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 RESPONDENTS CITIZENS FOR BALANCED TRANSPORTATION




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 AUTHORITIES iii
INTRODUCTION I
SUMMARY OF ARGUMENT 2
ARGUMENT 4

I. STATUTORY ANALYSIS IND1CATES CONGRESS DID NOT AUTHORIZE EPA TO CONSIDER COSTS AS A RELEVANT FACTOR IN
SETTING NAAQS 6
A. The 1970 Amendments 8

1. 1970 Act Repealed Control Techniques
As a Relevant Factor 8
2. Pre-1970 Criteria Show Congress Did Not Intend Costs to be Relevant 10

3. 1970 Act Repealed Requirement to Revise Control Technique Informa hon
When NAAQS Are Revised 11

B. "Public Health" Was Uniformly Understood as Impairment of "Human Health" by the Diseases of Air Pollution; Not Costs 14

1. "Public Health" As Congress Used the
Term 16

2. "Public Health" As the Agency Applied
the Term 20

3. The Law's Understanding of "Public
Health" 22

C. Legislative History Reveals No Expectation That Costs Are a Relevant Factor
26


ii iii


TABLE OF CONTENTS - Continued
D. The 1977 Amendments

I. The New Duty to Review and, As Appropriate,
Revise the NAAQS

2. New Requirement for Economic Impact Analysis
of Standards

F. 1990 Amendments

F. Structure of the Act Indicates Congress In tended
Costs be Considered When Imposing Control
Obligations on Sources, But Not in Setting NAAQS

II. PR( )TECTING AGA INST NON-THRESHOLD IX )I .1
lilA Nm DOES NOT SUPPLY AUTHORITY TO
CONSIDER COSTS

III. WHO WINS, WHO LOSES? CONCLUSION


Page 29
30


32

33
TABLE OF AUTHORITIES
Page
CASES:

American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir.
1998) 43

Goldblatt v. Town of Ucmpstead, 369 US 59() (1962) . . . . 23
Industrial Union Dept. v. American Petroleum Inst.,
448 US 607 (1980) 1, 5
Lau'ton v. Steele, 152 US 133 (1894) 23

Lead Industries Ass'n V. EPA, 647 F.2d 113() (D.C.
Cir. 1980) 4, 45
Mugler v. Kansas, 123 US 623 (1887) 23

Save Our Summers v. Washington State L)epartment
of Ecology, No. CS-9~-0269-RHW (ED. Wa.)

4
4
34
37

41

45
SIATUTES:

Air Quality Act of 1967 - (reprinted in S. Rep. No. 91-1196)
107 8, 20
108 8,9
Clean Air Act, as amended
107(d), 42 U.S.C. 5 7407(d) 34

108(a), 42 U.S.C. 7408(a) .. .12, 14, 22, 28, 29, 30, 40

108(b), 42 U.S.C. 5 7408(b) 8,
12,
26
108(c), 42 U.S.C. 5 7408(c) 12
5 109(a), 42 U.S.C. 5 7409(a) 11





iv


TABLE OF AUTHORITIES - Continued
Page
109(b), 42 U.S.C. 7409(b) passim
I0~(d), 42 U.S.C. 7409(d) 29, 30, 31. 32, 33
110, 42 U.S.C. 7410 13, 31, 34, 36
v


TABLE OF AUTHORITIES - Continued
Page
Legislative History of the Clean Air Act Amendments of 1970
(January 1974),

Vol. 1 2, 13, 15, 16, 17, 24, 25, 26, 27, 28, 36
Vol. 2 9, 28, 38




111, 42 U.S.C.

113(e), 42 U.S.C.

119, 42 U.S.C. ~

125, 42 U.S.C.

165, 42 U.S.C.

~ 172, 42 U.S.C.

173, 42 U.S.C.

5 202, 42 U.S.C. fj

211, 42 U.S.C. ~

5 307, 42 U.S.C. ~

5 312, 42 U.S.C. ~

317, 42 U.S.C.
7411 32

7413(e) (1981,
repealed 1990) .... 36
7419 35
7425 35
7475 34, 42
7502 34, 35
7503 34
7521 , 34, 36
4, 35
7607 41
7612 33
7617 32 33
Miscellaneous Air
Quality Criteria for
Particulate N'Iatter
(Janu
ary 1969) 20
Air Quality Criteria
for Sulfur Oxides
(January
1969) 20, 40
Breyer, Breaking the
Viciou5 Circle 25
Restatement (2d) of
Torts, 821B 22, 23
Restatement (2d),
Tentative Draft No.
16 (Ameri-
can Law Institute,
1970) 23
I Wood, Nuisances
(3(1 Ed. 1893) 23




Legislative History
11. Rep. No. 95-294 (1977) 31, 32
S. Rep. No. 91-1196 (1970) 13, 25, 27, 28, 40
S. Rep. No. 101228 (1989) 41


I


INTRODUCTION

ATA challenges the D.C. Circuit's 20-year-old affirmation of the EPA Administrator's long-standing construction of Clean Air Act 109(b) that Congress chose not to
allow costs as a factor relevant to setting national ambient air quality standards. The "trilemma" of possible interpretative options posed by American Trucking is based on a
false trichotomy. ATA Br. 25. The more appropriate, and more fundamental question underlying a correct construction of the Act is whether Congress intended to 1) delegate to
an unelected administrator the responsibility and authority for making the tradeoffs between protecting human health from the adverse effects of air pollution and the costs of
protecting health, or 2) retain for itself the authority to make such tradeoffs?

Chief Justice Rehnquist wrote in the Benzene case that "one of the most difficult issues that could confront a (lecisionmaker 1k] whether the statistical possibility of
future deaths should ever be disregarded in light of the economic costs of preventing those deaths," and "that Congress ~is1 the governmental body best suited and most
obligated to make the choice Industrial Union Dept. z'. American Petroleum inst., 448 US 607, 672 (1980). Here, respondents Citizens for Balanced Transportation and
the individuals who brought their challenge to EPA's failure to set an adequately protective standard for fine particles in order to protect their ability to breathe and lead healthy
productive lives, contend that Congress clearly chose not to empower the EPA Administrator to make such life and death tradeoffs. Instead, all the reliable indicators of
legislative intent lead inexorably to the


2 3


conclusion that Congress reserved such authority exclusively to itself.

fUn the judgment of this committee this includes Senators
. . of a pretty conservative political persuasion Congress has
the duty to so, "This is what ought to be done in the interests
of the health of the country."
* * *


Then industry should go to work over the next 5 i,'ears to
either niake it ~'rissiiile or, if it proves to be impossible, ask
Congress to change the policy.
*
*
That is all there is here, and it is tough. [Wie understand it is
tough.

Senator Muskie, Chair of the Senate Subcommittee on Air and Water
Pollution and chief sponsor of the Clean Air Act Amendments, in
floor debate on the committee bill, September 21, 1970. "A
Legislative History of the Clean Air Act Amendments of 1970"
(January 1974) ("Leg. lust"), 240.
The 1970 Amendments to the 1967 Air Quality Act, the
legislative history, the pre-enactment administrative actions
incorporated into the Act by reference, the meaning of public health
derived from the statements of the members, prior agency
interpretation and the meaning of the term under the police power, the
overall statutory scheme, the problem to be solved and the historical
context in which the Amendments were enacted, and various
subsequent enactments affirming the 1970 Amendments and granting
temporary relief from deadlines, but not the health standards, when
Congress determined the economic consequences of implementing the
Act to be unacceptable, all demonstrate that Congress required EPA
to set standards based exclusively on "the latest scientific knowledge"
of the effects of air pollution on health. The Act does not authorize
EI~A to make tradeoffs between costs and the protection of public
health when setting NAAQS. On the contrary, the history of the Act
makes clear that Congress reserved to itself the sole power to decide
whether to postpone protecting the public health in order to serve
other societal interests.




