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, ET AL.,
Respondents,


BRIEF OF CROSS RESPONDENT
AMERICAN LUNG ASSOCIATION




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 I


QUESTION PRESENTED

Whether the Clean Air Act requires that the Environmental Protection Agency must, in setting primary national ambient air quality standards, ignore all
factors other than health effects relating to pollutants in the air.


ii iii



RULE 29.6 DISCLOSURE, AND
LIST OF PARTIES BELOW

Respondent American Lung Association (ALA) was an
intervenor in the court of appeals. ALA has no parent
companies or nonwholly owned subsidiaries, and there is no
parent or publicly held company owning 10% or more of
ALA's stock.

The following were parties in one or both of the two
consolidated proceedings addressed by this petition for
certiorari (American Thucking Assns. v. USEPA, D.C. Cir. No. 97-
144() and consolidated cases; and American Truckin~ Assns. z'.
USE PA, D.C. Cit. No. 97-1441 and consolidated cases):

Alliance of Automobile Manufacturers (formerly
American Automobile Manufacturers Association)
American Farm Bureau Federation
American Forest & Paper Association
American Iron and Steel Institute
American Lung Association
American Petroleum Institute
American Portland Cement Alliance
American Public Power Association
American Road and Transportation Builders Association
American Trucking Associations, Inc.
Appalachian Power Company
Atlantic City Electric Company
Baltimore Gas and Electric Company
James I3assage
Burns Motor Freight, Inc.
Carolina Power & light Company
Centerior Energy Corporation
(ientral and South West Services, Inc.
RULE 29.6 DISCLOSURE, AND LIST OF
PARTIES BELOW - Continued

Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central Power and Light Company
Chamber of Commerce of the United States
Chemical Manufacturers Association
ClNergy Corporation
Citizens for Balanced Transportation
Cleveland Electric Illuminating Company
Columbus Southern Power Company
CoinEd Company
Consumers Energy Company
Dayton Power & Light Company
Delmarva Power & Light Company
I)etroit Edison Company
Duke Energy Company
Duquesne Light Company
Edison Electric Institute
Equipment Manufacturers Institute
FirstEnergy Corporation (A merger of Centerior Energy
Corporation and Ohio Edison Company)
Florida Power Corporation
Garner Trucking, Inc.
Genie Trucking Line, Inc.
Gloucester Company, Inc.
Michael Gregory
Idaho Mining Association
Illinois Power Company
Indiana Michigan Power Company
Indianapolis Power & light Company
Jacksonville Electric Authority
Judy's Bakery, Inc.
Kansas City Power & Light Company
Kennecott Energy and Coal Company
Kennecott Holdings Corporation





iv V


RULE 29.6 DISCLOSURE, AND 1.1ST
OF PARTIES BELOW - Continued

Kennecolt Services Company
Kentucky Power Company
Kentucky Utilities Company
Louisville Gas and Electric Company
Madison Gas and Electric Company
Commonwealth of Massachusetts
[)avid t'Aatusow
Brian McCarthy
Meridian Gold Company
State of Michigan
Midwest Ozone Group
Minnesota Power
Monongahela Power Company
Montaup Electric Company
National Association of 1-lome Builders
National Association of Manufacturers
National Automobile Dealers Association
National Coalition of Petroleum Retailers
National Indian Business Association
National Mining Association
National Paint and Coatings Association
National l'elrochemical & Refiners Association
National Rural Electric Cooperative Association
National Small Business United
National Stone Association
Nevada Mining Association
Slate of New Jersey
Newrnont Gold Company
Niagara Mohawk Power Corporation
Non-Eerrous lounders Society
Northern Indiana I'ublic Service Company
(Iglethorpe Power Corporation
State of Ohio
Ohio Edison Company
Ohio Mining an(l Reclamation Association
RULE 29.6 DISCLOSURE, AND LIST
OF PARTIES BELOW - Continued

Ohio Power Company
Ohio Valley Electric Corporation
Oklahoma Gas & Electric Company
Otter Tail Power Company
Paci fiCorp
Pennsylvania Power & Light Company
Phoenix Cement Company
Plains Electric Generation & Transmission
Cooperative, Inc.
Potomac Edison Company, The
Potomac Electric Power Company
PP&L Resources
Public Service Company of New Mexico
Public Service Company of Oklahoma
Richard Romero
Salt River Project Agricultural Improvement and
Power District
Small Business Survival Committee
South Carolina Electric & Gas Company
Southern Company
Southwestern Electric Power Company
Tampa Electric Company
Texas Gas Transmission Corporation
Toledo Edison Company
Union Electric Company
United Mine Workers of America, AFL-CIO
United States Environmental Protection Agency
Virginia Power
West Penn Power Company
West Texas Utilities Company
West Virginia Chamber of Commerce
State of West Virginia
Western Fuels Association
Wisconsin Electric Power Company





vi
vii
TABLE OF CONTENTS
Page
STATEMENT oF THE CASE

I. EPA's 1997 NAAQS, AND THE COURT OF
APPEALS DECISION

II. TIlE CLEAN AIR ACT

A. Pre-1967 Enactments

B. 1967 Act

Air quality criteria

Control techniques information

Air quality standards

C. 1970 Amendments Senate Bill
Conference Bill

D. l'ost-1970 Implementation

E. The 1977 Amendments

F. Post 1977 I)evelopments SUMMARY
OF ARGUMENT ARGUMENT

I. CONGRESS CLEARLY EXPRESSED ITS
INTENT V FIAT PRIMARY NAAQS BE BASED
ONLY ON 1 IEALTIl EFFECTS OF AIR POLLU-
TANTS

197() Amendments

Comparison of 1970 Amendments to their
predecessors
1
1

1

2

2

3

4

5

6

7

11

16

17

22

25

28
TABLE OF CONTENTS - Continued
1970 Legislative History

1977 Amendments

1990 Amendments

II. THE ACT'S "PUBLIC HEALTH" MANDATE DOES
NOT ENCOMPASS INDIRECT HEALTH EFFECTS

Ill. THE COURT SHOULD NOT OVERRII)E CON-
GRESS'S INTENT ON POLICY GROUNDS....

IV. THE COURT SHOULD NOT OVERRIDE CON-
GRESS'S INTENT BY PRESUMING THE REIl>
VANCE OF COMPLIANCE-RELATED
FACTORS

V. NO EXEMPTION FROM THE ACT'S HEALTH-
ONLY MANI)ATE IS AUTHORIZED FOR "NON-
THRESHO) LD" POLLUTANTS

VI. EPA'S 1997 NAAQS ARE SUPPORTED BY
COMPELLING EVIDENCE OF ADVERSE HEALTH
EFFECTS

PM NAAQS Ozone NAAQS

CONCLUSION
Page

31

31

32



32


35




38



40


44

45

47

50
29

29


30





viii
ix
TABLE OF AUTHORITIES
Page

CAsI:s

Chicago v. Environmental Defensc Fund, 511 U.S. 328
(1994) 29, 31
Daniel~ v. Williams, 474 U.S. 327 (1986) 42

Indus trial Union Dept., A ELCIO v. A nierican Petro
lenin Inst., 448 U.S. 607 (1980) 37, 44

Lead Industries Assn. v. EPA, 647 E.2d 1130 (D.C.
Cir. 1980) 17

National Cable Television Assn. v. United States, 415
U.S. .336 (1974) 40

Natural Resources Defense Council v. US EPA, 824
L2d 1146 (D.C. Cir. 1987) 43

Train v. Natural Resources Defense Council, 421 U.S.
60 (1975) 7

TVA v. Hill, 437 U.S. 153 (1978) 30,
35

Union Electric Co. v. EPA, 427 U.S. 246 (1976)

United States v. Cong. of Industrial Orgs .,.335 U.S.
106 (1948) 30
West Virginia University Hospitals v. Casey, 499 U.S.
83 (1991) 40


STATUTES

Pub. L. No. 84-159, 69 Stat. 322-23 (July 14, 1955) 2
Pub. L. No. 9(1-148, 81 Stat. 485 (November 21,
1967) 2
TABLE OF AUTHORITIES - Continued
Page

Clean Air Act of 1963, Pub. L. No. 88-206, 3, 77
Stat. 395 (1963) 2

Clean Air Act of 1963, Pub. L. No. 88-206, 5, 77
Stat. 396-98 (1963) 2

Clean Air Act of 1967, Pub. L. No. 88-206, 101, 81
Stat. 485 (1967) 6

Clean Air Act of 1967, Pub. L. No. 90-148, 107, 81
Stat. 491 (1967) 3, 5, 13, 14

Clean Air Act of 1967, Pub. L. No. 90-148, 108, 81
Stat. 492-93 (1967) ~, 12, 13, 33

Clean Air Act, as amended in 1970, 108, 1970 LII
11
passirn

Clean Air Act, as amended in 1970, 109, 1970 LH
13 passim

Clean Air Act, as amended in 1970, 110, 1970 LI-I
14 15

Clean Air Act, as amended in 1970, 111, 1970 LII
18 15

Clean Air Act, as amended in 1970, 231, 1970 LH
52 15

Clean Air Act, as amended in 1970, 302, 1970 LH
55 12

Clean Air Act, as amended in 1970, 312, 1970 LI-I
62 14

Clean Air Amendments of 1977, Pub. L. No. 95-95,
112, 91 Stat. 705-09 (1977) 21

Clean Air Amendments of 1977, Pub. L. No. 95-95,
126, 91 Stat. 730 (1977) 20






Clean

Clean

Clean

Clean

Clean



113

116

116

116

116
Air

Air

Air

Air Air



Cong
.

Cong
.

Cong
.

Cong
.

Cong
.
x xi


TABLE OF AUTHORITII~S - Continued
Page

Clean Air Amendments of 1977, Pub. L. No. 95-95,
129, 91 Stat. 746-47 (1977) 21

Clean Air Amendments of 1977, Pub. L. No. 95-95,
313, 91 Stat. 785-88 (1977) 22

Clean Air Amendments of 1990, Pub. L. No. 101-549,
101-I 11, 104 Stat. 2399-2471 (1990) 25

Clean Air Amendments of 1990, Pub. L. No.
101-549, ~ 109, 104 Stat. 2470 (1990) l2
Clean Air Act,

Act,

Act,

Act,

Act,

Act,



Rec.

Rec.

Rec.

Rec.

