Nos. 99-1426, 99-1431 and 99-1442
In the Supreme Court of the United States
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., CROSS-PETITIONERS
v.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.
CITIZENS FOR BALANCED TRANSPORTATION, ET AL., CROSS-PETITIONERS
v.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
GARY S. GUZY
General Counsel
Environmental Protection
Agency
Washington, D.C. 20415
QUESTIONS PRESENTED
1. Whether the court of appeals properly reaffirmed the long-standing principle
that, in setting and revising National Ambient Air Quality Standards (NAAQS)
under Section 109 of the Clean Air Act, the Environmental Protection Agency
(EPA) may not consider the costs, technical feasibility, or other alleged
effects of implementing measures to attain the NAAQS (Nos. 99-1426 and 99-1431).
2. Whether the court of appeals properly resolved various claims, by postponing
decision or rejecting them outright, that EPA's primary and secondary NAAQS
for fine particulate matter (PM2.5) are inadequate to protect public health
and welfare (No. 99-1442).
In the Supreme Court of the United States
No. 99-1426
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL., CROSS-PETITIONERS
v.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 99-1431
APPALACHIAN POWER COMPANY, ET AL.,
CROSS-PETITIONERS
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 99-1442
CITIZENS FOR BALANCED TRANSPORTATION, ET AL., CROSS-PETITIONERS
v.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON CONDITIONAL CROSS-PETITIONS FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL CROSS-RESPONDENTS
IN OPPOSITION
STATEMENT
The federal government's petition for a writ of certiorari (No. 99-1257)
seeks review of the court of appeals' ruling that the Environmental Protection
Agency (EPA) has interpreted the Clean Air Act (CAA) in a way that effects
an unconstitutional delegation of legislative power. 99-1257 Pet. I. The
petition also challenges the court of appeals' premature and mistaken ruling
limiting how EPA may implement one of the two remanded National Ambient
Air Quality Standards (NAAQS) at issue-the ozone NAAQS. Ibid. The cross-petitions
seek to introduce two sets of unrelated issues involving particular details
of the underlying rulemakings.
First, two groups of industrial interests, the American Trucking Associations,
et al. (ATA), and Appalachian Power Company, et al. (APC), ask this Court
to review the court of appeals' unanimous statutory ruling that, in setting
and revising NAAQS, EPA is precluded from considering the economic costs
and effects of implementing those standards. ATA Cross-Pet. i; APC Cross-Pet.
i. That ruling reaffirms EPA's 30-year-old construction of the CAA and a
series of unanimous judicial decisions stretching over 20 years. See 99-1257
Pet. App. 19a-21a.
Second, a group of environmental interests, Citizens for Balanced Transportation,
et al. (CBT), seeks review of particular challenges to EPA's selection of
the 24-hour primary NAAQS for particulate matter (PM) of 2.5 microns or
less (PM2.5) and its selection of the secondary NAAQS for PM2.5. CBT Cross-Pet.
i. The court of appeals concluded that it could not reach most of those
issues in light of its remand to the agency. See 99-1257 Pet. App. 4a-5a.
We describe below the court's reasoning on the issues raised by the cross-petitions.
1. The court of appeals' decision in this case addresses a broad range of
industry and environmental challenges to EPA's ozone and PM NAAQS. Among
other things, the decision reiterates the long settled principle that, "in
setting NAAQS under § 109(b) of the Clean Air Act, the EPA is not permitted
to consider the cost of implementing those standards." 99-1257 Pet.
App. 19a. The court of appeals has consistently held that EPA must set NAAQS
based on the "health effects relating to pollutants in the air"
and not on alleged costs or other effects that may result from implementation
of the NAAQS. Natural Resources Defense Council, Inc. v. EPA, 902 F.2d 962,
973 (D.C. Cir. 1990) (EPA need not consider alleged health effects associated
with unemployment), cert. denied, 498 U.S. 1082 (1991); see also Lead Indus.
Ass'n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042
(1980).
The court expressly considered and rejected ATA's and APC's arguments that
it should reconsider its decision in Lead Industries because that case was
decided without the benefit of this Court's decision in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court
explained:
The Lead Industries decision was made in Chevron step one terms, * * * as
the post-Chevron progeny of Lead Industries have made clear. [Natural Resources
Defense Council, Inc. v. EPA], 902 F.2d [962,] 973 [(D.C. Cir. 1990), cert.
denied, 498 U.S. 1082 (1991)] ("Consideration of costs . . . would
be flatly inconsistent with the statute, legislative history and case law
on this point"); NRDC v. EPA, 824 F.2d 1146, 1158-59 (D.C. Cir. 1987)
(in banc) ("Vinyl Chloride") ("[S]tatute on its face does
not allow consideration of technological or economic feasibility.").