SUMMARY OF ARGUMENT

The statutory (lirective to set NAAQS that are "requisite to
protect the public health," with "a margin of safety," is a directive to
set standards that will protect the American people from the diseases
of air pollution. Application of the traditional tools of statutory
construction demonstrate that costs are not a factor that Congress has
allowed to be considered in setting standards to protect the public
health.
Thirty years of still-evolving economic theories of regulation and
the hindsight of the social, economic and public health costs and
benefits of implementing the Act's standards do not provide a
permissible basis for imposing a judicial gloss that transfers to a
politically unaccountable agency a policy choice Congress reserved to
itself.
Whether evidence of a threshold for fine particles is ultimately
discovered or not, the non-threshold status of a pollutant is not
relevant to determining Congress's intention with regard to
consideration of costs. Congress





4 5



rejected the no-effects, or zero risk, approach to setting standards,
instead, Congress required standards to prevent "adverse effects" based
on the "latest scientific knowledge," granted the Administrator
discretion to determine what an adverse effect is, and delegated broad
latitude to set margins of safety provided that such protection could be
demonstrateci to be "requisite to protect the public health."

The Court of Appeal's construction that costs play no role in
setting standards under 10~ should be affirmed.




ARGUMENT

Certiorari in this case is limited to the question of statutory
construction decided by the Court of Appeals in Lead Industries Ass'n
v. EPA, 647 F.2d 1 13() (D.C. Cir. 1980). Nonetheless, industry
parties raise questions related to the scientific basis for EPA's choice
of standards, argue that EPA failed to explain its choice of standards
within the continuum of options considered, rely on academic notions
of what makes good public policy with regard to hoW costs should be
weighed in these types of decisions, and ask the Court to make
judgments about the wisdom of EPA's standards. In making these
arguments, AlA and others would have this Court exceed its proper
role by asking that it weigh more heavily the policy preferences of
some economists and those industries that bear the costs of protecting
public health from the adverse effects of their pollution than the policy
choice made by
Congress as evinced by traditional tools of statutory construction.

In cases of statutory construction, this Court's authority is
limited. If the statutory language and legislative intent are plain,
the judicial inquiry is at an end. Under our jurisprudence, it is
presumed that ill-considered or unwise legislation will be
corrected through the democratic process; a court is not
permitted to distort a statute's meaning in order to make it
conform with the Justices' own views of sound social policy.
See TVA v. lull (citations omitted). Indas~ trial Union Dept.
v. A mnerican Petrol. lust. , at 688 (Marshall, J. dissenting).

In addition, ATA raises issues that are properly addressed as
arbitrary and capricious claims. Suggestions that EPA has failed to
adequately explain its choice of standards or has improperly relied
upon off-the-record considerations of cost are not relevant to deciding
Congress's intent in enacting 109. These issues are, however, highly
relevant to the arbitrary and capricious challenge brought below and in
this Court by Citizens for Balanced Transportation and the individual
petitioners who seek to protect what statutory rights they have to
standards that will ensure the air they breathe is safe and will not
impair their health. If the Court deems those issues appropriate for
review, CBT invites the Court to grant its still pending petition for
certiorari. See No.

99-1442. But these issues are not properly presented for decision
based on the question of statutory construction raised in ATA's
petition and certified in this case.





6 7



To the extent the Court considers ATA's policy arguments
relevant to this case, the Court should also consider what the
consequences of making tradeoffs between costs and health protection
might be. In addition to the sensitive populations of breathers whose
well-being, vitality, productivity, and very survival are required to be
protected, many other interests benefit from EPA's traditional approach
to standard setting. Not the least of these are most of the polluting
industries challenging these stanciards who are now protected by a
measure of certainty that they will not be the targets of perpetual dam-
age and other tort claims based on evidence that their emissions harm
human health. We explore some of these benefits, infra, to
demonstrate the wisdom of Congress decision to settle, periodically,
iii one national proceeding the levels of air quality needed to protect
the public from scientifically provable harm. All these beneficial
interests must be weighed in the balance if they are considered at all.


I. STATUTORY ANALYSIS INDICATES CONGRESS
DII) NOT AUTHORIZE EPA TO CONSIDER
COSTS AS A RELEVANT FACTOR IN SETTING
NAAQS.

In this case, the traditional tools of statutory construction clearly
demonstrate that Congress did not delegate to EPA authority to
consider costs as a factor that might be used to offset the degree of
health protection to be required by national air quality standards. The
relevant and probative indicators of legislative intent include
_ The amendments to the Act from 1967 to 1970;

_ the discussion of factors relevant to setting standards in the
legislative history;

_ the administrative practice applying the public health mandate
of the 1967 Act as embodied in the pre-enactment criteria
documents;

_ the statutory directive to set the new NAAQS based on the
pre-enactment criteria documents which did not include
considerations of cost;

_ the intended meaning of "public health" as revealed by
congressional hearings and debates;

_ the commitment of the common law and the scope of the
police power to protect public health as the underlying legal
context for congressional action;

_ the historical context and the problem Congress was trying to
solve;

_ the specific identification of costs as relevant to some
standards but not to standards under 109; and

_ subsequent enactments that affirm 109 as originally enacted
and that provide temporary relief to specific industries that
were considered by Congress to be especially burdened with
the costs of compliance.

Together, these all point consistently and inexorably to the conclusion
that Congress retained the ultimate authority to make any tradeoffs
between health protection and the public and private costs of providing
health protection.





8 9



A. The 1970 Amendments

The 1970 Amendments made two key changes to the Clean Air
Act that demonstrate the error of petitioners' arguments: I) repeal of the
technology factor listed in 1O8(c)(1) of the 1967 Act requiring that
air quality standards adopted and submitted to HEW for approval be
"consistent with the air quality criteria and recommended control
techniques issued pursuant to section 107" (emphasis added), along
with the failure to include any similar instruction to the Administrator
to consider control techniques or costs in the 1970 language of
109(b); and 2) repeal of the requirement in 107(b) of the 1967Act that
information on control technology and costs of control be issued to
the States whenever the Secretary issued air quality criteria.

1. 1970 Act Repealed Control Techniques As a
Relevant Factor.

Petitioners' textual argument relies heavily on the contention that
the Administrator's obligation under 108(b) to provide information
to the States on available technology and costs demonstrates that these
factors are relevant to the NAAQS decision. But this argument does
not survive scrutiny.

First, the 1967 Act made "recommended control techniques
expressly relevant to the setting of standards by the States, 108(c)(
I), but did not allow technology factors to override the primary
objective of protecting public health. The l%7 Act required that the air
quality standards adopted by the States meet both tests, i.e., be
"consistent with the air quality criteria and recommended
control techniques Id. The 1967 Act did not authorize the
Secretary to consider costs in approving air quality standards; only the
criteria and "recommended control techniques" were identified as
relevant factors. Nor did the 1967 Act authorize the Secretary to
approve air quality standards if they were consistent with available
technology, but not the air quality criteria. Both had to be met to
receive federal approval.

As Commissioner Middleton of the National Air Pollution
Control Administration ("NAPCA"), an agency of the 1)epartment of
Ilcalth, Education and Welfare ("HEW"), explained to the Senate
committee in 1970, the Administration was implementing the 1967
Act by requiring that "Itihe criteria documents state the level at which
effects begin he Clean Air Act provides that the standards shall be
protective of health, which means they must be lesser than the level at
which this thing leffecti was observed." I.eg. I-list., 1185. As an
example, he pointed to the evidence in the Air Quality Criteria docu-
ments for S02 and particulate matter showing the lowest levels at
which adverse effects were observed for each pollutant, and explained
that "Isitandards that are acceptable to the Secretary are those less than
that number." Id., 1187.