Rec.
103,

108,

109,

112,

312,

317,
42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.
7403 45
7408 passi?n
7409 passun
7412 25
7612 25
7617 22
l.ECIsr.ATIvI~ Ilis tORY

19164 (July 18, 1967)

32900 (September 21, 1970). .8, 9, 10, 11
33106 (September 22, 1970) 9, 11
42381 (December 18, 1970) 15, 16
42519 (December 18, 1970) 16
TABLE OF AUTHORITIES - Continued
Page
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970)
passim

Conf. Rep. No. 1783, 9lst Cong., 2d Sess. (1970) .... 12
S. Rep. No. 127, 95th C~ong., 1st Sess. (1977) 37

H. Rep. No. 294, 95th Cong., 1st Sess. (1977).... passim
S. Rep. Nc). 228, 101st Cong., 1st Sess. (1989) 25
H. Rep. No. 490, 101st Cong., 2d Sess. (1990) 25

Implementation of the Clean Air Act Amendments of 1970 Part 1
(Title 1): Hearings Before the Subcommittee on Air and Water
Pollution of the Committee on Public Works, United States
Senate, No.
92-H31 (February 16-23, 1972)

1
6

Clean Air Act Oversight 1973, Part 1: Hearings
Before the Subcommittee on Public Health and
Environment of the Committee on Interstate and
Foreign Commerce, [louse of Representatives,
No. 93-62 (September 10, 1973)

3
6

Clean Air Act Oversight 1973, Part 2: Hearings
Before the Subcommittee on Public Health and
Environment of the Committee on Interstate and
Foreign Commerce, House of Representatives,
No. 93-63 (September 1973)

4
7

Implementation of the Clean Air Act 1975, Part 1:
Hearings Before the Subcommittee on Environ mental Pollution
of the Committee on Public Works, United States Senate, No.
94-HIO (April 22,
1975) 16, 37, 47


S. Rep. No. 403, 90th Cong., 1st Sess. (1967)
4, 5, 6, 9, 14, 45
H Rep. No. 728, 90th Cong., 1st Sess. (1967)
2,3,4,5,6,9,45


Executive Branch Review of Environmental Regulations: Hearings
Before the Subcommittee on Environmental Pollution of the
Committee on Environment and Public Works, United States
Senate, No. 96-H4 (February 27, 1979) 22, 23, 38





xii xiii


Page
TABLE OF AUTHORITIES - Continued


Use of Cost-Benefit Analysis by Regulatory Agencies:
Joint hearings Before the Subcommittee on Oversight and
Investigations and the Subcommittee on Consumer Protection and
Finance of the Committee on interstate and Foreign Commerce,
House of
Representatives, No. 96-157 (July 30, 1979)

2
3

Reports of the National Coin mission on Air Qualiti,' and the
National Academy of Sciences: Joint Hearin~ Before the
Committee on Environment and Public Works, United States
Senate, and the Subcommittee on Health and the Environment of
the Committee on Energy and Commerce, U.S House of
Representatives, No. 97-6 (March 2, 1981) 24,
36

Clean Air Act Oversight, Part 1: Hearings Before the Committee on
Environment and Public Works, United
States Senate, No. 97-1112 (April 9, 1981) 24,
37
TABLE OF AUTHORITIES Continued
Page

F;I)E~t. REGIsTER
36 Fed. Reg. 1502 (January 30, 1971) 46
36 Fed. Reg. 8186 (April 30, 1971) 16, 17, 46
43 Fed. Reg. 26962 (June 22, 1978) 46
44 Fed. Reg. 8202 (February 8, 1979) 49, 50
62 Fed. Reg. 38652 (July 18, 1997) 45
62 Fed. Reg. 38856 (July 18, 1997) 48, 49


MIscElLANEOUs

National Commission on Air Quality, To Breathe
Clean Air (March 1981) 22



Clean Air Act Oversight, Part .3: Hearings Before the Committee on Environment and Public Works, United
States Senate, No. 97-1-112 (June 9, 1981) passim

Health Standards for Air Pollutants: Hearings Before the Subcommittee on Health and the Environment of the Committee on Energy and Commerce, House of
Representatives, No. 97-97 (October 14, 1981) 23, 24, 35, 37, 41, 43

A Legislative History of the Clean Air Amendments of
1970, Committee on Public Works, United States
Senate, Nc). 93-18 (January 1974) 41

A Legislative Historq of the Clean Air Act Amendments of 1977, Committee on Environment and
Public Works, United States Senate, No. 95-16
(August 1978) 17, 18, 20



J
AC)
PM
RIA
Sl~
xiv I
GLOSSARY STATEMENT OF THE CASE

ALA

APC

ATA

CASAC

CD

EPA
American Lung Association

Appalachian Power Company

American Trucking Associations, Inc.

Clean Air Scientific Advisory Committee

Criteria Document

Environmental Protection Agency
HEW Department of Health, Education, and Welfare

Joint Appendix in D.C. Cir. No. 97-1441 (Ozone
NAAQS)
JAPM Joint Appendix in D.C. Cir. No. 97-1440 (Partic-
ulate Matter NAAQS)

NAAQS National Ambient Air Quality Standards NCAQ
National Commission on Air Quality

particulate matter
ppm parts per million

Regulatory Impact Analysis

Staff Paper


I. EPA's 1997 NAAQS, AND THE COURT OF APPEALS
DECISION.

The background of the Environmental Protection
Agency (EPA) national ambient air quality standards
(NAAQS) at issue in this case is set forth in American Lung
Association's (ALA's) brief in No. 99-1257. In addition, the
D.C. Circuit affirmed EPA's conclusion based
on step one of Chevron, U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) that primary NAAQS must be
based solely on health effects relating to pollutants in the air,
not on compliance-related factors such as cost. App. 19a-
21a.1 Accord, id. ISa.

II. THE CLEAN AIR ACT.

The text, structure, and evolution of the Clean Air Act
demonstrate that the 1970 Amendments precluded
consideration of compliance-related factors in setting primary
NAAQS, abandoning the contrary approach of the 1967 Act;
that Congress reaffirmed the 1970 Amendments' approach
in 1977, when it enacted a mandate for periodic review and
revision of NAAQS; and that Congress declined to alter this
approach when it enacted another comprehensive overhaul
of the Act in 1990.


Appendix citations refer to the appendix filed by the
Environmental Protection Agency with its petition for
certiorari. In addition, for purposes of brevity, this brief uses
the phrase "compliance-related factors" to denote
socioeconomic factors concerning compliance with NAAQS,
including the cost and feasibility of compliance, and alleged
health impacts associated with complian e.





2 3


A. Pre-1967 Enactments.

Fight years after authorizing the federal government to
provide technical assistance to states and localities
concerning air pollution control, Pub. L. No. 84-159, 69 Stat.
322-23 (July 14, 1955), Congress enacted the Clean Air Act
of 1963. That statute authorized federal abatement of air
pollution, but only in narrow circumstances and subject to
numerous limitations including the requirement that courts
hearing abatement suits weigh "the practicability" and
"physical and economic feasibility" of abatement. Pub. L. No.
88-206, 5(a)-(g), 77 Stat. 396-98 (December 17, 1963).

In addition, the 1963 Act directed the Secretary of
Health, Education, and Welfare (HEW), "[wjhenever he
determines that there is a particular air pollution agent (or
combination of agents), present in the air in certain

qilantities, producing effects harmful to the health or welfare
of persons," to "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 (or combination
of agents) in the air in varying quantities." 3(c)(2). The
criteria were for "informational" rather than regulatory
purposes. Id.

B. 1967 Act.

In 1967 Congress enacted a substantial overhaul of the
Act, Pub. L. No. 90-148, 81 Stat. 485 (November 21, 1967),
the "heart" of whkh was a mandate for establishrnent of air
quality standards, which were to drive abatement efforts.
108(c). See H. Rep. 728, 90th Cong., 1st Sess. 17 (1967)
("1967 11. Rep."). To lay the foundation for
establishment of standards, Congress directed the Secretary
to generate two kinds of information.
Air quality criteria. First, Congress continued the 1963
Act's requirement for air quality criteria, and directed that the
criteria be "requisite for the protection of the public health and
welfare," and that they "accurately reflect the latest scientific
knowledge useful in indicating the kind and extent of all
identifiable effects on health and welfare which may be
expected from the presence of an air pollution agent, or
combination of agents in the ambicnt air, in varying
quantities." 107(b)(1) and (2). They were to "include those
variable factors which of themselves or in combination with
other factors may alter the effects on public health and
welfare of any subject agent or combination of agents,
including, but not limited to, atmospheric conditions, and the
types of air pollution agent or agents which., when present in
the atmosphere, may interact with such subject agent or
agents, to produce an adverse effect on public health and
welfare." 107(b)(3).
The drafters explained that criteria would include
information about the health and welfare effects of air
pollution, but not about the economic or technical impacts of
pollution con trol. For example, the House Report noted that,
"luinder the proposed legislation, air quality criteria are of
much greater importance than they have been until now,"
and thus "lilt is essential ... that there be no confusion about
the purpose" of such criteria. 1967 H. Rep. 16.
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. Thus, they define the health and
welfare considerations





4 5


that must be taken into account in the development of
standards and regulations. Leonomic and technical
considerations have a place in the pattern of control activity but
not in the development of criteria. Air quality criteria should
provide a clear statement of how well air pollution should
be controlled in order to safeguard the public health and
welfare, economic and technical factors notwithstanding.

Id. (emphasis added). The Senate Report was to the same
effect:

"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, visibility
and so on."
An expression of scientific knowledge, the criteria
indicate quantitatively and qualitatively the lowest
known levels of exposure at which specific deleterious
effects have been reported for a given pollutant or
combination of pollutants.

The committee recognizes that criteria of ambient
air quality which define health and welfare effects of air
pollution do not take into consideration the technological and
economic feasibility of achieving such air qualitq.

S. Rep. 403, 90th Cong., 1st Sess. 26-27 (1967) ("1967 5.
Rep.") (emphasis added; citation omitted).

Control techniques information. Th provide the economic
and technological information that was lacking from the
criteria, Congress established a new mandate that had not
been part of the 1963 Act: it required the Secretary to issue
information on those recommended control
techniques the application of which is necessary
to achieve levels of air quality set forth in criteria . . . , which
information shall include technical data relating to the
technology and costs of emission control, . . . landi such
data as are available on the latest available technology
and economic feasibility of alternative methods of pre-
vention and control of air contamination including cost-
effectiveness analyses.

107(c) (emphasis added). See 1967 H. Rep. 16-17 (dis-
cussing this requirement); 1967 5. Rep. 27-28 (same). See
also 113 Cong. Rec. 19175/2 (1967) (Senator Randolph:
"The economic and technological information which the
Secretary must provide as a part of the recommended control
techniques to accompany the criteria is expected to reflect
the same careful study and preparation as do the medical
and scientific data relating to air quality criteria.").
Air quality standards. Both criteria and control tech-
niques information were to be issued "to the States,"
l07(b)(l) and (c),2 which were given primary responsibility for
establishing air quality standards, HEW's standard-setting
authority being limited to instances where a state failed to
establish standards. 108(c)(1) and (2). Whether
established by the states or by HEW, standards were to be
"consistent with the air quality criteria and recommended
control techniques." Id. (emphasis added).
In addition, the Act contemplated that standards would
be "consistent with the purposes of this Act." 108(c)(2).
Accord, 108(c)(1) (addressing revised standards). Among
the purposes of the 1967 Act were "to protect and enhance
the quality of the Nation's air


2 In addition, control techniques information was to be
issued to "appropriate air pollution control agencies."
107(c).





6 7


resources so as to promote the public health and welfare and
the productive capacity of its population." 10l(b)(l).
The House Report explained the standard-setting
process:
To warrant approval by the Secretary, air quality
standards for a given class of pollutants must be
consistent with the Secretary's air quality criteria and
control technology data for those pollutants. This means, in
the opinion of the committee, that such standards must
call for air quality levels which, based on the Secretary's
criteria, are at a minimum adequate for the protection of
public health and which can be achieved through the
application of feasible control tech n iques.
1967 H. Rep. 17-18 (emphasis added). Accord, id. 25.

