US Supreme Court Briefs

No. 99-1426

IN THE
Supreme Court of the United States


AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER OF
COMMERCE OF THE UNITED STATES, ET AL., *

Cross-Petitioners,

V.

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

Cross-Respondents.

ON WRIT OF CERTIORARI
TO TILE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


REPLY BRIEF FOR CROSS-PETITIONERS


ROBIN S. CONRAD
NATIONAL CHAMBER
LITIGATION
CENTER, INC.
1615 H Street, NW.
Washington, D.C. 20062
(202) 463-5337
Counsel for Cross-Petitioner
Chamber of Commerce of the
United States

EDWARD W. WARREN
Counsel of Record
ROBERT R. GASAWAY
JEFFREY B. CLARK
DARYL JOSEFFER
KIRKLAND & ELLIS
655 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 879-5000

CHARLES FRIED
1525 Massachusetts Avenue
Cambridge, MA 02138
(617) 495-4636
Counselfor Cross-Petitioners
American Trucking Associations, Inc.
and Chamber of Commerce of the
United States
*Addidonal Parties and Counsel Listed on Inside Cover


October 6, 2000


(i)
BE'mL. LAW
ROnERT S. DiGoEs
ATA LITIGATION CENTER
2200 Mill Road
Alexandria, VA 22314
Counsel for American
Trucking
Associations, Inc., Burns
Motor
Freight, Inc., Garner
Trucking,
Inc., and Genie Trucking Line,
Inc.

GARY H. BAISE
ELIZABETH S. POLINER
BAISE, MILLER & FREER, P.C.
1020 19th Street, N.W.
Suite 400
Washington, D.C. 20036
Counsel for Equipment
A'Ianufacturers Institute

DAVID M. FRIEDLAND
BEVERIDGE & DIAMOND
1350 I Street,N.W.
Suite 700
Washington, D.C. 20005
Counsel for National Small
Business United, The
American
PordandCeinentAlliance, and
The
Glouster Company, Inc.
JAN 5. AMUNDSON
NATIONAL ASsOCIATION OF
MANUFACTURERS
1331 Pennsylvania Avenue, NW.
Washington, D.C. 20004
Counsel for National
Association
of Manufacturers
TABLE OF
CONTENTS

P
a
g
e


INTRODUCTION
ARGUMENT 3
DIMETRIA G. (JIM) DASKAL
THE DASICAL LAW GROUP
3 Church Circle
Suite 500
Annapolis, MD 21401
Counselfor National
Coalition of
Petroleum Retailers


DOUGLAS I. GREENHAUS
NATIONAL AUTOMOBILE
DEALERS ASSOCIATION
8400 Westpark Drive
McLean, VA 22102
Counsel for National
Automobile
Dealers Association
I. THE
ADMIMSTRATOR
HAS NO ANSWER
FOR
OUR ARGUMENTS
THAT THIS COURT'S
DECISIONS
UNDERMINE THE
LEAD
INDUSTRIES
DOCTRINE
.4
II. CONGRESS DID
NOT REPEAL THE
PREEXISTING CLEAN
AIR ACT PRACTICE
OF
CONSIDERING
COMPETING
FACTORS WHEN
IN 1970 IT
DIRECTED THE
ADMThISTRATOR
TO SET "PUBLIC
H
E
A
L
T
H
"

N
A
A
Q
S

8
III. STARE DECISIS
DOES NOT APPLY
IN THIS
CASE . .
19
CONCLUSION 20




EIUICA Z. JONES
TtMO'ITIY S. BISHOP
ADAM C. SLOANE
MAYER, BROWN & PLATT
1909 K Street, N.W.
Washington, D.C. 20006
Counsel for American Farm
Bureau Federation
JEFFREY L. bElIER
CHET M. THOMPSON
COLLIER, SHANNON, RILL &
SCOTT
3050 K Street, NW., Suite 400
Washington, D.C. 20007
Counsel for Non-Ferrous
Founders 'Society
ROBERT R. GASAWAY
KIRKLAND & ELLIS
655 Fifteenth Street, NW.
Suite 1200
Washington, D.C. 20005
Counsel for American Road
and
Transportation Builders
Association





(ii)

TABLE OF AUTHORITIES
Page
Cases:
Aaron v. SEC,
446U.S.680(1980) 18
American Textile Mfrs. Inst., Inc. v. Donovan,
452 U.S. 490 (1981) 1, 16
Blanchette v. Connecticut,
419 U.S. 102 (1974) 17
Christensen v. Harris County,
120 5. Ct. 1655 (2000) 4
FDA v. Brown & Williamson Tobacco Corp.,
120 5. Ct. 1291 (2000) 4, 18
FDIC v. Meyer,
510 U.S. 471 (1994) 8
Hughes Tool Co. v. Trans World Airlines,
409 U.S. 363 (1973) 20
Illinois v. City of Milwaukee,
406 U.S. 91(1972) 11
International Union, UnitedAuto., Aerospace
& Agric. Implement Workers of Am.,
UAWv. OSHA,
938F.2d1310(D.C.Cir. 1991) 2
Lead Indus. Ass 'n v. EPA,
647F.2d1130(D.C.Cir. 1980) 5
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) 11
MCIv. AT&T,
512 U.S. 218 (1994) 4


(iii) (iv)












11


18


20


2,17


Motor Vehicle Mfts. Ass 'n v. State Farm Mut. Auto.
Ins. Co.,
463 U.S. 29(1983) 19

Pegram v. Herdrich,
120 5. Ct. 2143 (2000) 6, 9,
10

Pension Benefit Guar. Corp. v. LTV Corp.,
496U.S. 633 (1990) 18
Reserve Mining Co. v. EPA,
514F.2d492(8thCir. 1975)
Rodriguez v. Compass Shipping Co.,
451 U.S. 596 (1981)

State of Michigan v. EPA,
213 F.3d 663 (D.C. Cir. 2000)

Union Elec. Co. v. EPA,
427 U.S. 246 (1976) United States v.
Southwestern Cable Co.,

392 U.S. 157 (1968) 17


Statutes:

Air Pollution Control Act of 1955,
Pub. L. 84-159, ch. 360, 69 Stat. 322, I 10 Air Quality Act of 1967,
Pub. L. 90-148,81 Stat. 485, 108(a) 11, 12

Clean Air Act of 1963,
Pub. L. 88-206, 77 Stat. 392, 5(a) 10, 11

Clean Air Act 108(a)(1),
42 U.S.C. 7408(a)(1) 15

Clean Air Act I 08(a)(2),
42 U.S.C. 7408(a)(2) 12

Clean Air Act 108(a)(2)(C),
42 U.S.C. 7408(a)(2)(C) 15
Clean Air Act 109(d)(2)(C), 42 U.S.C.
7409(d)(2)(C)
Clean Air Act 11 1(a)(1), 42 U.S.C. 7411(a)(1)

Clean Air Act 171-75, 42 U.S.C. 7501-05.
15
17


I
Clean Air Act 172(a)(2), 42 U.S.C. 7502(a)(2)
1
Clean Air Act 179(b)(1), 42 U.S.C. 7509(b)(1)
I
Clean Air Act 179(b)(2), 42 U.S.C. 7509 (b)(2)

Clean Air Act 202(a)(2), 42 U.S.C. 752 1(a)(2).