The Administration's implementation of the 1967 Act did not
allow for tradeoffs between the recommended control techniques and
standards adequate to protect against the lowest pollution levels
proven to cause adverse effects. Rather, the best reading of the 1967
Act is that both of the statutory factors had to be satisfied, i.e., that
the Secretary could disapprove a State's standard if it failed to either
require air quality cleaner than levels





10 11



proven to cause harm, or if the State failed to take advantage of the
levels of control that could be achieved with recommended control
techniques. But nothing in the 1967 Act or its implementation by
HEW suggested that either the private costs incurred by polluters or
the public costs of control were relevant to setting air quality
standards.

In the 1~7O Act, Congress deleted the requirement that
standards be based on considerations of control technologv;
"rec()mmended" or otherwise. The only relevant factors that remained
in the text of 109(b) for setting primary standards were "requisite to
protect the public health," "allowing a margin of safety," and basing
the standards on the "criteria." Factors mentioned for secondary
standards include "requisite to protect the public welfare" which
Congress defined in 302(h), "known or anticipated adverse effects
associated with the presence of such air pollutant in the ambient air,"
and basing the standards on the "criteria."


2. Pre-1970 Criteria Show Congress Did Not
Intend Costs to be Relevant.

There is no basi~ for the inference petitioners attempt to draw that
reference to the "criteria" itself imports some notions of cost into the
realm of factors relevant to setting standards. The nature and scope of
the five "Air Quality Criteria" documents was known to Congress.
NAPCA issued the "Air Quality Criteria" for S02 and PM in January
196'4, and the Criteria for photochemical oxidants (including ozone),
hydrocarbons and carbon monoxide were issued in March 1970, only
weeks following the President's message proposing amendments to the
Act.
The criteria documents were mentione(i in committee hearings and
floor debates by Senator Muskie and other members, and explained at
committee hearings by Commissioner Middleton and other
representatives of the Administration. Review of these criteria
documents reveals that they contain no discussion of control tech-
niques or costs except for the economic costs caused by
pollution in the ambient air. Nothing in the criteria documents or the
discussions of them by members or hearing witnesses would have led
any member of Congress to believe that reference in the Act to
"criteria" incorporated a subtext that was understood to mean "costs."

Furthermore, the 1970 Act directed the Administrator to "publish
proposed" primary and secondary NAAQS within 30 days following
enactment of the Amendments "for each air pollutant for which air
quality criteria have been issued prior to such date of enactment."
109(a)(1)(A). Final NAAQS were required 90 days thereafter.
109(a)(1)(B). EI'A met these deadlines. Obviously, Congress knew
enough about the content of the preenactment air quality criteria to
require that standards be issued based on them. No time was allowed
for further criteria development. Nor was there any suggestion that
criteria that omitted all consideration of costs were inadequate to
support the promulgation of national standards.


3. 1970 Act Repealed Requirement to Revise
Control Technique Information When NAAQS
Are Revised.

In addition, Congress removed the linkage between information
on control techniques and any future





12 13



revisions to the NAAQS. Section 109(b)(1) allowed the Administrator
to "revisel J" standards "in the same manner as promulgated," which
required only that they be based on the "criteria." The inference in the
1967 Act that future revisions to the criteria be coupled with the issu-
ance of revised technology and cost information was removed. The
new 108(c) required only that "[tihe Administrator shall from time to
time review, and, as appropriate, modify, and reissue any criteria or
information on control techniques The disjunctive eliminated any
obligation to reissue control technique information when the air
quality criteria were revised.

The only linkage that remained in the 1970 Act between the
issuance of control technology information and the issuance of criteria
or the proposal of NAAQS was when new criteria required by
108(a)(2) were issued following the listing of ci new pollutant under
108(a)(1). See 108(b)(1). This provision has been triggered only
twice by EPA's listing of nitrogen oxides in 1Q71 and lead in 1976 as
new criteria pollutants. Revisions of a NAAQS, such as the standards
at issue here, no longer trigger an obligation to issue revised
information on control techniques and costs.

But even this last vestige of the prior link between technology in
formation and standards cannot reasonably be read to imply that
control technique information was ever relevant to the NAAQS
decision. Congress directed the Administrator to issue the information
to the States and air pollution control agencies, not to use it himself
for any responsibility he had under the Act. Obviously, this provision
carries over from the 1 9f-~7 Act when such information was relevant
to both standard setting and the
development of abatement plans by the States. After the 1970
Amendments, the information continued to be relevant only to the
States' obligation to develop emissions standards as part of the State
implementation plans required by 110. The Act no longer made it
relevant to setting air quality standards.

Certainly, Congress understood that continuing to provide
control technology information was to support the States' efforts to
develop implementation plans: "The Committee recognizes that the
States will continue to need this information to develop meaningful
programs for implementation of ambient air quality standards on a
regional basis. * * Ihe Committee intends that the information provided
pursuant to this section should serve as guidance to the States, not as
limitations on control technology innovation. S. Rep. No. 91-1196
(1970), 9 (Leg. lust., 40~). Nothing in this history suggests that this
information was intended to be relevant to the Administrator's
NAAQS decision.

Taken together, these many changes to the statutory requirements
governing promulgation of air quality standards, issuance of criteria
and information on control technology and costs make clear that
Congress intended that NAAQS decisions be based solely on the kinds
of health effects information contained in the pre-enactment air (~uality
criteria. Nothing in the statutory text, or Congress's express reliance on
the pre-enactment air quality criteria for setting the new NAAQS,
suggest any hint of requiring EPA to expand the scope of criteria
documents to include intormation on factors other than "the kind and
extent of all identifiable effects on public health or welfare which may
be expected from the presence of such





15
14
pollutant in the ambient air, in varying quantities."
108(a)(2). To the extent that costs might have been a relevant factor
for setting air quality standards under the 1967 Act, the 1970 Act
removed any linkage between national air quality standards and costs
or technology as relevant factors.



B. "Public Health" Was Uniformly Understood as
Impairment of "Human Health" by the Diseases of
Air Pollution; Not Costs.

Petitioners' other textual argument from the 1970 Act is that the
phrase "requisite to protect the public health" itself imports the notion
that costs may be considered to justify standards that fail to protect
against significant adverse health effects.1 This notion may derive its
philosophical basis from 1984, but one must hope that such

Some of the parties and anlici supporting AlA reject this
e~trenie view, anti acknowledge that iluete are limits to how far costs
can be ret ieti upon to d iminisli I tw tevels of health protection a
NAAQS must provide. Appahichian Power, at 25, concedes that even
under an interpretation of "public health" that incorporates costs, a
distinction must be made between 'demonstrated adverse" health effects
and predicted risks of harm "NAAQS must be set below the level at
which such demonstrated adverse public health effects occur."
Similarly', Senator f-latch and Congressman Bliley, at 23, accept the
view adopted by the en bane D.C. Circuit in Vinu,'l Chloride that
"The Administrator would not comply with section 109 by settinga
standard that did not protect against the level where scientific data
demonstrate a significant risk to the public health; she would have
failed to set a standard 'requisite to protect the public health.
Orwellian twists of phrase have not become the stuff our laws are made
of.