99-1257 Pet. App. 19a-20a.
The court of appeals additionally considered and rejected the argument that,
even if EPA could not consider costs in initially setting NAAQS, it could
do so when revising NAAQS. 99-1257 Pet. App. 20a. Finally, the court rejected
the industrial groups' argument that Congress's directions to the Clean
Air Scientific Advisory Committee (CASAC) to advise EPA on, among other
things, "any adverse public health, welfare, social, economic, or energy
effects which may result from various strategies for attainment and maintenance"
of NAAQS, CAA, § 109(d)(2)(C)(iv), 42 U.S.C. 7409(d)(2)(C)(iv), signals
that EPA should consider those factors in revising NAAQS. 99-1257 Pet. App.
21a. Instead, the CAA directs CASAC to provide that advice in light of EPA's
separate duty to give the States information on control strategies. Ibid.
2. CBT challenged as arbitrary and capricious EPA's decision not to set
a more stringent 24-hour primary NAAQS and more stringent 24-hour and annual
secondary NAAQS for PM2.5. Because the court of appeals remanded the PM2.5
NAAQS on nondelegation grounds, the court of appeals did not rule on CBT's
claims except in one narrow respect. 99-1257 Pet. App. 5a, 56a. In the final
rule, EPA had announced its decision to address adverse effects that fine
PM may have on visibility by establishing secondary PM2.5 NAAQS (at the
same levels as the primary PM2.5 NAAQS) and by implementing the Regional
Haze Program described in Section 169A of the CAA, 42 U.S.C 7491. 99-1257
Pet. App. 56a; 62 Fed. Reg. 38,652, 38,683 (1997). The court of appeals
rejected CBT's argument that Section 109(b)(2), 42 U.S.C. 7409(b)(2), requires
EPA to set secondary NAAQS that will eliminate all adverse effects on visibility
and deprives EPA of authority to address some impairment of visibility through
another program. 99-1257 Pet. App. 57a. The court explained that the CAA
included the Regional Haze Program to address adverse effects on visibility
that may persist in areas such as national parks "notwithstanding attainment
and maintenance of all [NAAQS]." Ibid.
3. Neither ATA, APC, nor any other party sought rehearing on the cost issue.
CBT filed petitions for rehearing and rehearing en banc as to all of its
claims. CBT's petitions were denied without dissent. 99-1257 Pet. App. 71a,
101a.
ARGUMENT
As our petition for a writ of certiorari explains, the court of appeals
has erred in two fundamental respects: (1) it remanded EPA's revised PM
and ozone NAAQS based on an aberrant notion of the nondelegation doctrine
(99-1257 Pet. 9-10, 11-19); and (2) it prematurely and mistakenly decided
how EPA should eventually implement the ozone NAAQS (99-1257 Pet. 19-30).
As our reply brief explains, respondents have failed to provide persuasive
reasons against review. Instead, they have recharacterized the court of
appeals' decision in ways that obfuscate the issues. The cross-petitions
at issue here add another layer of complexity and confusion. They raise
no issue that would independently warrant review or that would assist the
Court in resolving the core nondelegation issue. To the contrary, the cross-petitions
would complicate the case with issues that, on the one hand, have long been
settled or, on the other hand, the court of appeals had no occasion to reach.
1. The flaws in the court of appeals' nondelegation analysis are not difficult
to discern. This Court has developed the nondelegation doctrine to preserve
the Constitution's separation of governmental powers. E.g., Mistretta v.
United States, 488 U.S. 361, 371-372 (1989). It prohibits Congress from
vesting its legislative power in an executive branch agency. Ibid. The court
of appeals erred because it misconceived the nondelegation doctrine as a
judicial check on agency discretion. See 99-1257 Pet. App. 14a. The court
of appeals' decision confuses two distinct lines of inquiry and, in the
process, wrongly sets aside legitimate agency action. The Court should therefore
correct that fundamental misconception and remand the case to the court
of appeals with directions to review the EPA's rules under the correct standard
of review. See 99-1257 EPA Reply Br. 2-6.
ATA and APC urge a different course. They argue that the Court should broaden
the inquiry and use the court of appeals' mistake as a vehicle for setting
aside long-settled statutory principles that have guided EPA's implementation
of the CAA for 30 years. They specifically challenge the firmly established
principle that EPA should set NAAQS based on the public health and welfare
effects caused by the pollutant's presence in the ambient air and not on
the potential economic costs or other alleged effects of implementing the
NAAQS. See ATA Cross-Pet. 14-27; APC Cross-Pet. 14-25. The court of appeals
was divided on the nondelegation issue, but it unanimously rejected the
industrial groups' arguments on this point and reiterated its past holding
that the CAA directs that questions of economic costs and the other effects
of implementing NAAQS can be considered only as part of the implementation
process. 99-1257 Pet. App. 19a-21a.