Clean Air Act 231(b), 42 U.S.C. 7571(b)
Clean Air Act 3 02(h), 42 U.S.C. 7602(h)

Clean Air Act 307(h), 42 U.S.C. 7607(h)
1


17


17
15


18
Miscellaneous:
62 Fed. Reg. 38,652 (July 18, 1997)

62 Fed. Reg. 38,856 (July 18, 1997)

H.R. 17255, 9lstCong. (1970)
S

6

14
H.R 91-1783, 9lstCong. (1970) 14
HR Rep No 95-294 (1977) 17
5. 4358, 91st Cong. (1970) 13, 14
S. Rep. No. 403 (1967) 12





(v)
(vi)
THE AMERICAN HERITAGE ILLUSTRATED
ENCYCLOPEDIC DICTIONARY (1987) 9
BLACK'S LAW DICTIONARY (7th ed. 1999) 9

Robert Fabian, The Qualy Approach, in
VALUING HEALTH FOR POLICY: AN
ECONOMIC APPROACH (1994) 7

David L. Faigman, LEGAL ALCHEMY THE USE
ANDMISUSEOFSCIENCEINTHELAW (1999) 19

Marci A. Hamilton, Representation and
Nondelegation: Back to Basics,
20 Cardozo L. Rev. 807 (1999) 3
Charles C. Johnson, Jr., Environmental
Health Protection, 24 Food Drug
Cosmetic L.J. 348 (1969) .. 10

Mark K. Landy, et al., THE ENVIRONMENTAL
PROTECTION AGENCY: ASKING THE WRONG
QUESTIONS FROM NIXON TO CLINTON (1994)
7
David Schoenbrod, POWER WITHOUT RESPONSIBILITY:
HOW CONGRESS ABUSES THE PEOPLE
THROUGH DELEGATION (1993) 3
STEDMAN'S MEDICAL DICTIONARY (1995) 9

WEBSTER'S TI-IIRD NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH
LANGUAGE UNABRIDGED (1976) 9

WEBSTER'S Nn'rrH NEW COLLEGIATE
DICTIONARY (1987) 9

C.E.A. Winslow, THE COST OF SICKNESS AND THE
PRICE OF PUBLIC HEALTH, World Health
Organization,
MonographSeriesNo.7(1951) 8

Richard J. Zeckhauser & W. Kip Viscusi, The Risk
Management Dilemma, 545 Annals Am.
Acad. Pol. & Soc. Sci. 144 (1996) 18
MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY
(lOthed. 1994) 9

MERRIAM-WEBSTER'S MEDICAL DESK
DICTIONARY (1996) 8

Naomi N. Modeste, DICTIONARY OF PUBLIC HEALTH
PROMOTION AND EDUCATION:
TERMS AND CONCEPTS (1996) 8

Barbara B. Perkins, Public Health Then and
Now: Economic Organization of
Medicine and the Committee on the
Costs of Medical Care,
88 Am. J. Public Health 1721 (1998) 10
Antonin Scalia, RegulationThe First Year,
REGULATION, Jan/Feb. 1982 13





INTRODUCTION

As demonstrated in our briefs as cross-petitioners and respondents, the Clean Air Act ("CAA" or "the Act"), properly construed, requires
that the Administrator consider competing factors including costs in setting National Ambient Air Quality Standards ("NAAQS"). See Cross-
Pet. Br. 32-43; ATA Resp. in No. 99-1257, at 3-4, 2 1-22. Judging "public health" by "a systematic weighing" of competing factors
comparable to that required by Executive Order 12,866 provides the Administrator with the "intelligible principle" necessary to satisFy
constitutional requirements and channel her NAAQS rulemaking so as to permit judicial review on customary rationality grounds. Id. at 11-25;
Cross-Pet. Br. 30-32, 47-50.

The Administrator and her supporters seek to sidestep these points by mischaracterizing NAAQS as mere "air quality targets," EPA Resp.
3, "more akin to statutory policy objectives" than actual standards, Mass. Resp. 2, and then by pretending that ATA has argued that NAAQS
should be set by an "economic and technologicalfeasibility" test. EPA Resp. 3 (emphasis added); see also id. at 14, 16, 17, 18, 19 (repeatedly
mentioning "feasibility" or "technological feasibility" as ATA's basis for setting NAAQS). But far from being simply "targets" or "policy
objectives," NAAQS trigger the imposition of numerous mandatory requirements (CAA 171-75,42 U.S.C. 7501-05) that are legally
enforceable through federal sanctions on States ("highway sanctions," CAA 179(b)(1), 42 U.S.C. 7509(b)( 1)) and the private sector
(emissions "offsets" for new or modified sources, CAA 179(b)(2), 42 U.S.C. 7509 (b)(2)). Nor has ATA ever argued that NAAQS should
be set based on "feasibility"an entirely different concept from "cost-benefit analysis" or "public health" under this Court's decisions and the
Clean Air Act.

This Court's decision in American Textik Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 509 (1981) ("Cotton
Dust"), thus carefully distinguishes between "feasibility analysis" and "cost-benefit analysis," and then holds that a cost-benefit analysis is
foreclosed for toxic substance workplace


2 3


standards (as opposed to safety standards) because section
6(b)(5) of the Occupational Health and Safety Act instead
provides a feasibility test for setting those standards.
Likewise, the Court's decision in Union Electric Co. v.
EPA, 427 U.S. 246, 249 (1976), specifically addresses
only whether the petitioner could "raise the claim that it
is economically or technologically infeasible to comply"
with emissions limitations included in a State
Implementation Plan ("SIP") required under a NAAQS set
by EPA. That decision does not address the separate
question of how the Administrator should make public
health determinations, but it does foreclose altogether the
Administrator's argument here that NAAQS are simply
"targets" until "feasibility" is resolved by EPA at a later
stage. See id. at 265.

