US Supreme Court Briefs

No. 99-1426

In The Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,
Petitioners,

V.

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

On Writ Of Certiorari To The
United States Court of Appeals For The District Of Columbia Circuit



REPLY BRIEF OF STATES OF OHIO, MICHIGAN AND WEST VIRGINIA IN SUPPORT OF CROSS-PETITIONERS



*Counsel of Record
BETTY D. MONTGOMERY
Attorney General of Ohio
EDWARD B. FOLEY
State Solicitor
JUDITH L. FRENCH*
ELISE W. PORTER
FRANK J. REED, JR.
Assistant Attorneys General
Office of the Attorney General
30 East Broad Street, 17th FIr.
Columbus, Ohio 43215-3428
(614) 466-2872
Counsel for Respondent State of Ohio

*Counsel of Record

[Additional Counsel Listed on Inside Cover]


MARK J. RUDOLPH
Deputy Chief
Office of Legal Services
West Virginia Division of
Environmental Protection
1356 Hansford Street
Charleston, West Virginia 25301
(304) 558-9160
Counsel Jbr Respondent State of West
Virginia
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 11
INTRODUCTION
JENNIFER M. GRANHOLM
Attorney General of Michigan
THOMAS CASEY
Solicitor General
ALAN F. HOFFMAN
PAMELA J. STEVENSON
Assistant Attorneys General
Natural Resources Division
300 S. Washington, Suite 315
Lansing, Michigan 48917
(517) 373-7540
Counsel J6r Respondent State of Michigan


ARGUMENT 2

I. EPA Mischaracterizes Cost and
Other Non-Health Factors As
Compliance Issues
II. The Act Supports A Finding That
EPA May
Consider Cost and Other Non-
Health Factors
When Setting An Air Quality
Standard 2
III. The Legislative History of the Clean
Air Act
Does Not Unequivocally Establish
That Cost
and Technological Feasibility May
Not Be
Considered in Setting A National
Air Quality
Standard 6
IV. Expanding the Number of Factors
EPA May
Consider in Setting an Air Quality
Standard
Narrows Choices and Allows for An
"Intelligible Principle" in Setting
the
Standard, Thus Avoiding the Issue
of
Nondelegation 8
CONCLUSION 10






ii
i

ii
TABLE OF AUTHORITIES
Page

CASES

International Union v. OSHA,
938 F.2d 1310 (D.C. Cir. 1991) 9
Lead Industries Ass'n v. EPA,
647 F.2d 1130 (D.C. Cir.),
cert. denied, 449 U.S. 1042 (1980) 3
National Resources Defr'nse Council v. U.S. EPA,
824 F.2d 1146 (D.C. Cir. 1987) 3
Union Electric Co. v. U.S. EPA,
427 U.S. 246 (1976) 3
MISCELLANEOUS

Hearings on Air Pollution Before the Subcomm. on
Air and Water Pollution of the Senate Comm. on
Pub. Works, 91st Cong., 2d Sess. Pt. 4 (1970),
(Air Pollution Hearings) reprinted in 2 Staff of
Senate Comm. on Pub. Works, 93d Cong., 2d
Sess., A Legislative History of the Clean Air
Amendments of 1970 (Comm. Print 1974) 6
11970 Leg. Hist. 341 7
A. Scalia, Responsibilities of Regulatory Agencies
Under Environmental Laws, 24 Hous. L. Rev. 97
(1987) 9
STATUTES

Clean Air Act 108(a)(2);
42 U.S.C. 7408(a)(2) 3, 4
Clean Air Act 108(a)(2)(A)-(B);
42 U.S.C. 7408(a)(2)(A)-(B) 3
Clean Air Act 108(b)(l);
42 U.S.C. 7408(b)(l) 4
Clean Air Act, 109(b)(l);
42 U.S.C. 7409(b)(l) 2
Clean Air Act 109(d)(2)(A);
42 U.S.C. 7409(d)(2)(A) 5
Clean Air Act 109(d)(2)(C)(iv);
42 U.S.C. 7409(d)(2)(C)(iv) 5
Clean AirAct 110;
42U.S.C.7410 5





INTRODUCTION

The Supporting States of Ohio, Michigan and West Virginia argued at the outset that EPA's failure to consider factors other than direct public health effects
in setting an air quality standard for a non-threshold pollutant may require States to meet an unjustified standard that is impossible to implement using enforceable
control measures. EPA does not respond to that argument. Instead, EPA characterizes cost and factors not directly related to the physical health of individuals as
matters relating to the feasibility of compliance and, therefore, as only relevant to implementation. By doing so, EPA only highlights the problem with its
approachthat implementation itself is impossible if EPA does not, in the first instance, account for the "public health" in a comprehensive way, subject proposed
standards to a cost/benefit analysis to determine whether they are, in fact, beneficial to the public, and then articulate an intelligible basis for its decision.