The Court should decline ATA's and APC's invitation to complicate consideration
of the nondelegation issue. The court of appeals' decision is correct as
to the issue they raise. Moreover, it rests on settled law that has long
guided the actions of EPA, Congress, and the courts. Contrary to ATA's urgings,
the constitutional question of whether Congress has vested EPA with legislative
power is not "tightly intertwined" (ATA Cross-Pet. 7) with the
statutory issue of whether Congress directed EPA to set NAAQS based solely
on health and welfare effects of ambient pollution concentrations.
a. Congress introduced the NAAQS-based framework through the enactment of
the Clean Air Act Amendments of 1970.1 Since that time, EPA has consistently
applied Section 109 according to its terms, which require EPA to set primary
NAAQS at levels "requisite to protect the public health." CAA
§ 109(b)(1), 42 U.S.C. 7409(b)(1). EPA has consistently rejected the
notion that, when promulgating NAAQS, it may consider costs, technical feasibility,
or related factors.2 ATA and APC ask this Court to overturn 20 years of
court of appeals precedent-decided in the course of reviewing predecessor
NAAQS-upholding that interpretation.3
As ATA acknowledges (Cross-Pet. 5-6), this Court has repeatedly declined
to review the issue that ATA and APC press here.4 There is no reason to
reach a different result now. ATA offers no support for its claim that the
court of appeals itself "now lacks confidence" in the holding
of Lead Industries (Cross-Pet. 17-18). To the contrary, the court of appeals
has repeatedly rejected ATA's and APC's principal arguments without a single
dissent.5 The cross-petitions do not raise a controversial issue; the entire
District of Columbia Circuit has long viewed the matter as settled. See
99-1257 Pet. App. 19a. Indeed, if ATA and APC thought otherwise, they should
have challenged the panel's unanimous ruling through a petition for rehearing
en banc.
The court of appeals and EPA have correctly concluded that Congress "has
directly spoken to the precise question at issue." Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Section
109(b)(1) of the CAA directs EPA to set primary NAAQS at a level "requisite
to protect the public health." See 42 U.S.C. 7409(b)(1). It does not
direct EPA to consider economic and other costs when setting NAAQS, and
there is no basis for inferring that Congress intended those factors to
be considered at that initial stage of the regulatory process. The language
and structure of the 1970 CAA demonstrate that the overriding purpose of
NAAQS promulgation is to determine, as the first step of the CAA regulatory
program, the ambient air quality standards that are necessary to protect
the public health and welfare. Neither Section 108, which specifies the
kinds of factual information upon which NAAQS must be based, nor Section
109, which contains the legal test NAAQS must meet, discusses or otherwise
suggests any consideration of cost or technical feasibility. See Lead Indus.
Ass'n, 647 F.2d at 1149; Vinyl Chloride, 824 F.2d at 1158.6
Section 109(b)(1) specifically requires NAAQS to be "based on"
the air quality "criteria" that EPA issues under Section 108.
42 U.S.C. 7409(b)(1). Section 108(a)(2), in turn, limits the kind of information
to be included in the "criteria" to "the latest scientific
knowledge" about effects on health and welfare "which may be expected
from the presence of such pollutant in the ambient air." 42 U.S.C.
7408(a)(2). Section 108(a)(2) makes no mention whatsoever of effects from
implementing the NAAQS-it mentions only effects resulting from the presence
of a criteria pollutant in the air. That silence is telling in light of
other sections of the Clean Air Act Amendments of 1970 where Congress expressly
provided that EPA should consider costs and similar factors in making decisions.7
The structure of the CAA also indicates that EPA should promulgate NAAQS
based on health and welfare effects and not on the basis of costs or alleged
adverse effects that may result from their implementation. As this Court
recognized long ago, the CAA is a "technology-forcing" statute
that sets ambitious goals to protect public health and welfare. See Train
v. Natural Resources Defense Council, Inc., 421 U.S. 60, 91 (1975). In that
respect, Congress has indicated expressly when and to what extent costs
and implementation effects shall be considered in the regulatory process.