As we show, the concept of "public health"
underlying the setting of NAAQS rejects a feasibility test
in favor of a weighing of competing considerations, a
point amply confirmed not only by the meaning of the
term "public health" but also by the statutory structure
and legislative history. See Cross-Pet. Br. 33-42; pp. 8-
19, infra. Nor is there any reason to believe that setting
NAAQS on such a public health basis would systematically
lead either to less stringent (or more stringent) ambient
standards, much less produce the "chaos" predicted by the
Administrator's supporters. See, e.g., Cal. Amici Br. 2. In
fact, because cost-benefit analysis is a neutral tool, agency
officials may try to use it in some circumstances to
attempt to justiFy more stringent standards than either a
feasibility test, see, e.g., International Union, United
Auto., Aerospace & Agric. Implement Workers of Am.,
UAWv. OSHA, 938 F.2d 1310, 1326 (D.C. Cir. 1991); cf
Cross-Pet. Br. 42 n.2, or the standardless approach that
the Administrator followed in setting these NAAQS, see
Cross-Pet. Br. 44-45 (discussing the role of cost-benefit
analysis in setting of PM10 NAAQS in 1987).

In this Reply, we show that science alone does not
suffice to make the public policy choices necessary in
setting NAAQS, and that this Court's decisions preclude
any suggestion that
Congress implicitly delegated to the Administrator
authority to make choices of such "economic and
political significance" without considering competing
factors including costs. See Part I, infra. Instead, Congress
directed the Administrator to set NAAQS based on the
public health as a means of authorizing the Administrator
to perform equitable balancing of the sort previously
carried out by courts and the Statesa conclusion
confirmed by the traditional meaning of public health as
well as by the statutory text and structure, and even the
legislative history cited by the Administrator herself See
Part II, infra. Finally, any application of stare decisis here
would defeat the aim of transparent decisionmaking,
ignore the fact that LeadIndustries lacks precedential
authority even in the D.C. Circuit, and undercut the
fundamental rule that denials of certiorari carry no
precedential weight in this Court. See Part III, infra.

ARGUMENT

Cloaked in the mantle ofLead Industries, the
Administrator claims that science alone allows her to
judge which particular numeric NAAQS level is "requisite
to protect the public health" "with an adequate margin of
safety." That claim, belied by logic and contradicted by
her own admissions, see Cross-Pet. Br. 8, 16, 29-
30;ATAResp. in No. 99-1257, at 11, 17-21, produced the
constitutional nondelegation infirmity identified by the
D.C. Circuit. See Gen. Elec. Amicus Br. in No. 99-
1257, at 1-4; Mercatus CenterAmicus Brs.; see generally
David Schoenbrod, POWER WITHOUT
RESPONSIBILITY: How CONGRESS ABUSES
THEPEOPLE THROUGH DELEGATION (1993); Marci
A. Hamilton, Representation and Nondelegation: Back to
Basics, 20 Cardozo L. Rev. 807 (1999). But for reasons
already presented, see Cross-Pet. Br. 32-43, and further
developed below, this Court may properly resolve this
case by repudiating Lead Industries on ordinary statutory
interpretation grounds, thus defusing the constitutional
questions it would otherwise be forced to confront. See
ATA Resp. in No. 99-1257, at 11-14,
21-25.





4 5


I. THE ADMINISTRATOR HAS NO ANSWER
FOR
OUR ARGUMENTS THAT THIS COURT'S
DECISIONS UNDERMINE THE LEAD IND US TR
(ES
DOCTRINE.

Lead Industries assumes an extraordinarily
extravagant delegation of legislative power to the
Administrator. In the context of regulations that
dramatically affect the whole economy,
LeadIndustries presupposes that Congress
delegated to the Administrator the authority to set
NAAQS without any consideration of competing
considerations. See ATA Resp. in No. 99-1257, at 9-10.
But as this Court's decisions show, "Congress could not
have intended to delegate" to the Administrator "a
decision of such economic and political sigI~ficance... in
so cryptic a fashion." See FDA v. Brown &
Williamson Tobacco Corp., 120 S. Ct. 1291,
1315 (2000);MCI v. AT&T, 512 U.S. 218, 231
(1994); Christensen v. Harris County,
120 5. Ct. 1655, 1664 n.l (2000) (Scalia J., concurring);
id at 1667 (Breyer, J., dissenting). The Administrator
offers no response to these decisions; indeed, the only
one of her supporters to mention them merely makes
the correct but irrelevant point that these decisions do
not "deal with the Clean Air Act, the consideration of
costs under environmental statutes, or the use of cost-
benefit analysis." Environmental Defense Amici Br. 16-
19.

Rather than grapple with the inherent limits of
congressional delegation under this Court's decisions, the
Administrator contents herself with arguing that she can
set NAAQS based on science alone, consistent with both
the Act and the nondelegation doctrine. EPA Resp. 32-
34. But that proposition is simply not defensible. The
Administrator, accepting Lead Industries, had but two
logical alternatives availableset the ozone and PM
NAAQS "at zero" or select a non-zero standard
without considering competing factors in favor of or
against any particular NAAQS. See Pet. App. ISa; Cross-
Pet. Br. 28-32. The Administrator denies that these are
the only logical alternatives, see EPA Resp. 32-34, but
she
never confronts the core insight underlying the lower
court's analysisspecifically, that "[s]cience
describes, it does not prescribe." See Marchant
Amici Br. in No. 99-1257, at 5 (emphasis added). As the
National Academy of Sciences has said, "science alone
can never be an adequate basis for a risk decision"
because such decisions "are, ultimately, public policy
choices" which turn on "political, economic, and
technical considerations." Id. at 6-7 (quoting NAS Red
Book at 19 & 7) (emphasis added). Indeed, Lead
Industries itself recognizes that the selection of a
NAAQS "presents complex questions of science, law,
and social policy under the Act." Lead Indus.
Ass'nv.EPA,647F.2d 1130, 1146 (D.C. Cir. 1980)
(emphasis added). Of course, it is precisely because
science alone is inadequate for deciding public policy
questions that the Administrator can identify no
intelligible principle that cabined her decisionmaking
here, see ATAResp. in No. 99-1257, at 11-12, and that
her attempts to justify her decisions on science alone are
so contradictory and unpersuasive. See id. at 17-21;
accord Hatch Amici Br. in No. 99-1257, at 13-17,
26-30.
The Administrator's claimed basis for saying that
science alone is somehow decisive on this record begins
by conceding that she has "never encountered" facts that
would warrant setting a zero level standard, EPA Resp.
32, or even a zero-risk standard (taking into account
"risk-risk" tradeoffs). See Marchant Amici Br. in No.
99-1257, at 16 (noting this type of zero-risk approach).
The Administrator and her supporters go on to argue
that a non-zero standard is not arbitrary even for non-
threshold pollutants. See EPA Resp. 33-34; Mass. Resp.
42-43. This contention, couched in multiple double
negatives, see, e.g., Mass. Resp. 43, is refuted by the
Administrator's own repeated concessions about her
decisionmaking process, see ATA Resp. in No. 99-1257,
at 11, 17-21, as well as by the simple fact that, "unless
the Administrator affirmatively determines a health
effects threshold and sets the standard with that
threshold as the starting point, there will always be
'possible, but not certain' health effects at every level."
Id. at