If such an understanding of the term "public health" were so in
vogue in 1970 as petitioners would have the Court believe, one would
think that somewhere in the 1600 pages of compiled legislative history
there would be an inkling that someone the President perhaps, or an
administration official, or an erudite member of Congress from
Massachusetts -- shared this view. But it is a telling commentary that
after all the citations to obscure journals and academic treatises,
petitioner ATA's entire brief contains only one citation to the
legislative record from 1970. Br. at 42, n.2. And that citation is not to
anything Congress did, but to the first annual report of the President's
Council on Environmental Quality which provided one of the
estimates of the cost of air pollution control available to Congress.

But CEQ's report also identifies the need to make those
expenditures to prevent the "threat to human health," to address "the
primary public health concern", to reduce pollution where "adverse
health effects have been observed." Leg. [list., 246-47. The term
"public health" was used interchangeably with other similar terms
throughout the CEQ report, and throughout the legislative history. A
typical example of how the phrase was used by CEQ is shown in this
summary of 20th Century disease trends:

The incidence of chronic diseases has soared sharply during this
century, while the infectious diseases which were the primary
public health concern in the past have been brought under
control. Heart and blood vessel diseases caused





16 17


more than half the deaths in the United States in 1962. Lung
cancer, once a rarity, now kills more persons than all other cancer
types combined. Emphysema has doubled every 5 years since
World War II. Air pollution has been linked to asthma, acute
respiratory infections, allergies and other ailments in children.
Leg. Hist., 246.

"Public health" was short-hand for a collection of terms that were
generally used to communicate the concept that the health of a large
number of people is affected by causes that are associated with
conditions beyond the control of individuals.


1. "Public Health" As Congress Used the
Term.

Ultimately, the inquiry should turn on how members of
Congress used and understood the phrase in their discussions. There is
no evidence that Congress understood it to include even the public
costs of protecting health. It certainly was not understood to include
the private costs of pollution control.

When Senator Muskie, chair of the Air and Water Pollution
subcommittee and principal sponsor of the bill, introduced the
committee bill on the floor, he used a number of terms referring to
public health interchangeably. He made clear that the philosophy of the
bill rejects "[piredictions of technological impossibility or infeasibility
. . . as reasons to avoid tough standards and deadlines, and thus to
compromise the public health." l.eg. Hist., 22Q. lie quoted from
the Senate report on the 1967 Act which declared that "the nation's air
resources
are to be conserved and enhanced to the point that generations yet to
come will be able to breathe without fear of impairment of health."
Id. The bill, he explained, represents a commitment by Congress to
"effective protection of the health of all Americans." Id., 230. It
"is not too soon to be concerned about the health effects of
automobiles on the lives of the people Id., 232. "Here, in the
case of a national objective more serious than [building war planes or
sending a man to the moon] the national health, we have an
obligation to lay down the standards Id. None of these terms
were used to imply a subtext that includes cost. On the contrary, the
consistent theme throughout the legislative process was that costs and
technology should not be factors because they would delay a solution
to the air pollution problem.

This is most clearly revealed in the crucial floor debate over the
provisions forcing the auto industry to meet tailpipe standards that
demanded a 90"4~ emissions reduction beyond the standards issued
tinder the 1967 Act; a level of reduction demonstrated only with
experimental vehicles. Leg. I-list., 233-40. Senator c;riffin of Michigan
challenged the technology-forcing auto tailpipe standards because the
result could be the shutdown of an industry that accounts for I of 7
jobs nationwide, and because the costs of producing clean production-
line vehicles were unknown and "would not be taken into account."
Id., 237-40. In response, Senator Muskie admits "I do not think
anyone knows [what this will cost]." Id.,
238. But he defends the bill by summarizing the evidence of health
effects from the criteria document for carbon monoxide (a pollutant
emitted almost entirely by motor vehicles), and then explains: "We are
saying in this bill





19
18
that this is what the public health requires." Id., 236. "[Olur
responsibility is to tell the industry what the public health requires."
Id., 238. "The deadline is based not on economic and technological
feasibility, but on considerations of public health." Id., 239.

This debate, more than any other evidence of intent from the
197(1 history, demonstrates that the cost factors now argued by
petitioners to be included within the alleged common understanding of
public health, were understood then to be in conflict with the
commonly understood meaning of public health. Senator Griffin
argued for including authority in the bill to allow an expert agency to
consider cost and technology when setting or adjusting standards and
deadlines. But Senator Muskie clearly rejected inclusion of those
factors because they conflicted with achieving protection of the public
health. If petitioners' view of the Act were right, Senator Griffin would
have had no reason to oppose the bill.

Although this debate centered on the tailpipe standards of the Act
and not the NAAQS, it is nonetheless probative of how Congress
viewed the term "public health." It is also relevant to construing
109(b)(1) because the technology-forcing policy underlying the tailpipe
standards was embodied in the NAAQS language as well. As Senator
Muskie made clear when he presented the committee bill, "it is now
clear that continue(!l reliance on gradual reductions in automotive
emissions would make achievement of the ambient air quality
standards impossible within the national deadlines established in Title
I of this act." Thus both the NAAQS and the tailpipe stanuiards
reflected the philosophy of the bill that rejected
"[piredictions of technological impossibility or infeasibility . . . as
reasons to avoid tough standards and deadlines, and thus to
compromise the public health." Leg. Hist., 229.

Similar remarks were made by other members indicating that
Senator Muskie's understanding that public health was short hand for
human health was shared widely. Senator Nelson: "This bill before us
is a firm congressional statement that all Americans in all parts of the
Nation should have clean air to breathe, air which does not attack their
health." Id., 378. Senator Randolph, chair of the Public Works
Committee: "The pending bill would require the establishment within
3 to 5 years of its enactment State implementation plans to
achieve national ambient air standards to protect the health of
citizens of this country." Id., 286. Senator Murphy: " . . . the air
pollution problem is . . . a menace to the health and welfare of our
people." Id., 329. Senator Scott, minority leader: "Unless this
outpouring of contaminants is controlled, . . . we may very well
experience . . . a snowballing adverse effect to the health and safety of our
citizens." Id., 349. Senator Young: " ... within 5 years, the air in our
cities will be fit to breathe, no longer endangering the health of our
citizens."

The kinds of health effects that members talked about are also
important to their understanding of public health. They referred to the
health effects discussed in the CEQ report lung cancer, bronchitis,
asthma, cardiovascular disease ; not the health effects attributable to
unemployment or the "poverty effect" on health. Senator Murphy, for
example, cited numerous scientific journal articles as well as reports
from the popular press linking





20 21


these kinds of adverse effects to air pollution. Id., 326-27.
Members also quoted studies reported in NAPCA's criteria documents,
such as the evidence that carbon monoxide exceeded safe levels in
Chicago more than 20% of the time. Id., 236.

Members clearly understood the threat of air pollution to public
health to be the diseases experienced by people as a result of their
exposure to pollution. With this un(lerstanding of "public health,"
this term cannot be distorted into the vehicle for making costs relevant
to setting NAAQS.


2. "Public Health" As the Agency Applied the
Term.

The phrase "requisite for the protection of the public health" was
not new to the 1970 Act. It was carried over from 107(b)( 1) of the
1967 Act which established the statutory benchmark for issuing air
quality criteria to the States. The interpretation of "public health" by
the agency charged with carrying out this mandate provides reliable
evidence of what Congress most likely intended in 1967, and
compelling evidence of how Congress would have expected the term to
continue to be applied under the amended Act. The five Air Quality
Criteria issued prior to enactment of the 1970 Amendments provide
the best evidence of how the Secretary of HEW understood the
meaning of "public health."

Most relevant here are the "Air Quality Criteria for Particulate
Matter" and the "Air Quality Criteria for Sulfur Oxides," the first two
to be issued tinder the 1967 Act. In both documents, in the Preface, at
iii, NAI'CA Commissioner Middleton wrote:
Air quality criteria tell us what science has thus far been
able to measure of the obvious as well as insidious effects of
air pollution on man and his environment. Such criteria
provide the most realistic basis that we presently have
for determining to what point the levels of pollution
must be reduced if we are to protect the public health and
welfare.