The Senate committee emphasized that the air quality
standards must be "consistent with the air quality criteria and
recommended control techniques," and explained:
An expression of public policy rather than scientific
findings, their development from air quality criteria will be
influenced not only by a concern for the protection of
health or welfare, but also by economic, social, and
technological con siderat ions. The committee feels that
under any circumstances protection of health should be
considered a minimum requirement, and wherever
possible standards should be established which
enhance the quality of the environment.
1967 5. Rep. 28-29 (emphasis added).


C. 1970 Amendments.

Congress sharply changed course in the Clean Air
Amendments of 1970, which were "a drastic remedy to
what was perceived as a serious and otherwise uncheckable
problem of air pollution." Union Electric Co. v. EPA, 427
U.S. 246, 256 (1976). See also Train v. Natural Resources
Defense Council, 421 U.S. 60, 64 (1975) (under the pre-1970
Act, "the States generally retained wide latitude to determine
both the air quality standards which they would meet and the
period of time in which they would do so;" the response of
the States was "disappointing," and brought "little
progress;~~ '~Congress reacted by taking a stick to the
States in the form of the Clean Air Amendments of 1970,"
which "sharply increased federal authority and responsibility
in the continuing effort to combat air pollution.").

Senate Bill. In September 1970, the Senate reported a
bill that became the basis for the 1970 Amendments. Far
stronger than the previously reported House bill, the Senate
bill not only required that HEW establish national ambient air
quality standards for pollutants for which criteria had been
issued, but also specified that those standards were to be
"air quality standards the attainment and maintenance of
which are necessary to protect the health of persons." S.
Rep. 1196, 91st Cong., 2d Sess. 86 (1970) ("1970 5. Rep.")
( 110(a)(3)). The committee report explained that standards
must ensure "an absence of adverse effect on the health of
a statistically related sample of persons in sensitive groups,"
including "bronchial asthmatics and emphysematics who in
the normal course of daily activity are exposed to the ambient
environment." Id. 10. Within nine months of promulgation of
air quality standards, states were to submit for the Secretary's
approval implementation plans providing for





8 9


attainment of the air quality standards within three years of
the plans' approval. Id. 86-87 ( 111 (a)(1) and (2)))
The Senate bill contained no language allowing the
Secretary to use compliance-related factors as a basis for
limiting the health protection mandate of proposed I
l0(a)(3). For example, there was no provision (as in the 1967
Act) that air quality standards must be consistent with control
techniques information. Instead, "Etihe Committee
recognizeidi that the States will continue to need this
information to develop meaningful programs for implementation
of ambient air quality standards on a regional basis." Id. 9
(emphasis added). See also 116 Cong. Rec. 32918/2
(1970) (Senator Cooper notes that, after NAAQS are
promulgated, a control plan must be developed; "It is at this
point that States and communities must make economic
decisions, and decisions on the future growth of their areas
and the kind of life they want, in considering alternative
means of achieving clean air.") (emphasis added).
The legislative history makes clear that the exclusion of
compliance-related factors from NAAQS-setting was a
deliberate choice. "In the Committee discussions, consid-
erable concern was expressed regarding the usc of the
concept of technical feasibility as the basis of ambient air


~ In addition to NAAQS, the Senate bill mandated
national ambient air quality "goals," to be set at levels
"necessary to protect the public health and welfare from any
known or anticipated adverse effects associated with the
presence of such air pollution agent or combination of such
agents in the ambient air." 1970 S. Rep. 86 ( 110(b)). The
report explained that while NAAQS "are authorized because
the Committee has recognized that protection of health is a
national priority," goals were authorized because "man's
natural and man-made environment must he preserved and
protected." Id. 11 (emphasis added).
standards," but the committee determined that "the health of
people is more important than the question of whether the
early achievement of ambient air quality standards protective
of health is technically feasible." 1970 5. Rep. 2. Accord, 116
Cong. Rec. 32901-02 (quoting
1967 Senate Report language admonishing that techno-
logical and economic factors "should not be used to mitigate
against protection of the public health and welfare," 1967 5.
Rep. 2, Senator Muskie states: "Contrary to this intent, these
considerations have been used as arguments to compromise
the public health. Therefore, the committee has made explicit
in this bill what is implicit to standards designed to protect our
health. That concept and that philosophy are behind every
page of the proposed legislation."); 33115/1 (Senator Prouty:
"for the first time, air quality standards will take precedence
over objections of economic impracticality and technical
impossibilities.").
Unlike the 1967 Act, which had primarily contemplated
application of existing technology,4 the Senate bill's mandate
for health-based standards to be met in a fixed time frame
was "expressly designed to force regulated sources to
develop pollution control devices that might at the time
appear to be economically or technologically infeasible" an
approach that is known as "technology-


~ See 1967 H. Rep. 17-18 (quoted supra at 6); id. 13-14
(bill seeks to insure "that sources of air pollution will be
controlled to the extent consistent with available knowledge
of the adverse effects of pollutants on health and welfare and
with available control technology") (emphasis added); 1967 5.
Rep. 10 ("Strong regulatory programs are needed to insure
full application of technological, feasible, and economically
reasonable methods of control.") (emphasis added).





10 11


forcing." See Union Electric, 427 U.S. at 257. As Senator
Muskie explained:
The first responsibility of Congress is not the making of
technological or economic judgments
or even to be limited by what is or appears to be
technologically or economically feasible. Our
responsibility is to establish what the public interest
requires to protect the health of persons. This may mean
that people and industries will be asked to do what seems
to be impossible at the present time. But if health is to be
protected, these challenges must be met.

116 Cong. Rec. 32901-02 (emphasis added). Accord, id.
329 19/2 (Senator Cooper: "[Tihe philosophy of the bill
abandons the old assumption of requiring the use of only
whatever technology is already proven and at hand and of
permitting pollution to continue when it is not economically
feasible to control it. The bill proceeds instead to set out what
is to be achieved, and places its reliance on a great effort to
develop technology, to train and put to work the manpower to
accomplish that purpose, and it assumes a readiness by
industry and the people or the country to pay the costs of
pollution control."); 32902/1 (Senator Muskie notes that the
bill's requirements "will be difficult to meet. But the committee
is convinced that industry can make compliance with them
possible or impossible. It is completely within their control.
Industry has been presented with challenges in the past that
seemed impossible to meet, but has made them possible.").

While expressing confidence in the ability of industry to
meet these challenges, the drafters also indicated their
awareness of the costs involved. 1970 5. Rep. 2 (the
protection of public health will require "major action
throughout the Nation," including "major investments in new
technology and new processes," and revised land use,
transportation, and fuel policies; "Some facilities may be
closed."); id .3(" existing sources of pollutants either should
meet the standard of the law or be closed down"); id. 13
(recognizing that during the next several years, it will be
"impossible" in many areas to attain NAAQS through motor
vehicle tailpipe standards alone, but nonetheless stating that
the committee "does not intend that these areas be exempt
from meeting the standards;" instead, areas may need to
institute transportation system changes and traffic control
restrictions, which "may impose severe hardship").

These costs were considered justified by the urgent
need to protect public health from air pollution: 116 Cong.
Rec. 32903/3 (Senator Muskie: "We have been conscious, I
think, since early June that what we were considering writing
into law could result in drastic changes in the pattern of the
life we live in the urban areas of America. We felt that just
such changes were essential if we were really to come to
grips with the problem of air pollution."); 1970 5. Rep. I (bill
authorizes a "massive attack" on air pollution, which is "more
severe, more pervasive, and growing at a more rapid rate
than was generally believed"). See also 116 Cong. Rec.
32907/3 (Senator Boggs); 32918/i (Senator Cooper);
32919/3 (Senator Spong); 33113/3 (Senator Young);
33114/2 (Senator Nelson); 33114/3 (Senator Prouty);
33118/1 (Senator Yarborough); id. (Senator McIntyre).

Conference Bill. The conference adopted the approach
of the Senate bill, with certain modifications. Instead of
"standards" and "goals," the conference bill





12 13


provi(ied for "primary and secondary standards, the former
relating to public health and the latter to public welfare." Con(.
Rep. No. 1783, 91st Cong., 2d Sess. (1970), U.S. Code
Cong. & Ad. News 5377 (1970). Several aspects of the final
wording merit emphasis.
First, unlike either the House or Senate bills, the
conference bill required both primary and secondary
standards to be "based on" the air quality criteria issued
under 108. 109(b)(l) and (2). This formulation repre-
sented a break with the 1967 Act, which had only required
that standards be "consistent with" the criteria. 1967 Act
lt)8(c)(l) and (2).

Second, though revisions were made in the 1967 Act's
provision prescribing the content of criteria, no language was
inserted authorizing criteria to address economic or social
considerations associated with pollution control. To the
contrary, criteria were to "accurately reflect the latest scientific
knowledge useful in indicating the kind and extent of all
identifiable effects on public health or welfare which may be
expected from the presence of such pollutant in the ambient airy in
varying quantities."
108(a)(2) (emphasis added).5

Third, in addition to specifying what future air quality
criteria were to contain, Congress also required the


~ While "welfare" effects were statutorily defined to
include "effects on economic values," ~ 302(h), no such
(lefinition imported economics into the statutory term "health."
Moreover, even as to welfare, the "economic values"
cognizal)le for NAAQS purposes were those related to "the
presence of such poll i tan t n the ambient air." I 0~(a)(2). A
ccord, S I 09(b)(2) See also Pub. 1.. it) 1-549, 109(b), 104
Stat. 2470 (Nov. 19, 1900) (amendment to 31)2(h) further
confirming that welfare effeck relate to the presence of
~~llutants in the air).
setting of NAAQS based on previously issued criteria.
These pre-existing criteria did not address compliance-related
factors, and the short deadlines imposed by Congress (30
days for proposal of NAAQS, 90 additional days for
promulgation) would not have allowed time for revision to
include such factors. Indeed, far from expressing
dissatisfaction with the absence of such factors from the
criteria, Congress deleted the provision of the 1967 Act that
required HEW to reexamine pre-existing criteria. See 1967
Act 107(b)(l). See also 1970 5. Rep. I (noting that the
previously issued criteria documents "increased" the
committee's concern about public health impacts of pollution).

Fourth, instead of providing for the inclusion of com-
pliance-related factors in criteria, Congress mandated (as had
the 1967 Act) that such factors be addressed in control
techniques information. 108(b)(1) (control techniques
information "shall include data relating to the technology and
costs of emission control"). Of key importance, Congress
dropped the 1967 Act's recluirement that air quality standards
be "consistent with" the control techniques information. In
short, instead of being "consistent with the air quality criteria
and recommended control techniques," 1967 Act 108(c)(i) and
(2) (emphasis added), standards were to be "based on ... jthe]
criteria." 1970 Act 109(b)(l) (emphasis added).

Fifth, because criteria were now to be used by EPA in
setting NAAQS, while control techniques information was not,
the conference (1) deleted the 1967 Act's provision that
criteria be issued "to the States," 108(a)(2) (EI~A "shall
issue air quality criteria") (emphasis added),





14 15


but (2) retained the 1967 Act's provision that control techniques
information be issued "to the States and appropriate air
pollution control agencies.." 108(b)(1). Thus, though no
longer used to set air quality standards, control techniques
information would continue to provide states information useful
in planning compliance, see p. 8, supra (quoting 1970 Senate
Report), as well as offering advance warnings to industries or
other sources of contamination of what will be expected of
them." 1967 5. Rep. 27.6
Sixth, the 1967 Act's reference to "cost-effectiveness
analyses" as a component of control techniques information
(1967 Act 107(c)) was dropped.