See Union Elec. Co. v. EPA, 427 U.S. 246 (1976).8
For example, States are entitled to develop State Implementation Plans (SIPs)
governing how NAAQS will be implemented within their borders. See CAA § 110, 42 U.S.C. 7410. States may properly consider the costs of NAAQS
implementation when formulating the SIPs, and EPA may not override those
judgments so long as the SIP will achieve attainment of the NAAQS. See Union
Elec. Co., 427 U.S. at 256-269.9 The Court also recognized that the CAA
does not allow a State to rely on those considerations at the expense of
meeting the statutory deadlines for attaining the national health-based
standards. Id. at 266-269.10 The Court's longstanding decision in Union
Electric, describing the CAA as a "technology-forcing" statute
and explaining how cost considerations are introduced into the regulatory
scheme on a State-by-State basis in the implementation process, would make
little sense if EPA had to promulgate NAAQS based on an analysis of costs
and related implementation factors at the outset of the regulatory process.11
As the court of appeals has repeatedly noted, the legislative history of
the 1970 Amendments confirms the paramount importance of setting primary
NAAQS based solely on the health effects posed by the pollutant in the ambient
air. See Vinyl Chloride, 824 F.2d at 1158; Lead Indus. Ass'n, 647 F.2d at
1149. For example, the Senate report accompanying the 1970 Amendments states:
In the Committee discussions, considerable concern was expressed regarding
the use of the concept of technical feasibility as the basis of ambient
air standards. The Committee determined that 1) 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; and,
2) the growth of pollution load in many areas, even with application of
available technology, would still be deleterious to public health.
Therefore, the Committee determined that existing sources of pollutants
either should meet the standard of the law or be closed down * * *.
S. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970). In other words, the primary
NAAQS should be based on health effects rather than economic or technical
feasibility, and as a result, the NAAQS have a "technology-forcing"
effect. See Train, 421 U.S. at 91; Union Elec. Co., 427 U.S. at 257, 269.
At bottom, APC urges this Court to revisit the long-settled question of
whether EPA should consider costs and other alleged implementation effects
in setting NAAQS because, in APC's view, its preferred approach would be
"wise social policy." See, e.g., APC Cross-Pet. 6-7. But Congress
concluded otherwise, and Congress's choice was certainly a rational one.
Congress reasonably concluded that NAAQS should be based on health and welfare
considerations alone so that Congress and the public know that EPA's judgments
on the health and welfare threats posed by particular criteria pollutants
are not compromised by considerations of economic and technical feasibility.
As this Court recognized in Union Electric, Congress provided the States
with flexibility in the implementation process to consider the economic
and technical feasibility of attainment, 427 U.S. at 266-269, but it reserved
to itself the prerogative of deciding - as a matter of legislative choice
- whether and how to alter the statutory scheme if public health needs should
prove to conflict with an industry's economic viability.12
Congress has since recognized and exercised that prerogative. See 62 Fed.
Reg. at 38,685. In the course of formulating the Clean Air Act Amendments
of 1977, Congress was well aware that some areas of the country had been
unable to attain some of the NAAQS. See, e.g., H.R. Rep. No. 294, 95th Cong.,
1st Sess. 207-217 (1977). It was also aware that some of the NAAQS criteria
pollutants might be non-threshold pollutants and that significant scientific
uncertainties are inherent in setting health-based standards. See id. at
43-51, 110-112. In response, Congress made significant changes in the provisions
for implementing the NAAQS, including, for example, an extension of the
deadline for attaining the ozone NAAQS. It also amended Sections 108 and
109 of the Act to require periodic review and revision of NAAQS and to establish
CASAC. Nevertheless, Congress did not change the substantive criteria for
setting and revising NAAQS. See 62 Fed. Reg. at 38,685 & n.66 (describing
the 1977 Amendments).13
Congress exercised that prerogative again in 1990. The Clean Air Act Amendments
of 1990 responded to persistent nonattainment problems by adjusting the
scheme for their implementation. See, e.g., CAA §§ 181-192, 42 U.S.C. 7511-7514a. Significantly, Congress was
fully aware of how NAAQS are promulgated, and it did not change the legal
standard on which NAAQS are based. To the contrary, both the House and Senate
Reports accompanying the 1990 Amendments expressly reflect the understanding
that primary NAAQS are to be "set at a level that 'protects the public
health with an adequate margin of safety,' without regard to the economic
or technical feasibility of attainment." H.R. Rep. No. 490, 101st Cong.,
2d Sess., Pt. 1, at 145 (1990) (emphasis added); accord S. Rep. No. 228,
101st Cong., 1st Sess. 5 (1989). Congress's actions confirm that the court
of appeals and EPA have correctly discerned congressional intent to preclude
consideration of economic and technical feasibility in setting and revising
NAAQS. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 600-602 (1983)
(Congress "affirmatively manifested its acquiescence" in IRS policy
by articulating the policy in committee reports accompanying related legislation);
Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 (1969) ("the construction
of a statute by those charged with its execution should be followed unless
there are compelling indications that it is wrong, especially when Congress
has refused to alter the administrative construction").
ATA attempts to overcome the overwhelming evidence of congressional intent
by drawing analogies from this Court's decision in Industrial Union Department
v. American Petroleum Institute., 448 U.S. 607 (1980). See ATA Cross-Pet.
