(e)(1) and
108(c)(1)(C)(i) to the Air Quality Act), reprinted in 1 1970
Leg. History 911, 914. The only difference between the
Administration proposal and H.R. 17255 as passed by the
House was that the House bill retained the requirement that
criteria had to have been issued before standards could be,
whereas the Administration proposal dropped that
requirement. See 5. 3466, Sec. 6, amending 107(a) of the
Air Quality Act, reprinted in 2 1970 Leg. History 1482-83.





24 25
and committee meetings progressed through the summer and
fall of 1970. There, the idea of fixed deadlines developed
momentum. A "standard" without a definite attainment date
came to be seen as no improvement over current law.39
Despite continuing Administration advocacy for a reasonable
compliance time,40 the Senate


~ See, e.g. Senator Eagleton's comments to Dr.
Middleton, who presented the Administration position:
This is where I get hung up on a national standard. If indeed it
is national, for all 50 States, then it would seem to me that it
ought to be attainable within a reasonably foreseeable period
of time, applied nationwide, with no exceptions, or then
in truth it is not a national standard, and we are right
back where we are.... You [Dr. Middletoni and I disagree.
You say there is a benefit to be gained by telling the
public that we have a national standard which you say is
really a national goal . . . I just don't see a national standard
that is a national standard, unless you set specific target dates, is
really helping to achieve anything, beyond what you are
presently doing..
1970 Senate Hegs. 1512, reprinted in 2 2970 Leg. History 1207.
40 Appearing before the Muskie Subcommittee after Veneman,
Dr. Middleton continued to advocate the reasonable time
idea: "So I make the plea that you consider the things that
will bring about clean air rather than setting a date when this
must be achieved, because the State capability, the fuel
resources available, the state of the art of control techniques,
the existence of natural or synthetic gas pipeline
transmission systems, the Federal Power Commission~ s
policy on using fuels environmental improvement [sic], and
other factors have a bearing on compliance dates. Taking care of
these things would allow clean air to be attained in a timely and
realistic manner, rather than saying that, by some specific state, you
have to do it." 1970 Senate Hrgs. 1501-02, reprinted in 2 1970 Leg.
History
1196-1197.
bill required that national standards had to be met within a
statutory deadline of three years.4'

Now industry and the Administration had reason to
object, not over the issuance of a health~based national
standard, but over substituting a fixed compliance date for a
flexible one. Newly appointed HEW Secretary Elliot
Richardson urged the Conference Committee to return
compliance flexibility to the Act by providing him with an
open-ended authority to extend the deadlines when "adequate
control technology is not available and is not likely to be
available." Letter from Secretary Richardson to Senator
Randolph, Nov. 17, 1970, reprinted in 1 1970 Leg. History 211,
215.42

The Congress's "new philosophy" prevailed. The
Conference reported a bill devoid of any connection between
setting the primary NAAQS and considerations of costs and
technological feasibility. The Administration

41 5~ 4358, 111(2)(A), reprinted in 11970 Leg. History
544. 5.
4358 also provided for the possibility that a three judge
federal court, upon petition from the Governor, and upon
making specific findings, could extend the period for a year.
Additional one year extensions were possible, upon the filing
of a new petition each time. 111(f), reprinted in 1 1970 Leg.
History 550-553. In the final legislation, this was changed to a
maximum two year extension if "the necessary technology or other
alternatives are not available 110(e)(1)(A), P.L. 91-604, 84 Stat.
1676, 1682.
42 See also, Letter of J.E. Swearingen, Std. Oil of Indiana, to
Senator Jennings Randolph, Aug. 27, 1970 (opposing three
year compliance time), 1 1970 Leg. History 782-83; Letter of James
D. Kittelton to Richard Grundy, Committee on Public Works Staff
Member, Aug. 26, 1970, 1 1970 Leg. History 716 (three year
limit is "unreasonably short.").





26 27
and industry were undoubtedly disappointed in this
outcome, but disappointment about the fixed deadlines can-
not alter the significant and universal agreement reflected in
the testimony of Under Secretary Veneman, Dr. Middleton
and Mr. Tucker that the national minimum standard now
codified in the primary NAAQS would be set at a health-
based, criteria-based level.43

Subsequent to passage of the 1970 Act, the health-based,
criteria-based nature of the primary NAAQS has since been
confirmed numerous times, of which we will only provide a few
examples. Of course, EPA has always said that its primary NAAQS
responsibilities were limited to health considerationsA~



~ Confirming that the debate over compliance time had not
altered the definition of the NAAQS, the description that Dr.
Middleton gave of the primary NAAQS after their enactment
was equivalent to the description he used prior to passage in
explaining the administration's concept of national standards.
Compare, John Middleton, Planning Against Air Pollution, 59
American Scientist 188, 189 (1971) ("These standards will be based on
the criteria documents.. . To protect the public health, there will be
national primary ambient air quality standards which will define how
clean the air must be in order to be healthy to breathe.") with 1970
Senate Hrgs. 1512-13 (Middleton testifying that "setting a national air
quality standard is a further step . . . declaring as a matter of national
policy, that air quality in all places must be uniformly protective of
health."), reprinted in 2 1970 Leg. History 1206-07.