EPA cannot justify its decision-making by relying on the "technology forcing" nature of the Clean Air Act. The Supporting States agree that the Act should
force technological changes and that air standards must be based first and foremost on public health considerations. The Supporting States cannot agree, however, that
EPA may, in the name of public health, set standards for non-threshold pollutants without any consideration for "health" in a complete sense and without any
consideration for whether these new standards will truly benefit the citizens of our States.

As the Supporting States argued in Case No. 99-1257, EPA had no authority to revise the existing ozone standard. But even assuming such
authority, the Supporting States ask that the Court vacate the PM and ozone rules and remand them to EPA for further consideration because
EPA cannot


2
3
show that its new air standards are "requisite" to protect
"public health." Such a remand avoids the constitutional question
and retains Section 109 of the Act.

ARGUMENT

I. EPA Mischaracterizes Cost and Other Non-
Health

Factors As Compliance Issues.
EPA argues throughout its brief that consideration of
technological feasibility should occur only at implementation.
The Supporting States agree that the standards at issue here
ultimately implicate compliance issues because unfounded
standards lead inevitably to impossible implementation.
However, EPA's focus on the "feasibility" of compliance is
misplaced.

Cross-Petitioners have not simply raised questions
of compliance, and are not, as EPA asserts, looking to
"protectH industry from 'compliance costs."' EPA Brief at 37.
Rather, the issues before the Court go to the heart of EPA's
decision-making when setting standards for non-threshold
pollutants. Despite uncertain science, and in the face of
enormous costs to the States, industry, and, ultimately, the
public, EPA must be able to articulate a basis for its proposed
standards. Anything less violates the most basic principles of
agency authority.

II. The Act Supports A Finding That EPA May
Consider Cost and Other Non-Health Factors
When Setting An Air Quality Standard.

In its brief, EPA employs a number of arguments in
support of its main pointthat it is not permitted to consider
cost, technological feasibility, or factors other than
direct public health effects when setting a national ambient air
quality standard under Section 109(b)(l) of the Clean Air
Act. 42 U.S.C. 7409(b)(1). But EPA evades the real charge in
this casearticulation of a cogent principle of statutory
interpretation that will allow analysis of the statutory language
itself to determine when factors not expressly listed in the
relevant statute are to be considered by an agency. Instead, EPA
employs an interpretation heavily laden with legislative
history, without first carefully analyzing the statutory
language.

For all its focus on this Court's decision in Union
Electric Co. v. U.S. EPA, 427 U.S. 246 (1976), EPA has
missed the critical point of statutory construction. Where
Congress presents an agency with an exclusive list of
factors it must consider in making a determination, the
agency usually cannot consider other, non-listed factors
in making its decision. In Union Electric, the Court found
that a provision exclusively enumerating eight criteria for
consideration did not authorize consideration of other
criteria. Id. at 257. The logical corollary of this principle
is that where such a list is not exclusive, the agency is
permitted to consider other, relevant factors in making
its determination. See National Resources Defrnse Council v.
U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987) ("Vinyl
Chloride"). It is this corollary principle that is at issue
here, and at the root of the important conflict with Lead
industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.), cert.
denied, 449 U.S. 1042 (1980), and its progeny.

Section 109 requires EPA to set or revise a standard
based on "criteria" issued under Section 108. The "criteria"
documents incorporate information on a non-exclusive list of
topics, including information that might alter the effects of the
pollutant on public health and the effect of other pollutants that
might interact to cause adverse health effects.
CAA 108(a)(2)(A)-(B); 42 U.S.C. 7408(a)(2)(A)-(B).
The fact that the list in Section 108(a)(2) is non-exclusive
indicates that information other than "effects on public
health





4 5


or welfare" may be considered when issuing "criteria"
documents upon which to set or revise a standard.

EPA argues that the list in Section 108(a)(2) "are all
encompassed within, and limited by, Section 108(a)(2)'s general
directive that 'air quality criteria' shall provide information
on the health and welfare effects posed by 'the presence of such
pollutant in the ambient air."' But EPA misses the point
that the list in 108(a) is not exclusive; it directs that the
criteria "shall include" various information, but does not
use "only," "exclusive," or any other language that
makes that list exclusive.