15-16. That case, however, involves a different statute, with different
language, that creates an entirely different regulatory program. The Occupational
Safety and Health Act (OSH Act), 29 U.S.C. 651 et seq., directs the Secretary
of Labor to establish "occupational safety and health standard[s],"
29 U.S.C. 655(b), that are directly applicable to industrial employers and
that are directly enforced by federal officials. 29 U.S.C. 658-659. The
OSH Act expressly requires the Secretary to consider whether standards dealing
with toxic materials or harmful physical agents are "feasible."
29 U.S.C. 655(b)(5).
The CAA's NAAQS promulgation process, by contrast, is simply the first step
in a federal-state regulatory program and does not create standards that
are themselves directly applicable to any air pollution source. The CAA
directs EPA to set NAAQS at levels of air quality "requisite"
to protect public health and welfare, but the CAA empowers the States to
determine appropriate emission limitations and other controls on individual
air pollution sources. See generally Train, supra; Union Elec. Co., supra.
Unlike the OSH Act scheme, the CAA requires the Administrator to determine,
as an initial matter, the exposure limitations necessary to protect health
and welfare and leaves to the States discretion to consider-consistent with
their obligation to meet the attainment deadlines-the economic or technological
feasibility of compliance. See Union Elec. Co., 427 U.S. at 259 (quoting
S. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970)).
ATA's and APC's reliance on the court of appeals' en banc decision in Vinyl
Chloride, 824 F.2d at 1158-1159, is similarly misplaced. See ATA Cross-Pet.
15-18; APC Cross-Pet. 9-10, 19. That decision in no way "strongly suggests"
that the District of Columbia Circuit "now lacks confidence" in
its Lead Industries decision. ATA Cross-Pet. 17-18. To the contrary, the
court concluded that EPA should consider economic and technical feasibility
when setting individual emission standards for specific hazardous air pollutants
under Section 112 of the CAA, 42 U.S.C. 7412. It expressly distinguished
Section 109's method for promulgating NAAQS. Writing for the en banc court,
Judge Bork explained that the language and structure of the CAA support
the conclusion that "Congress simply did not intend the economics of
pollution control to be considered in [Section 109's] scheme of ambient
air regulations." 824 F.2d at 1159.14
b. As the foregoing discussion shows, the ATA and APC cross-petitions do
not present an issue that would warrant review in its own right: The court
of appeals has repeatedly and correctly rejected ATA's and APC's arguments;
those rulings have not produced any dissent; this Court has repeatedly declined
to review the issue; and ATA and APC did not seek relief from the en banc
court before petitioning for a writ of certiorari yet again. ATA nevertheless
argues that this Court should combine its review of the nondelegation issue
and this particular statutory issue because the issues are "inextricably
intertwined." ATA Cross-Pet. 7; see also APC Cross-Pet. 4 (cost issue
is "fairly within the scope of the initial petitions"). That assertion
is correct only in the haphazard sense that a fishing line might become
intertwined with a tree limb. Enlarging the grant would complicate an already
complex case and would require the Court to disentangle inquiries that are
properly separate and that the court of appeals treated as distinct. Indeed,
the court of appeals panel was divided on the nondelegation issue, but unanimous
on the supposedly "intertwined" statutory issue that ATA and APC
present.
ATA concedes, in response to our petition, that Section 109 of the CAA itself
does not violate the nondelegation doctrine. 99-1257 ATA Br. 15 (Section
109 is "undisputedly" constitutional); see also 99-1257 APC Br.
8 ("The court did not hold the statute itself unconstitutional.").
Significantly, ATA does not contest our showing (99-1257 Pet. 11-16) that
the CAA provides EPA with sufficient statutory direction to avoid delegating
legislative power. See, e.g., Mistretta v. United States, 488 U.S. 361,
372-373 (1989). Instead, ATA defends the court of appeals' decision on the
ground that EPA's "interpretation" of the CAA violates the nondelegation
doctrine. See 99-1257 ATA Br. 11; 99-1257 APC Br. 10-11, 13; see also 99-1257
Pet. App. 4a ("we find that the construction of the Clean Air Act on
which EPA relied in promulgating the NAAQS at issue here effects an unconstitutional
delegation of legislative power").
Our petition takes specific issue with that proposition. See 99-1257 Pet.
16. The nondelegation doctrine is a check on Congress's grant of legislative
powers and not-as the court of appeals and cross-petitioners would have
it-a mechanism for controlling an agency's exercise of discretion. See ibid.
We are hardly alone in that view. See, e.g., 99-1257 Pet. App. 94a (Silberman,
J., dissenting from the denial of rehearing en banc) ("Th[e] purpose
[of the nondelegation doctrine] is, of course, to ensure that Congress makes
the crucial policy choices that are carried into law."); id. at 98a
(Tatel, J., joined by Edwards, C.J., and Garland, J., dissenting from denial
of rehearing en banc) ("For purposes of constitutional analysis, we
thus have no need to require that EPA state 'a far more determinate basis
for decision' beyond the intelligible principle Congress provided in the
Clean Air Act".).