The Introduction to both Criteria, I'M at xiii and Sulfur Oxides at x,
which were required by the 1967 Act to determine what is "requisite to
protect public health," explain 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 and his
environment. * * * Air quality criteria are descriptive; that is, they
describe the effects that have been observed to occur when the
ambient air level of a pollutant has reached or exceeded specific
figures for a specific time period. * * *

Technological and economic aspects of air pollution
control are considered in companion volumes to criteria
documents. [Seel Control Techniques for Particulate Air
Pollutants [or Sulfur Oxide Air Pollutants!.

These documents clearly reveal that HEW considered only the evidence
of harm to humans that was attributable to levels of pollution in the
ambient air as relevant to its task of providing the information
"requisite to protect public health." The separation of health effects
information into the criteria and cost information into control





22
23
techniques documents also show that information regarding cost was
not included in the criteria, and not considered relevant to
determining what is "requisite to protect public health."

This agency approach to the development of air quality criteria
and approval of standards was consistently applied to the remaining
criteria issued prior to the 1970 Amendments. During consideration of
the Amendments, no member questioned the agency's approach
to developing the information relevant to the standard
setting decision. When Congress enacted into the new 108(a)(2)
and 109(b)(1) language that required protection of public health
indeed, language that closely paralleled the language in the 1967 Act
the only reasonable inference is that Congress also intended to
retain HEW's understanding that "public health" meant only
the adverse effects of pollutants on human health.


3. The Law's Understanding of "Public Health."

As a term of art, "public health" had then, and continues to have,
a special meaning in the law. For nearly two centuries, the common
law has treated conduct or uses of land that "involve a significant
interference with the public health" as a public nuisance. Restatement
(2d) of Torts, 821B. In constitutional jurisprudence, this Court has
recognized the protection of public health as one of the legitimate
objects of the police power of the state. "IThe police power! is
universally conceded to include everything essential to the public
safety, health, and morals, and to justify the destruction or abatement
_ . . of whatever may be regarded as a public nuisance." Lawton v.
Steele, 152 US 133, 136 (1894). In the abatement of a nuisance,
the Court has held that the Fifth and Fourteenth
Amendments recognize no protectable property interest in the
instruments used to create the nuisance. "A prohibition simply upon
the use of property for purposes that are declared, by valid legislation,
to be injurious to the health, morals or safety of the community,
cannot, in any just sense, be deemed a taking or an appropriation of
property for the public benefit." Goldblatt v. Tou'n of Hem
pstead, 369 US 590, 593 (1962), citing Mugler v. Kansas, 123
US 623, 668 (1887).

The draft Restatement (2d) being circulated in April 1970,
defined a public nuisance as a criminal interference with a right
common to all members of the public." Restatement (2d), Tentative
Draft No. 16 (American Law Institute, 1970). The Reporter who
authored the Draft concluded after reviewing the cases that "a public
nuisance ts always a crime." To support his conclusion, he cited the
conclusions of numerous text writers who were unanimous on the
point. As an example he quoted 1 Wood, Nuisances (3d Ed. 1893),
39: "Every person owes certain duties to the public. * * * Among these
duties is that of so using his property as not to injure the pub-
lic * * * that it is treated as a public offense, and is Punishable by fine or
imprisonment."

Costs have never been recognized as a defense to crimes or a
lawful exercise of the police power to prevent a significant interference
with public health. The law requires no weighing of private economic
interests before an injunction would issue to abate such offenses.





24
25
Indeed, when Senator Muskie declares in his speech introducing
the bill that "The first responsibility of Congress is not the making of
technological or economic judgments or even to be limited by what is
or appears to be technologically or economically feasible. Our
responsibility is to establish what the public interest requires to protect
the health of persons." Leg. Hist., 227

he sounds much more like a judge in equity applying the law of
public nuisance to abate a significant interference with the public
health than a graduate school professor offering a theory of public
health policy. And when the Senate report explains that "La In ambient
air quality standard is sufficient to protect the health of such persons
whenever there is an absence of adverse effect on the health of a
statistically related sample of persons in sensitive groups from
exposure to the ambient air," it sounds very much like a test for
determining pollution levels that must be reached to prevent a
significant interference with public health. Thus to the extent Congress
might have had a broader frame of reference than the implementation of
the 1967 Act by HEW for its intended meaning of "public health," it
was most likely the way the law had used the term for a century or
more to define conduct that could be summarily abated under the
police power.

Given the total absence of congressional references to textbooks
written by professors at graduate schools of public health, it is wholly
improbable Congress intended the meaning suggested by petitioners. A
broad study of public policy aimed at defining targets for the
investment of public and private resources to protect public health, or
even a narrower inquiry into the environmental protection programs
likely to protect the most lives, as in
Breyer, Breaking the Vicious Circle, might well consider the best-
bang-for-the-buck in developing public health programs. But
by 1970, Congress had obviously advanced well beyond the point
of having chosen improved air quality as an appropriate program
for protecting the health of the nation. Congress did not
assign to EPA responsibility for deciding whether its budget would
best be spent on achieving a safe level of air quality. Congress
declared unequivocally that its purpose was to "authorize a
massive attack on air pollution." S. Rep., 1 (Leg. Hist., 401).
To this end, Congress directed EPA to set standards that would
ensure "an absence of adverse effect on the health of.. . persons
in sensitive groups from exposure to the ambient air." Id., 10.
And "determined that existing sources of pollutants either should meet
the standard of the law or be closed down. . . . " Id., 3. It directed EPA
to set NAAQS requisite to protect the public health, i.e., to
protect the public from the diseases of air pollution. It did not
delegate to EPA authority to decide whether the costs of
controlling emissions might be better spent on some other public
health program.


Only Congress may reverse its determination that standards
must protect public health without regard to economic
consequences. As discussed, infra, Congress has provided relief from
the economic consequences of strictly applying such standards on
numerous occasions, but it has never reversed its decision that
standards for protecting public health be based solely on the evidence
of harm caused by pollutants in the ambient air.




26
27
C. Legislative History Reveals No Expectation That
Costs Are a Relevant Factor.

The legislative history of the 1970 Act confirms the conclusions
drawn from a straightforward reading of the statutory text. Costs are
discussed only as relevant to the control techniques guidance to be
provided the States under 108(b); nowhere else.

The source of legislative intent most relevant to 109(b) is the
Senate committee report because the text of the final bill bears little
relationship to the House bill. The [louse bill would have required
promulgation of national standards "for any pollutant or combination
of pollutants which . . . endanger or may endanger the public health or
welfare," leg. lust., 911, but provided no guidance whatsoever
regarding the factors relevant to determining the stringency of the
standards. Had the House bill become law, it might have been implied
that Congress delegated virtually unlimited power to the
Administrator to determine relevant factors, including costs. Bi.it an
Administrators decision to weigh costs as a factor in justifying
standards that fail to protect against adverse health effects would not
have resolved the kind of constitutional objections raised by Chief
justice Rehnquist in the Benzene case to such an unlimited grant of
legislative power.

The law was drawn from the Senate bill which did prescribe a
controlling factor for setting standards, to wit, "shall be tandards
the attainment and maintenance of which are necessary to protect the
health of persons." Leg. I-list., 486. The conference committee,
reverting back to the language in the 1Q67 Act, adopted the
controlling
phrase "requisite to protect the public health." This language gave
direction to the Administrator to set standards at the level needed
to protect the public health. Given the common
understanding of public health, supra, the statutory text
provided no authority to consider costs.