Seventh, Congress deleted the provisions of the 1967
Act (see p. 5, supra) that had required air quality stan dards to
be "consistent with the purposes" of the Act.

Eighth, in addition to the 108(b)(l) provision concerning
control techniques information, the Act contains other
provisions showing that Congress knew how to reference
compliance-related factors when it wished to do so. For
example, the 1970 Act retained a pre-existing provision
mandating "a comprehensive study of the economic impact of air
quality standards on the Nation's industries, communities, and
other contributing sources of pollution, including an analysis of
the national requirements for and the cost of controlling
emissions to attain such standards of air (juality as may be
established pursuant to this Act." 312(a) (emphasis added).
Tellingly,

(if. AFA ~ r. 40 (questioning why (congress would have
required cont rot techniques information to be made available
contemporaneously with NAAQS-setting).
109(b)(1) omitted any reference to such economic and cost
analysis as a basis for NAAQS.

Moreover, the 1970 Act provided that primary NAAQS
were to be attained within three years from approval of air
pollution control plans, 110(a)(2)(A)(i), but allowed for
extensions if it could be shown that "the necessary technology
or other alternatives are not available or will not be available
soon enough to permit compliance within such three-year
period." l10(e)(1)(A). Likewise, other provisions of the 1970
Act expressly incorporated compliance-related factors.
111(a)(1) (new source performance standards must provide for
the degree of emission reduction that is "achievable," "taking
into account the cost of achieving such reduction"); 231(b)
(aircraft emission standards shall take effect after such period
as is necessary "to permit the development and application of
the requisite technology, giving appropriate consideration to
the cost of compliance").

Both houses of Congress approved the conference bill in
December 1970, expressing their awareness of the far-
reaching consequences of the legislation. 116 Cong. Rec.
42381/2 (Senator Muskie: a "tough" bill that faces the air
pollution crisis with "urgency" and makes "hard choices");
42393/2 (Senator Muskie: "the whole complex of residential
patterns, employment patterns, and transportation patterns --
the way in which people move about, go to their work, and live
. . . must be modified if the objective of clean air is to be
achieved"); 42392/2 (Senator Randolph: "each and every
person will be called on to pay the increased costs . . .
associated with the achievement of an environment that, at a
minimum, does not endanger public health"). See also id.
42384/3 (summary provided by Senator Muskie); 42393/i
(Senator Spong);





16
17
42394/2 (Senator Cooper); 42521/3 (Congressman

Hechler); 42522/2 (Congressman Rogers); 42522-23 (Con
gressman Anderson); 42523/I (Congressman Ryan);
42523-24 (Congressman Vanik).


I). Post-1970 Implementation.

Four months after enactment of the 1970 Act, EPA
promulgated NAAQS for six pollutants. 36 Fed. Reg. 8l87
(April 30, 1971), JAI'M 245. In the preamble to that notice,
EPA enunciated an interpretation from which the agency has
not since wavered: specifically, that the Act "does not permit
any factors other than health to be taken into account in
setting the primary standards." Id. 8186/1, JAPM 244.

At oversight hearings in 1972, EPA presented a mem-
orandum from its Office of General Counsel, which stated that
"except where specifically called for in the Act, e.g., new source
performance standards, economic considerations are not to be the
basis for the Administrator's decisions. The national ambient
air quality standards are set at levels necessary to protect the
public health and welfare. The cost or feasibility of meeting
these standards was not a consideration" Implementation of the
Clean Air Act A mend inents of 1970 Part I, Senate Hearing 92-
1131 (February 16-23, 1972), at .312 (emphasis added).
Accord, id. at 18-19 (Senator Lagleton, a conferee in the
197(1 Act: "In respect to economic feasibility, it is clear again
beyond any shadow of a doubt that Congress intended that
this not be a factor insofar as the primary standards were con-
cerned relating to public health."), 21 (similar statement by
Senator Eagleton); Implementation of the Clean Air Act 1975,
Senate I learing 94-H1() (April 22, 1975) ("1975 5. Iirg."). at
775-76 (in response to a witness's assertion that
the cost of pollution control should be taken into account in
setting NAAQS, Senator Muskie stated that the drafters of the
1970 Act "decided that the only way to handle it that made
any sense was public health," and quoted the 1970 Senate
Report language calling for "an absence of adverse effect on
the health of a statistically-related sampling [sici of persons in
sensitive groups from exposure to the ambient air").

E. The 1977 Amendments.

With the passage of the 1975 deadline for attainment of
the primary NAAQS, many areas remained in violation
especially of the photochemical oxidants NAAQS, the
predecessor to the current ozone NAAQS, which had been
set at a level substantially more stringent than the 1997
ozone NAAQS challenged in the present case. See 36 Fed.
Reg. 8187/3 (1971), JAPM 245 ((1.08 ppm, averaged over
one hour, not eight hours as in the 1997 NAAQS).
Responding to the specter of substantial restrictions on
industry, Congress revisited the Act.
Some including at least one party to the present
litigation proposed that Congress's response should include
allowing consideration of compliance-related factors in the
setting of NAAQS. A Legislative History of the Clean Air Act
Amendments of 1977 ("1977 LH") 4181-82 (Manufacturing
Chemists Association, predecessor to the American Chemistry
Council, proposed that 109(b) be amended to "reflect the
need to consider socioeconomic factors in the setting of
standards"). Accord, id. 4190 (Dow Chemical). These
proposals were made years before the D.C. Circuit first ruled,
in Lead Industries Assn. v. EPA, 647 F.2d 1130, 1148-51 (D.C.
Cir. 1980), that the Act bars consideration of such factors.




18 19


Congress did not, however, adopt these proposals. As
explained by Senator Domenici, the 1970 Senate Committee
had been "explicit" in ruling out consideration of technical
feasibility in the setting of NAAQS, thus contemplating "a
legislative blitzkrieg by the federal government that would roll
over economic and technical difficulties." 1977 LH 4505-06.
Nonetheless, the NAAQS were "one area of the law that the
[1976 Senatel Committee refused to alter," id. 4507, and that
refusal carried through to the final version of the 1977
Amendments.

Far from adopting the industry suggestions to inject
compliance-related factors into NAAQS, Congress instead
enacted a provision requiring EPA to review and revise
NAAQS and criteria at no more than five-year intervals,
applying the preexisting mandates of lt)9(b) and 108.
109(d)( I) (EPA "shall make such revisions in such criteria and
standards and promulgate such new standards as may be
appropriate in accordance with section 108 and subsection
(b) of this section").
The drafters of 109(d) were aware of the widespread
nonattainment of the existing standards and the economic
issues posed by that nonattainrnent. H. Rep. 294, 95th
Cong.. 1st Sess. 207-10 (1977) ("1977 H. Rep."). Indeed,
they were specifically aware of the economic problems posed
by failure to attain the 1971 photochemical oxi(lant NAAQS .-
which, as previously indicated, was substantially more
stringent than the 1997 ozone NAAQS challenged here. hI.
50914 (dissenting views of Congressman Krueger, ci al.,
noting that the photochemical oxi (lant standard had
"uniformly an(i pervasively proved impossible of attainment,"
with 88% of monitored regions reporting exceedances, and
that "lal literal enforcement
of the Clean Air Act would permit no industrial development in
nonattainment areas after the nonattainment date is
passed"). The drafters were also aware of the 1971 NAAQS
promulgation (in which EPA expressly stated that the Act
does not permit primary NAAQS to be based on any factor
other than health). id. 180. In short, they were aware that,
when EPA undertook to reexamine the existing
photochemical oxidants NAAQS the very NAAQS that was
threatening widespread economic impacts in numerous areas
the agency's interpretation of 109(b) would bar the agency
from considering those impacts.

Finally, the drafters of 109(d) were aware that, given
the direction in which scientific knowledge was developing at
that time, there was a substantial prospect that EI~A would
tighten the NAAQS, including the photo-chemical oxidant
NAAQS. Id. 182 ("deficiencies and limitations of the national
ambient air quality standards suggest that greater not lesser
control of emissions are likely to be needed") (emphasis
added); 127 ("all indicators point to the likely necessity for
tightening the ambient air quality standards to protect public
health") (emphasis added); 108-09 (quoting Johns Hopkins
study on photochemical oxidants that found " 'the current stan-
dard of 0.08 ppm to have little margin of safety for susceptible
populations (such as the elderly or chronically ill patient), and
thus a lower standard is justified . . . [A] 1 hour standard of
0.06 ppm would appear to be appropriate.' ") (emphasis
added by I-louse committee); 109 (noting that the standard
recommended by the Johns l-Iopkins study "would be 25
percent more stringent than the present standard") (emphasis
added).





2t) 21


Yet, despite this awareness, the drafters included nei-
ther in the text of 109(d) nor in their committee report
indication of any intent to overturn EPA's interpretation of the
Act and require consideration of compliance-related factors.

Indeed, the only place in 109(d) where compliance-
related factors are mentioned is in a provision requiring a
scientific committee to advise EPA "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."
109(d)(2)(C)(iv). There is no authorization for EPA to override
the terms of 109(b) by considering such factors in deciding
whether to revise NAAQS, nor does the legislative history
indicate any such intent. To the contrary, the drafters
indicated that the l09(d)(2)(C)(iv) recommendations may be
"of interest and assistance to the States and to Congress in
fashioning ftiture legislation." 1977 1-1. Rep. 183 (emphasis
added). This provision for a scientific committee to issue advice
on compliance-related factors stands in stark contrast to other
provisions of the 1977 Amendments in which Congress
showed that it knew how to authorize regulations to be
based on such factors. See, e.g., Pub. L. 95-95, 126, 91
Stat. 730 (August 7, 1977) (adding 157(b)) (authorizing
promulgation of regulations to protect the stratospheric ozone
layer, and providing: "Such regulations shall take into
account the feasibility and the costs of achieving such
control.").
"In an act with basically two working parts, standards
and deadlines," Congress's refusal to weaken the NAAQS or
the basis for setting NAAQS "left the deadlines as the major
variable around which to structure. . . compromises. 1977 LH
4508 (Senator Domenici).
And indeed, Congress authorized extensions of NAAQS
attainment deadlines, requiring that specified pollution control
initiatives be undertaken during the extension period. Pub. L.
95-95, 129(b), 91 Stat. 746-47 (August 7, 1977) (adding
172(a), which authorized attainment deadlines to be
extended to 1982, with a possible further extension to 1987).