We urge the Court to correct that basic conceptual error and, in accordance
with its usual practice, return the case to the court of appeals so that
the court can conclude its task of properly evaluating EPA's rulemakings
under the statutory arbitrary and capricious standard set out in Section
307(d)(9) of the CAA, 42 U.S.C. 7607(d)(9). The Court has no occasion to
venture further by undertaking belatedly to decide anew a question of statutory
construction that the court of appeals and Congress properly settled long
ago.
ATA presses the Court to go further based on its inaccurate characterization
of what the court of appeals decided. ATA argues that "the court below
was forced to consider constitutional nondelegation issues because that
court had misconstrued the Clean Air Act in Lead Industries and subsequent
cases." ATA Cross-Pet. 5. ATA's characterization is fantasy. This case
generated six opinions on panel review and petition for rehearing and rehearing
en banc, and not a single judge on the District of Columbia Circuit expressed
ATA's view of the case. Rather, the panel majority and dissenting judges
treated the nondelegation issue and ATA's statutory issue as distinct and
separate questions.
Specifically, the panel majority declared EPA's actions unconstitutional
without reference to Lead Industries. 99-1257 Pet. App. 4a. The majority
directed EPA "to develop a construction of the act that satisfies this
constitutional requirement," ibid., and it offered comment respecting
EPA's options on remand, observing that "[c]ost-benefit analysis *
* * is not available under decisions of this court," id. at 14a-15a.
But the panel considered ATA's statutory issue as a separate question, and
the panel unanimously reaffirmed the correctness of Lead Industries, id.
at 19a-21a. ATA did not challenge the panel's reaffirmation of Lead Industries
through a petition for rehearing en banc. There is no merit to ATA's assertion
that the nondelegation issue and the Lead Industries issue are "inextricably
intertwined." ATA Cross-Pet. 7.
The fundamental question here remains whether the nondelegation doctrine
provides a constitutional limitation on an agency's action. See 99-1257
Pet. App. 4a. If we are correct that the nondelegation doctrine imposes
a separation of powers limitation on Congress - and not a limitation on
an agency's exercise of administrative discretion-then this Court should
reverse the court of appeals' decision and remand the case to that court
to reevaluate EPA's actions under the proper legal standard with the care
that befits these important rulemakings. If, to the contrary, the court
of appeals correctly applied the nondelegation doctrine, this Court should
affirm the court's judgment remanding the cases to EPA so that the agency
can "develop a construction of the act that satisfies this constitutional
requirement." Ibid. In either event, there is no reason for this Court
to decide ATA's statutory challenge. The nondelegation ruling and that statutory
challenge involve two distinct issues-one controversial and one not. They
are related only in the inchoate sense that "everything is related
to everything else." California Div. of Labor Standards Enforcement
v. Dillingham Const., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J.,
concurring).15
2. CBT's challenges to the 24-hour primary NAAQS for PM2.5 should be denied
because the issues CBT raises were not addressed by the court below. The
court of appeals concluded that its remand of the ozone and PM2.5 NAAQS
on nondelegation grounds precluded resolution of most of the other challenges
before it, including CBT's challenge to the 24-hour PM2.5 primary NAAQS.
See 99-1257 Pet. App. 4a-5a. There is no warrant for this Court to address
an issue that the court of appeals did not reach.16
CBT's challenge to the secondary standards for PM2.5 should also be denied.
The secondary PM2.5 NAAQS, like the 24-hour primary PM2.5 NAAQS, were remanded
to EPA by the court of appeals for reconsideration in light of that court's
holding on nondelegation. Thus, the court below did not reach "the
main thrust" of CBT's challenge, 99-1257 Pet. App. 56a, and there is
no reason for this Court to address questions that the court of appeals
did not decide. The court of appeals did decide one narrow issue that CBT
raises here. The court concluded, over CBT's objection, that EPA may take
into account the mitigating effect of the Regional Haze Program in setting
the secondary PM2.5 NAAQS.
The CAA specifically provides that the purpose of the Regional Haze Program
is to address adverse visibility impacts that remain "notwithstanding
attainment and maintenance of all national ambient air quality standards."
42 U.S.C. 7470(1) (emphasis added). That provision makes clear that EPA
is not required to set the secondary NAAQS at a level that eliminates all
adverse effects on visibility. There is no reason for this Court to review
the court of appeals' ruling, which is clearly correct. EPA acted within
the scope of its authority in relying on the Regional Haze Program to mitigate
some of the adverse visibility effects associated with PM2.5. 99-1257 Pet.