The Senate report provided guidance regarding the kinds
of populations and the types of evidence Congress considered
relevant to setting standards. The report advised that standards
need not "provide for the quality of air required to protect those
individuals who are otherwise dependent on a controlled internal
environment," but emphasized "that included among those persons
whose health should be protected . . . are particularly sensitive citizens
such as bronchial asthmatics and emphysematics who in the normal
course of daily activity are exposed to the ambient environment." S.
Rep., 10 (Leg. Hist., 410). Thus, if people with serious afflictions are
healthy enough to be out in the world, the air should be safe for them
to breathe.

Congress also provided guidance regarding the measure of harm
that should be used to select the level of the standards.

Ambient air quality is sufficient to protect the health of such
persons whenever there is an absence of adverse effect on the
health of a statistically related sample of persons in sensitive
groups from exposure to the ambient air. An ambient air
quality standard, therefore, should be the maximum permissible
ambient air level of an air pollution agent or class of such
agents (related to a period of time) which will protect the health
of any group of the population. Id.





28 29



Finally, the report also emphasized that

In setting such air quality standards the Secretary should consider
and incorporate not only the results of research summarized in air
quality criteria documents, but also the need for margins of
safety. Margins of safety are essential to any health-related
environmental standards if a reasonable degree of protection is to
be provided against hazards which research has not yet identified.
Id.

The margin of safety was added, no doubt, to provide
legislative authority for the agency practice described by
Commissioner Middleton by which air quality standards "must be
lesser than the level at which this thing [effecti was observed. In
addition, we say that a margin of safety must be included." Leg. lust.,
1185.

None of the factors Congress identified as relevant to setting
NAAQS in the report or elsewhere during the legislative process even
suggests that costs are relevant. The primary emphasis is on providing
protection against pollution levels for which "the latest scientific
knowledge, 108(a)(2). shows an "adverse effect," and then adding a
margin of safety to account for possible effects not yet demonstrated.
At a minimum, known or proven effects must be protected against
before the Administrator in the context of setting a margin of safety
may make judgments concerning what degree of protection to add
against suspected effects.

In context, the factors discussed in the Senate report are
consistent only with the meaning of public health discussed supra,
that standards are to be set to prevent the diseases of air pollution.
Clearly, the concept of
adding a margin of safety is fundamentally at odds with
considering factors, such as costs, that might weigh against
providing a full measure of protection against levels of
pollution that are shown to be associated with the diseases of air
pollution. It argues for a construction that uncertainty be weighed
in favor of protection, and not setting standards at the
margin of adverse effects. Such a policy is not consistent with
considering costs.


D. The 1977 Amendments.

The 1977 Amendments affirmed the policies adopted in
the 1970 Act including Congress's decision that standards be set solely
on the basis of the evidence of harm to health. The strongest evidence
supporting this conclusion is that Congress did not amend 109(b).
Other compelling evidence includes the enactment of
109(d)(1) requiring the periodic review and revision, as
appropriate, of both the criteria under 108 and the standards
"in accordance with section 108 and subsection (b) of this
section;" and the enactment of a required economic impact
statement for enumerated standard setting provisions of the
Act, but not including NAAQS.

Taken together, these changes requiring that 1) air
quality criteria issued under 108. but not control techniques
information, be reviewed and revised every five years as part of
the NAAQS review process; 2) that the review and the need to
revise NAAQS be based on the same statutory language as enacted
in 1970; and 3) an economic impact assessment be required for
some standards but not the NAAQS; demonstrates Congress's
re





30 31



affirmation of its 1970 decision not to require consideration of costs
as relevant to the NAAQS decision.


1. The New Duty to Review and, As Appropriate, Revise
the NAAQS.

ATA attempts to build an entire house of cards out of a single
phrase in the CASAC amendment, 109(d)(2)(C)(iv), which calls
upon CASAC to "also
advise the Administrator of any adverse public health, welfare, social,
economic, or energy effects which may result from various strategies
for attainment and maintenance of such national ambient air
quality standards." In context, that assignment of authority to
CASAC must be seen as independent from its responsibilities to
advise the Administrator regarding the need for revision of NAAQS.

The CASAC amendment sets out two separate areas of
responsibility for the Committee. The first is governed by
subparagraph (d)(2)(B), and establishes a statutory schedule for
CASAC to "recommend to the Administrator any new national
ambient air quality standards and revisions of existing criteria as may
be appropriate tinder section 108 and subsection (b) of this section."
CASAC's statutory schedule dovetails with the schedule governing
EPA's review and revision of the NAAQS under (d)(I),
requiring its recommendations to be provided a year in advance of
the Administrator's deadline. Furthermore, CASAC's
recommendations are not unconstrained. The Committee is, as is
the Administrator, required to base its recommendations on
the relevant statutory factors established by 109(b). The
House committee made clear its expectation that under the
review and revise amendment,
"Itihe Administrator is required to promulgate new standards
and revise existing standards as are appropriate under the terms
of section 109(b) of the Act." H. Rep. No. 95-294 (1977), 182. The
explicit reference to 109(b) as the relevant guide for
CASAC's recommendations makes clear that Congress did not
empower CASAC to consider any factors not relevant to the
Administrator's decision to set or revise NAAQS under
subsection (b).

Separately, and not related to their recommendations on
the revision of NAAQS, 109(d)(2)(C) also empowers CASAC
to offer advice, not recommendations, on other matters.
Included among these subjects are various effects which might result
from strategies that might be adopted to implement the NAAQS.
In contrast to (d)(2)(B) which calls for recommendations
expressly tied to the decision under 109(b) and the schedule for
NAAQS review, none of the subject areas of advice invited by
Congress under (d)(2)(C) are related to any particular decision to be
made by the Administrator. The House committee explained
that "this advice may be of interest and assistance to the
States and to Congress in fashioning future legislation." H. Rep.,
183. It certainly could also be relevant to EPA in the event the
Agency found itself promulgating federal implementation
plans for States under 110(c).

ATA's argument that the directive to provide general
advice on the economic effects of implementation strategies provides
authority for consideration of costs when setting NAAQS is a
bootstrap argument that would impermissibly overrule Congress's
explicit directive that CASAC's recommendations on NAAQS be
addressed solely to factors that are appropriate under 109(b).





32 33



Nothing in the revision requirements of 109(d) even hint at the
possibility that Congress intended to modify its decision in 1970 to
base NAAQS solely on evidence of harm to public health.


2. New Requirement for Economic Impact Analysis of
Standards.

If Congress had intended in 1977 to add costs to the NAAQS
decision, it certainly had a context for doing so when it required
economic impact assessments for other standards. But it clearly
rejected that option. As finally enacted, 317, 42 U.S.C. 7617,
requires 1) "the costs of compliance," 2) "potential inflationary or
recessionary effects," 3) "effects on competition," 4) "effects ... on
consumer costs," and 5) "effects . . . on energy use" to be considered
as part of the development of a standard. But by its terms, the section
only applies to the specific standards enumerated in subsection 317(a).

These enumerated provisions of the Act were those for
which costs had been explicitly identified as relevant factors in
the controlling statutory section, as.~ for example, new source
performance standards under lii and new discretionary
tailpipe standards under 202. Section 109(b) was notably
missing from the list. Nor was Congress 5 omission of 109(b)
inadvertent. "Nor is this section intended to alter the statutory basis
for rulemaking tinder any section of the Act. Economic
factors referred to in this section may be considered by the
Administrator only to the extent allowed by the basic
substantive provision." H. Rep., 53.
This explanation of 317 by the House committee makes
clear that Congress intentionally chose to require
consideration of costs for some standard setting provisions of
the Act and not others; that Congress did not expect costs to
be considered under provisions where costs were not mentioned
as relevant factors such as 109(b); and that Congress chose not
to revise its 1970 decision to exclude costs from 109(b).