Likewise, Congress authorized compliance deadlines for
specific pollution sources to be extended until after the
applicable NAAQS attainment deadline. Pub. L. 95-95,
112(a), 91 Stat. 705-09 (adding 113(d)). Discussing this
provision, the Ilouse committee noted that the committee
"tlookl no issue" with this Court's holding in Union Electric.
1977 H. Rep. 56. There this Court had rejected the assertion
that EPA was authorized to consider economic and
technological feasibility in acting on state implementation
plans: "Where Congress intended the Administrator to be
concerned about economic and technological infeasibility, it
expressly so provided." 427 U.S. at 257 n.5. The House
committee the same committee that drafted 109(d)
indicated its agreement with this aspect of Union Electric:
First, economic and technical feasibility may be
considered, under the conditions expressly provided for
in the statute, including under a DCO delayed
compliance order] application. Second and conversely,
consideration of economic and technical factors in
other contexts (i.e. in section 110 approvals, section
307(b) judicial review of such approvals, or in section
113 enforcement proceedings) is not authorized.
1977 H. Rep. 68 (emphasis added). As indicated previously,
the drafters of 109(d) included no language





22 23


"expressly providlingi" for the Administrator to consider
compliance-related factors in NAAQS-setting.7

F. Post-1977 Developments.

The 1977 Amendments established a special commis-
sion which was to prepare a report concerning a broad range
of issues raised by the Act, including the Act's economic
effect. Pub. L. 95-95, 313, 91 Stat. 785-88 (adding 323;
see especially 323(b)(1)). In March 1981, the commission
submitted a report -- joined by three members of Congress
(including the chair of the House committee with jurisdiction
over the Act), as well as representatives of industry and state
and local government. National Commission on Air Quality, To
Breathe Clean Air (March 1981), at viii, iii. The report
concluded that "[tjhe statutory basis for setting national
primary air quality standards does not take economic factors
into account." Id. 70. Accord, Executive Branch Review of En vi-
ronmental Regulations, Senate I-Tearing 96-1-14 (Feb. 27,
1979) ("1979 5. Hrg."), at 343 (Senator Muskie: "The statute
clearly prohibits the use of economic considerations in the
setting of the health standards."); id. 251 (another

The 1977 Amendments also included a new provision
mandating "economic impact assessment" of certain
enumerated Clean Air Act regulations. 317, 42 U.S.C.
7617. Fven though this provision expressly clarified that
"Inlothing in this section shall be construed to provide that
the analysis of the factors specified in this subsection affects
or alters the factors which the Administrator is required to
consider" in taking the enumerated actions, Congress still
declined to include the NAAQS among the covered
provisions. See 1977 II. Rep. 51 ( 317 applies to "non-
health.related regulations") (emphasts added).
similar statement by Senator Muskie); id. 261 (Senator
Bentsen noted that EPA's 1979 ozone NAAQS had not been
influenced by economic considerations, and added:
"I fully understand the statutory requirement that defines your
decision-making process ); Clean Air Act Oversight -- Part
3, Senate Hearing 97-1112 (June 9, 1981) ("6/1981 5. Hrg."),
at 209 (Senator Gorton: "section 109 sets the primary
standards at a level requisite to protect the public health with
an educated margin of safety and which does not include
cost benefit"); Health Standards for Air Pollutants, House
Hearing 97-97 (October 14, 1981)
("1981 1-1. Hrg."), at 1 (Congressman Waxinan: "[bloth the
agency and the courts have properly interpreted the Clean
Air Act to forbid the consideration of costs in setting the
health standards"); id. at 102 (Lester Lave an ainicus in the
present case indicated that Congress in 1970 "dismissed the
relevance of abatement cost in setting the tNAAQSI"); Use of
Cost-Benefit Analysis by Regulatory Agencies, House Hearing 96-
157 (July 30, 1979), at 53 (Robert Crandall an ainicus in the
present case noted that "primary ambient air standards are
to be set without regard to any measure of cost").
Having so found, the Commission recommended that
"Itihe current statutory criteria and requirements for setting air
quality standards at the levels necessary to protect public
health without consideration of economic factors should
remain unchanged." NCAQ Report 55 (emphasis added).
The Commission explained: "[lIf a national air quality
standard were based in part on the costs of complying with
it, the high costs of meeting the standard in a few heavily
polluted areas could result in the standard's being set at a
less protective level than is achievable in a reasonable,
economic fashion in other





24

areas." Id. 70. At hearings held to address reauthorization, a
number of legislators and witnesses likewise recommended
against changing this aspect of the Act, citing ethical,
scientific, and practical considerations. See, e.g., Clean Air
Act Oversight Part 1, Senate Hearing 97-1112 (April 9, 1981)
("4/1981 5. l-lrg."), at 8(1 (former EPA Administrator Train),
82 (former EPA Administrator Costle); 6/1981 S. Hrg. 191
(Senator Stafford); 242-43 (Dr. Homer Boushey, assistant
professor of medicine, University of California); 244-45
(David Hawkins, former Assistant Administrator for Air, EPA);
1981 H. Hrg. 22-23 (Marvin Schneiderman, Ph. D., senior
science advisor, Clements Associates); 72-73, 75-83
(Nicholas Ashford, Ph. D., associate professor of
technology and policy at MIT); 146-68, 200 (Douglas
MacLean, research associate, Center for Philosophy and
Public Policy, University of Maryland); Reports of the NatI.
Comm. on Air Quality and the NatI. Academy of Sciences, Joint
Hearing 97-6 (March 2, 1981) ("1981 Joint Hrg."), at 58-6f)
(Congressman Wax-man).

Others including parties and amici in this case
disagreed and urged Congress to amend the Act to allow
consideration of compliance-related factors in NAAQSsetting.
6/1981 5. Hrg. 419-20 (Chemical Manufacturers Assn.), 199
(George Eads); 1981 H. Hrg. 86-87, 203 (Lester Lave).

After many years of deliberation, Congress enacted a
major overhaul of the Clean Air Act in 1990. Recognizing that
many areas had not attained the NAAQS by the extended
deadlines in the 1977 Amendments (i.e., 1982 and 1987),
the 1990 Amendments authorized further extensions in
attainment deadlines, with additional re(Iuirements for
pollution control activities in the
25

interim. Pub. L. 101-549, 101-111, 104 Stat. 2399-2471
(November 15, 1990). Congress also included a number of
other provisions that expressly reference cost. For exampIe,
Congress amended 312 to require analysis of (inter alia)
"the costs, benefits and other effects associated with
compliance with each standard issued for. . . a criteria air
pollutant subject to a standard issued under section [109]."
42 U.S.C. 7612(a) (emphasis added). And it amended the
hazardous air pollutant provision of 112 to provide for
emission standards that offer "an ample margin of safety to
protect public health in accordance with this section (as in
effect before November 15, 1990), unless the Administrator
determines that a more stringent standard is necessary to
prevent, taking into con sideration costs, energy, safety, and other
relevant factors, an adverse environmental effect." 42 U.S.C.
7412(f)(2)(A) (emphasis added).
In contrast to these and other amendments authorizing
consideration of compliance-related factors under other
provisions of the Act, Congress made no amendments to
109 even though Congress was clearly aware that that
provision had been construed as requiring primary NAAQS
to be based only on health effects of pollutants in the air. S.
Rep. 228, 101st Cong., 1st Sess. 5 (1989);
H. Rep. 490, 101st Cong., 2d Sess. 145 (1990).


SUMMARY OF ARGUMENT

By mandating establishment of health-protective primary
NAAQS based on air quality criteria that do not include
consideration of compliance-related factors and indeed by
deleting from the Act a pre-existing provision requiring air
quality standards to be consistent with





26

compliance cost information the 1970 Amendments clearly
expressed Congress's intent that compliance-related factors
not be considered in establishing primary
NAAQS.

In 1977, moreover, Congress enacted a mandate for
periodic review and revision of NAAQS. Yet despite Con-
gress s awareness of widespread socioeconomic
impacts resulting from nonattainment of the NAAQS
promulgated in 1971, and despite its belief that developing
information on health effects could well result in more
stringent NAAQS, Congress reaffirmed rather than
changed the pre-existing mandate for health-protective
NAAQS based on the air quality criteria.

The Court should decline ATA's invitation to overturn
Congress's clearly expressed intent on policy grounds.
Congress was entitled to write into law its policy
preference that NAAQS accurately reflect health impacts
of air pollution, and that compliance-related factors be
considered at other points in the process e.g., by the
states in determining how to comply with NAAQS, and by
Congress in determining whether deadlines for attaining
NAAQS should be extended. Indeed, a special commission
established by the 1977 Amendments concluded in 1981
that this approach represents wise public policy and
should not be changed and it was not changed, even
though Congress enacted another extensive overhaul of
the Act in 1990.
Application of a presumption favoring consideration of
costs should be rejected as simply another attempt to
override Congress's clearly expressed intent that NAAQS-
setting not encompass compliance-rela ted factors.
Indeed, the requested presumption directly contravenes
this Court's holding in Union Electric, which
27

recognized that where Congress intended EPA to be con-
cerned with economic and technological feasibility, it
"expressly so provided." Unlike the generic, across-the-
board presumption advocated by ATA, this holding was
based on careful analysis of the specific language and
structure of the Clean Air Act. The drafters of the periodic
NAAQS review provision enacted in 1977 were aware of
Union Electric, and expressed approval of that case's
approach to construing the Act. Yet in enacting the
periodic NAAQS review provision, they declined to
"expressly ... providel 1" for consideration of compliance-
related factors.
The difficulty in establishing effects thresholds for air
pollutants offers no basis for importing compliance-related
factors into NAAQS. That difficulty was well-known to
Congress in both 1970 and 1977, yet Congress
established a mandate for promulgation and periodic
review of primary NAAQS based solely on health effects
of air pollutants. Moreover, the fact that an effects thresh-
old has not been identified does not mean that scientific
evidence documents adverse effects down to zero or
background levels. Should such evidence develop in the
future, it will be up to Congress to craft an appropriate
response. In the meantime, EPA can appropriately set
NAAQS based on the scientific evidence that exists, and
can (as required by 109(b)(1)) apply its "judgment" to
set a "margin of safety" to compensate for uncertainties.
While determining the size of such a margin will neces-
sarily involve drawing distinctions of degree, this Court
has recognized that such distinctions are an integral part
of a civilized system of laws.





28

ARGUMENT

ATA concedes that, given the importance and central-
ity of the question whether compliance-related factors are
to be considered in setting NAAQS, it is highly unlikely that
Congress would have punted to EPA the discretion to
answer this question i.e., that Congress would have left
to the preferences of the agency whether to consider or
ignore such factors. Specifically, AlA concedes that
Congress did not explicitly delegate this power to EPA
under Chevron Step One (i.e., that Congress did not clearly
express an intention that EPA can consider compliance-
related factors or decline to consider them as the agency
sees fit). ATA Br. 31 ("[ut is highly unlikely that Congress
would leave choices of such magnitude to an
administrative agency") (internal quotations omitted).
Likewise, ATA concedes that Congress did not implicitly
delegate such discretion under Chevron Step Two (by
failing to express a clear intention on the issue, thus
implicitly delegating to EPA the discretion to consider or not
consider compliance-related factors). Id. (recognizing the
"implausibility of Congress's leaving a highly significant
issue unaddressed") (internal quotations omitted).
In short, this case presents two competing Chevron
Step One interpretations: did Congress clearly express an
intent to require EPA to consider compliance-related fac-
tors, or did it clearly express an intent to preclude such
consideration? The answer is clear: the latter is the only
interpretation compatible with the text, structure, and
evolution of the Act.