6 7


19 (quoting 62 Fed. Reg. 38,652, 38,678 (July 18,
1997)); see also Gen. Elec. Amicus Br. in 99-1257, at
24-26. The Administrator's apparent answer is that she
can regulate only "medically significant risks," EPA
Resp. 33a formulation indistinguishable from other
formulations that she has always categorically rejected.
See, e.g., 62 Fed. Reg. 38,856, 38,883 (July 18, 1997)
(no requirement that she determine "what risk is
'acceptable"'); Resp. Br. in D.C. Cir. No. 97-144 1, at 42
& n.40 (Administrator not required to "make a 'finding'
that the existing standard permits a 'significant risk of
harm' to public health."); see also MAPI Br. in No. 99-
1257, at 4 n.4.

Certainly, the Administrator would now like to
claim that science alone does provide the answers. But
she repeatedly said just the opposite in the agency
proceedings specifically, that her decisions were
"largely judgmental in nature" and followed "no
generalized paradigm." 62 Fed. Reg. at 38,883. Likewise,
the EPA Staff Paper expressly called the Administrator's
decision a"policy judgment," OJA 197 1-72, 1976, and
CASAC concurred, saying that a collective scientific
judgment was not possible, meaning that any
recommendations from individual members were only
"personal" policy preferences, see id at
237. See generally Cross-Pet. Br. 6-8, 13-15.

Because a zero-risk standard is clearly unavailable
under theAct,seePegramv. Herdrich, 120 S. Ct.
2143,2150(2000), and science alone is unable to select
from among the limitless possible NAAQS levels, "a
systematic weighing" of competing considerations
emerges as the logical choice for NAAQS standard-
setting. See Cross-Pet. Br. 30; ATA Resp. in No. 99-
1257, at 21-25. "Cost-benefit analysis," so defined, "is
broad enough to include properly performed analyses
under 'significant risk' and similar rubrics." Id. (emphasis
added). Costs thus inevitably become part of those
analyses. For example, when the ozone standard was first
revised in 1979, then-Chairman of the EPA Science
Advisory Board, James Whittenberger, repeatedly voiced
the logical difficulties presented in deciding what might
be "significant" health risks
"without considering the social and economic
consequences of those decisions." Mark K. Landy, et
al., THE ENVIRONMENTAL PROTECTION
AGENCY: ASKING THE WRONG QUESTIONS FROM
NIXON TO CLINTON 53 (1994); see also Cross-Pet.
Br. 45-47 (citing cases). Moreover, consideration of cost
is also inherently part of the "Quality-Adjusted Life
Years" approach suggested by the court below. See
Robert Fabian, The Qualy Approach, in VALUING
HEALTH FOR POLICY: AN ECONOMIC APPROACH
118, 120 (1994) ("The qualy method provides a utility-
based cost-effectiveness analysis, often called cost-utility
analysis.").

Even if the Act did not contemplate a form of
equitable balancing in setting public health NAAQS, see
pp. 8-19, infra, the Administrator would still lack
implicit authority under this Court's decisions to ignore
competing factors including costs. See Cross-Pet. Br. 25,
3 1-32, 47. The formal mechanisms for such balancing
when setting NAAQS are already in place under
Executive Order 12,866 and the utility of conducting
such analyses has impressive support from a broad
spectrum of leading economists and other public policy
experts. See AEIBrookings Amici Br. Indeed, if such
analyses were only permitted under the Clean Air Act,
then they would be required by the Unfunded Mandates
Reform Act ("UIVIIRA") and case law recognizing that
an agency's refusal to consider factors deemed significant
by Congress is inherently arbitrary and capricious. See
id. at 11; Cross-Pet. Br. 50 (citing cases).
Finally, the Administrator and her supporters argue
that expanding the factors she considers beyond strictly
scientific matters would not solve the constitutional
nondelegation problem presented by NAAQS standard-
setting. See EPA Resp. 47-49. To be sure, if the
Administrator deliberately disregarded the results of cost-
benefit analyses conducted within her authority under
the Act, that action would pose, not just nondelegation
questions, but also grounds for reversal on customary
APA rationality review grounds. See ATA Resp. in No.
99-1257, at 23. But as we have shown, interpreting the





8 9


Act to require that the Administrator consider
competing factors including costs in setting the NAAQS
would resolve the nondelegation question for the same
reasons that weighing competing considerations resolves
constitutional doubts when other agencies set numeric
values or decide questions of degree in ratemaking and
similar proceedings. See id. at 11-14.

H. CONGRESS DID NOT REPEAL THE
PREEXISTING CLEAN AIR ACT PRACTICE OF
CONSIDERING COMPETING FACTORS
WHEN IN
1970 IT DIRECTED THE ADMINISTRATOR TO
SET "PUBLIC HEALTH" NAAQS.

The Administrator's response to the statutory text
discussed in our opening brief, see Cross-Pet. Br. 32-43,
does not contest that the term "public health" in section
109(b) of the Act, 42 U.S.C. 7409(b), must be
construed "in accordance with its ordinary or natural
meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994).
She instead argues that the definition of public health
that we cite does not constitute "its ordinary or natural
dictionary meaning in light of the context in which it is
used." EPA Resp. 36 (citation omitted). As
demonstrated below, the Administrator is wrong both
about the "dictionary meaning" of public health and
about its meaning within the context of the Clean Air
Act.