E. 1990 Amendments.

In 1990, Congress once again did not amend 109(b). Nor
was the duty added by 109(d) to review and revise in
accordance with subsection (b) amended.

The only amendment related to NAAQS was the addition
of a requirenient for the preparation of periodic economic impact
analyses "associated with compliance with each standard issued for
(1) a criteria air pollutant subject to a standard issued under section
109." 312(a)(1). This provision required a retrospective analysis
one year after enactment, and a prospective analysis biennially
thereafter. The provision does not direct the Administrator
to take the results into account when setting or revising
NAAQS. Where Congress did require that the results of the economic
impact assessment required by 317 be taken into account when
the affected standards were being adopted, but did not require
a similar result here, it can only be concluded that Congress
did not intend the information developed for the economic
impact analysis required by 312 to be relevant to the NAAQS
decision.





34 35


F. Structure of the Act Indicates Congress Intended
Costs be Considered When Imposing Control
Obligations on Sources, But Not in Setting NAAQS.

The overall structure of the Act shows that Congress
chose carefully when costs should be considered and when not. As a
general rule, costs are identified as a relevant factor when deciding
the degree of emissions reduction to be required of specific sources
or source categories. In contrast, costs are excluded from the decision
when the health protection targets of the Act are being determined.
This scheme is consistent with the intended meaning of "requisite
to protect the public health," supra.

The degree of emissions control required on existing stationary
sources is primarily governed by the recluirements for State
implementation plans in 110 and 172 of the Act, and controls on
major new or modified stationary sources are governed by the new
source performance standards adopted nationally for various source
categories, and the case-by-case requirements for new
construction permits in 165 or 173, depending on whether
the source is located in an area designated "nonattainment" or
"attainment! unclassifiable" under 107(d). Emissions
standards for motor vehicles are governed by 202, and other
sections of Title II provide for standards on other mobile sources such
as aircraft and construction equipment. Standards for motor vehicle
fuels are set under 211. All of these provisions include explicit
consideration of costs, except for 173 which relies upon a tech-
nology-based standard for determining the control
requirement for major stationary sources in nonattainment
areas. Standards for fuels under 211 must consider costs if
the standards are based on factors related to the performance
of motor vehicle engines, 211(c)(1)(B), (2)(B), but not
when the standards are set to protect public health under
211(c)(1)(A), (2)(A).

The only provision of the Act that requires more
emissions reductions than those obtained by taking cost factors into
account are the requirements of 110(a)(2) and 172(c)
requiring implementation plans to provide for attainment of the
NAAQS. In most areas of the country, States can
demonstrate attainment by satisfying the "reasonably available
control technology" requirement for stationary sources and the
"reasonably available control measures" requirement to
reduce emissions from vehicle use and other area emissions.
172(c)(I). Only in the more heavily polluted areas are less cost-
effective controls or technology-forcing requirements needed
to attain by the statutory deadlines.

But where this scheme has imposed widespread burdens on
industries that Congress considers important to the national
interest, Congress has not been reluctant to intervene to protect
those industries from the consequences of strict implementation
of the NAAQS and the statutory deadlines. Four classic
examples are 1) the provisions in 125 establishing a
procedure for relieving major fuel burning sources from
requirements that might result in shutdown and major economic
dislocations; 2) the ten-year waiver allowed by 119 (1977)
for existing nonferrous smelters from the requirement to meet the
NAAQS by installing continuous emission control technology; 3) the
Steel Industry Compliance Extension Act of





36 37



1Q81, 113(e) (added 1Q81, repealed 1990), that allowed large
integrated steel plants to stretch out their compliance programs beyond
the deadlines established in the 1977 Act, and 4) amended 202 that
granted the extension to 1981 of the original deadline in the 1970 Act
for autos to achieve the required 90% reduction in tailpipe
emissions by 1975. Congress has also given governors general
authority to grant temporary emergency suspensions of SIP
requirements. 110(g).

This statutory scheme, as implemented with occasional
interventions by Congress, demonstrates the underlying
premise of this argument, i.e., that Congress reserved to itself
the option to provide relief when the requirements of health-based
standards have proven to impose costs or other burdens that are
ultimately deemed politically unacceptable. As Senator Muskie
promised in 1970, "[ut 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." Leg.
Hist., 236. And so in 1977 Congress did change the policy to
give industries all across the land more time to meet the
standards. But Congress did not change the underlying policy
that air quality standards must be set solely on the basis of what
is needed to protect public health.

The original scheme, combined with congressional interventions,
has served well to promote the effective implementation of the
public health protection objectives of the Act without major
disruptions to the economy, without triggering massive layoffs
and without causing widespread shutdowns among the nations most
polluting industries. There is nothing broken here that requires
fixing. And even if there were, it would be up to Congress to fix it;
not a court.

Here the inquiry into legislative intent should end. The
relevant indicators of the factors Congress considered
relevant to setting NAAQS consistently lead to only one
conclusion Congress required NAAQS to be based exclusively on
the latest scientific knowledge of the adverse effects of air
pollution on human health. Nothing in the statutory text of
the legislative history suggests that costs are relevant to that
task. Clearly, Congress rejected the option of delegating to an
administrative agency the authority to compromise
protection of public health based on considerations of cost, and
reserved to itself the exclusive power to make tradeoffs
between the protection of the public from the diseases of air
pollution and the public and private costs of providing that protection.


II. PROTECTING AGAINST NON-THRESHOLD
POLLUTANTS DOES NOT SUPPLY AUTHORITY
TO CONSIDER COSTS.

ATA and others suggest that the congressional choice
not to allow costs as a relevant factor in setting NAAQS, as evinced
by traditional tools of statutory construction, needs to be reconsidered
because EPA's 1997 standards address pollutants that are presumed to
be non-threshold pollutants. But the legislative history indicates that
Congress considered the non-threshold problem. In its directive to
adopt standards that "are requisite to protect the public health", "and
allow[ I an adequate margin of safety," Congress directed EPA to
regulate to protect





38 39



against exposures for which "the latest scientific knowledge"
establishes that adverse health effects would occur, and to add a
margin of safety to protect against effects that might
reasonably be anticipated to occur.

Neither of these statutory directives for standard-setting
require Ei~A to set standards at zero unless scientific
evidence demonstrates that adverse effects are proven to occur
at any exposure greater than zero. Those are not the facts of this case.
There is no compelling scientific evidence of adverse health effects
below the range of levels considered by EPA, and the agency
has not adopted zero-risk standards. But even if there were
evidence of harm at such levels, the answer to the statutory
construction question would remain the same Congress did not
authorize the EPA Administrator to decide that some
Americans should be allowed to die because the costs of
preventing those deaths is too high. But, as Senator Muskie
said, Congress will be sitting and can change the policy if the
consequences of a standard are unacceptable.
I could not tell you where that level would be, because
the knowledge that we have shows there is not any single
level where something either begins or stops. There are a
series of things taking place. Two things happen: the state of
our knowledge is always in flux, improvement, and secondly,
it is not that simple a decision, because the causes of
destruction of lung tissue, as an example, may be the result of
a series of biochemical effects that occurred earher and that
may be difficult to detect. .

Senator Muskie. How does that relate to your national
ambient air quality standard which you say would be set at the
no-health-effects point?