29

I. CONGRESS CLEARLY EXPRESSED ITS INTENT
THAT PRIMARY NAAQS BE BASED ONLY ON
HEALTH EFFECTS OF AIR POLLUTANTS.

1970 Amendments. Section 109(b)(l) requires that primary
NAAQS be "requisite to protect the public health." (Emphasis
added.) Moreover, the standards must be "based on" air
quality "criteria," id., which in turn "shall accurately reflect
the latest scientific knowledge useful in indicating the kind
and extent of all identifiable effects on public health or
welfare which may be expected from the presence of such
pollutant in the ambient air, in varying quantities." 108(a)(2)
(emphasis added). Thus, the statute clearly provides that
factors other than health effects of air pollutants have no
place in the setting of primary NAAQS.8
This conclusion, clear enough on the face of
109(b)(1) and 108(a)(2), is confirmed by other portions of
the 1970 Amendments that show Congress knew how to
expressly incorporate compliance-related factors when it
wished to do so. Sec pp. 14-15, supra (citing examples).
"[lit is generally presumed that Congress acts intentionally
and purposely when it includes particular language in one
section of a statute but omits it in anotheril" Chicago v.
Environmental Defense Fund, 511 U.S.

~ The distinction between "health" and "welfare" in
108(a)(2) matches a similar distinction in 109(b)
specifically, between primary NAAQS to protect "health"
and secondary NAAQS to protect "welfare." Thus, contrary
to ATA's argument (ATA Br. 37-38), the portion of the criteria
addressing "welfare" is not relevant to EPA's duty to set
primary NAAQS addressing "health." And in any event,
welfare effects cognizable under the statute, like health
effects, are those relating to air pollutants not to
compliance costs. See p. 12 n.5, s up ra.





30

328, 338 (1994) (internal quotations omitted). Recognizing
this principle, this Court has specifically held, in a deciSiOfl
construing the Clean Air Act: "Where Congress intended
the Administrator to be concerned about economic and
technological infeasibility, it expressly so provided." Union
Electric, 427 U.S. at 257 n.5. Because Congress did not
provide for compliance-related factors to be considered in
setting primary NAAQS, EPA is not permitted to consider
them.

Comparison of 1970 Amendments to their predecessors.
"There is no better key to a difficult problem of statutory
construction than the law from which the challenged statute
emerged." United States v. Cong. of Industrial Orgs., 335 U.s.
106, 112 (1948). That comparison is especially informative
here. First, the 1970 Amendments dropped the 1967 Act's
requirement that air quality standards be consistent with
the control techniques information and with the Act's
purposes, requiring instead that the standards be "based
on" the "criteria." See pp. 12-14, supra. Second, the 1970
Amendments dropped the 1967 Act's requirement that
previously issued criteria be reexamined, directing instead
that EPA proceed forthwith to issue NAAQS based on the
then-existing criteria which did not address compliance-
related factors. See pp. 12-13, supra. These changes
clearly demonstrate congressional intent that compliance-
related factors be excluded from the setting of NAAQS.
See TVA v. Hill, 437 U.S. 153, 185 (1978) ("The pointed
omission of the type of qualifying language previously
included in endangered species legislation reveals a
conscious decision by Congress to give endangered
species priority over the 'primary missions' of federal
agencies").
31

1970 Legislative History. The clear import of the
statutory language is confirmed by the 1970 legislative
history, which shows that Congress expressly intended to
reject use of compliance-related factors in setting NAAQS;
that it intended to establish health-based requirements that
would challenge industry to develop new technologies;
and that it believed the urgency of the air pollution problem
required ambitious measures that would have far-reaching
economic impacts. See pp. 7-16, sup ra.
1977 Amendments. The 1977 Amendments added a
mandate for periodic review and revision of NAAQS.
109(d). The drafters of that provision were aware both of
the failure by numerous areas to attain the NAAQS by the
1975 deadline (and the serious economic issues raised by
that failure), and of the rulemaking notice in which EPA had
enunciated its interpretation of the Act as barring
compliance-related factors from primary NAAQSsetting.
They were also aware of this Court's decision in Union
Electric, which held that where Congress intended EPA to
be concerned with economic and technological feasibility,
"it expressly so provided," 427 U.S. at 257 n.5
indeed, the drafters explicitly noted their agreement with
this approach to construing the Act. See p. 21, supra.
Nonetheless, far from "expressly ... provid[ing]" for EPA to
consider compliance-related factors in NAAQS-setting,
Congress required that new and revised NAAQS be con-
sistent with the pre-existing mandate of 109(b).
109(d)(1). This provision stands in sharp contrast to other
sections of the 1977 Amendments mandating that
compliance-related factors be considered by EPA in
developing regulations. See p. 20, supra. See also p. 29,
supra (citing Chicago).





32 33


1990 Amendments. Though Congress was plainly
aware of EPA's construction of the Act, the 1990 Amend-
ments did not revise 109 to "expressly ... provide[ I" for
consideration of compliance-related factors even though
the Amendments included numerous other provisions
addressing such factors. See p. 25, supra.

II. THE ACT'S "PUBLIC HEALTH" MANDATE DOES
NOT ENCOMPASS INDIRECT HEALTH EFFECTS.

ATA's primary textual argument is that in moving from
the 1967 Act's reference to "the health or welfare of any
persons" to the 1970 Act's reference to "public health,"
Congress intended to sweep in alleged health effects
associated with the cost of attaining air quality standards.
ATA Br. 33-36; APC Br. 30-32. This argument overlooks
109(b)(1)'s express requirement that NAAQS be "based
on" criteria issued under 108(a)(2). That latter section
likewise uses the phrase "public health," (emphasis
added), and clearly limits what kinds of effects are
cognizable under that rubric: namely, effects "which may
be expected from the presence of such pollutant in the
ambient air." (Emphasis added.). The socioeconomic effects
that ATA cites result from compliance with NAAQS, not
from pollutants in the air, and thus are not "public health"
effects within the meaning of 109(b)(1).
Indeed, the 1970 Congress's intent to preclude con-
sideration of such effects is particularly clear given its
deletion of the 1967 Act's provision that air quality stan-
dards be consistent with the control techniques information
-- information that expressly includes cost of compliance.
See p. 13, supra. These 1967 Act provisions specifically
addressing air quality standards (1967 Act 108(c)(l) and
(2)) furnish a more informative basis for
comparison than the general abatement language cited by
ATA (1967 Act 108(a), cited in ATA Br. 33).9
ATA's reading is also impossible to square with
109(b)(1)'s mandate for NAAQS "the attainment and
maintenance of which . . . are requisite to protect the public
health." 109(b)(1) (emphasis added). NAAQS can only
address one thing: the concentrations of pollutants in the
air. They cannot ensure better sanitation, improved access
to medical care, better education in how to stay healthy, or
other similar health-related socioeconomic goals. Thus, for
example, if EPA relies on socioeconomic analysis as a
ground for setting NAAQS less stringent than would be set
based solely on health effects of air pollutants, those
weaker NAAQS will not and cannot require that the
resulting saved compliance costs be redirected by the
regulated community to investments in public health
programs. In short, if "public health" is defined in the broad
manner advocated by ATA, promulgation of NAAQS that
"protect" the public health would become impossible by
definition.
Finally, ATA's argument represents a frontal attack on
the technology-forcing mandate of the Act. See pp. 9-10,
supra (describing Congress's technology-forcing intent).

'~ In considering ATA's attempt to distinguish the health
of "persons" from "public" health, it also bears emphasis
that the 1970 Senate bill, which mandated NAAQS to
protect "the health of persons," 1970 5. Rep. 86 (
110(a)(3)), was intended to require that NAAQS protect the
"public health." Id. 2 (emphasis added). Accord, id. 9-11
(linking NAAQS to air quality criteria), 85 ( 109(a)(2))
(requiring that criteria reflect "public health" effects)
(emphasis added). The Senate committee's equating of
the "health of persons" with "public health" further
undercuts ATA's argument that the transition from one
phrase to the other was intended to sweep in indirect
health effects.





34 35


Under ATA's approach. EPA would base NAAQS on
before-the-fact estimates of compliance costs (and
resulting alleged health impacts). Such before-the-fact
cost estimates, however, will necessarily reflect today's
technological knowledge, not tomorrow's and will thus
assign large (perhaps infinite) cost estimates to cleanup
tasks for which known technology is nonexistent or
unproven. The predicted high price tag will produce
weaker NAAQS than would be set on the basis of health
alone, resulting in more air-pollution-induced illness and
death. By compromising health protection based on before-
the-fact predictions that requirements cannot be met, EPA
would be doing precisely what Congress foreclosed it
from doing.
See pp. 9-10, supra.
Aside from the inconsistency with congressional intent,
basing NAAQS on before-the-fact compliance cost
estimates makes no sense because such estimates are
strongly biased towards overestimation. First, before-the-
fact estimates cannot take account of future technological
innovation, which in the past has produced compliance
costs far lower than initially predicted. Second, even when
technological innovation is not forthcoming, before-the-fact
predictions will still overestimate compl iance costs
substantially, because they cannot forecast future
congressional exemptions relieving industry of obligations
it has been unable to meet. Thus, though Justice Powell's
concurrence in Union Electric expressed concerns about
the adverse health impacts that would flow from a
shutdown of electric power generation, 427 U.S. at 272, a
quarter-century later those fears have not been realized
not because all NAAQS have been attained, but because
Congress has repeatedly granted extensions to avoid the
adverse economic and social
impacts that might otherwise ensue. See pp. 21, 24-25,
supra.

III. THE COURT SHOULD NOT OVERRIDE CONGRESS'S
INTENT ON POLICY GROUNDS.

Unable to refute the strong evidence demonstrating
Congress's intent that primary NAAQS be based solely on
health effects of air pollutants, ATA resorts to public policy
arguments, claiming that consideration of compliance-
related factors would represent better regulatory policy.
ATA Br. 47-50. But the proper role of the courts is to apply
the law, not to formulate policy. TVA v. Hill, 437 U.S. at
194-95. ATA's arguments are especially ill-founded here,
where Congress confronted and resolved that very policy
issue in both 1970 and 1977. See pp. 6-22, supra.
Moreover, after the l977 Amendments Congress carefully
considered yet again whether to amend the Act to allow
consideration of compliance-related factors and declined
to do so, after receiving a congressionally commissioned
report (joined by members of Congress, industry, and state
and local government) recommending against consideration
of such factors, and after hearing from witnesses on both
sides of the issue. See pp. 22-25, supra. Among those
witnesses was Lester Lave, an amicus in this case, who
recognized that if Congress were to accept his
recommendation to allow consideration of compliance-
related factors, "it will certainly make the re-election of
Congressmen more difficult which is why I am glad I am on
this side of the table. But we will get better public policy
and better public understanding." 1981 H. Hrg. 203
(emphasis added). Having failed to persuade their elected
representatives to adopt their preferred approach, Dr.
Lave and his allies now hope to have better success





36 37


with the unelected judiciary. That profoundly undemocratic
approach to the making of public policy should be rejected.

Aside from being addressed to the wrong forum,
ATA's policy arguments are misguided. As stated nearly
twenty years ago by the Chairman of the House subcom-
mittee with authority for the Act:
The idea of using cost/benefit analysis to decide
how much to protect public health is particularly
dangerous. The protection of public health is the
keystone of the Clean Air Act. For over a decade we
have sought to protect particularly sensitive citizens
such as children, the aged and asthmatics from
polluted air. I don't think the American people would
stand for abandoning these sensitive populations by
misguided use of cost/benefit analysis.

1981 Joint Hrg. 58-59 (Congressman Waxman). See 1970
5. Rep. 10 (noting intent to protect "particularly sensitive
citizens such as bronchial asthmatics and emphysema-
tics"). Yet that is just what ATA proposes, arguing that the
lives of the "weakest" victims of air pollution should be
assigned a smaller monetary value, because they might
have died soon anyway. ATA Br. 13, 19.