Our opening brief cites the seminal public health
definition in C.E.A. Winslow's THE COST OF SICKNESS
AND THE PRICE OF PUBLIC HEALTH, a 1951 World
Health Organization study of the comparative costs and
effectiveness of various measures for controlling
tuberculosis. Cross-Pet. Br. 34. Winslow is credited by
name in leading scientific dictionaries as providing the
most authoritative definition of public health. See id.
His formulation is thus the origin of the vast majority
of public health definitions found both in scientific and
general-usage contexts. See, e.g., MERRIAM-
WEBSTER'S MEDICAL DESK DICTIONARY 669
(1996); Naomi N. Modeste, DICTIONARY OF PUBLIC
HEALTH PROMOTION AND EDUCATION: TERMS AND
CONCEPTS 95 (1996); STEDMAN'S MEDICAL
DICTIONARY 689
(1995); MERRIAM WEBSTER'S COLLEGIATE
DICTIONARY 944
(10th ed. 1994); WEBSTER'S NINTH NEW
COLLEGIATE
DICTIONARY 932 (1987); THE AMERICAN HERITAGE
ILLUSTRATED ENCYCLOPEDIC DICTIONARY
1363 (1987);
WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY OF THE
ENGLISH LANGUAGE UNABRIDGED 1836 (1976).

The Administrator counters these authorities in her
footnote 28, see EPA Resp. 36, by attempting to
combine the separate definitions of "public" and
"health" found in WEBSTER'S THIRD. But surely the
Administrator could not have overlooked the fact that
WEBSTER'S THIRD defines the full term "public
health," thus making unnecessary this contorted effort
at combining separate definitions. Tellingly, the "public
health" definition in WEBSTER'S THIRD"the art and
science dealing with the protection and improvement of
community health by organized community effort and
including preventative medicine and sanitary and social
sciences"not only closely parallels Winslow's, but also
expressly recognizes the role played by the "social
sciences" such as economics. See
WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 1836 (1976).

The BLACK'S LAW definition cited by the
Administrator in the same footnote at least refers to the
combined term "public health." But that definition,
which mentions "health of the community at large,"
then goes on to reference "the methods of maintaining
the health of the community, as by preventative
medicine and organized care for the sick."
BLACK'S LAW DICTIONARY 724 (7th ed. 1999)
(emphasis added). That formulation, like so many
others, brings to mind Winslow's discussion of
preventative medical responses to tuberculosis, as well as
the cost-of-care issues that, as this Court recently
acknowledged, are inherent in any regime for "organized
care for the sick." Pegram, 120 5. Ct. at 2150 (degree
of "risk" that is "unacceptabl[e]" in HtvIO context
necessarily "depend[s] on





10 11


a judgment about the appropriate level of expenditure
for health care in light of the associated.., risk"). See
also Hatch Amici Br. in No. 99-1257, at 25 n.17.

Understandably, the Administrator does not
challenge the fact that modern public health judgments
about a wide array of matters are made on cost-benefit
bases. See Cross-Pet. Br. 35 n. 1 (citing examples).
Rather, she implies that this reliance on cost-benefit
analysis in public health matters may be a new
phenomenon. But that is simply not the case. For
example, on the eve of Congress' passage of the 1970
Clean Air Act Amendments, U.S. Public Health Service
Administrator Charles C. Johnson, Jr., explained that the
public health profession's concern should be "the total
well-being of the citizen," and, accordingly, "since we are
interested in the 'whole man,' let's see what [air
pollution] costs us in economic terms." Charles C.
Johnson, Jr., Environmental Health Protection, 24
Food Drug Cosmetic LI. 348, 349, 355 (1969) (emphasis
in original). Administrator Johnson's statement reflects a
long tradition that continues to the present. See, e.g.,
Barbara B. Perkins, Public Health Then and Now:
Economic Organization ofMedicine and the Committee
on the Costs of Medical Care, 88 Am. J. Public Health
1721, 1724 (1998) (tracing concern with "the most
economic use of capital" in public health from 1927 to
modem-day HMOs); accord Pegram, 120 5. Ct. at
2150.

This public health tradition has been reflected in
federal air pollution control law from its inception.
Congress first used "public health" in the Air Pollution
Control Act of 1955, which,"in recognition of the
dangers to the public health and welfare," directed that
the "Public Health Service" assist the Department of
Health, Education, and Welfare ("HEW') in
administering the Act. See Pub. L. 84-159, ch. 360, 69
Stat. 322, 1 (1955) (emphasis added). Congress' goal,
as reaffirmed in the Clean Air Act of 1963, was "air
pollution abatement." Id; see also Pub. L. 88-206, 77
Stat. 392, 5(a) (1963). In 1963, Congress also
expandedthe 1955 Act'sreach,
by authorizing federal courts to "abate" pollution that
threatened "the health or welfare of any persons," with
the courts deciding in each case, inter alia, what "the
public interest and the equities of the case may require."
Id 5(a, g) (emphasis added). This statutory distinction
between the "health of any persons," and "the public
interest and the equities" flowed from the Act's purposes:
"to protect the Nation's air resources," but only "so as"
necessary "to promote the public health and welfare and
the productive capacity of its population." Id I(b)(l)
(emphasis added). In short, "public health" was the Act's
overall goal, and Congress recognized that its
achievement required that "the health . . . of any persons"
be balanced along with the "public interest and equitable
factors."

The required "abatement" of air pollution under this
balancing approach naturally drew on public health
nuisance law, which has always entailed an equitable
balancing of countervailing factors. See, e.g., Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1030-
31 (1992) ("state nuisance law ordinarily entails"
consideration of countervailing factors, including "the
social value of the [landowner's] activities"). In abating
public health nuisances in the environmental context,
courts thus seek to "strik[e] a balance" between adverse
"health effects" and countervailing "social and economic
consequences." Reserve Mining Co. v. EPA, 514 F.2d
492, 535-36 (8th Cir. 1975) (en banc) (reversing
injunction abating a public health nuisance); see also
Illinois v. City of Milwaukee, 406 U.S. 91, 107, 108
(1972) ("the informed judgment of the chancellor will
largely govern" since courts are "empowered to appraise
the equities of the suits alleging creation of a public
nuisance by water pollution").