App. 57a.
CONCLUSION
The conditional cross-petitions for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
GARY S. GUZY
General Counsel
Environmental Protection
Agency
APRIL 2000
1 As this Court has recognized, Congress was dissatisfied with progress
under the Air Quality Act of 1967, Pub. L. No. 90-148, § 2, 81 Stat.
485, and enacted the Clean Air Act Amendments of 1970 to make far-reaching
changes in the Nation's approach to air pollution control. Train v. Natural
Resources Defense Council, Inc., 421 U.S. 60, 64 (1975); see Union Electric
Co. v. EPA, 427 U.S. 246, 256-257 (1976).
2 When promulgating the first NAAQS, Administrator Ruckelshaus announced
that no revisions were made to the proposed NAAQS in response to comments
questioning the feasibility of their implementation. He stated that the
CAA "does not permit any factors other than health to be taken into
account in setting the primary standards." 36 Fed. Reg. 8186 (1971).
See also, e.g., 62 Fed. Reg. at 38,683-38,688 (detailed response to comments
on this issue in the PM rulemaking).
3 American Lung Ass'n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998); Natural
Resources Defense Council, Inc. v. EPA, 902 F.2d 962, 973 (D.C. Cir. 1990),
cert. denied, 498 U.S. 1082 (1991); American Petroleum Inst. v. Costle,
665 F.2d 1176, 1185 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982);
Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. denied,
449 U.S. 1042 (1980); see also Natural Resources Defense Council, Inc. v.
EPA, 824 F.2d 1146, 1158-1159 (D.C. Cir. 1987) (en banc) (Vinyl Chloride).
4 See Pet. at 8-11, St. Joe Minerals Corp. v. EPA, cert. denied, 449 U.S.
1042 (1980) (No. 80-483); Pet. at 18-23, American Petroleum Inst. v. Gorsuch,
cert. denied, 455 U.S. 1034 (1982) (No. 80-871).
5 Since 1980, 15 judges of the District of Columbia Circuit- including Judge
Bork writing for the court en banc in Vinyl Chloride-have expressed approval
of EPA's interpretation. Contrary to APC's assertion (Cross-Pet. 24), nothing
in any of the decisions after Lead Industries remotely suggests that the
court of appeals felt "its hands were tied" by that decision.
See cases cited in note 3, supra.
6 The States of Ohio, Michigan, and West Virginia suggest in their brief
supporting the cross-petitions (Midwest States Br. 9-13) that there is a
broader inconsistency in the District of Columbia Circuit's case law with
respect to whether administrative agencies ever have authority to consider
factors other than those explicitly mentioned in enabling legislation. This
alleged conflict goes beyond any question presented in a timely petition
or cross-petition. Moreover, the question cannot be addressed in such abstract
terms, because the answer depends on the purpose and context of a particular
statute. The principle of expressio unius est exclusio alterius is merely
one tool of statutory construction, not a rule of law, see Shook v. District
of Columbia Fin. Responsibility & Management Assistance Auth., 132 F.3d
775, 782 (D.C. Cir. 1998); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,
1313 (9th Cir. 1992), and therefore its application can be expected to differ
from one circumstance to another.
7 E.g., Clean Air Act Amendments of 1970, Pub. L. No. 91-604, § 110(e)(1),
84 Stat. 1682 (authorizing EPA to grant States up to a two-year extension
of a NAAQS attainment date if necessary technology is not available); §
111(a)(1), 84 Stat. 1683 (requiring consideration of economic and technological
feasibility in establishing standards of performance for new stationary
sources); § 231(b), 84 Stat. 1704 (authorizing consideration of economic
and technical feasibility in establishing aircraft emission standards).
8 See 427 U.S. at 269 ("Technology forcing is a concept somewhat new
to our national experience and it necessarily entails certain risks. But
Congress considered those risks in passing the 1970 Amendments and decided
that the dangers posed by uncontrolled air pollution made them worth taking.").
9 See, e.g., 427 U.S. at 266 ("Perhaps the most important forum for
consideration of claims of economic and technological infeasibility is before
the state agency formulating the implementation plan. So long as the national
standards are met, the State may select whatever mix of control devices
it desires * * * and industries with particular economic or technological
problems may seek special treatment in the plan itself.").
10 See, e.g., 427 U.S. at 268-269 ("In short, the [Clean Air Act Amendments
of 1970] offer ample opportunity for consideration of claims of technological
and economic infeasibility. Always, however, care is taken that consideration
of such claims will not interfere substantially with the primary goal of
prompt attainment of the national standards. * * * Congress plainly left
with the States, so long as the national standards were met, the power to
determine which sources would be burdened by regulation and to what extent.").