In addition to being inconsistent with congressional
intent, such arguments raise profound moral and ethical
issues. Indeed, when a witness told a I-louse committee
that air-pollution-induced mortality involved the "harvesting"
of already weakened individuals, a Congressman
responded that "I have heard of wheat harvest and corn
harvest," but "this harvest of humans is just hard for me to
take. . . . My goodness gracious, let us get away from that,
not harvest our people." Clean Air Act Oversight 1973, Part
1, House Hearing 93-62 (Sept. 10, 1973)
at 82-83 (Congressman Carter). See also 4/1981 5. Hrg.
94 (Senator Stafford: the Act embodies "the ethical
principle that government should not condone levels of air
pollution which are harmful to public health"); 1981 H. Hrg.
199 (Congressman Waxman: "Once you talk about a
human being for sale, you have already taken and
ascribed a different value to a human being than most of
us would, by saying that a human life is an invaluable
commodity."); 1975 5. Hrg. 774 (Senator Muskie: "[hlow do
you quantify in dollar terms health effects"?); 6/1981 S.
Hrg. 243 (Senator Stafford: "it is hard to discover how
much human life is worth"); Industrial Union Dept., AFECIO
v. American Petroleum Inst., 448 U.S. 607, 672 (1980)
("Ben zene") (Rehnquist, J.' dissenting) (the question
whether human life should be balanced against economic
costs presents "what has to be one of the most difficult
issues that could confront a decisionmaker").

Congress has resolved these weighty issues by man-
dating primary NAAQS based on health effects of air
pollutants. That decision should not be second-guessed by
the judiciary.

ATA's policy argument also overlooks the structure of
the Clean Air Act, which does consider compliance-related
factors but at the stage of achieving the NAAQS, not
setting them. See pp. 8, 15, 20-21, 24-25, supra. See
also 1977 H. Rep. 13 (nonattainment provisions of 1977
Amendments, which extended deadlines for attaining
NAAQS, were "a means of assuring realization of the dual
goals of attaining air quality standards and providing for
new economic growth") (emphasis added); S. Rep. 127,
95th Cong., 1st Sess. 2-3 (1977) (responding to the
"serious concern that achievement of air quality standards
required to protect public health may impose unacceptable
constraints on the Nation's capacity to achieve





38
39
the kind of economic activity necessary to bring about full
employment and a balanced Federal budget," committee
concluded that "more time was needed to achieve public
health protection") (emphasis added).

Preserving health-based standards, while allowing
more time to attain them where necessary, serves impor-
tant policy goals:
We prohibited the use of an economic test in setting
health standards because we thought the public was
entitled to know what the health requirements were.

If we could not afford to be healthy, that is a
second question, but we ought to at least know what
was necessary to be healthy.

1979 S. Hrg. 343 (Senator Muskie). Accord, 6/1981 5. Hrg.
244-45 (David Hawkins, former Assistant Administrator
of EPA for Air).

IV. THE COURT SHOULD NOT OVERRIDE CONGRESS'S
INTENT BY PRESUMING THE RELEVANCE OF
COMPLIANCE-RELATED FACTORS.

In an attempt to dress up its policy arguments in the
garb of statutory construction, ATA asks the Court to
adopt as a general rule of interpretation a presumption that
costs may be considered, unless there is a "clear
congressional intent" to preclude such consideration. ATA
Br. 46 (citation omitted). Here, however, Congress has
expressed a clear intent to limit primary NAAQS to health
effects of air pollutants. See pp. 29-32, supra.
Moreover, ATA's requested presumption flies in the
face of Union Electric: "Where Congress intended the
Administrator to be concerned about economic and tech-
nological infeasibility, it expressly so provided." 427 U.S.
at 257 n.5. Unlike ATA's proposed presumption, that ruling
was not an abstract across-the-board rule of construction
designed to apply to statutes in general, but a conclusion
based on careful analysis of congressional intent as
revealed by the Clean Air Act in particular, which explicitly
authorizes consideration of compliance-related factors in
some provisions, but not in others. See pp. 12-15, supra.
Moreover, the drafters of 109(d) expressly indicated
their acceptance of this aspect of Union Electric. See
p. 21, supra. Under these circumstances, it would be
especially inappropriate to override congressional intent
with a policy-based presumption of the kind urged by
ATA.
Indeed, a presumption of the kind advocated by ATA
would be an unworkable approach to statutory inter-
pretation. If the presumption were limited to costs, it would
represent an unwarranted attempt to place a thumb on the
scale of statutory interpretation by favoring some factors
over others: why should courts presume the relevance of
compliance costs, but not (for example) of health? If on
the other hand the presumption were broadened to make
cognizable all the "pros and cons" of agency action, ATA
Br. 30 (citation omitted), the result would be an utterly
unworkable presumption that every provision of every
statute includes every factor that some litigant might
consider relevant to an agency decision. Congress's
ability to craft targeted statutory programs that operate in
specified ways (for example, by providing for air quality
standards to be set on the basis of health alone, and for
costs to be considered in determining how to meet the
standards and whether congressional extensions of
attainment deadlines are warranted) would be
compromised.





40
41
Finally, ATA's effort to justify its presumption on
nondelegation grounds (ATA Br. 1) is meritless. The Act's
NAAQS provisions pose no colorable nondelegation
problem that could justify imposing a narrowing con-
struction of the Act. ALA Br. in 99-1257 at 18-36. More-
over, ATA does not propose a narrowing construction of
the Act, but rather a widening construction: instead of
excluding factors from consideration so as to narrow the
scope of the congressional delegation (as this Court did in
NatI. Cable Television Assn. v. United States, 415 U.S. 336,

342-43 (1974)), ATA seeks to expand the breadth of the
congressional delegation by including a wide range of
factors beyond the health effects enumerated in the Act.
See ATA Cross-Pet. 23 ("the key text of Section 109(b)
rules in consideration of 'public health,' but fails to rule out
consideration of anything") (emphasis in original).

V. NO EXEMPTION FROM THE ACT'S HEALTH-ONLY
MANDATE IS AUTHORIZED FOR "NON-
THRESHOLD" POLLUTANTS.

ATA argues that a health-only mandate should not
apply because the pollutants at issue are "non-threshold."
ATA Br. 25-26. This argument must be rejected. As previ-
ously shown, the Act clearly requires primary NAAQS to
be based solely on health effects of air pollutants. Con-
gress made no exemption from this mandate for "non-
threshold" pollutants, and it is not the role of the judiciary to
create such an exemption based on the argument that
Congress "would have done so had it thought about it."
West Virginia University Hospitals v. Casey, 499 U.S. 83, 100
(1991).
Moreover, Congress clearly did think about this issue.
It enacted the 1970 Act's health-only mandate after having
been told by EPA's predecessor agency that "[tlo identify a
no-known-effects level is something that would be, in my
opinion, not only extremely difficult but very likely not
possible." A Legislative History of the Clean Air
Amendments of 1970 at 1184 (John Middleton of HEW).
And in 1977 the drafters of 109(d) wrote extensively
concerning the likely absence of effects thresholds for
various pollutants. 1977 H. Rep. 106-12, yet declined to
authorize EPA to consider compliance-related factors in
setting NAAQS. Subsequently, the difficulty in identifying
effects thresholds was brought to Congress's attention
again by those advocating consideration of compliance-
related factors (including amici in the present case), see,
e.g., 1981 H. Hrg. 86 (Lester Lave), but Congress declined
to include in the 1990 Amendments authorization to
consider such factors.
ATA argues that in the case of "non-threshold" pollu-
tants, a health-only mandate would result in standards set
either at zero, or at a non-zero level chosen "arbitrarily." ATA
Br. 29-30. This argument is meritless. Appalachian Power
concedes that NAAQS must be set below the level at
which "demonstrated adverse public health effects" occur.
APC Br. 25. Identification of the level at which such effects
occur is a health-only inquiry, and is not arbitrary: to the
contrary, it is based on evaluation of scientific evidence
concerning health effects to determine which effects have
been demonstrated, and which of those demonstrated
effects are adverse. 6/1981 5. Hrg. 240-41 (Dr. Homer
Boushey, professor of medicine, testifies that if a health
effect is defined as "a measurable change" in a health
parameter, then identification of a





42
43
threshold may be difficult or impossible, but if the focus
shifts to "adverse" effects, i.e., "change that is likely to
be associated with impairment of function or the develop-
ment of symptoms, I think it is possible to identify a level
where such an effect may occur with a high degree of
probability in a portion of the population").
Second, identification of how far below the level of
demonstrated adverse effects the standard should be set
is likewise a health-only inquiry, pursuant to the Act's
requirement to set an "adequate margin of safety" that is
"based on" criteria addressing health effects of air pollu-
tants. 109(b)(1). The exact amount of the margin of
safety cannot be reduced to a formula, and will neces-
sarily depend on the Administrator's "judgment" (
109(b)(1)) concerning how much protection is warranted
against effects that are less well-understood. See 1970
5. Rep. 10. That such a judgment may require distinctions
of degree rather than of kind does not make it arbitrary.
Daniels v. Williams, 474 U.S. 327, 334 (1986)
(quoting with approval Justice Holmes: "I do not think we
need trouble ourselves with the thought that my view
depends upon differences of degree. The whole law does
so as soon as it is civilized.") (citation omitted).
Moreover, the fact that an effects threshold above
zero may not have been identified does not necessarily
mean that scientific evidence documents adverse effects
down to zero or background levels. As the D.C. Circuit has
recognized, "when a straight line extrapolation from known
risks is used to estimate risks to health at levels of
exposure for which no data is available," that "[tihis method,
which is based upon the results of exposure at fairly high
levels of the hazardous pollutants, will show some risk at
every level because of the rules of arithmetic
rather than because of any knowledge." Natural Resources
Defense Council v. US EPA, 824 F.2d 1146, 1165 (D.C. Cir.
1987) (emphasis added). Thus, if NAAQS are based on
scientific evidence, and on margins of safety reasonably
selected through assessment of scientific evidence and
uncertainties in that evidence, they need not automatically
be set at zero or background levels even for non-threshold
pollutants.
It is possible that scientific knowledge concerning
effects at lower pollutant concentrations may progress to
the point where NAAQS at zero or background levels are
the only available choice under 109(b)(1). At that point, it
will be for Congress to decide upon and enact an appro-
priate response for example, by extending deadlines as it
has done in the past, or by changing the paradigm of
NAAQS decisionmaking. 4/1981 5. Hrg. 1 (Senator
Stafford: "The Clean Air Act is not immutable. We have
made changes in the original 1970 law as we have gained
more knowledge about the effects of air pollution and the
effects of the statute."). Accord, 6/1981 5. Hrg. 220 (Sena-
tor Randolph).
Finally, ATA's criticism of the alleged arbitrariness of
109(b)(1) ignores the arbitrariness in ATA's own sug-
gested approach. Far from being a determinate process,
cost-benefit analysis involves many value judgments in
deciding how to assign quantitative values,10 as well as
how to weigh non-quantified factors. See AEI-Brookings

10 For example, how much are human life and health
worth? See pp. 36-37, supra. How much future technological
innovation will occur, thus driving down compliance costs?
See pp. 9-10, supra. See also 1981 H. Hrg. 27 (Marvin
Schneiderflian:
cost-benefit analysis "is very sensitive to some strictly
technical and arbitrary issues" such as the choice of a
discount rate).