And the language of Section 108(b) reinforces that
interpretation of Section 108(a). Simultaneously with issuance
of the criteria, EPA collects and issues to the States
"information on air pollution control techniques." CAA 108(bp
j; 42 U.S.C. 7408(b)(l). EPA gathers the information in
consultation with advisory committees and federal departments
and agencies. CAA 108(b)( I); 42 U.S.C. 7408(h)(l). The
information includes data on a wide range of factors,
including cost of installation and operation, energy
requirements, emission reduction benefits, environmental impacts
of the emission control technology, alternative fuel processes,
and operating methods that will result in the elimination or
reduction of emissions. CAA 108(b)(l); 42 U.S.C.
7408(b)(l).

EPA argues that Section 108(b) indicates only that
Congress wanted to continue the program of "separately"
providing States with information on emission controls so that
the States can implement air quality standards. But if so, it is
much more likely that Congress would have truly separated the
language, by putting it in Section 110, which describes state
implementation plans. Its presence in 108 suggests that the
information is connected with establishing
criteria, not implementing state plans. CAA 110; 42 U.S.C.
7410.

Also, Section 109(d), under which EPA is to
review and revise criteria and standards every five years, requires
the establishment of an independent scientific review committee
to review and recommend changes to the criteria and standards.
CAA 109(d)(2)(A); 42 U.S.C. 7409(d)(2)(A). The
committee is to advise the Administrator of a large number of
factors, including "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." CAA I
09(d)(2)(C)(iv); 42 U.S.C. 7409(d)(2)(C)(iv).

EPA again argues that the language in Section
109 requiring committee advice on a long list of health and non-
health issues is in a separate subsection from that requiring
advice on reevaluating air quality standards, and therefore that the
non-health factors are not to be considered when revising the
standard. However, EPA does not suggest why the committee is
to gather this information and report to the Administrator, if she
is not to use it in revising an air quality standard. And the
presence of such a requirement in Section 109, rather than
elsewhere in the Act, indicates that the purpose of the
information is for revising standards.

In short, EPA has not shown that the statutory
language prohibits consideration of cost and non-health
factors. Indeed, many provisions suggest that such
factors can and should be considered.





7
6
III. The Legislative History of the Clean Air Act
Does Not Unequivocally Establish That Cost
and Technological Feasibility May Not Be
Considered in Setting A National Air
Quality Standard.

EPA relies heavily on various remarks made during
congressional hearings for its proposition that costs and other
non-health factors may not be considered in setting an air quality
standard. The Supporting States cited to legislative
statements that indicate Congress intended for costs to be
considered.

For instance, EPA cites various passages, mostly
comments made by Senator Muskie during the 1970 hearings.
However, other members make comments that indicate
otherwise. For example, Senator Baker states:

Now, on the other side of the question of where [the
standard] ought to be set is unanswerable. And it will
continue to be unanswerable because we at the
legislative department and the executive
department through its appropriate
administrative channel are going to have to
monitor the state of the alt, the condition of the world,
the economic impact in dislocations, the situation as it
continues from year to year and decide what we are going
to do about it.

Hearings on Air Pollution Before the Subcomm. on Air and
Water Pollution of the Senate Comm. on Pub. Works, 9l~
Cong., 2d Sess. Pt. 4, at 1488, 1489 (1970), (Air Pollution
Hearings) reprinted in 2 Staff of Senate Comm. on Pub.
Works, 93d Cong., 2d Sess., A Legislative Histo;y of the
Clean Air Amendments of 1970 at 1186 (Comm. Print. 1974)
(hereinafter "2 1970 Leg. Hist.") (emphasis supplied); EPA
Brief at 28. n.8. This passage at least implies that economic
impacts will influence the revision of air quality standards.
In addition, EPA cites Senator Muskie
"reemphasiz[ing] that the concept of this bill . .. is not keyed to any
condition that [EPA] finds technically and economically
feasible." EPA Brief at 26. This comment was made in
regard to the amendment creating a standing consulting
committee for each pollutant to advise EPA on technology and
costs. However, the sponsor of the amendment, Senator
Randolph commented:

It is my belief that since enactment of the 1967
amendments to the Clean Air Act, it has become
apparent that one of the deficiencies ... has been the
agency's lack of understanding of industrial pollution
control techniques. It is, of course, easy for Government
to arrive at a set figure for industry to meet without
giving due consideration to whether those requirements
are obtainable on the basis of available control
technology.
1 1970 Leg. Hist. 341 (emphasis supplied). passage at least
implies that available control should be considered in setting
a standard.
Again, this technology
These examples, together with those cited in the
Supporting States' opening brief, indicate that there are
numerous instances in the legislative history where members of
Congress express the opinion that factors other than
public health are to play a role in setting and revising an air
quality standard. Thus, at the very least, the legislative
history indicates a diversity of opinion on the issue and
may be more accurately interpreted that Congress did not want
cost and technological feasibility to stand in the way of
meeting a standard. In any case, the history does not go to how
EPA is to determine standards for non-threshold pollutants.
EPA's heavy reliance on such a history is therefore misplaced,
and





9
8
should be given less credence than the statutory language itself.