Dr. Middleton. The criteria documents state the level at
which effects begin, some measurable things that are observed to take
place. The Clean Air Act provides that the standards shall be
protective of health, which means they must be lesser than
the level at which this thing was observed.
*
I)uring the Senate hearings, after Commissioner Mid-
dleton explained "that a national air quality standard will be
one that protects against the minimum adverse health effect,"
he was asked by Senator Eagleton whether "that is different than
known no-effects." In the dialogue that followed, leg. [list., 1184-85,
Dr. Middleton explained that they were very different.

Dr. Middleton. To identify a no-known effects level is
something that would be, in my opinion, not only extremely
difficult but very likely not possible.
*
Senator Muskie. But there is a no-effects area?

Dr. Middleton. We know from the criteria published for
sulfur oxides, that at certain levels definite adverse effects occur
in the lung. We also know that at a little lower level there are
more subtle effects on the action of the lung, and that below
that some enzyme system begins to fail or to function
improperly.

The no-effect level would have to be somewhere below that. . .





40 41



The central distinction of this dialogue is between a "no-
effects" level, which is comparable to a zero risk policy, and
an "adverse effects" level. The distinction is reflected in the
1969 "Air Quality Criteria for Sulfur Oxides", where studies
were reported that included both changes in bodily functions, Id.
Chapter 7, and more severe effects characterized as "increased
mortality," "increased daily death rate," "increased hospital
admissions,"" sharp rise in illness rates," "accen tu a tio n of I chronic
lung cliseasel symptoms," and "increased severity and frequency
of respiratory diseases." These more severe effects, however,
were the studies relied upon to judge effects on health. Id.,
161-62.

When Congress stated that "[ajmbient air quality is sufficient to
protect the health of such persons whenever there is an
absence of adverse effect on the health of a statistically related
sample of persons in sensitive groups from exposure to the
ambient air," S. Rep., 10, it was obviously adopting the
approach followed by NAPCA in issuing its Criteria
documents and its approach to approving state-submitted
standards. That approach can best be described as the evidence of
harm test; something significantly more than merely evidence of a
detectable change that has no direct relationship to health status.

The judgment Congress made is that NAAQS should
prevent adverse effects" as demonstrated by "the latest scientific
knowledge" required by 108(a)(2) for the development of the air
quality criteria, and that a margin of safety must be allowed so
that NAAQS are set below the level at which harm was
demonstrated. The deterrnination as to what effects constitute an
adverse effect, and how the margin of safety should be
determined, was
left to the sound judgment of an expert administrator. That
judgment, when exercised, must be based on reasoned
decisionmaking and not be arbitrary or capricious.
CAA 307(d)(9).

The nature of the process Congress created is therefore
driven by the advances in the scientific understanding of the
relationship between air pollution and disease. As the science advances,
if adverse effects are detected at lower levels of exposure, the Act
requires the standards to be revised. But it only demands a
response to evidence of adverse effect, not suspected or predicted
effects. Beyond that, the Act also delegates to the
Administrator discretion to consider suspected or predicted
effects in setting the margin of safety. But the margin of
safety does not require EPA to set "zero" as the standard, or
even allow her to set a "zero" standard unless there is a credible basis
for the Administrator to conclude that such a standard is
"requisite to protect the public health."


III. Who Wins, Who Loses?

The objective of the Act is to ensure there will be no victims of
the diseases of air pollution. EPA estimates that its fine particle
standards alone will prevent 15,000 deaths per year in the U.S.
PMJA 3486-87. In 1990, Congress cited evidence that annually
"50,000 premature deaths may be caused by air pollutants "S.
Rep. No. 101-228 (1989), 3. The total death toll from air pollution in
general, or fine particles in particular, is not, by any reliable
estimate, an insignificant public health problem. Eliminating
death by air pollution is possible, someday, only if the standards
that animate the control programs





42 43



under the Act are set at levels that will prevent those deaths.

If that goal is compromised by standards that fail to require
that level of protection, there will be many losers. Most
obvious are the victims of the pollution itself those thousands who
suffer premature death, or the tens of thousands who require
frequent hospitalization and medical attention, or the hundreds of
thousands who need to bear the burden of the expense and physical
side effects of increased medication, and the millions of Americans
forced to stay home from school, or work or the sand lot baseball
diamond on a summer afternoon. Among these victims are the
individuals filing this brief who are virtually incapacitated on high
pollution days.

These losses by the victims of pollution can be monetized for
analysis purposes, but in human terms these are losses that cannot be
fully compensated with money. Nor is there any mechanism
routinely to compensate the victims for these losses. The reality
is that if not prevented, most of those losses will never be
compensated.

If the NAAQS are not based on the latest scientific evidence of
harmful levels of air pollution, then there may be numerous other
losers as well. First will be the States that have responsibility for
issuing most new source permits under the Act. Federal law requires
only that permit applicants demonstrate that their emissions will meet
the NAAQS. E.g., see 165(a). But many State air statutes and
most State's common law prohibit emissions that injure, harm or
endanger public health. If there is a substantial body of evidence
that harm will occi.ir at levels allowed by the NAAQS, then State
agencies will
become the battleground for determining the
necessary
limits on emissions to protect public health. The result will be a
return to the days of conflict over each new source permit on
public health grounds. Permit applicants will have no
assurance that they can get a permit by simply demonstrating
compliance with the NAAQS, permitting agencies will have
to develop expertise in various fields related to the science of
health effects, and communities will have no assurance that
their air will be safe to breathe if the NAAQS are met. This
approach will also produce multiple conflicting
determinations of the amount of pollution exposure that can
be allowed and still protect the public health.

Such challenges are already being brought based on the
evidence of harm from short-term S02 exposures that
convinced the D.C. Circuit to remand the S02 NAAQS to EPA,
American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998),
and the evidence that the fine particle NAAQS is not
adequate to protect against most of the mortality and morbidity
effects of high daily exposures that is the basis for CBT's challenge
in this case. In Pittsburgh, citizens challenged a permit for a
new coke plant proposed by LIV on the ground that S02 and
fine particle emissions meeting both NAAQS would cause
significant harm to the public health, and in Arizona the City of
Tempe raised similar issues in a demand that EPA quantify the
residual risks of exposure to fine particles that would not be
prevented by the 1997 NAAQS as part of the NEPA review
of a new power plant. In Washington State, the parents of an
asthmatic 10-year-old boy and a 7-year-old girl with cystic fibrosis are
suing the State under the Americans With Disabilities Act for
the failure to adopt





44 45



emissions controls to prevent life-threatening levels of fine particle
pollution from wheat stubble burning that nonetheless meet EPA's
24-hour NAAQS for PM2.5. Save Our Summers v.
Washington State Department of Ecology, No. CS-99-0269-
RHW (E.D. Wa.). If EPA is allowed to set NAAQS that fail to protect
against scientifically demonstrated adverse effects because of costs, or
otherwise fail to meet the standard of the law, then these kinds
of challenges to new and existing sources will likely become
commonplace nationwide.

There is a significant benefit for all stakeholders, including the
industry petitioners in this case, that flows from the confidence of the
public that if the NAAQS are met their air will be safe, and the
certainty for industry and the permitting agencies that flows from
one national standard that ensures the public is protected from the
known adverse effects of air pollution. These benefits are some of the
objectives Congress had in mind when it replaced the process for
setting many regional standards with one national standard that
protects the public health with an adequate margin of safety.
CONCLUSION

The decision of the Court of Appeals in Lead Industries Ass'n
v. EPA, and subsequent cases, holding that costs play no part in
setting NAAQS, should be affirmed.

Respectfully submitted,

ROBERT E. YUHNKF

Counsel for Citizens for Balanced
Transportation, Richard Romero
(on behalf of himself and his
minor son, Richard Romero, Jr.),
David Matusow, Brian McCarthy,
James Bassage and Michael
Gregory



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