Within this public health tradition, Congress
amended the Act in 1967 to direct States to set "ambient
air quality standards." These standards would apply in
public nuisance abatement actions brought (as before)
whenever air pollution "endangers the health or welfare
of any persons." See Air





12 13


Quality Act of 1967, Pub. L. 90-148, 81 Stat. 485,
108(a). HEW was to assist the States by developing
scientific "criteria" documents and documents relating to
"control techniques," and then recommending a "level of
air quality." Id 107(b). The States were to set numeric
standards "consistent with the air quality criteria" and
the "recommended control techniques." Id 1 08(c)(
1). As the Senate Report explained, these State standards
were to beprescnptive because they would be: "[am
expression ofpublic policy rather than scient{fic
findings" and accordingly their development would
reflect "economic, social. and technological
considerations." S. Rep. No. 403 at 28 (1967)
("1967 Senate Report") (emphasis added). In addition,
the 1967 Amendments also kept the 1963 Act's key
distinction between "the equities of the case" and "the
technological and economic feasibility" as applied in
abatement actions. 1 08(c)(4) (emphasis added).

The Administrator argues essentially that Congress
made a black-to-white change from this previous regime
when the Act was amended in 1970. In her view,
Congress repealed all previous provisions for public
health balancing or consideration of competing
factorsthe framework under which courts and States had
administrated federal air pollution control law since
1955. EPA Resp. 2 1-25. She thus omits any mention of
the preexisting judicial balancing in abatement actions
and characterizes the State balancing of competing
interests under the 1967 air quality standards as simply a
failed "experiment" that Congress repealed wholesale.
Id. at 24. Support for her theory consists primarily in
the fact that Congress' new standard-setting provision
(section 109(b)) omits express reference to the
"recommended control techniques" and specifically
states that NAAQS should be "based on such criteria,"
meaning the air quality criteria called for in section
108(a)(2), 42 U.S.C. 7408(a)(2). See EPAResp. 22-
25. The consequence of this change, according to the
Administrator, is that NAAQS are to be determined
exclusively by sciencein her words, "based on air
quality""alone." Id. at 24 (emphasis
added). As for "feasibility and the effects of
implementing the standards," the Administrator says
these were left "for later stages in the regulatory
process." Id

The Administrator simply fails to prove this black-
to-white theory of the 1970 Amendments. Initially, the
Administrator's theory is undercut by the new section
109(b) which added the term 'judgment," suggesting that
the Administrator should apply ordinary rationality in
setting NAAQSspecifically, that she avoid taking
actions that do "more harm than good." See Antonin
Scalia, RegulationThe First Year,
REGULATION, Jan.IFeb. 1982 at 19-20. Equally
significant, the Administrator's "science only"
interpretation of section 109(b) would, in her words,
require that she provide all the protection suggested by
science to "the general population, or identifiable groups
within communities," as distinguished from "any specific
individual." EPA Resp. 36 & n.28. But that concept
(protecting the "health of any persons") was precisely
what Congress rejected when it substituted public health
NAAQS for the pre-1970 abatement triggerpollution
that "endangers the health or welfare of any persons" in
the plural. See Cross-Pet. Br. 33-34. This reference to
protection of "persons" in the plural, as distinct from
"any specific individual," was so central under the 1967
Act that it appears no fewer than thirteen times.

The significance of Congress' move away from the
"health of any persons" in 1967 to "public health" is
revealed by the 1970 legislative history. The bill passed
by the Senate in 1970 would indeed have required that
NAAQS be set at the level "necessary to protect the
health of persons." 5. 4358, 91st Cong., I 10(a)(3)
(1970), reprinted in I Senate Comm. on Env. and Public
Works, 93d Cong., Legislative History of the Clean
Air Amendments of 1970 (committee print
1974), at 486 (1974) (emphasis added) ("1970
Legislative History"). In addition, that Senate bill
would also have required that States attain the NAAQS
within a fixed period of time, irrespective of either
equitable considerations or feasibilitythe concepts
that had limited abatement actions since 1963. See id





14 15


11 1(a)(2)(A), I 1970 Legislative History, at 487.
The bill passed by the House, by contrast, transferred the
equitable balancing authority previously carried out by
the courts and the States to EPA which was directed to
set NAAQS that protect "the public health." See H.R.
17255, 91st Cong., 2(a) (1970), reprinted in II 1970
Legislative History, at 911. Unlike the Senate bill, the
House would have provided no fixed deadlines for
attainment. See id 4(a)( I), reprinted in II
1970 Legislative History, at 914.

The Conference Committee reconciled these
competing approaches by accepting the House's "public
health" test together with the Senate's fixed attainment
deadlines. See HR. 91-1783, 91st Cong. (1970),
reprinted in I 1970 Legislative
History, at 194 (Committee Report, Statement of
the Managers on the Part of the House). Congress thus
rejected the "health of persons" standard favored by the
Senate, and overrode the feasibility limitations contained
in the Act since 1963. But it did not repeal the Act's
previous balancing of competing factorsfactors that are
inherent in the traditional concept of public health taken
from the House bill. Not surprisingly, the Administrator's
legislative history citations sometimes discuss the Senate
bill's (ultimately rejected) "health of persons" standard
and sometimes discuss its (ultimately accepted) fixed
attainment deadlines, but never discuss the House-
originated concept of "public health"the only issue
presently before the Court. See EPA Resp. 25-27.
Indeed, the legislative history cited most prominently by
the Administrator affirmatively supports our
pointnamely, that Congress embraced public health
while rejecting the "concept of technical feasibility as the
basis of ambient air standards," with the consequence that
"existing sources of pollutants either should meet the
standard of the law or be shut down." EPA Resp. 26
(quoting from 1970 Senate Report).

The Administrator's supposed structural arguments
for why NAAQS are to be set based on air quality "alone"
fare no better. First, the text of section 109(b) omits
words of
limitation such as "only," "solely" or "alone" that might
prove the Administrator's point. Cross-Pet. Br. 39. But
even more important, the Criteria Document provision,
section 108(a)(2)(C), directs EPA to include
information relating to "any known or anticipated
effects on welfare," thus expressly taking the criteria
beyond medical science to "effects on economic values
and on personal comfort and well-being."
CAA 108(a)(2)(C), 302(h), 42 U.S.C.
7408(a)(2)(C), 7602(h) (emphasis added). On this point,
the Administrator simply has no response to the
arguments set out in our opening brief Compare Cross-
Pet. Br. 38. To be sure, as Massachusetts points out,
Congress did indeed require EPA to promulgate revised
NAAQS within 30 days of the effective date of the 1970
Amendments, thereby recognizing that the Agency would
have to use the pre-existing criteria documents (which,
unlike the documents to be compiled after 1970,
contained only science data). See Mass, Br. 18. But that
reflects only the 1970 Congress' desire for immediate
promulgation of nationwide standards based on cost
information readily at hand, whether or not it was
contained in the criteria. This expedient fact does not
alter the types of public health information that
Congress required for subsequent criteria documents,
which Congress directed EPA to revise "from time to
time thereafter." CAA
108(a)(1), 42 U.S.C. 7408(a)(1).