IV. Expanding the Number of Factors EPA May
Consider in Setting an Air Quality
Standard
Narrows Choices and Allows for An
"Intelligible
Principle" in Setting the Standard, Thus
Avoiding
the Issue of Nondelegation.

Finally, despite the uncertainty sulTounding the
standards, EPA argues that expanding the range of factors that it
may consider in setting an air quality standard would exacerbate
the problem of defining a standard, as it would increase, rather
than decrease its discretion under Section
109. EPA Brief at 47-49. Therefore, in EPA's view,
consideration of cost and other factors does not avoid the
nondelegation question. But, contrary to EPA's
contention, additional factors actually narrow, rather than
broaden, choices in decision-making and, therefore,
resolve the issues before the Court without the need to resolve
the constitutional question.

Useful analogies abound to illustrate this point. In
a well-known principle of plane geometry, an infinite number of
straight lines can be drawn through a single point, but two
points define only one straight line. In the purchase of a car, if
the only criterion for the car is its size, a huge number of
choices are available. As each new criterion (e.g;, price,
color, safety record, gas mileage, etc.) is added to the decision-
making process, the choices narrow dramatically.
range considerably and will help, rather than hinder, definition of
a standard based on an "intelligible principle."

Limited considerations of costs and other factors do not
involve an "open ended inquiry" into every conceivable cost, as
EPA suggests. Cost-benefit analysis "is simply a weighing of all
the desirable effects of a proposed action against all the
undesirable effects, whether or not they are susceptible of
being expressed in economic terms." A. Scalia, Responsibilities
of Regulatory Agencies Under Environmental Laws, 24 Hous.
L. Rev. 97, 101 (1987). See also international Union v. OSHA,
938 F.2d 1310, 1319-21 (D.C. Cir. 1991). Therefore, the
inquiry may reasonably involve only those costs directly relevant
to the limitation of a particular pollutant. Of course, as EPA
asserts, that inquiry will be open to debate. But such debate is
the price of public comment and agency rulemaking. And the
ultimate agency decision resulting from such an analysis "is
particularly difficult for a court to second-guess." 24 Hous. L.
Rev, at
101.

On the other hand, failing to consider any factor other
than direct health effects results in the present, unreasonable
resultno intelligible principle whatsoever for the ozone and
particulate matter standards. EPA reasonably should consider
costs and other non-health factors when setting and revising a
national air quality standard.
So it is here. In determining an air quality standard,
consideration of the single factor of health effects on individuals
(especially for a non-threshold pollutant) identifies a broad range
of possible standards. Addition of the further factors of societal
costs and benefits narrows that





II
10
CONCLUSION

For the foregoing reasons, the States of Ohio, Michigan
and West Virginia respectfully request that the Court order the
lower court to vacate the ozone and particulate matter
standards, and remand the particulate matter standard to
EPA for reconsideration of those standards.

Respectfully submitted,

BETTY D. MONTGOMERY
Attorney General of Ohio
EDWARD B. FOLEY
State Solicitor
JUDITH L. FRENCH*
ELISE W. PORTER
FRANK J. REED, JR.
Assistant Attorneys General
Office of the Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215-3428
(614) 466-2872
Counsel for Respondent State of Ohio
MARK J. RUDOLPH
Deputy Chief
Office of Legal Services
West Virginia Division of
Environmental Protection
1356 Hansford Street
Charleston, West Virginia 25301
(304) 558-9160
Counselfor Respondent State of West Virginia

JENNIFER M. GRANHOLM
Attorney General of Michigan
THOMAS CASEY
Solicitor General
ALAN F. HOFFMAN
PAMELA J. STEVENSON
Assistant Attorneys General
Natural Resources Division
300S. Washington, Suite 315
Lansing, Michigan 48917
(517) 373-7540
Counsel for Respondent State of Michigan
*Counsel of Record October, 2000

[Additional Counsel Listed on Next Page]



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