" EPA's first administrator, William Ruckelshaus, summarized
the law when he issued the first NAAQS, less than 4 months after the
1970 Amendments were enacted: "the Clean Air Act does not
permit any factors other than health to be taken into
account" in setting the NAAQS. 36 Fed. Reg. 8186 (1971).
Later in the 1970s, the provisions of the Act came
under heavy pressure because they were indeed proving hard
to comply with fully, and also because the country was
suffering through recession and energy shortages. Congress
extensively debated changes in the law and eventually made a
number of mid-course corrections. During the thorough
review that proceded the 1977 Amendments,


the major challenge directed at the Act during the . . . oversight
hearings [was] one dealing with the fundamental purpose
of the law: to protect public health and welfare. At issue
[was] whether the effects on public health of air pollu-
tants should continue to represent the sole criterion for
standard setting, . . . or whether, in view of events that
occurred in the past 3 years, other elements that greatly
affect national life and well being should now be included as
valid criteria when standards are set and implemented ~


In explaining the legislative changes proposed by the
Senate Environmental and Public Works Committee that had
emerged from this review, Senator Domenici emphasized
"one area of the law that the Committee refused to


~ Congressional Research Service, A Summary of Clean
Air Act Oversight Hearings, March 19, 20, April 20-24, 29-30,
May 1, 13, 15, 20-21, 1975 at 5 (June 13, 1975), reprinted in
Implementation of the Clean Air Act 1975, Part I, Hearings of
the Subcommittee on Environmental Pollution of the Senate
Committee on Public Works, 94th Cong. 1st Sess. 5 (Serial No. 94-
HIO 1975).





28 29
alter. This was the national primary and secondary ambient
air quality standards. These standards and the protection they
offer to the public health and welfare are the linchpin of the
Act."46 Looking back on the 1970 Act in 1981, Senator
Robert Stafford (R-VT), chairman of the Senate Environment
and Public Works Committee, opened an oversight hearing by
referring to the primary NAAQS as "health standards" that should
continue in force as initially intended in 1970.~~ Overall, the primary
NAAQS policy has been reviewed many times, always with the
same results.

Also in 1981, a blue ribbon commission created by
Congress in 1977 to undertake a thorough review of federal
air policy returned its report to the Congress. It first conclusion
was that "[tihe current statutory criteria and requirements for setting air
quality standards at the levels necessary to protect public health
without










'~ Pete V. Domenici, n.37. above, at 4507. He went on to
note that "this left the deadlines as the major variable around
which to structure [the Environment and Public Works Committee's]
compromises." Id.
~ Clean Air Act Oversight Part 3, Hearings Before the Senate
Committee on Environment and Public Works, 97th Cong. 1st Sess.
191 (Serial No. 97-H12, 1981) (remarks of Senator Stafford).
consideration of economic factors should remain
unchanged."48 And so they have.49



CONCLUSION

The decision of the Court of Appeals that EPA may
only consider health effects when issuing the primary NAAQS
should be affirmed.

Respectfully submitted,

CHRISTOPHER H. SCHROEDER
Counsel of Record
46 Green Mill Lane
Durham, NC 27707
(919) 613-7096

Counsel for Amici Curiae
Clean Air Trust and
Senator Robert Stafford

September 11, 2000

48 National Commission on Air Quality, To Breathe Clean Air
55 (1981). Even Edwin Dodd, chairman of Owens Illinois and the
industry representative on the Commission, agreed that the primary
NAAQS were health-based and that this was a sound premise for the
Act. Id., at 320 (Supplemental Statement of Edwin Dodd) ("The Clean
Air Act is built on a basis of NAAQS. The primary standards are set
on the basis of protection of public health without consideration of
economic factors. I can agree with this premise if it is clearly
understood that in developing the various clean air programs necessary
to meet these health standards, other goals of our society and economic
practicality are considered in the implementation process.")).

~ The briefs of Cross-Respondent American Lung Association
and of amici curiae Environmental Defense, et al. provide
additional post-enactment confirmation that the primary NAAQS are
exclusively health- and criteria-based.



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