Nor are the Administrator's other arguments any
more persuasive. EPA Resp. 38-39. Contrary to her
claims, Congress' rejection of feasibility as the basis for
setting NAAQS hardly makes the cost information
contained in the section 108(b)(1) documents irrelevant
to the Administrator's public health standard-setting
determinations. Indeed, the relevance of this cost
information is underscored by Congress' directive that the
section 1 08(b)( 1) document be made available
''simultaneously" with the criteria and well in advance of
setting the NAAQS. See Cross-Pet. Br. 40. Finally, the
Administrator tries to limit the role of the CASAC
advisory provision (CAA 109(d)(2)(C), 42 U.S.C.
7409(d)(2)(C)) to





16 17


"implementation." EPA Resp. 39. But, as explained in
our opening brief; section 109(d) is concerned with
NAAQS standard-setting (not implementation), and in
that connection, Congress specifically directed CASAC
to advise the Administrator (the official responsible for
NAAQS standard-setting) on certain "social, economic,
or energy effects" that are relevant to public health
determinations under section 109(b). See Cross-Pet. Br.
41.

The Administrator's remaining argumentnamely,
that Congress "preservied] the ability of EPA and the
States to consider costs and feasibility in the
implementation stage," EPA Resp. 24-25ignores this
Court's Cotton Dust decision and badly misstates the
holding of Union Electric. In the OSH Act (also enacted
in 1970), Congress confronted a problem similar in
certain respects to that which it confronted in the 1970
Clean Air Amendments. Should it require OSHA to set
industry-specific toxic substance workplace standards on
the basis of "feasibility," or "cost-benefit analysis"? See
Cotton Dust, 452 U.S. at 508-513. As the Court
held, Congress chose "feasibility," necessarily ruling out
"cost-benefit analysis." Id. at 509. For reasons already
explained, see pp. 8-14, supra, Congress made precisely
the opposite choice in the 1970 Clean Air
Amendmentsselecting public health standards that
would balance competing considerations, albeit with an
added admonition that the Administrator also provide
"an adequate margin of safety."

The thrust of the Administrator's argument in this
case is that Congress ruled out both feasibility andcost-
benefit analysis when it enacted CAA section 109(b).
That extreme contention lies at the heart of both the
nondelegation problem identified by the lower court and
the Administrator's inherently implausible claim that
science alone can decide public policy questions. But
even Union Electric, the case on which the
Administrator relies most heavily, does not remotely
support such a position. That decision never mentions
cost-benefit analysis, much less does it explicate the
public health basis for setting NAAQS. Rather,
Union Electric could not be clearer that it dealt
only with "technological and economic infeasibility,"
427 U.S. at 265a concept that the Court held EPA
could not consider even during the implementation
stage. Under Union Electric, these factors can
indeed be considered by States, but only in the limited
sense that States may entertain applications for "special
treatment" for any source "[slo long as the national
standards are met." Id. at
266.

The concept of a feasibility test also explains the
CAA provisions that the Administrator would contrast
with section 109(b). See EPA Resp. 20 n. 13. In
particular, the new source performance standards (CAA
11 1(a)(1). 42 U.S.C. 741 1(a)(1)), motor vehicle
emission standards (CAA 202(a)(2), 42 U.S.C.
7521(a)(2)), and aircraft emission standards (CAA 23
1(b), 42 U.S.C. 7571(b)) cited by the Administrator
are all "feasibility" standards within the meaning of
Cotton Dust. The various cost-consideration
directives in those contexts therefore do not create any
inference that Congress would also have wanted to
further define the role of costs in the much different
context of section 109(b), which calls for standards set
to protect the public health as traditionally defined.

The post-i 970 legislative history on which the
Administrator also relies heavily, see id. at 27-31,
carries "very little, if any, significance." See United
States v. Southwestern Cable Co., 392 U.S. 157,
170 (1968) (internal quotation omitted); Blanchette
v. Connecticut Gen., 419 U.S. 102, 132 (1974).
But, not surprisingly, that post-enactment legislative
history supports our interpretation at least as much as
the Administrator's. See, e.g., HR. Rep. No. 95-294 at
127(1977) (Administrator must consider "economic and
social consequences" in NAAQS standard-setting).

The Administrator's final gasp amounts to an
argument that Congress somehow ratified her
interpretation in the various Clean Air Amendments
after 1970. See EPA Resp. 27-3 1. The





18 19


Administrator's argument in this respect necessarily
turns on legislative inaction since Congress has
never amended the 1970 text of section 109(b) or the
relevant provisions of section 108. But "inaction" is "a
particularly dangerous ground on which to rest an
interpretation of a prior statute,"
"because several equally tenable inferences may
be drawn from such inaction, including the inference that
the existing legislation already incorporated the offered
change." Pension Benefit Guar. Corp.
v. LIV Corp., 496 U.S. 633, 650 (1990) (internal
quotations omitted). This Court's recent decision in FDA
v. Brown & Williamson Tobacco Corp. is
not to the contrary because in that case Congress
actually had enacted legislation that conflicted with
FDA's interpretation of the Act. See 120 5. Ct. at
1306. Here, by contrast, "the statutory changes adopted
[outside of section 109(b)] are entirely consistent with
our interpretation," and thus "do[] not modify the plain
terms of [the Act]." Rodriguez v. Compass Shtpping
Co., 451 U.S. 596, 615-16 (1981); accord
Aaron v. SEC, 446 U.S. 680, 695 n.h
(1980).

Finally, it is worth noting that the Administrator's
constructions of "public health" and "welfare" are
internally self-contradictory. Specifically, the
Administrator would limit relevant "welfare"
effects under the Act's section
307(h), 42 U.S.C. 7607(h), to effects caused
by "exposure to air pollutants," as opposed to
"the effect of measures to implement the NAAQS."
EPA Resp. 37. But under that formulation, the
Administrator would be compelled to
abate pollution that causes "economic"
damage, even in circumstances where the cost of
abatement greatly exceeds the "economic values" the
NAAQS are designed to protect.

An analogous contradiction inheres
in the Administrator's proffered
definition of "public health." Excluding
consideration of costs can produce "such
large reductions in income that lives
are lost on net." See Richard J.
Zeckhauser & W. Kip Viscusi, The
RiskManagement Dikmma, 545 Annals Am.
Acad. Pol. & Soc. Sci. 144, 149 & n.6
(1996); see also AEI-BrookingsAmici
Br. 2 & n.2 (better allocation of health resources would
result either in "savings of $31.1 billion from current
cost levels with no additional loss of life or savings of
60,200 lives at current cost levels").