44 45


Br. 10 (stressing importance of weighing "equity" and other
"qualitative" factors "that are not easily quantified or
monetized"). A health-only inquiry involves fewer
variables, and thus fewer opportunities for arbitrary deci-
sionmaking, than ATA's approach, which would open up
EPA's deliberations to anything that might be considered a
"prol I" or a "cont 1" of a NAAQS .See ATA Br. 30. See
also Benzene, 448 U.S. at 682 (Rehnquist, J., dissenting) ("If
6(b)(5) authorizes the Secretary to reject a more protec-
tive standard in the interest of administrative feasibility, I
have little doubt that he could reject such standards for any
reason whatsoever, including even political feasibility.")
(emphasis added).

VI. EPA'S 1997 NAAQS ARE SUPPORTED BY COM-
PELLING EVIDENCE OF ADVERSE HEALTH
EFFECTS.

ATA casts aspersions on the evidentiary underpin-
nings of EPA's 1997 NAAQS. ATA Br. 6-7, 12-14; APC Br.
10-13. Aside from being irrelevant to the statutory issue
raised by ATA's petition, these arguments are meritless.

The evidentiary background for EPA's 1997 NAAQS is
explained in ALA's brief in No. 99-1257. Several points
deserve emphasis here. First, the suggestion that the
effects documented by EPA do not constitute demon-
strated adverse public health effects simply because they
do not rise to the dire severity of the London Killer Fog
(APC Br. 25) must be rejected. Over thirty years ago,
Congress criticized "the false impression that air pollution
is a health hazard only when unusual weather conditions
conspire to produce localized disasters The subtler, less
dramatic long-range effects of air pollution
are of much more serious consequence to the population
as a whole." 1967 H. Rep. 4-5. Accord, 1967 5. Rep. 9.
Second, the notion that EPA is "regulat[ing] air pollution
to ever more stringent levels" (APC Br. 2) not previously
foreseen ignores a simple reality: the 1997 ozone NAAQS
(0.08 ppm, eight-hour average) regulates to substantially
less stringent levels than the 1971 photochemical
oxidants NAAQS (0.08 ppm, one-hour average). Indeed,
the drafters of 109(d) noted without protest that the
197l photochemical oxidants NAAQS might need to be
revised to regulate even more stringent levels. 1977 H.
Rep. 108-09. In short, the argument that EPA's substantially
less stringent 1997 NAAQS strayed below the pollution
levels of concern to Congress is simply unsustainable.

PM NAAQS. With respect to the PM NAAQS, industry
has not disputed the adverse nature of the public health
effects at issue (e.g., death, hospitalization, respiratory
illness, and missed work and school days), see 62 Fed.
Reg. 38657/1 (1997), JAPM 7, but instead has challenged
EPA's reliance on epidemiological studies, which do not
demonstrate a biological mechanism through which PM
causes adverse effects. ATA Br. 13. The D.C. Circuit
resoundingly rejected this argument, App. 55a-56a, and
with good reason. Congress recognized that epidemiological
studies are one of "four types of evidence which link air
pollution to specific health detriment," 1967 5. Rep. 9,
accord, 1967 H. Rep. 3, and indeed has directed EPA to
"conduct studies, including epidemiological, clinical, and
laboratory and field studies, as necessary to identify and
evaluate exposure to and effects of air pollutants on human
health." 42 U.S.C. 7403(d)(1)(A) (emphasis added). See
also 6/1981 5. Hrg.





46
47
194 (Dr. Norton Nelson, professor of environmental med-
icine: "The most directly relevant data is epidemiological
data," because it "deals with humans, not rats or mice")
(emphasis added).
The epidemiological database available to EPA amply
justified establishment of a fine particle NAAQS to protect
against adverse public health effects occurring at
particulate concentrations allowed by the prior NAAQS. In
contrast to, for example, the 1971 photochemical oxidant
NAAQS, which was based on a single epidemiological
study,11 the 1997 PM NAAQS was based on "[ojver 60"
such studies that "found consistent, positive, significant
associations between short-term PM levels and mortality
and morbidity endpoints." SP V-54, JAI'M 2011. And in
sharp contrast to the six sentences that represented
EPA's entire explanation of the 1971 PM NAAQS, 36 Fed.
Reg. 1502/2 (1971), JAPM 260, EPA provided thorough
and detailed analysis that convinced all four of CASAC's
epidemiologists of the need for new NAAQS addressing
fine particles, the particle fraction most clearly identified
with the effects. Wolff 6/13/96 Ltr., Table 1, JAPM 3165.
Three of those epidemiologists concluded:
EPA has appropriately synthesized this evidence and
drawn a responsible public health conclusion, namely,
that particulate concentrations at current levels are
causally associated with excess mortality and
morbidity. Furthermore, we agree that fine
particulates, as currently indexed by PM2.5, are the
most appropriate indicator for

ii 36 Fed. Reg. 8186/2 (1971), TAO 3539; 43 Fed. Reg.
26962/2-3, 26965 (table) (1978), JAO 3516. 3519.
the component of the particulate air mass to which
these adverse effects are attributed.
Lippmann 3/20/96 Ltr 7, JAPM 3159 (emphasis added).
EPA's issuance of a fine particle NAAQS not only
responds to compelling scientific evidence, but also fulfills the
promise EPA made decades ago, when it told Congress that
the 1971 PM NAAQS "was promulgated with the full
understanding and intention that later ambient air quality
standards for specific fractions or components of the total
suspended particulate would be necessary." 1975 5. Hrg.
755 (Dr. John Knelson, Director, EPA Human Studies
Laboratory). Indeed, the drafters of 109(d) expressly
directed EPA's attention to testimony that, because the
1971 PM standard "failled] to differentiate between large
particulate that results from blowing dust and the much
finer particulate that results from human activity," it allowed
"many heavily industrialized, obviously 'polluted' urban
areas Ito] meet the standard." Clean Air Act Oversight 1973,
Part 2, House Hearing
93-63 (Sept. 1973), at 826 (Texas Air Control Board), cited
in 1977 H. Rep. 182.
EPA's fine particle standard is designed to provide
improved public health protection against such pollution.
Far from protecting just a few scattered individuals, it is
one of the most important public health regulations of our
time, holding out the promise of preventing thousands of
deaths, tens of thousands of hospital admissions and
respiratory illnesses, and millions of days of missed work
and restricted activity each year. See RIA 12-43, JAPM
3486.

Ozone NAAQS. With respect to the ozone NAAQS, the
evidence demonstrating adverse public health effects is
likewise compelling. First, human clinical studies were





48 49


conducted on volunteers, who were dosed with specified
concentrations of ozone for specified periods. Those
studies showed that, after 6.6 hours of exposure to 0.08
ppm ozone, 10% of the subjects had drops in lung function
of 20'~~ or more with individual decreases ranging as high
as 37.9%. ALA Br. in 99-1257 at 8.
EPA expressly found that the effects of 0.08 ppm
ozone are adverse for sensitive individuals. 62 Fed. Reg.
38864/1, JAO 9. EPA's conclusion that adverse effects
were experienced by "some" of the clinical study partici-
pants at 0.08 ppm, id., even if interpreted extremely cau-
tiously as encompassing only relatively few of the sixty
individuals participating in the two key prolonged exposure
studies at that level,12 would still mean that a significant
percentage of exposed individuals can be expected to
experience adverse effects at 0.08 ppm. Moreover,
because the individuals tested in these studies were all
healthy young adults,13 these results understate the likely
impact on sensitive populations such as asthmatics. CD
9-26. JAO 1767 ("The magnitude of individual changes
can become more important in persons with impaired
respiratory systems (e.g., asthmatics) who already have
reduced baseline lung function."). Extrapolated to the
national population, the clinical studies belie any suggestion
that ozone's adverse effects strike only a few scattered
individuals.
In addition to the human clinical data, epidemiological
evidence demonstrated increased hospital admissions and
emergency room visits for respiratory causes at

I~ See CD 7-58 Fig. 7-4, JAO 1515 (60 individuals
tested at 0.08 ppm, 6.6-hour duration).

'~ See CD 7-54, TAO 1511 (Horstman and McDonnell).
ozone levels allowed by the prior NAAQS. 62 Fed. Reg.
38864/1, JAO 9. For each ozone-induced hospital admis-
sion, moreover, there are far larger numbers of other
ozone-induced health effects including asthma attacks and
visits to doctors arid outpatient facilities. Id. 38868/i, JAO
13. It is scant consolation to the stricken individuals that
some of these adverse health effects may be "transient
and reversible." ATA Br. 6. See 6/1981 5. Hrg. 233 (Dr.
Boushey: "most attacks of asthma" are reversible, but "no
physician or lay person who has witnessed the distress
of an asthmatic attack could fail to recognize it as an
adverse health effect"). See also ALA Br. in 99-1 257 at 7-8
(victims describe asthma attacks); 44 Fed. Reg. 8207/3
(1979), JAO 3485 ("Even when reversible, respiratory
symptoms may restrict normal activity or limit the performance
of tasks.").
Unable to refute the scientific evidence documenting
adverse effects from ozone exposure at concentrations
allowed by the prior NAAQS, industry is left with critiques
of EPA's risk assessments, which attempted to gauge how
many individuals would come into contact with various
ozone levels. APC Br. 11-12. But EPA determined in this
rulemaking, based on cogent scientific evidence, that a
significant percentage of the population experiences
adverse health effects at ozone levels permitted by the
prior standard. EPA was not required to deny public health
protection based on a prediction of the size of the affected
groups or the frequency with which they will come into
contact with polluted air. People who currently pursue or may
in the future need or want to pursue multi-hour outdoor
exercise whether they are children at camp, construction
workers, landscapers, or letter-carriers are entitled to do so
without fear of ozone-induced respiratory impairment.
See, e.g., 1970 5.





50

Rep. 10 (NAAQS must protect sensitive citizens "who in the normal course of daily activity are exposed to the ambient environment"), 36
("Recommendations that children not run to and from school and that events be suspended are not a substitute for reducing pollution."); 44 Fed.
Reg. 8210/1 (1979), JAO 3488 ("Standards must be based on a judgment of a safe air quality level and not on an estimate of how many persons will
intersect given con centration levels. EPA interprets the Clean Air Act as providing citizens the opportunity to pursue their normal activities in a healthy
environment.") (emphasis added).
Finally, as to both PM and ozone, it bears emphasis that this case (unlike Benzene) does not present a situation where an agency has regulated
at pollutant levels an order of magnitude below the range where adverse effects are demonstrated. To the contrary, as shown above and in ALA's
brief in No. 99-1257 (at 34-35), the scientific evidence documents adverse health effects in the range where both the PM and ozone NAAQS were
set.

CONCLUSION

For the foregoing reasons, the Court should affirm the D.C. Circuit's conclusion that primary NAAQS must be based solely on health effects of
air pollutants.

DATED: September 8, 2000.
Respectfully submitted,

HOWARD I. Fox

Earthjustice Legal Defense Fund
1625 Massachusetts Ave., N.W., Suite 702
Washington, D.C. 20036-2212
(202) 667-4500

Counsel of record for
American Lung Association

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