11 Section 110 of the 1970 CAA, which was construed by the Court in Union
Electric, has since undergone considerable revision, but the principles
set forth above have not been altered. See Virginia v. EPA, 108 F.3d 1397,
1407-1409 (D.C. Cir. 1997); 42 U.S.C. 7410(k).
12 See Lead Indus. Ass'n, 647 F.2d at 1150 ("if there is a problem
with the economic or technological feasibility of the lead standards, *
* * any * * * party affected by the standards, must take its case to Congress,
the only institution with the authority to remedy the problem"); 99-1257
Pet. App. 68a-69a (Tatel, J., in dissent, noting the role of politically
accountable States in implementing NAAQS and the availability of congressional
relief).
13 In addition to requiring CASAC to advise EPA on issuing new or revised
criteria and NAAQS, 42 U.S.C. 7409(d)(2)(B), Congress separately charged
CASAC with advising EPA on implementation effects, 42 U.S.C. 7409(d)(2)(C).
But that does not mean, as APC contends (Cross-Pet. 22), that EPA is to
consider these effects in setting or revising NAAQS. See 99-1257 Pet. App.
21a; p. 4, supra. The legislative history removes any doubt on that matter.
The House Report indicates that Congress did "not intend this provision
to be used as a basis for the Administrator to disapprove any State's plan,"
but "may be of interest and assistance to the States and to Congress
in fashioning future legislation." H.R. Rep. No. 294, supra, at 183.
14 We note that EPA attempts to estimate the costs and benefits of implementing
NAAQS as part of its Regulatory Impact Analysis (RIA), but it does so only
for informational and implementation planning purposes and not as a part
of its standard setting process. See 62 Fed. Reg. at 38,702; C.A. App. (PM)
3461-3462. ATA and APC rely selectively on those estimates to create a distorted
picture of the potential costs and benefits of the NAAQS in this case. For
example, APC and ATA cite EPA's estimate of the cost of fully attaining
the revised PM standards ($37 billion) without mentioning EPA's estimate
that those standards would produce quantifiable benefits of $20 to $110
billion. Compare APC Cross-Pet. 13 n.23 and ATA Cross-Pet. 4 with C.A. App.
(Ozone) 2925. Nor does either mention EPA's estimate that the net quantifiable
benefits to be derived from only partial attainment of the combination of
the revised PM and ozone NAAQS would range from $9.5 to $96 billion. C.A.
App. (PM) 3488. Furthermore, it is difficult, if not impossible, for EPA
to account for the future development of innovative control technologies
when it sets or revises NAAQS. C.A. App. (PM) 3471-3472. Because of the
technology-forcing character of the NAAQS, EPA has historically overestimated
the actual cost of their implementation and attainment. See ibid.
15 In deference to the Court's certiorari standards, the federal petitioners
have limited their petition for a writ of certiorari to the nondelegation
and the "Subpart 2" issues. They have not challenged the court
of appeals' other adverse rulings, even though those rulings - such as the
court's decision that EPA must evaluate the alleged health benefits of smog
(99-1257 Pet. App. 44a-49a) - stand on a more dubious footing than the settled
question that ATA and APC seek to raise. The federal petitioners, unlike
the cross-petitioners here, have limited their petition to issues that have
broader importance and independently meet this Court's standards for certiorari.
The constitutional and finality issues that the federal petition presents
raise fundamental issues that arise in every case in which a court reviews
a federal agency's administration of a regulatory program.
16 CBT's challenges are, in any event, without merit. CBT's assertion that
the 24-hour PM2.5 primary NAAQS is inconsistent with EPA's risk findings
rests on a misunderstanding of those findings. In challenging the 24-hour
PM2.5 primary NAAQS, CBT largely assumes that EPA can address the risk from
daily or short-term peak exposures only through a short-term standard. To
the contrary, EPA found that it could most effectively reduce the risks
from both long-term and peak PM2.5 concentrations through an annual standard
of 15 µg/m3, together with a 24-hour standard to address unusual circumstances.
62 Fed. Reg. at 38,669. The studies on which EPA relied in setting the standard
demonstrated a statistically significant correlation between 24-hour PM2.5
concentrations and health effects in cities with annual PM2.5 concentrations
greater than about 16 µg/m3, but did not show such a correlation in
cities with annual PM2.5 concentrations below that level. Id. at 38,676.
Thus in setting the annual standard just below that level, i.e., at 15 µg/m3,
EPA has addressed the statistically significant association between health
effects and 24-hour PM2.5 exposures demonstrated by the studies in the record.
Id. at 38,669-38,671. The 24-hour PM2.5 primary NAAQS (65 µg/m3) serves
as an additional margin of safety for localized or seasonal exposures that
might not be adequately controlled by the annual standard alone. Id. at
38,671.