HI. STARE DECISIS DOES NOT APPLY IN THIS
CASE.

While the Administrator never expressly argues that
Lead Industries should have stare decisis
effect, certain of her supporters do make that argument.
See, e.g., Environmental Defense Amici Br.
16-19. Lead Industries is, however, a
particularly inappropriate basis for application of the
stare decisis principle.

First, as suggested in our opening brief; there
are valid reasons to suspect that EPA Administrators
may actually have considered competing
factors including costs in setting
previous NAAQSand perhaps even in
setting the ozone and PM standards
under review here. See Cross-Pet. Br. 43-
45. The various amici curiae briefs have
provided additional support both for the fact
that this has occurred as well as added reasons why
transparency in the NAAQS standard-setting process is
so essential. See Marchant Amici Br. in No. 99-
1257, at 12-15; AEI-Brookings Amici Br. 12; David
L. Faigman, LEGAL ALCHEMY: THE USE AND
MISUSE OF SCIENCE IN THE LAW 187 (1999)
("real loser in the PMlozone drama was
candor"). Giving stare decisis effect to
Lead Industries under these
circumstances would effectively license the
Administrator to shield her decisionmaking
process from public and judicial scrutiny in
violation of this Court's decisions. See Motor Vehicle
Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 48 (1983).

Second, our opening brief also shows
that in other cases EPA has soughtand the
D.C. Circuit has grantedauthority
for the Agency to consider competing
factors including costs under other
CAA provisions comparable to section
109(b). See Cross-Pet. Br. 45-47.
Certain parties have misportrayed this
discussion as advocating a
construction canon holding that costs





20 Respectfully submitted,


must be considered unless such consideration is expressly
precluded. See, e.g., Mass. Resp. 40. That was not our
intent.

Certainly it is true that State of Michigan
v. EPA, 213 F.3d 663 (D.C. Cir. 2000), and similar
cases would support such a canon. But the Court need
not go so far here. See ATA Resp. in No. 99-1257, at
24 (noting that the Court could, but need not in this
case, engage in "aggressive judicial construction").
Rather, the point is that the Administrator must be
consistent. She cannot argue here that costs cannot be
considered because Congress "has indicated expressly
when and to what extent costs and implementation
effects should be considered in the
NAAQS regulatory process," id at 19 (emphasis
added)and then simultaneously defend in State of
Michigan her contrary position that costs were relevant
there because the Act provided "no evidence of
congressional intent to exclude costs," id at
41 n.33 (emphasis added). In sum, State of
Michigan and similar D.C. Circuit Clean Air Act
decisions testify eloquently to Lead Industries'
frail status as a circuit precedent, see Cross-Pet. Br.
27, and provide yet additional grounds for not giving
stare decisis effect to that decision.

This Court's certiorari jurisdiction provides the
final, and ultimately conclusive, answer to the bid to give
stare decisis effect to Lead Industries.
The denial of certiorari, of course, "imparts no
implication or inference concerning the Court's view of
the merits." See, e.g., Hughes Tool Co. v. Trans World
Airlines, 409 U.S. 363, 366 n. 1 (1973) (emphasis
added). As a logical matter, then, stare decisis cannot
apply here without creating far more than an
"implication" concerning the merits of cases like this
one, where certiorari has previously been
denied on issues for which a circuit conflict is highly
unlikely.

CONCLUSION
For the foregoing reasons, the Court should grant
the relief requested in our cross-petitioners brief
ROBIN S. CONRAD
NATIONAL CHAMBER
LITIGATION CENTER, INC.
1615 H Street, N.W.
Washington, D.C. 20062
(202) 463-5337
Counsel for Chamber of
Commerce of the
United States

BETH L. LAW
ROBERT S. DIGGES
ATA LITIGATION CENTER
2200 Mill Road
Alexandria, VA 22314
Counsel for American
Trucking Associations, Inc.,
Burns Motor Freight, Inc.,
Garner Trucking, Inc.

JAN 5. AMUNDSON
NATIONAL AsSOcIATION OF
MANUFACTURERS
1331 Pennsylvania Avenue, NW.
Washington, D.C. 20036
Counselfor National
ofManufacturers

DIMETRIA G. (JIM) DASKAL
THE DASKAL LAW GROUP
3 Church Circle
Suite 500
Annapolis, MD 21401
Counsel for National
Coalition of Petroleum Retailers


EDWARD W. WARREN
Counsel of Record
ROBERT R GASAWAY
JEFFREY B. CLARK
DARYL JOSEFFER
KIRKLAND & ELLIS
655 Fifteenth Street, NW.
Washington, D.C. 20005
(202) 879-5000

CHARLES FRIED
1525 Massachusetts Avenue Cambridge,
MA 02138 (617) 495-4636
Counsel for American Trucking Associations, Inc. and
Chamber of Commerce of the United States


GARY H. BA.ISE
ELIZABETH S. POLINER
BAISE, MILLER & FREER, P.C.
1020 l9thStreet,NW
Washington, D.C. 20036
Counsel for Equipment
Manufacturers Institute

DAVID M. FRIEDLAND
BEVERIDGE & DIAMOND
1350 I Street, N.W.
Suite 700
Washington, D.C. 20005
Counsel for National Small
Business United, The
American Portland Cement
Alliance, and The Glouster
Company Inc.





DOUGLAS I. GREENHAUS
NATIONAL AUTOMOBILE
DEALERS ASSOCIATION
8400 Westpark Drive
McLean, VA 22102
Counsel for National
Automobile Dealers
Association

JEFFREY L. LEITER
CHET M. ThOM1'SON
COLLIER, SHANNON, RILL
&
SCOTT
3050 K Street, N.W.
Suite 400
Washington,
D.C. 20007
Counsel for Non-
Ferrous
Founders 'Society
ERIKA Z. JONRs
TIMOTHY S. BISHOP
ADAM C. SLOANE
MAYER, BROWN &
PLATT
1909 K Street,
N.W.
Washington, D.C.
20006
Counsel for American
Farm
Bureau
Federation

ROBERT R. GASAWAY
KIRKLAND & ELLIS
655 Fifteenth Street,
N.W.
Suite 1200
Washington, D.C.
20005
Counsel for American
Road
and Transportation
Builders
Association



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